Nasela & Mukakaik Ltd v Kenya Urban Roads Authority & 2 others; County Government of Kitui (Interested Party)
The bottom line
#A Kenyan court ordered KURA to pay a landowner Kshs 1.3 million and remove a tarmac road built through private land without consent or compulsory acquisition.
What this practically means
#Executive summary
#Key legal issues
#Ownership of the suit property
Plaintiff proved registered ownership of LR NO. 4096/232 Kitui Township by a grant under the Registration of Titles Act (Repealed); the title was never challenged
The plaintiff produced a registered grant, survey report by a licensed surveyor, beacon certificate and incorporation documents. The title was not impeached by any defendant, none of whom adduced evidence. The survey report confirmed the land's location and that a road had been diverted through the middle of the plot, splitting it in two.
Trespass by the defendants
Trespass proved on a balance of probability; defendants entered without consent, diverted the JICA-Prison road through the land, excavated and tarmacked it
The plaintiff's uncontroverted testimony and surveyor's report established the diversion of the road through the land. The 1st defendant's defence remained mere averments unsupported by evidence. The court's site visit confirmed a tarmac road passing through the land. Article 40 protection of property and the Trespass Act were engaged.
Whether the plaintiff's remedy lies in compensation from the National Land Commission
Rejected; compulsory acquisition procedure was never initiated by the defendants, so the plaintiff need not pursue compensation
The 1st defendant argued the plaintiff should sue the National Land Commission under Section 111(1) of the Land Act. The court held this unsupported by law: Article 40 permits deprivation only per law, and Section 107 shows acquisition is initiated by the acquiring entity, which the defendants never did.
Quantum of damages for trespass
General damages of Kshs 1,300,000/- awarded for continuing trespass
Guided by Kenya Power v Ringera principles and comparators (Philip Ayaya Aluchio Kshs 100,000; Nakuru Industries Kshs 500,000; Johnson Mainga Mogaka Kshs 1,100,000), the court awarded more than nominal damages given the continuing trespass, excavation, loss of use and third parties crossing the land, while noting the plaintiff led no valuation or restoration-cost evidence.
Perpetual injunction and restoration
Injunction refused as futile since the road is complete, but restoration of the land ordered within sixty days
Following Habiba Ali Mursal, an injunction cannot restrain what has already occurred. However, the site visit showed the road blocked at both ends and not in public use, so restoration would revert the plaintiff to its prior position without inconveniencing the public.
Legal principles established
#- Unchallenged averments in a defence unsupported by evidence are of no probative value
- Compulsory acquisition is initiated by the acquiring entity, not the individual land owner; a party that bypasses acquisition procedure cannot rely on public interest to justify entry onto private land
- Damages for continuing trespass exceed nominal damages where the trespass is continuing and causes loss of use
Court orders
#- 1.Judgment entered in favour of the plaintiff against the defendants jointly and severally
- 2.General damages for trespass of Kshs 1,300,000/-
- 3.An order directing the 1st Defendant to restore land parcel LR NO.4096/232 Kitui Township to its original condition by removal of the tarmacked road passing through the land within sixty days from the date of service of the order
- 4.Costs of the suit awarded to the plaintiff
- 5.Interest on damages and costs at court rates from the date of judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a plaint concerning trespass to land (suit instituted by plaint dated 11th October 2016)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimani v Company (Environment & Land Case 100 of 2024) (Environment and Land) [2025] KEELC 872 (KLR)[2025] KEELC 872 (KLR)27 Feb 2025
Cite this brief
#Cite this brief
Caselaw, "Nasela & Mukakaik Ltd v Kenya Urban Roads Authority & 2 others; County Government of Kitui (Interested Party)", Case Analysis (2023). Environment and Land Appeal 13 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21544/eng@2023-10-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.