Nakitare & 18 others v Kenya National Highway Authority & 3 others (Constitutional Petition E003 of 2024) [2025] KEELC 5219 (KLR)
The bottom line
#Land bought from a road reserve belongs to the government, even with a title deed — buyers must investigate before purchasing roadside property in Kenya.
What this practically means
#Executive summary
#Key legal issues
#Whether the petition met the constitutional threshold under Rule 10 of the Mutunga Rules
The petition loosely met the constitutional threshold; although not raised with precision, the claim for violation of fair administrative action and property rights was discernible and respondents responded to it.
Rule 10 requires a petitioner to state facts, infringed rights, nature of injury, capacity and relief. The court found the pleadings imprecise but discernible as a rights claim, and the respondents understood and answered the claim, so the threshold was loosely met, following Mumo Matemu.
Whether the court had jurisdiction given the 1st Respondent's objection that this is a boundary dispute for the Land Registrar under section 18 of the Land Registration Act
Jurisdiction upheld: the petition is not a boundary dispute but a claim of unlawful acquisition without due process, and injunctive orders cannot be granted by a Land Registrar.
The court distinguished boundary disputes (which fall to the Land Registrar under section 18 LRA and Regulation 40) from a constitutional claim over deprivation of property. Because the Petitioners sought injunctive and declaratory relief unavailable from the Registrar, the ELC retained jurisdiction.
Whether the Petitioners are bona fide purchasers for value without notice
No. The parent parcels' affected portions were compulsorily acquired and compensated in 1974/1975, vested in the Government, and could not pass by sale; the vendors' conduct amounted to fraud, and the Petitioners failed to prove due diligence.
The 1st Respondent traced acquisition documents, gazette notices and payment vouchers showing compulsory acquisition and compensation. Upon acquisition the land vested absolutely in the Government, was an overriding interest not noted on the register, and the vendors sold what they no longer owned - a misrepresentation amounting to fraud. Purchasers alongside a public road ought to have inquired into road reserves.
Whether the Petitioners' rights under Articles 40 and 47 were violated
No violation established. Their right to property must be exercised lawfully and their titles are defeasible to the extent they comprise road reserve; the demolition process did not infringe their rights.
The court held that rights to property protect only lawfully acquired land. Land acquired with public funds for public use is subject to overriding interests permitting rectification of title. The encroachment on a road reserve was unlawful, so the notices and intended demolition did not violate Articles 40 or 47.
Legal principles established
#- Land compulsorily acquired and vested in the Government ceases to be available for private alienation, and any purported sale thereafter is null and void ab initio; the acquisition is an overriding interest under section 30 of the RLA.
- Bona fide purchaser protection requires proof of a valid and legal title, due diligence, and payment of valuable consideration; it is unavailable where the purchaser fails to conduct due diligence.
- Fraud on the part of vendors vitiates subsequent transactions and such vendors cannot pass good title to acquired portions.
Court orders
#- 1.The petition is dismissed.
- 2.Each party to bear their own costs.
- Jurisdiction invoked
- Articles 40(3), 47(1), 67(1), 10(1) and 21(1) of the Constitution of Kenya, 2010; Rule 10 of the Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakitare & 18 others v Kenya National Highway Authority & 3 others (Constitutional Petition E003 of 2024) [2025] KEELC 5219 (KLR)", Case Analysis (2025). Not stated in the judgment (Petition filed 13/06/2024, amended 15/08/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5219/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.