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ELCPartially AllowedNot stated in the judgment as provided· [2026] KEELC 454 (KLR)

Soraya Investments Ltd v Kenya National Highways Authority (Environment and Land Case 307 of 2018) [2026] KEELC 454 (KLR)

Environment and Land Court
29 January 2026
YAY. M. Angima
3,144 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A Mombasa court ruled that having a title deed doesn't let you build on a road reserve, ordering the property owner to demolish the encroaching wall.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of sub-division No. 16584 (Original No. 3533/2) Section I/MN along the Mombasa-Malindi Highway, sued the defendant (the roads authority) for trespass, a permanent injunction, exemplary and special damages, claiming its perimeter wall was demolished on 23.02.2018 without notice as required by Section 49(4) of the Kenya Roads Act. The defendant denied liability, contending the suit property encroached on the 36.58M-wide road reserve of the Sabasaba-Malindi (B8) highway, that notices were published and sensitization conducted, and counter-claimed for declarations that the plaintiff's title was fraudulently acquired and that the property formed part of the road reserve, plus an order for removal of the wall. The court, framing issues under Order 15 rule 2, compared survey plans of 1956, 1970 and the plaintiff's 2003 subdivision survey, finding the highway width uniform except where the plaintiff's wall stood - a constriction explicable only by encroachment. It held title is no blank cheque to encroach, county development permission notwithstanding, and that encroachment was a strict liability offence excluding compensation. The suit was dismissed in its entirety; the counter-claim was allowed only in part, the court granting a limited declaration of encroachment to the extent of 0.166 ha and ordering removal of the wall within 60 days, failing which the defendant may remove it at the plaintiff's cost, and awarding the defendant costs of both the suit and the counter-claim.

Key legal issues

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01

Whether the plaintiff proved trespass and violation of proprietary rights

Holding

The claim failed; the plaintiff itself encroached on the highway road reserve.

Reasoning

Survey plans F/R No.76/49 (1956) and F/R No.118/58 (1970) showed the highway maintaining a uniform 36.58M width, while the plaintiff's 2003 subdivision survey narrowed it only at the plaintiff's wall. The court found the unexplained constriction explicable only by encroachment, prohibited under Section 49(1)(a) of the Kenya Roads Act and Section 91(1)(a) of the Traffic Act.

p. 4
02

Whether the defendant proved its counter-claim

Holding

Only partially: a limited declaration of encroachment to 0.166 ha and an order to remove the wall; the broad declarations of fraud/illegal title and that the whole property forms part of the road reserve were refused.

Reasoning

The suit property measured about 4.767 ha while encroachment was only 0.166 ha; there was no evidence the entire parcel was fraudulently or illegally acquired, and it was unclear whether the encroaching portion even fell within the plaintiff's title. Proportionality confined the remedy.

p. 7
03

Whether the defendant complied with due process before demolition

Holding

The defendant gave adequate notice via media publications and sensitization meetings, satisfying the notice requirement relied on by the plaintiff.

Reasoning

The court was satisfied that notices were published in print and electronic media and that civic education exercises were undertaken between June 2016, alerting project-affected persons to remove encroaching structures before the demolition.

p. 7

Legal principles established

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  • A registered title does not permit a proprietor to encroach on an adjoining road reserve; development permission from the county government does not excuse such encroachment.
  • A declaration must be proportionate to the proved wrongdoing; a court will not grant a declaration impugning an entire title where only part of the land encroaches.
  • Costs follow the event unless the court directs otherwise for good reason.

Court orders

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  1. 1.The plaintiff's suit against the defendant is hereby dismissed in its entirety.
  2. 2.A declaration is hereby made that the plaintiff has encroached into part of the road reserve along the Sabasaba-Malindi Road (B8) to the extent of 0.166 ha.
  3. 3.The plaintiff is hereby ordered to remove the encroaching perimeter wall within 60 days from the date hereof in default of which the defendant shall do so at the plaintiff's cost.
  4. 4.The defendant is hereby awarded costs of the suit and the counter-claim.

Authorities

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Legislation

  • Kenya Roads ActSection 49(1)(a), 49(4), 49(5)
  • Traffic Act (Cap 403)Section 9(2), Section 91(1)(a)
  • Civil Procedure Act (Cap 21)Section 27 (proviso)
  • Civil Procedure RulesOrder 15 rule 2

Cases cited (1)

  • Hussein Janmohamed & Sons –vs- Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original civil jurisdiction over land claims (plaint and counter-claim) under the Environment and Land Court Act and Article 162(2)(b) of the Constitution; not expressly stated 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, "Soraya Investments Ltd v Kenya National Highways Authority (Environment and Land Case 307 of 2018) [2026] KEELC 454 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/454/eng@2026-01-29

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