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ELCDismissedNot stated in judgment (suit by plaint dated 25.7.2013)· [2025] KEELC 1337 (KLR)

Waithira & 3 others v Kenya National Highways Authority (Environment & Land Case 911 of 2013) [2025] KEELC 1337 (KLR)

Environment and Land Court
12 February 2025
LMLucy N. Mbugua
2,969 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A church lost its bid to stop KeNHA from demolishing part of its land because a title deed does not protect property that sits on a public road reserve.

What this practically means

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Executive summary

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The plaintiffs sued over Land Reference No. Nairobi/Block 72/3074 in Lang'ata, where they had erected a church and office building. They alleged that on 20.7.2013 the defendant unlawfully marked 'X' on their perimeter wall denoting intention to demolish, claiming the land was not on a road reserve, and sought a permanent injunction, general damages, costs and interest. The defendant contended that part of the parcel fell on land set aside as a road and railway reserve for the Nairobi Southern Bypass, with the buffer zone created by the Nairobi South Structural Plan of 1985, conceptualised from 1956/1957. At trial, PW1 (a trustee) gave an account of allocation through two allotment letters (1998 and 2001) merged into the leased parcel, relying on a survey report by Geomatics Services. DW1, a licensed surveyor for the defendant, produced the structural plan and FR plans showing the transport corridor, though she could not quantify the extent of encroachment. A court-recorded consent for a joint surveyors' report was never complied with. The court found a wide unexplained discrepancy between the acreage in the allotment letters and the lease certificate, noted that the plans relied on were not Part Development Plans, and that the plaintiffs' own plan showed the church land protruding into the buffer zone created long before the 1998 allocation. Following the Shalien Masood Mughal road-reserve jurisprudence, the court held Article 40 does not protect unlawfully acquired land and that the defendant may hive off the encroaching portion. The plaintiffs' suit was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether the plaintiffs proved the extent of their property and lawful acquisition

Holding

The plaintiffs did not establish the extent of their ground occupation or the process giving rise to it; a material discrepancy existed between the total acreage in the two allotment letters (0.2649 ha) and the lease certificate (0.1491 ha) which was unexplained

Reasoning

The two allotment letters totalled approximately 0.2649 hectares, but the certificate of lease bore 0.1491 hectares, a wide unexplained margin. PW1's witness statement did not cross-reference the documents produced. The survey plans relied on were not Part Development Plans which would have led to the creation and amalgamation of the suit plots. The plaintiffs therefore failed to discharge the burden of proof on a balance of probability.

p. 5
02

Whether the suit land encroaches on the road/railway reserve and buffer zone

Holding

The buffer zone was created long before the plaintiffs' first allocation in 1998, and the plans (including the plaintiffs' own FR 155/30) show part of the church land protrudes into the buffer zone

Reasoning

The Nairobi South Structural Plan of 1985, conceptualised as far back as 1956/1957, set aside a transport corridor comprising the Southern Bypass, a link road and railway reserve. Plan FR/No.155/30 Southland Estate, predating the suit plot, shows part of the suit land encroaching on the buffer zone. Any allotment encroaching into the road and railway land ought to have been supported by another plan; none was availed. The defendant's evidence on the extent of encroachment was however shaky.

p. 6
03

Protection of the plaintiffs' rights as registered proprietors

Holding

Article 40 protection does not extend to land unlawfully acquired; the defendant may hive off the portion encroaching on the buffer zone

Reasoning

Although the plaintiffs are registered proprietors, the court found part of the land lies on a pre-existing buffer zone created by the 1985 structural plan. Since the encroaching portion was unlawfully allocated, constitutional protection of property rights is unavailable, and the defendant was permitted to proceed to hive off the encroaching portion.

p. 6

Legal principles established

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  • The fact of a pre-existing road reserve and buffer zone need not be noted in any land register, and such land cannot lawfully be alienated for private development
  • Article 40 of the Constitution does not extend protection to land that is unlawfully acquired
  • He who alleges must prove (Sections 107-112 Evidence Act)

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.Each party is to bear their own costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a land dispute (plaint dated 25.7.2013); no specific provision invoked in the judgment

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, "Waithira & 3 others v Kenya National Highways Authority (Environment & Land Case 911 of 2013) [2025] KEELC 1337 (KLR)", Case Analysis (2025). Not stated in judgment (suit by plaint dated 25.7.2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1337/eng@2025-03-12

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