Kabiru & another (suing as the administrators of the Estate of Amos Kabiru Kimemia (Deceased)) v Kenya National Highway Authority (Environment and Land Case Civil Suit 149 of 2018) [2022] KEELC 2696 (KLR)
The bottom line
#A Nakuru court ruled that county building approval cannot save structures built on a road reserve, dismissing landowners' bid to stop KeNHA demolition.
What this practically means
#Executive summary
#Key legal issues
#Legality of the KeNHA demolition notice
The notice was legal as it met the requirements of section 49(4) of the Kenya Roads Act
Section 49(4) requires that the notice be in writing, direct the person to remove the unauthorised structure, and allow a reasonable period not shorter than 30 days from the date of the notice. The notice dated 15th March 2018 was in writing, addressed to Samuel Maina, and directed removal within 30 days. It therefore complied with the statutory requirements and was lawful.
Whether the suit parcel encroaches on the road reserve
A portion of Nakuru Municipality Block 16/485 encroaches on the road reserve
Analysis of the survey plans from the Survey of Kenya showed the road reserve of 100 feet in 1968 progressively reduced, with parcel 484 hived from the road reserve and amalgamated with parcel 103 to create parcel 485 in 2002. The surveyor's own report noted the ground area exceeded the PDP because the parcel was extended to the building line. The defendant's expert evidence plotting coordinates was not challenged.
Effect of failure to explain root of title
The plaintiffs' title was not protected because they could not explain how parcel 484 was acquired
The plaintiffs produced a certificate of lease but gave no evidence on the root of title or the alleged government allocation. Relying on the Shalien Masood Mughal decision, the court held that Article 40 protection does not extend to unlawfully acquired property, and a road reserve is an overriding interest. Distinguishing Gujral Sandeep Singh where the plaintiffs explained their root of title.
Legal effect of building approvals
County government building approval has no legal consequence on a claim of encroachment onto a road reserve
The approval letter did not cite the law under which it was granted and no evidence explained its legal effect. Section 49(1) and (2) of the Kenya Roads Act requires the responsible Authority's written permission for structures on a road reserve, and KeNHA gave none. The court found the county's statement that the plot was not disputed public utility land reckless and misleading, and declined to treat the approval as a waiver.
Non-liability of Government for defective surveys
Authentication of a survey by the Director of Survey does not make the Government liable for a defective survey under section 21 of the Survey Act
The plaintiffs argued the survey was validated by an authentication slip. Section 21(2) of the Survey Act provides that neither the Government nor any public officer is liable for a defective survey performed by a licensed surveyor notwithstanding authentication or acceptance for registration. The authentication therefore had no consequence, and survey work forms part of due diligence.
Legal principles established
#- A notice issued under section 49(4) of the Kenya Roads Act is legal if it is in writing, directs removal of the unauthorised structure, and allows a reasonable period not shorter than 30 days
- A building approval from a county government does not authenticate title or boundaries and does not negate the fact of encroachment on a road reserve
- Under section 21 of the Survey Act, the Government and public officers bear no liability for defective surveys performed by licensed surveyors, notwithstanding authentication
- Protection of proprietary rights under Article 40 of the Constitution does not extend to property unlawfully acquired, and a road reserve is an overriding interest that need not be noted in the land register
- A landowner must explain the root of title and conduct due diligence; failure to explain how a parcel was acquired weakens a claim of proprietary interest
- Costs follow the event under section 27 of the Civil Procedure Act
Court orders
#- 1.The Plaintiffs' suit against the Defendant is dismissed
- 2.Costs of the suit awarded to the Defendant
- 3.Execution of the judgment stayed for 90 days from the date of the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (suit seeking declaration, injunction and boundary determination over Nakuru Municipality Block 16/485)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Waithira & 3 others v Kenya National Highways Authority (Environment & Land Case 911 of 2013) [2025] KEELC 1337 (KLR)[2025] KEELC 1337 (KLR)12 Feb 2025
- Waithira & 3 others v Kenya National Highways Authority (Environment & Land Case 911 of 2013) [2025] KEELC 1337 (KLR)[2025] KEELC 1337 (KLR)12 Feb 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kabiru & another (suing as the administrators of the Estate of Amos Kabiru Kimemia (Deceased)) v Kenya National Highway Authority (Environment and Land Case Civil Suit 149 of 2018) [2022] KEELC 2696 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2696/eng@2022-05-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.