Kiragu & another v Kenya National Highways Authority (Environment and Land Case 73 of 2018) [2018] KEELC 430 (KLR)
The bottom line
#KENHA can demolish buildings on road reserves in Kenya, but skipping fair notice procedures cost it the case's legal expenses.
What this practically means
#Executive summary
#Key legal issues
#Whether the road reserve is 40 or 60 metres and whether the plaintiffs encroached
The road reserve is 60 metres and the plaintiffs encroached by about 10 metres; the RIM and cadastral map both show 60 metres and plaintiffs produced no evidence of a 40-metre reserve
The court treated the matter as a boundary dispute governed by sections 18 and 22 of the Land Registration Act. The subdivision was done using the RIM without cadastral coordinates. Both the RIM and the 1953 cadastral map showed a 60-metre reserve, and PW-3 confirmed the RIM showed 60 metres. The plaintiffs' contention that the RIM did not reflect ground measurements was rejected because the cadastral plan predated the developments and had not changed.
Whether KENHA's demolition was lawful
Yes - under Section 91(2) of the Traffic Act KENHA was authorised to remove structures placed on a road reserve
The court held that any person who, without written permission of the highway authority, erects a building on land reserved for a road commits an offence, and subsection (2) empowers the highway authority to remove anything so placed. The plaintiffs had no permission and had encroached, so the demolition of the encroaching developments was lawful.
Whether notice/fair administrative action was required before demolition
The demolition was an administrative action under the Fair Administrative Action Act, and KENHA was obliged to give notice and a hearing before demolishing; it did not, and also acted discriminatorily
Although the Traffic Act makes no provision for notice, the demolition affected the plaintiffs' legal rights and was thus administrative action. The Fair Administrative Action Act requires notice and an opportunity to be heard. No written notice was shown, the 'X' mark was placed after demolition, and other encroachers including the immediate neighbour were spared. This unfair and discriminatory conduct cost the defendant its costs.
Defendant's counterclaim for damages and injunction
Token general damages of Kshs. 10,000/= against each plaintiff awarded; mesne profits refused; permanent injunction granted
The court found the plaintiffs had trespassed into the road reserve when due diligence would have alerted them, and awarded a token sum. The mesne profits claim failed for lack of proof of pecuniary loss. The permanent injunction as prayed was granted, and the court entered judgment for the defendant on the counterclaim.
Legal principles established
#- A dispute as to the position of a boundary of registered land must be determined in accordance with sections 18 and 22 of the Land Registration Act before a court entertains it; the cadastral map, not the RIM alone, indicates boundaries on subdivision
- A highway authority may lawfully remove anything erected on a road reserve in contravention of Section 91 of the Traffic Act
- Even where a statutory power of removal exists, its exercise is an administrative action under the Fair Administrative Action Act requiring notice and an opportunity to be heard; failure to give notice and discriminatory exercise of the power deprives the authority of costs
Court orders
#- 1.Declared that the road reserve where the plaintiffs' properties are located measures 60 metres and not 40 metres
- 2.Declared that the plaintiffs have encroached into the B4 road reserve by approximately 10 metres and part of their developments is situated on the B4 road reserve
- 3.Gave the plaintiffs 14 days to remove all developments within the road reserve, failing which the defendant may remove them and pass the costs to the plaintiffs
- 4.Issued a permanent injunction restraining the plaintiffs from developing or interfering with the road reserve
- 5.Awarded the defendant Kshs. 10,000/= as general damages for trespass against each plaintiff with interest at court rates from the date of judgment
- 6.Made no orders as to costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court (suit by plaint under the Environment and Land Court Act; dispute over land/road reserve boundary)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiragu & another v Kenya National Highways Authority (Environment and Land Case 73 of 2018) [2018] KEELC 430 (KLR)", Case Analysis (2018). Not stated in judgment (Environment & Land Court at Nakuru, plaint filed 12 February 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/430/eng@2018-11-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.