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ELCPartially AllowedEnvironment and Land Court Appeal (Meru) - memorandum of appeal dated 05.08.2025 (as amended 02.02.2026)· [2026] KEELC 3569 (KLR)

County Government of Meru v Liberty Mall Ltd & another (Environment and Land Appeal E065 of 2025) [2026] KEELC 3569 (KLR)

Environment and Land Court of Kenya
2 June 2026
6,835 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court overturned a Kshs 8.7 million award against Meru County because the landowner never proved the road belonged to the county.

What this practically means

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Executive summary

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This is a first appeal to the Environment and Land Court at Meru, decided by Oguttu Mboya J, against the judgment of the learned trial magistrate (Hon. S K Ngetich, SRM) dated 20.08.2025. The 1st respondent, registered proprietor of LR No. Nkuene/Taita/3351 within Nkubu township, sued the County Government of Meru and the National Land Commission for encroachment onto 0.24 acres of her land during road construction, claiming Kshs. 8,675,000/- as damages. The trial court, reasoning that a street within Nkubu Township was 'obviously' a county road, entered judgment against both defendants jointly. The county appealed, contending that the road belonged to Kenya Urban Roads Authority and was a national government project funded through the road maintenance levy. The appellate court framed two issues: whether the 1st respondent proved her claim, and whether the trial judgment was replete with errors. The court held that the 1st respondent adduced no evidence that the road was a county road, noting that location within a county does not of itself make a road a county road; the project billboard at the locus in quo showed KURA as manager and the Government of Kenya as financier. Further, the survey report proving encroachment was prepared by an approved assistant surveyor not qualified to practise or give expert evidence, rendering it a nullity. No fault or involvement was attributed to the National Land Commission, and encroachment by a public body is not ipso facto compulsory acquisition. Allowing the appeal, the court set aside the trial judgment and decree, dismissed the 1st respondent's suit, and awarded the appellant costs of both the appeal and the suit in the lower court.

Key legal issues

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01

Whether the 1st respondent proved her claim to the requisite standard

Holding

The claim was not proved; the assertions remained at the level of allegations

Reasoning

The 1st respondent bore the burden of proving the plaint's assertions on a balance of probabilities. She produced no evidence that the impugned road was a county road within the appellant's mandate; the signage at the locus in quo showed the project belonged to KURA and was funded by the national government. The survey report relied on to prove encroachment was prepared by an unqualified approved assistant surveyor, rendering it a nullity.

p. 9
02

Whether the trial magistrate misapprehended the facts and the law

Holding

The trial magistrate's inference that a road in Nkubu Township 'obviously' fell under the county government was a grave misdirection

Reasoning

The trial magistrate disregarded the unchallenged evidence of DW1 and the project billboard seen at the locus in quo, which showed KURA as the managing agency and the Government of Kenya as financier. The magistrate relied on PW1's mere belief, confusing preparation of the town map/development plan (a devolved planning function) with road construction, and failed to assign reasons for rejecting the appellant's evidence as Order 21 Rule 4 requires.

p. 10
03

Liability of the 2nd respondent (National Land Commission)

Holding

No evidence was placed before the trial court showing any commission or omission by the National Land Commission

Reasoning

Compulsory acquisition under Sections 109 to 113 of the Land Act can only be engaged in by the Commission upon request by the acquiring authority, and no such evidence existed. The claim was, if anything, one of trespass, which should not be conflated with compulsory acquisition per the Supreme Court's decision in Attorney General v Zinj Limited.

p. 11

Legal principles established

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  • A first appellate court must subject the entire evidence to fresh analysis but should only depart from the trial court's findings where they are based on no evidence, are perverse, or rest on misapprehension of evidence or law
  • The fact that a road falls within a county does not of itself make it a county road under the county government's mandate
  • An expert document can only be deployed if the author demonstrates that they are duly qualified and authorized under the relevant law
  • There must be fault by a tortfeasor to warrant attaching liability; liability without fault is not part of Kenyan jurisprudence
  • Entry or encroachment onto private land by a public body does not ipso facto amount to compulsory acquisition; such a claim is one of trespass

Court orders

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  1. 1.The Appeal be and is hereby allowed
  2. 2.The Judgment of the trial magistrate dated and delivered on the 20.08.2025, together with the consequential decree, be and are hereby set aside
  3. 3.In lieu thereof, an order dismissing the 1st respondent's suit vide plaint dated the 17.07.2017
  4. 4.Costs of the appeal awarded to the Appellant
  5. 5.Costs of the suit in the lower court awarded to the Appellant
  6. 6.Costs in terms of clauses (iv) and (v) to be agreed upon and in default, taxed in the conventional manner
On appeal from
Chief Magistrate's Court at Meru (before Hon. S K Ngetich - S R M)
not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the magistrates' court in land matters (Environment and Land Court Act); the judgment describes the matter as 'a first appeal' governed by section 78 of the Civil Procedure Act

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, "County Government of Meru v Liberty Mall Ltd & another (Environment and Land Appeal E065 of 2025) [2026] KEELC 3569 (KLR)", Case Analysis (2026). Environment and Land Court Appeal (Meru) - memorandum of appeal dated 05.08.2025 (as amended 02.02.2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3569/eng@2026-06-02

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