Kajina Holdings Limited v Kenya National Highways Authority (Environment & Land Case 263 of 2016) [2024] KEELC 1282 (KLR)
The bottom line
#KeNHA cannot demolish or mark buildings it claims encroach on a road reserve unless it proves the encroachment with proper survey evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff's building encroached on the road reserve
No encroachment was proved; the Plaintiff's expert survey evidence that the building was outside the road reserve stood unrebutted
Each party called a surveyor. PW2 visited the site, carried out a survey and concluded from the Registry Index Map (a general boundary section) that the building line was along the original physical boundary, hence outside the road reserve. DW1 produced no report and did not know the extent of the alleged encroachment. The defence evidence was therefore insufficient to displace the Plaintiff's evidence, and the Plaintiff discharged the burden under sections 107 and 108 of the Evidence Act.
Whether the Defendant's entry onto the suit land and marking of the building was lawful
The marking was unlawful because encroachment was not proved and the Defendant did not demonstrate the extent of any encroachment
The Defendant relied on statutory powers under the Kenya Roads Act and the Traffic Act and on public notices gazetted in 2003 and published in 2014. However, those notices applied to persons whose buildings encroached on the road reserve. Since the Defendant failed to demonstrate that the Plaintiff's building encroached and by how much, its officers' entry and marking of the building was unlawful.
Whether the Plaintiff is entitled to the relief sought
The Plaintiff, as registered owner protected under article 40 of the Constitution, was entitled to an order restraining further interference with the suit land
Having found no encroachment and that the Defendant's actions were unlawful, and the Defendant having conceded the road project was complete and the building untouched, the court held that the Plaintiff proved its case on a balance of probabilities and was entitled to a permanent injunction restraining further entry, interference or demolition, plus costs.
Legal principles established
#- A party alleging encroachment on a road reserve bears the burden of proving the encroachment and its extent; absent such proof, the landowner's registered rights under article 40 of the Constitution are protected and an authority's entry and marking for demolition is unlawful
Court orders
#- 1.Judgment entered in favour of the Plaintiff
- 2.An order of permanent injunction directed at the Defendant restraining it by itself, its agents, servants, employees or any other person acting under its direction and order from entering onto or interfering in any way with land parcel No. Kisumu/Kanyakwar "A"/1659 and demolishing either part or the whole of the Shopping Mall building thereon
- 3.Costs of the suit to the Plaintiff
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute concerning land (encroachment on a road reserve), the Constitution (article 40 protection of property rights) and the Evidence Act, Civil Procedure Act and Kenya Roads Act as cited by the parties
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.
- County Government of Kisii v Nyakeyo (Suing on Behalf of Samwel Nyakeyo Ayega) (Environment and Land Appeal E028 of 2024) [2026] KEELC 1795 (KLR)[2026] KEELC 1795 (KLR)19 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Kajina Holdings Limited v Kenya National Highways Authority (Environment & Land Case 263 of 2016) [2024] KEELC 1282 (KLR)", Case Analysis (2024). Not stated in judgment (Plaint dated 3rd October, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1282/eng@2024-03-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.