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ELCDismissedNot stated in judgment (petition filed 27 April 2021, amended 15 November 2023)· [2026] KEELC 1328 (KLR)

Moraro v Attorney General & 7 others (Petition 5 of 2021) [2026] KEELC 1328 (KLR)

Environment and Land Court
5 March 2026
MSMunyao Sila
2,119 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The petitioner filed a constitutional petition alleging that the 2nd respondent, the Assistant Chief of Nyosia sub-location, and the 3rd to 8th respondents trespassed onto her land parcel Nyaribari Chache/Keumbu/6245 and constructed a road through it without compulsory acquisition or compensation, violating her rights under Articles 40, 47, 27(1) and 64 of the Constitution and Sections 107, 109 and 155 of the Land Act, 2012. She sought declarations, compensation of Kshs 1,178,750, general, exemplary and aggravated damages, and costs. The respondents denied trespass, asserting the road works were undertaken under a government project by KERRA with public participation. In viva voce evidence, a Ministry of Lands surveyor testified that although no road appears on the Registry Index Map, a road has existed on the ground for over 30 years, is used by the entire community including the petitioner, and connects to mapped roads. The court held that the road pre-existed and the respondents merely improved it, so there was no trespass, acquisition or conversion of the petitioner's land. The court declined to determine the unpleaded defence of prescription. It further held that individual respondents working on a government contract cannot be liable for compulsory acquisition or compensation; any claim for compensation should be directed to the national or county government and the National Land Commission, and the petitioner should have first verified with the road agencies whether they were involved. The petition was dismissed with no orders as to costs, given that the parties are close community members from the same village.

Key legal issues

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01

Whether the respondents trespassed and acquired the petitioner's land

Holding

No trespass or acquisition - the road existed on the ground for over 30 years and the respondents only improved it

Reasoning

The surveyor's evidence showed the road existed on the ground for over 30 years, was used by the whole community including the petitioner, and connected to mapped roads. Although absent from the Registry Index Map, the court found the map likely contains an error. The respondents only cleared and improved the existing road, so no trespass, acquisition or conversion occurred.

p. 3
02

Whether the individual respondents can be liable for compensation

Holding

No - compulsory acquisition is a process for the national/county governments and the National Land Commission, not individuals

Reasoning

The respondents were individuals working under a government contract (KERRA/CDF). The petitioner did not verify with the road agencies whether they were involved. Compulsory acquisition involves the National Land Commission and government agencies; the individual respondents cannot be held liable to compensate for public use of land as a road.

p. 4
03

Whether the unpleaded defence of prescription/easement could be determined

Holding

The court declined to determine prescription as it was not pleaded, but the factual finding of a pre-existing road stood

Reasoning

Counsel for the respondents relied on prescription in submissions, but petitioner's counsel objected that it was not pleaded. The court agreed it could not make a definitive determination on an unpleaded issue, yet the established facts that the road always existed undermined the petitioner's trespass claim regardless.

p. 4

Legal principles established

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  • Individuals engaged under a government road project cannot be held liable for compulsory acquisition or required to compensate a landowner for community use of a road
  • A landowner alleging that a road project is unlawful should first verify with the road agencies (KURA, KERRA, KENHA) before suing individual workers
  • A court will not determine an unpleaded doctrine such as prescription or easement

Court orders

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  1. 1.The petition is dismissed
  2. 2.No orders as to costs - each party bears own costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1), 40(3), 40(3)(b)(i), 47, 27(1), 64, 23(3)
  • Land Act, 2012Sections 107, 109, 155
Jurisdiction invoked
Constitution of Kenya, 2010 - petition for enforcement of fundamental rights (Articles 40, 47, 27, 64; Article 23 reliefs)

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, "Moraro v Attorney General & 7 others (Petition 5 of 2021) [2026] KEELC 1328 (KLR)", Case Analysis (2026). Not stated in judgment (petition filed 27 April 2021, amended 15 November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1328/eng@2026-03-05

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