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Court of AppealPartially AllowedCivil Appeal (appeal from Nairobi ELC Case No. 545 of 2012) - number not stated in the judgment

Kenya Urban Roads Authority & another v Belgo Holdings Ltd (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR)

Court of Appeal
9 May 2025
DMD. K. MusingaFTF. TuiyottFOF. V. Odunga
12,873 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~51 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that land gazetted for road acquisition belongs to the State even if compensation was never paid, so KURA was not trespassing.

What this practically means

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Executive summary

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This was a first appeal against the judgment of the Environment and Land Court (Komingoi, J.) of 30th January 2020, which had declared Belgo Holdings Limited the indefeasible owner of portions of LR Nos 28586 and 28587 (original Nos 3860 and 3859) Peponi Road, granted permanent and mandatory injunctions against the Kenya Urban Roads Authority and the Minister for Roads, and awarded Kshs.2,000,000 general and Kshs.20,000,000 exemplary damages for trespass. The Government had gazetted an intention in 1975 to acquire portions of the land for a link road between Waiyaki Way and Red Hill Road. The Court of Appeal framed six issues. It first held that res judicata did not apply: the appellants were not parties to HCCC No. 266 of 2005 or Petition No. 21 of 2016, and a judgment in rem by a court of concurrent jurisdiction does not bind courts of equal jurisdiction. On the core question, the Court held that under the repealed Land Acquisition Act payment of compensation is not a pre-condition to acquisition; survey, notices of possession and endorsement of titles follow acquisition, and their absence does not revert the land to the proprietor. The letter of 6th August 1976 directing payment of Kshs.214,000 was prima facie evidence of payment which the respondent, bearing the burden, failed to disprove, and it took a calculated risk in not joining or calling Jays Syndicate and the Standard Bank. Because the registered proprietor's root of title was under challenge, it had to go beyond the title instrument. The Court held that ownership belonged to the respondent only subject to the gazetted portions, that the appellants entered no land beyond those portions and were not liable in trespass, and that the reliefs awarded below could not stand. The appeal was allowed, the trial judgment set aside, and the respondent's suit dismissed with costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit properties were acquired by the Government for the purposes of road construction.
  2. 2.Whether the suit properties belong to the respondent.
  3. 3.Whether the appellants trespassed on the suit properties.
  4. 4.Whether the reliefs awarded by the trial court were warranted.
  5. 5.Whether the judgement was materially altered after delivery.
  6. 6.What orders should this Court grant.

Key legal issues

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01

Whether the gazetted portions of the suit properties were acquired by the Government in 1975/76 under the repealed Land Acquisition Act.

Holding

The Court held that the acquisition was not shown to have failed: gazette notices 942 and 943 evidenced the intention to acquire; compensation is payable only after acquisition, so alleged non-payment does not invalidate it; survey and endorsement of title follow acquisition; and the respondent failed to prove non-payment.

Reasoning

Section 8 of the Act requires prompt payment where land is acquired, but payment is not a pre-condition; section 17's survey follows acquisition; section 19(1) vests possession by notice, not physical occupation; and section 20's default does not revert land. The appellants produced a letter of 6th August 1976 directing payment of Kshs.214,000, prima facie evidence of payment. Jays and the Bank were neither joined nor called, so the allegation of non-payment remained unproved.

p. 16
02

Whether the dispute was res judicata or barred by issue estoppel arising from HCCC No. 266 of 2005 and Petition No. 21 of 2016.

Holding

Res judicata did not apply because the appellants were not parties to the former suits; and a judgment in rem by a court of concurrent jurisdiction is persuasive only, not binding.

Reasoning

The four elements of res judicata under section 7 of the Civil Procedure Act and Florence Maritime Services are conjunctive. The appellants were strangers to both former suits. The judgment in HCCC No. 266 of 2005, though characterised in the Petition as in rem, was made by a court of concurrent jurisdiction and, per Dina Management, is not binding on courts of equal jurisdiction. A registered proprietor's title can still be challenged, for example on overriding interests.

p. 13
03

Whether the respondent, as registered proprietor, had proved ownership of the entire suit properties including the gazetted road corridor.

Holding

The respondent failed to prove the root of the whole of its title; ownership was upheld only subject to the portions gazetted in 1975.

Reasoning

Given prima facie evidence of acquisition, the respondent bore the burden of proving not only its title but the root of the whole of it, which required calling Jays and the Standard Bank. Relying on Munyu Maina and Elijah Makeri Nyangw'ra, a title instrument alone does not suffice where the root of title is under challenge. The respondent took a calculated risk in not joining or calling its predecessors.

p. 20
04

Whether the appellants were liable in trespass and the damages awards were warranted.

Holding

No trespass was established over any part other than the gazetted portions, so the general and exemplary damages and injunctions could not stand.

Reasoning

The Court also cautioned trial courts against granting injunctive relief affecting roads without independently confirming the position on the ground, especially where the wider public is affected and alternative remedies may suffice.

p. 20
05

Whether the judgment was materially altered after delivery by the introduction of monetary reliefs.

Holding

Although nothing turned on it given the outcome, the judgment is the one signed and certified by the learned Judge.

Reasoning

The record contained an unsigned draft mentioning general damages without an amount, and a certified signed copy awarding Kshs.2,000,000 general and Kshs.20,000,000 exemplary damages. The Court treated the certified copy as the judgment.

p. 20

Legal principles established

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  • Payment of compensation is not a pre-condition to compulsory acquisition under the Land Acquisition Act; once land is acquired, compensation must be paid promptly, and non-payment does not mean acquisition did not take place.
  • Once land is compulsorily acquired, it cannot revert to the proprietor, even if the acquisition process (e.g. survey or endorsement of title) is incomplete and even if the public purpose is spent.
  • A plaintiff alleging non-payment of compensation bears the burden of proving that allegation; a prima facie document of payment uncontroverted by those better placed means the allegation of non-payment is not proved.
  • Where a registered proprietor's root of title is under challenge, the proprietor must go beyond the instrument of title and prove the legality of the title, including that the acquisition was legal, formal and free from encumbrances.
  • A judgment in rem made by a court of concurrent jurisdiction is not binding on courts of equal jurisdiction; and the elements of res judicata are conjunctive and must all be proved.
  • A plaintiff must prove its case even where the defendant has adduced no rebuttal evidence; failure of the standard of proof means dismissal.

Court orders

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  1. 1.The judgment of the Environment and Land Court in Nairobi ELC Case No. 545 of 2012 was set aside.
  2. 2.An order dismissing the respondent's suit was substituted therefor.
  3. 3.The respondent was ordered to pay the costs of the suit.
  4. 4.The appeal was allowed with costs (appellants' costs of the appeal).

The bench

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One judgment of the whole court — no separate or dissenting opinions.

DM
majority
FT
majority
FO
majority
On appeal from
Environment and Land Court of Kenya at Nairobi
ELC Case No. 545 of 2012
Jurisdiction invoked
First appeal to the Court of Appeal under section 78 of the Civil Procedure Act (appellate jurisdiction over the Environment and Land Court)

Relief refused

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Permanent injunction and mandatory injunction granted by the trial court against the appellants

The respondent failed to prove that the gazetted portions were not lawfully acquired; the appellants entered only the gazetted portions and were therefore not liable in trespass.

p. 20

General damages of Kshs.2,000,000 and exemplary damages of Kshs.20,000,000

Awarded as consequential reliefs on trespass; they fell with the finding that no trespass was established.

p. 20

Respondent's claim of res judicata based on HCCC No. 266 of 2005 and Petition No. 21 of 2016

The appellants were not parties to those suits and the elements of res judicata were not met; a judgment in rem by a court of concurrent jurisdiction is not binding on other courts of equal jurisdiction.

p. 13

Costs

The respondent's suit was dismissed with costs (to the appellants); the appeal was allowed with costs to the appellants.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, we find merit in the appeal, set aside the judgement in Nairobi ELC Case No. 545 of 2012) and substitute therefor an order dismissing the respondent's suit with costs.
p. 21Final orders - reversal of trial judgment and dismissal of the suit
the mere fact that compensation has not been made, does not necessarily mean that the acquisition did not take place.
p. 16Compensation is not a pre-condition to compulsory acquisition
once the land is acquired it can only be dealt with pursuant to the purpose for which it was acquired and reversion to the proprietor is not contemplated.
p. 18No reversion of compulsorily acquired land
where the registered proprietor's root title is under challenge, it is not enough to dangle the instrument of title as proof of ownership.
p. 20Proof of root of title
The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.
p. 19Burden and standard of proof on uncontroverted evidence
Clearly, in terms of both the parties to the suit and the subject matter, res judicata was not applicable.
p. 13Res judicata requires identical parties and subject matter
the trial courts may well be advised to confirm that position before granting orders in order to avoid a situation where the enforcement thereof may lead to unnecessary inconvenience to the public, particularly where alternative remedies may well suffice.
p. 21Caution in granting injunctions affecting public roads

Issues in the judgment

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minor

Internal inconsistency in the acreage of the gazetted portions: the gazette notice figures (6.548 + 6.137 = 12.685 acres) conflict with repeated references elsewhere to '12.865 acres' and '21.8 acres' as the area trespassed upon.

minor

The trial court's issues appear twice with inconsistent numbering: in one place the civil case below is referred to as 'HCCC 266 of 2005' and in another as 'HCCC 266 of 2015'.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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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 Urban Roads Authority & another v Belgo Holdings Ltd (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR)", Case Analysis (2025). Civil Appeal (appeal from Nairobi ELC Case No. 545 of 2012) - number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/764/eng@2025-05-09

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