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ELCDismissedPetition dated 14th January, 2021 (filed 25th January 2022)· [2026] KEELC 901 (KLR)

Patel & another v Kenya National Highway Authority (Environment and Land Petition 3 of 2022) [2026] KEELC 901 (KLR)

Environment and Land Court
29 January 2026
MNMwangi Njoroge
3,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Mombasa landowners lost their bid to stop KeNHA from acquiring their road-side plot; the court told them to pursue compensation through the official process instead.

What this practically means

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Executive summary

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The petitioners, co-proprietors of CR 28954 (Subdivision Number 2831), Mtwapa, petitioned the Environment and Land Court at Malindi seeking declarations of ownership and of violation of Articles 40, 47, 48 and 60 of the Constitution, a conservatory order restraining the Kenya National Highways Authority (KeNHA) from demolishing, selling or interfering with the suit property, and costs. Their claim arose from a notice dated 21st October 2020 alleging encroachment onto a road reserve and threatening demolition. KeNHA responded that the notice was an intention-to-acquire notice under the Land Act, that the National Land Commission (NLC) gazetted the land for compulsory acquisition on 26th May 2022, conducted inquiries under Sections 13 and 113 of the Land Act, and that compensation awards were pending. The court heard viva voce evidence from the 1st petitioner, a surveyor (PW2) who found only a 1.3 m encroachment by the petitioners' wall onto the road, and a valuer (PW3); KeNHA's witness (DW1) adopted the replying affidavits. The court found that the suit property was omitted from the first gazette notice and later lawfully listed in the corrigendum/addendum to Gazette Notice No 6237 of 27th May 2022; no demolition notice under Section 49 of the Kenya Roads Act was issued and no overt interference occurred. Compensation claims were unpleaded, and any dissatisfaction with the NLC's award must follow statutory channels. The petition was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether Articles 40(3) and 47 of the Constitution were violated by the respondent's notice and land acquisition conduct

Holding

No violation was established. The suit property was omitted from the first gazette notice, later listed in the corrigendum/addendum notice, and the NLC's compulsory acquisition and compensation process was lawfully underway; no demolition notice had been issued.

Reasoning

The court found the land was erroneously omitted from the first notice and added via corrigendum in Gazette Notice No 6237 of 27th May 2022. The respondent issued no demolition notice under Section 49 of the Kenya Roads Act, conducted no works on the property, and the NLC had held inquiries and was assessing compensation. Redress lay within the Land Act acquisition framework, not a constitutional petition.

p. 7
02

Whether the court can grant relief (compensation) not specifically pleaded

Holding

It cannot. The claim for payment of compensation for the entire land was introduced during testimony and was not pleaded in the petition.

Reasoning

The respondent relied on the principle that parties are bound by their pleadings, citing Prisca Onayo Nande (Deceased). The petitioners' compensation claim emerged for the first time in the 1st petitioner's oral evidence; no sums were pleaded, so the court could not award unpleaded relief.

p. 5

Legal principles established

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  • A petitioner cannot found a claim of constitutional violation on a notice that did not include their land, where the land was later lawfully gazetted for acquisition and compensation processes are underway.
  • Dissatisfaction with the National Land Commission's compensation decision must be pursued through the statutorily established channels after the award is made.

Court orders

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  1. 1.The petition dated 14th January, 2021 is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 2(4), 6, 10, 23, 40, 40(3), 47, 48, 60, 165(3)(d)
  • Land ActNo 6 of 2012, Part VIII, Sections 13 and 113
  • Kenya Roads ActSection 49
  • Evidence Act Cap 80Section 107

Cases cited (3)

  • Anarita Karimi Njeru
  • Mumo Matemu
  • Prisca Onayo Nande (Deceased)
    2020 KEHC 6553 KLR
Jurisdiction invoked
Articles 40, 47, 48 and 60 of the Constitution of Kenya 2010 (petition for enforcement of constitutional rights under Article 23)

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, "Patel & another v Kenya National Highway Authority (Environment and Land Petition 3 of 2022) [2026] KEELC 901 (KLR)", Case Analysis (2026). Petition dated 14th January, 2021 (filed 25th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/901/eng@2026-01-29

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