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ELCAllowedELC Appeal No. E016 of 2021 (Memo of Appeal dated 17th October 2023)· [2024] KEELC 7305 (KLR)

Peter Kariuki & 3 Others v Kenya Rural Roads Authority & Another (Appeal from Murang'a CMELC No. E016 of 2021)

Environment and Land Court
31 October 2024
7,256 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that road authorities cannot take your land for road widening without your consent or formal compulsory acquisition.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Murang'a against the judgment of the Chief Magistrate's Court (Murang'a CMELC No. E016 of 2021) delivered on 20th September 2023, which had dismissed the Appellants' suit seeking an injunction to restrain the 1st Respondent (Kenya Rural Roads Authority) from hiving off 6 meters of each of their four leasehold plots in Murang'a Municipality for the widening of the Mukuyu-Kambwe Sewerage Road from 6 to 18 meters. The 2nd Respondent, the contractor, did not participate. The trial court had characterized the dispute as a boundary dispute. The appeal was admitted under Section 79B of the Civil Procedure Act and canvassed by written submissions. Gacheru J re-evaluated the evidence as required on a first appeal (citing Selle v Associated Motor Boat Co, Peters v Sunday Post and Mursal v Manese) and held that the dispute was not a boundary dispute but one over the forced surrender of land. The court found that the Appellants were registered leasehold proprietors protected under Sections 24, 25 and 26 of the Land Registration Act and Article 40(3) of the Constitution; the original 6-meter road had been surrendered by Maragi-side freeholders; the 1981 Structure Plan was not proven by evidence from the County Government; and PDPs alone cannot confer or determine rights in land. Surrender of land must be voluntary or through compulsory acquisition under Section 107 of the Land Act and Section 23(1) of the Roads Act. The fact that other Project-Affected Persons surrendered their land did not defeat the Appellants' rights. Allowing the appeal in full, the court set aside the trial judgment, allowed the Appellants' claim as prayed in the Plaint dated 25th March 2021, and awarded the Appellants costs of both the appeal and the trial court.

Key legal issues

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01

Whether the dispute before the trial court was a boundary dispute or a dispute over forced surrender/acquisition of land

Holding

The dispute was not a boundary dispute but one over the attempt to acquire 6 meters from the Appellants' parcels without consent or due process; the trial court erred in characterizing it as a boundary dispute.

Reasoning

The court re-evaluated the pleadings and evidence and found the Appellants' claim was over alleged intimidation to surrender 6 meters of their land for road widening. Since the Appellants had not surrendered the land and the 1st Respondent had not acquired it, the Appellants could not be said to have encroached on a road reserve. The leasehold boundaries were fixed by survey, and the 1981 Structure Plan did not establish encroachment.

p. 10
02

Whether the 1st Respondent could compel surrender of 6 meters of the Appellants' land without consent or compulsory acquisition

Holding

The 1st Respondent is not entitled to hive off sections of the suit properties to create an 18-meter corridor without effecting Section 107 of the Land Act or obtaining voluntary consent.

Reasoning

The Appellants are registered leasehold proprietors protected by Sections 24, 25 and 26 of the Land Registration Act and Article 40(3) of the Constitution. The original road was 6 meters wide, surrendered by freeholders on the Maragi side. Any expansion had to follow statutory procedures. Other Project-Affected Persons' voluntary surrender could not curtail the Appellants' right to object.

p. 12
03

Relevance of alleged breach of lease conditions (building beyond 50% of plot, no change of user)

Holding

Such allegations were irrelevant to the surrender question and could only be raised by the County Government of Murang'a, which was not called as a witness.

Reasoning

The 1st Respondent's mandate was limited to construction and upgrading of roads. The leases were issued by the County Government, which should have raised any breach of lease terms. The trial court's requirement that the Appellants produce approved architectural plans was a misdirection, since the dispute did not concern development compliance.

p. 10

Legal principles established

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  • Surrender of privately held land for road expansion must be voluntary or effected through the compulsory acquisition procedures under Section 107 of the Land Act; it cannot be coerced.
  • A first appellate court must re-evaluate the entirety of the evidence and arrive at its own conclusions.
  • Physical/Part Development Plans cannot solely be used to confer or determine rights in land.
  • The fact that a project benefits the public does not waive landowners' constitutional right to property.

Court orders

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  1. 1.The Judgment of the trial Court dated 20th September 2023 is upset and/or set aside in its entirety.
  2. 2.The Appeal is allowed wholly as sought in the Memo of Appeal dated 17th October 2023.
  3. 3.The Appellants' claim is allowed entirely as sought in their Plaint dated 25th March 2021 (including the injunction against trespassing, demolishing structures, building and graveling the road on the suit plots).
  4. 4.The Appellants are awarded costs of this Appeal and of the trial Court.

Authorities

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Legislation

  • Civil Procedure ActSections 78, 79B, 27
  • Land Registration ActSections 24, 25(1), 26(1)
  • Constitution of KenyaArticles 40(3), 40(6), 47, 64(b), 10
  • Roads ActSection 23(1)
  • Land ActSection 107, Part VIII
  • Land Control Act (Cap. 302)Section 6
  • Physical and Land Use Planning Act No. 13 of 2019Sections 41 to 51

Cases cited (12)

  • Gujral Sandeep Singh Ragbir vs Minister for Public Works, Roads and Transport County Government of Kajiado & Another
    [2018] eKLR; [2018] KEELC 4719 (KLR)
  • Ahmed Ibrahim Suleiman & Another vs Noor Kahmisi Suru
    (2013) eKLR
  • Bencaster Investments Ltd vs John Murithi & 3 Others, Attorney-General & 5 Others (Interested Parties)
    [2020] eKLR
  • Ngimu Farm Limited V Attorney-General
    [2019] eKLR
  • Titus Musya Musee vs Francis Ichamui M'Mwenda
    [2020] eKLR; [2020] KEELC 2349 (KLR)
  • Cosmas Maweliwe Wephukulu vs Sameer Africa Ltd (Previously known as Firestone East Africa (1969) Limited
    [2018] eKLR
  • Kamundi vs Mbae & Another
    (ELC Appeal No E002 of 2022) [2022] KEELC 14677 (KLR)
  • Selle & another v Associated Motor Boat Co. Ltd. & others
    {1968} 123
  • Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa)
    (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR)
  • Santosh Hazari vs. Purushottam Tiwari (Deceased) by L.Rs
    {2001} 3 SCC 179
  • Peters vs Sunday Post Limited
    {1958} E.A. page 254
  • Morgan Air Cargo Limited vs Everest Enterprises Limited
    [2014] eKLR
On appeal from
Chief Magistrate's Court at Murang'a (CMELC)
Murang'a CMELC No. E016 of 2021
Jurisdiction invoked
First appellate jurisdiction under Section 78 of the Civil Procedure Act; appeal admitted under Section 79B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Peter Kariuki & 3 Others v Kenya Rural Roads Authority & Another (Appeal from Murang'a CMELC No. E016 of 2021)", Case Analysis (2024). ELC Appeal No. E016 of 2021 (Memo of Appeal dated 17th October 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7305/eng@2024-10-31

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