Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Further Amended Petition amended 4th October 2022)· [2024] KEELC 226 (KLR)

Kyambia & 10 others v Kenya National Highways Authority & 2 others (Environment & Land Petition 1 of 2022) [2024] KEELC 226 (KLR)

Environment and Land Court
23 January 2024
LKL. G. Kimani
7,943 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~32 min to read original · ~4 min brief

The bottom line

#

The court ruled that landowners who build on a road reserve cannot claim compensation, even where they hold title deeds.

What this practically means

#

Executive summary

#
The Petitioners, business owners at Ikutha Market, petitioned against notices dated 15th July 2020 issued by the Kenya National Highways Authority (KeNHA) under Section 49 of the Kenya Roads Act and Section 91 of the Traffic Act, requiring them to remove structures said to encroach on the road reserve for the Kibwezi-Mutomo-Kitui-Kabati-Migwani (A9/B64) Road. They claimed their Article 40 property rights were violated by deprivation of land without compensation, pleading an estimated loss of Kshs. 30,044,575, and sought declarations, certiorari to quash the notices, and protection or adequate compensation. The 2nd Respondent (Attorney General) was withdrawn from the suit by consent; the National Land Commission was joined but filed no reply; the 3rd Respondent contractor disclaimed any role in acquisition or notices. By consent, a joint survey by SMO Geospatial Systems Ltd established that the road reserve was adjudicated at 60 metres but reduced to 20 metres during subdivision of parcel Ikutha/ndili/46, with enumerated encroachments by each petitioner. The court struck out the amended Notices of Motion filed without leave, holding their interlocutory prayers moot. It found the petition failed the Anarita Karimi Njeru pleading-precision standard, that the petitioners' titles were defeasible to the extent of the encroachment, that the disputed land remained public road reserve under Article 62(h), and that no compulsory acquisition or entitlement to compensation arose. The Further Amended Petition was dismissed with costs to the 1st and 3rd Respondents.

Key legal issues

#
01

Pleading precision in constitutional petitions

Holding

The further amended petition failed the Anarita Karimi Njeru standard as it did not identify the specific parcels and structures claimed by each Petitioner

Reasoning

The court found the further amended petition did not mention any specific parcel of land or the structures erected thereon by any particular petitioner, and the supporting affidavits likewise did not identify specific parcels. Rule 11 of the Mutunga Rules requires a petition to be supported by an affidavit. Without such particulars, the petition failed to show the rights infringed and the basis of the grievance, defeating the reliefs sought.

p. 9
02

Encroachment on road reserve

Holding

The joint survey report confirmed the Petitioners encroached on the 60-metre road reserve, which was reduced to 20 metres during subdivision of parcel Ikutha/ndili/46

Reasoning

The consented joint survey by SMO Geospatial Systems Ltd established that the road reserve was adjudicated at 60 metres but reduced to 20 metres during subdivision of parcel Ikutha/ndili/46. The survey enumerated encroachments by each petitioner. Title deeds do not protect land encroaching on a road reserve, as Article 40(6) excludes unlawfully acquired property, and the petitioners produced no survey plans to counter the report.

p. 12
03

Right to compensation for compulsory acquisition

Holding

The land was public road reserve under Article 62(h) and was never compulsorily acquired, so no compensation is payable

Reasoning

The court held the disputed portions were originally adjudicated and reserved as part of a road, hence public land under Article 62(h). No evidence showed conversion of public land to private land under Section 9 of the Land Act, nor that compulsory acquisition under Article 40(3) and Section 111 of the Land Act was commenced for the petitioners' parcels. KeNHA therefore could not be expected to compensate the petitioners for land that did not belong to them.

p. 16

Legal principles established

#
  • Titles to land encroaching on a road reserve are defeasible and do not attract Article 40 protection
  • A party invoking Article 22 must show the rights said to be infringed and the basis of the grievance (Anarita Karimi Njeru principle)
  • A registered proprietor whose root of title is challenged must prove the legality of acquisition beyond the title instrument

Court orders

#
  1. 1.The amended and further amended Notices of Motion dated 10th August 2020 struck out for having been filed without leave of court
  2. 2.The Notice of Motion dated 10th August 2020 struck out with no order as to costs, its interlocutory prayers declared spent and moot
  3. 3.The Further Amended Petition dismissed with costs to the 1st and 3rd Respondents

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 2(1), 3(1), 10(1), 21(1), 22(1),(2), 23(1)&(3), 258, 27, 29, 40(2),(3),(6), 62(h), 67
  • Kenya Roads ActSection 49(1)(a), Section 22(1)
  • Land Acquisition Act CAP 295Section 8
  • Traffic Act CAP 403Section 91(1)(a), 91(2)
  • Land Registration Act No. 3 of 2012Section 26(1)(b)
  • Land Act (2012)Sections 9(1),(2) and 111(1)
  • Survey ActNot specified
  • Survey Regulations 1994Regulation 26
  • Civil Procedure RulesOrder 15 Rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 11(1), 11(2)
  • Universal Declaration of Human Rights, 1948Articles 3, 12, 17
  • Legal Notice No. 2 dated 22nd January 2016Reclassification of Kibwezi-Kitui-Kanyonyoo-Embu-Meru Road as Class A9

Cases cited (17)

  • Kenya Bus Service Ltd & 2 others vs The Attorney General & 2 others
    (2005) eKLR
  • Republic vs Senior Registrar of Titles Ex-parte Brookside Court Limited
    (2012) eKLR
  • Dry Associates Ltd v Capital Markets Authority and another
    Petition No. 328 of 2011
  • R vs Chief Immigration Officer
    (1976) 3 AER 843
  • Patrick Musimba v National Land Commission & 4 Others
    (2016) eKLR
  • James Macheneri Isigi & 2 others v. Kenya National Highways Authority & Another
    (2021) eKLR
  • Kenya National Highways Authority v Shalien Masood Mughal & 5 Others
    (2017) eKLR
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • David Oloo Onyango vs Attorney General
    (1987) eKLR
  • James Kanyiita Nderitu & another vs Marios Philotas Ghikas & Another
    (2016) eKLR
  • Anarita Karimi Njeru v Republic
    [1979] eKLR
  • Mohamed Fugicha v Methodist church in Kenya (suing through its registered trustees) & 3 others
    [2016] eKLR
  • Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others
    [2014] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
  • Samuel Kamere v Lands Registrar, Kajiado
    [2015] eKLR
  • Munyu Maina vs Hiram Gathiha Maina
    Civil Appeal number 239 of 2009
  • Chemei Investments Limited vs The Attorney General & others
Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya (enforcement of Bill of Rights); Environment and Land Court jurisdiction

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Kyambia & 10 others v Kenya National Highways Authority & 2 others (Environment & Land Petition 1 of 2022) [2024] KEELC 226 (KLR)", Case Analysis (2024). Not stated in judgment (Further Amended Petition amended 4th October 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/226/eng@2024-01-23

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