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Court of AppealDismissedCivil Appeal 18 of 2019· [2022] KECA 1089 (KLR)

Kenya Rural Roads Authority v Vipingo Ridge Limited & 2 others

Court of Appeal
7 October 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
5,431 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed a roads authority cannot claim a public road over private land without a gazette notice, survey plan, or negotiated acquisition.

What this practically means

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Executive summary

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The Kenya Rural Roads Authority appealed against a High Court ruling (Emukule J, 30 June 2016) quashing its letter of 29 November 2010 requiring Vipingo Ridge Limited and Sunsail Trading Limited to remove gates and barriers allegedly erected on classified road D556 traversing their property LR No 24880. The High Court had found that neither road E923 nor E924, from which D556 was said to derive, passed through the property, and that no procedure under the Public Roads and Roads of Access Act had been followed to declare the roads public roads or roads of access; it quashed certiorari but refused mandamus and prohibition. The Court of Appeal framed two issues: amenability of the dispute to judicial review, and the merit of the orders granted. On the first, it held, following Suchan Investment, that judicial review under Article 47 and the Fair Administrative Action Act now includes aspects of merit review, and that the High Court properly examined the factual basis of the impugned decision since the existence of the road was not a genuinely disputed fact but the foundation of the decision. On the second, it held that establishment of a public road over private land requires a gazette notice of conversion and dedication under section 8 of the Public Roads and Roads of Access Act and cadastral survey under the Survey Act, neither of which the appellant produced, and that section 23(1) of the Roads Act prescribes negotiation with registered owners, a procedure not followed. Dellian Langata was distinguished as concerning public land. The appeal was dismissed with costs to the 1st and 2nd Respondents, affirming the decision below. The judgment binds subordinate courts on the statutory prerequisites for public roads and the expanded scope of judicial review.

Key legal issues

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01

Amenability of the dispute to judicial review

Holding

The High Court did not err; the existence of road D556 was the factual situation underlying the impugned decision, and judicial review now includes aspects of merit review under Article 47 and the Fair Administrative Action Act

Reasoning

The impugned decision was predicated on records that road D556 existed and on residents' objections. The non-existence of those records was material to legality. Judicial review has shifted from pure process review to include merit review, but a court may not usurp the decision-making role or substitute its own decision. Exceptions permit fact examination where an error of fact gives rise to a reviewable error of law or where the claim requires proof of a fact.

p. 7
02

Whether the orders of judicial review were merited

Holding

They were merited; no gazette notice or authenticated survey plan established road D556 on the respondents' property, and the statutory acquisition procedure was not followed, rendering the decision illegal and irrational

Reasoning

Classification of a public road presupposes conversion and dedication by the Minister by gazette notice under section 8 of the Public Roads and Roads of Access Act, and boundaries must be established by cadastral survey under the Survey Act. The appellant produced neither. Section 23(1) of the Roads Act prescribes negotiation for private land, which was not followed. Dellian Langata was distinguished as concerning public land.

p. 9

Legal principles established

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  • Judicial review under Article 47 and the Fair Administrative Action Act extends to aspects of merit review of administrative action, though the court cannot substitute its own decision for that of the administrator
  • A court in judicial review may examine a factual situation that is the basis of an impugned decision to determine its legality; the categories of cases in which disputed facts may be examined are not closed
  • Establishment of a public road over private land requires statutory conversion and dedication by gazette notice under section 8 of the Public Roads and Roads of Access Act, followed by cadastral survey under the Survey Act
  • A roads authority requiring private land must follow the negotiation and agreement procedure in section 23(1) of the Roads Act

Court orders

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  1. 1.The appeal is dismissed with costs to the 1st and 2nd Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 47
  • Fair Administrative Action ActSection 7(2)
  • Public Roads and Roads of Access ActSection 8(1) and 8(4)
  • Roads ActSection 10(1)
  • Roads ActSection 23(1)
  • Roads ActSection 47 and First Schedule
  • Survey ActSection 24
  • Survey ActSection 32
  • Civil Procedure RulesOrder 53
  • Land Control Act (Cap. 302)Section 6

Cases cited (13)

  • Selle and Another vs Associated Motor Boat Co. Ltd & Others
    (1968) EA 123

    Duty of a first appellate court to reconsider and evaluate evidence and draw its own conclusions

  • Jabane vs Olenja
    [1986] KLR 661

    First appellate court may depart from trial findings where the court acted on wrong principles

  • Mbogo & Another vs Shah
    (1968) E.A.

    Appellate court will not interfere with discretion exercised judiciously

  • Republic vs Judicial Service Commission
    (2004) 1 KLR 203

    Judicial review is concerned with the decision-making process, not the merits (cited by appellant)

  • Akaba Investments Ltd vs Kenya Ports Authority
    Civil Appeal No. 225 of 2003

    Judicial review concerns process not merits (cited by appellant)

  • Republic vs National Transport & Safety Authority & 10 Others ex parte James Maina Mugo
    (2015) eKLR

    Judicial review is ill equipped to deal with disputed matters of fact (cited by appellant)

  • Moses Kanyoro & 8 Others vs Social Development Officer, Makadara Constituency & 2 Others
    (2020) eKLR

    Reliance on limits of judicial review over disputed facts (cited by appellant)

  • R vs Kenya Urban Roads Authority & 2 Others ex parte Tamarind Village
    (2015) eKLR

    Court may assess evidence to determine basis and legality of a decision (cited by respondents)

  • Suchan Investment Limited v Ministry of National Heritage & Culture & 3 others
    [2016] eKLR

    Article 47 and Fair Administrative Action Act shift judicial review to include merit review

  • Associated Provincial Picture Houses Ltd vs Wednesbury Corp.
    [1948] 1 KB 223

    Reasonableness as a ground for review, subsumed in section 7(2)(k) of the Fair Administrative Action Act

  • Council of Civil Service Unions vs Minister for the Civil Service
    (1985) AC 374

    Grounds for judicial review (cited by appellant)

  • Dellian Langata Limited vs Simon Thuo Mula & 4 Others
    (2018) eKLR

    Public interest in continued public use of a road; distinguished as concerning public land

  • Elizabeth Wambui Githinji & 29 Others vs Kenya Urban Roads Authority & 4 Others
    (2019) eKLR

    Authentication of survey plans by Director of Survey or authorised Government surveyor; illegality of breaching proprietary rights

On appeal from
High Court of Kenya at Mombasa
Mombasa HC. JR. Misc. Civil Application No. 42 of 2011
Jurisdiction invoked
First appellate jurisdiction under the Constitution read with Order 53 of the Civil Procedure Rules (judicial review provision relied upon below)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Rural Roads Authority v Vipingo Ridge Limited & 2 others", Case Analysis (2022). Civil Appeal 18 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1089/eng@2022-10-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.