Joseph Gekara Ogochi & 8 others v Kenya National Highway Authority

Numbers Plot No. 21A and 20B (suit properties) situate within Kebirigo Market in Nyamira County, the Third and Fourth Petitioners were Chairman and Secretary of Kebirigo Market Traders while the Fifth to Ninth Petitioners were owners of shops and businesses which were to be demolished following a notice issued by the Respondent. 2. The Petitioner also averred that they followed due process, developed the suit properties and conducted business therein until 9th October 2025 when the Respondent issued a notice requiring them and owners of businesses along Kebirigo – Metamaywa Road within Kebirigo Market to demolish their structures for allegedly encroaching on classified road reserves. 3. The Petitioners further averred that the intended demolitions constituted arbitrary deprivation of property contrary to Articles 40 and 64 of the Constitution. They also alleged violation of Articles 10 and 47 of the Constitution. 4. Consequently, the Petitioners sought judgment for the following orders: 1. A declaration that the Notice dated 9 th October 2025 and the red "x" markings visited on the Petitioners' business premises by the Respondent and or functionaries of the Respondent is/ are irregular, premature, procedurally and substantially defective, ELCLPET No. E001 of 2025 (Nyamira) incompetent, Page 2 of 25 devoid of

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Constitutional and legal efficacy, thus null and void ab initio. 2. A declaration that the Respondent's actions’ and administrative processes of issuing the minimum 30 days' notice under Section 49 (4) of the Kenya Roads Act, 2007 speaks to sinister motive and action on the part of the Respondent and intended to serve inimically to the right of the Petitioners' to invoke and utilize fully section 67 (a) of the Kenya Roads Act, 2007 to the detriment of the imperatives and contemplations of Article 25 (c) of the Constitution, 2010. 3. An order of prohibiting and or restraining the Respondent, its agents, servants, employees, contractors, or functionaries by whatever name called from raiding, encroaching upon, demolishing and or destroying or causing eviction or interference with the Petitioner's business establishments, houses, buildings and or activities in any manner whatsoever. 4. That an order be and is hereby issued directing the Respondent, its functionaries or any person or party whether individuals or companies contracted not to proceed with the threatened eviction without the requisites of public participation and process compliant with all the constitutional provisions quoted herein above attendant to the Bill of Rights in the 2010 Constitution. ELCLPET No. E001 of 2025 (Nyamira) Page 3 of 25

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5. An order compelling the Respondent to convene and methodically process structured and elaborate structured public participation forum involving affected traders, property owners and market leadership to address reservations, propriety and or consensus with regard to proposed upgrading of Kebirigo-Metamaywa Road with particular focus on the locus and scope entailing the Kebirigo Market part of the Road. 6. Any other or further reliefs that this Honourable Court deems within the ambit and contemplations of Article 23 of the Constitution. 7. Costs of this petition. 5. The Petition is supported by affidavits sworn by Joseph Gekara Ogochi (the First Petitioner), Ogiki Osumo (the Second Petitioner), and Samwel Marigwa Kombo (the Third Petitioner). 6. Mr Ogochi deposed that he was an allottee and owner of Plot Number 21A situate within Kebirigo Market, Nyamira County which was allotted to him by the Gusii County Council which was the predecessor of the County Government of Nyamira. He stated that upon allocation, he obtained the requisite development approvals and construction permits from the relevant county authorities pursuant to which he constructed business premises which remained in continuous commercial use and that he had been paying land rates to the County Government of Nyamira besides complying with all regulatory ELCLPET No. E001 of 2025 (Nyamira) Page 4 of 25

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requirements in respect of his business operations at Kebirigo Market. 7. He further deposed that on 9 th October 2025, the Respondent, through its agents or servants, issued a notice requiring him and other business owners within Kebirigo Market to demolish their buildings on the allegation that the buildings encroached upon classified road reserves along the Kebirigo-Metamaywa road. That to the best of his knowledge and belief, his property did not encroach upon any classified road reserve and that the allegation was unfounded. 8. Mr Ogochi also stated that the Respondent's unilateral and arbitrary actions had caused great fear, anxiety, and uncertainty among traders and residents of Kebirigo Market, and that there was an imminent threat of demolition and eviction without due process of law. He annexed copies of allotment card, receipts issued by National Environment Management Authority (NEMA), Environmental Impact Assessment License, photograph of a building, receipt for plot rent issued by the County Government of Nyamira and notice issued by the Respondent. 9. On his part, Mr Osumo deposed that he was an allottee and owner of Plot Number 20B situate within Kebirigo Market, Nyamira County which was allotted to him by the Gusii County Council which was the predecessor of the County Government of Nyamira. He also stated that he constructed a permanent ELCLPET No. E001 of 2025 (Nyamira) Page 5 of 25

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building on the plot where he operated a lawful business and that he had paid all requisite rates and fees to relevant authorities. That on 9th October 2025, the Respondent’s agents or officers went to Kebirigo Market and marked several buildings including his with red "X" signs on the allegation that they had encroached on a road reserve. He annexed copies of allotment card and photograph showing the "X" signs. 10.Mr Osumo also deposed that the marking was done without service of any written notice of demolition and without any engagement or hearing by the Respondent or any other public authority. He added that he had not received any formal communication inviting him or other affected persons to participate or make representations regarding the alleged road expansion or encroachment and that the arbitrary marking of his building had caused him extreme anxiety since he depended entirely on the premises for his livelihood and that of his family. He also stated that if the intended demolition were carried out, it would destroy his business premises, displace his family, and deprive him of a means of livelihood without any due process, justification, or compensation. 11.Lastly, Mr Kombo deposed in his affidavit that on 9 th October 2025, the Respondent’s agents arbitrarily marked several business premises within Kebirigo Market with red "X" signs, alleging that the premises were built on a road reserve or encroached on a classified road. He added that the markings were done without any prior notice of demolition and without ELCLPET No. E001 of 2025 (Nyamira) Page 6 of 25

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any form of public participation and that the affected stalls were not constructed on any road reserve, but on plots duly allotted and developed with full knowledge of the local authorities who had over the years collected business license fees and rates from the traders operating therein. That as Chairman of the Kebirigo Business Community, he could confirm that no meeting, consultation, or public participation forum was ever convened to discuss or notify traders of any intended expansion, road improvement, or demolition within the market. 12.The Respondent opposed the petition through a replying affidavit sworn by Samwel Odoyo Orwa who deposed that he was an Approved Assistant to a Licensed Surveyor who was as of the date of the affidavit serving as the Respondent’s Regional Senior Surveyor based in Nyanza Region. He added that the Respondent was mandated under the Kenya Roads Act to inter alia construct, rehabilitate and maintain roads under its control and the road reserves. 13.He also deposed that the road in question, which is Kebirigo Keroka Road (B5) fell under the Respondent’s mandate, hence it had authority over any persons who encroached on it. That the Petitioners did not serve the mandatory statutory notice upon the Respondent’s Director-General as required under Section 67 of the Kenya Roads Act, hence these proceedings were premature and the Court lacked jurisdiction. ELCLPET No. E001 of 2025 (Nyamira) Page 7 of 25

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14.He equally deposed that none of the Petitioners had placed before the court any evidence of proof of ownership of the suit properties aside from the First and Second Petitioners alleging ownership by way of allotment and various receipts therefore bereft of locus standi to file this petition. He deposed that the Third to Ninth Petitioners also alleged to be tenants but failed to proof tenancy by attaching tenancy or lease agreements and remained as strangers to the suit. 15.He further deposed that the Respondent issued notices to the occupants of the suit properties and prior to issuing the notices, conducted a technical exercise to establish the lawful width of the road in question, obtained the official registration plan for Bonyamatuta Registration Section/Diagram No. 5 which clearly earmarked the width of the road as 36.58 metres which is equivalent to 120 feet. 16.Mr Orwa annexed a copy of the survey plan and further deposed that on the material date, the Respondent established the centre line of the road and thereafter measured an offset of 18.29 metres on both sides thereof. That the Respondent further obtained a layout plan for Kebirigo Market which was issued by the County Government as the head lessor of the suit premises and corroborated the Respondent's position that the width of the road had always been 120 feet. ELCLPET No. E001 of 2025 (Nyamira) Page 8 of 25

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17.Mr Orwa annexed a copy of the layout plan and added that upon conducting the exercise, the Respondent identified all developments that had encroached into the established road reserve of 120 feet, and subsequently issued statutory notices to the owners of the affected premises, including the Petitioners. He also deposed that the Respondent did not issue any permission to the Petitioners to construct any structures within the road reserve. That, consequently, and any such construction was contrary to Section 49 of the Kenya Roads Act and it was lawful for the Respondent to remove it upon compliance with the applicable statutory notice requirements. 18.He also deposed that the issue of compulsory acquisition did not arise in this matter as the Petitioners’ developments were unlawful since they fell within a clear road reserve and that the Petitioners did not demonstrate that they were registered owners of the properties. He added that public participation was not required since the Respondent, a statutory body, was merely enforcing an existing statutory mandate and that sufficient notice was given to the Petitioners thus satisfying the requirements of Article 47 of the Constitution. 19.The Petition was heard through affidavit evidence and written submissions. The Petitioners filed submissions dated 19 th April 2026. 20.It was submitted on behalf of the Petitioners that the Respondent’s objection on jurisdiction based on Section 67 of ELCLPET No. E001 of 2025 (Nyamira) Page 9 of 25

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the Kenya Roads Act was unfounded since this is a constitutional petition. That the requirement of issuance of a statutory notice under Section 67 was confined to ordinary civil claims and did not extend to constitutional Petitions. Reliance was placed on the cases of Benson Ruiyi Njane v Kenya Rural Roads Authority & 36 Others [2016] eKLR and Anthony Ngili Munguti & 12 Others v Kenya National Highways Authority & Another [2017] eKLR. 21.It was further submitted that the Petitioners had locus standi by dint of their allotment and recognition by the County Government of Nyamira of their proprietary interest through issuing to them rates clearances and development approvals pending issuance of formal titles. 22.They equally submitted that the notices issued by the Respondent did not comply with the requirements of Section 49 (4) of the Kenya Roads Act since they failed to identify with precision the specific properties subject to demolition, did not indicate the plot numbers, and were not addressed to the Petitioners or specific allottees. 23.On the question of whether the developments fell within the road reserve, the Petitioners submitted that the properties were allotted by the local government which then granted approvals for development. That the grant of the approvals was proof that the developments complied with planning law and that there was no encroachment. They further submitted ELCLPET No. E001 of 2025 (Nyamira) Page 10 of 25

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that, even assuming without conceding that the land fell within a road reserve, the Respondent could not bypass constitutional safeguards on the right to property and that in the present case, no compulsory acquisition process had been initiated, no inquiry undertaken and no compensation proposed, thus rendering the Respondent’s acts unlawful. 24.On whether public participation was undertaken, the Petitioners submitted that where a public authority undertakes an action with such far-reaching economic and social consequences, public participation was not optional but mandatory under Article 10 of the Constitution. That the Respondent did not conduct any form of consultation, stakeholder engagement, or public forum prior to issuing the demolition notice and that the Petitioners were not invited to give their views or to interrogate the basis of the intended road expansion. That failure to conduct public participation rendered the Respondent's actions procedurally flawed, unconstitutional and null. 25.The Respondent filed submissions dated 28 th April 2026. It was submitted on behalf of the Respondent that the Petitioners had not issued any pre-action statutory notice in compliance with Section 67 of the Kenya Roads Act and that consequently this Court lacks jurisdiction to entertain the matter. Relying on the cases of Rianna Furaha Children Home v Kenya National Highways Authority [2016] KEELC 571 (KLR) and Michael Otieno Nyaguti & 5 others v Kenya National ELCLPET No. E001 of 2025 (Nyamira) Page 11 of 25

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Highways Authority & 5 others [2015] KEHC 1356 (KLR), the Respondent urged the Court to strike out the petition. 26.The Respondent also submitted that where there is a clear procedure for the redress of any particular grievance prescribed by statutory framework, that procedure should be strictly followed and the Court should decline to declare whether there has been infringement or breach of a constitutional right. That in the present case, the substratum of the Petition concerned alleged encroachment onto a road reserve, the adequacy of notices issued, and the legality of enforcement action undertaken pursuant to statute. 27.The Respondent contended that the foregoing were quintessentially statutory and evidentiary issues, which fell squarely within the framework of the Kenya Roads Act and were amenable to resolution through an ordinary civil claim upon compliance with Section 67 of the Kenya Roads Act as opposed to a constitutional petition. The cases of Speaker of the National Assembly v Karume [1992] KECA 42 (KLR), Michael Otieno Nyaguti & 5 others v Kenya National Highways Authority & 5 others (supra) and International Centre for Policy and Conflict & 5 others v Attorney General & 5 others [2013] eKLR were cited in support of those submissions. 28.The Respondent further submitted that none of the Petitioners had availed any evidence of ownership of the suit properties ELCLPET No. E001 of 2025 (Nyamira) Page 12 of 25

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and that since their claim was anchored on the right to property under Article 40 of the Constitution, they lacked locus standi and the Petition was defective. It further submitted that it issued proper, lawful, and sufficient notices in compliance with Section 49 (4) of the Kenya Roads Act prior to undertaking the impugned enforcement action and that the Petitioners had admitted that they had knowledge of the notices. 29.The Respondent went on to submit that contrary to the settled principle that he who alleges must prove, the Petitioners had failed to produce any cadastral or survey evidence to demonstrate the boundaries or extent of the alleged parcels, any Part Development Plan (PDP), any beacon certificate or any survey plan to support their case. That it was therefore impossible for the Petitioners to assert with certainty that their developments did not encroach onto a public road reserve. Relying on the decision of the Supreme Court in Dina Management Limited v County Government of Mombasa & 5 others [2021] eKLR, the Respondent contended that the Petitioners had failed to demonstrate compliance with the process for acquisition of title to public land. That, consequently, the Petitioners had failed to discharge the evidentiary burden of proving that the suit properties did not encroach onto a public road reserve and had also failed to dislodge the expert evidence availed by the Respondent. ELCLPET No. E001 of 2025 (Nyamira) Page 13 of 25

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30.It was the Petitioners’ Respondent’s attempt to further invoke submission public that the participation, fair administrative action and human dignity had to fail and that constitutional rights could not be deployed to shield unlawful encroachment onto public land. It also argued that its actions were lawful, proportionate and undertaken in furtherance of a legitimate public interest and that the requirement of public participation did not apply to enforcement of existing statutory mandate. 31.In reply to the Petitioners’ contention that its actions amounted to arbitrary deprivation of property, it relied on the case of Chemey Investment Limited v Attorney General & 2 others [2018] KECA 863 (KLR) and submitted that the Petitioners did not have any valid titles and that its actions constituted lawful enforcement. In parting, the Respondent contended that the Petition was without merit and urged the Court to dismiss it with costs. 32.I have carefully considered the petition, the affidavits and the submissions. The issues that arise for determination are whether the Court has jurisdiction, whether there was encroachment and whether the reliefs sought should issue. 33.That disputes on jurisdiction have become synonymous with litigation is hardly surprising. While every effort should be made to reduce conflict, a dispute on jurisdiction is often welcome. It gives the Court an opportunity to convince itself ELCLPET No. E001 of 2025 (Nyamira) Page 14 of 25

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that it is not proceeding in vain. Even where no such dispute ensues, the Court is still dutybound to satisfy itself that it has the legal capacity to hear and determine a particular matter since, without jurisdiction, the most formidable judicial edifice will collapse in a heap of nullity, chaff to be blow away by the winds of nature into nothingness. See Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR and Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 others [2012] eKLR. 34.It is for the foregoing reason that the Court of Appeal referred to jurisdiction as a mantra in National Social Security Fund Board of Trustees vs. Kenya Tea Growers Association & 14 Others [2023] KECA 80 (KLR) where it held: Jurisdiction, a mantra in adjudication connotes the authority or power of a court to determine a dispute submitted to it by contending parties in any proceeding. A Court of law is invested with jurisdiction to hear a matter when: (a) it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; (b) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and, (c) the case comes before the Court initiated by due process of law, and upon ELCLPET No. E001 of 2025 (Nyamira) Page 15 of 25

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fulfilment of any condition precedent to the exercise of jurisdiction. The three ingredients must co-exist in order to infuse jurisdiction in a Court. Where a Court jurisdiction to proceedings flowing quantum of is entertain from diligence, drained a it, of the matter, the no matter dexterity, the artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity. 35.The Respondent’s contention that this Court lacks jurisdiction is on three fronts: firstly, that the Petitioners did not serve mandatory statutory notice upon the Respondent’s DirectorGeneral as required under Section 67 of the Kenya Roads Act, secondly, that the Petitioners did not prove ownership of the suit properties and consequently lacked locus standi to file this case in respect of the said properties and, lastly, that the Constitutional Court cannot intervene in the matter since there is an adequate statutory procedure for the redress of the grievance. I will examine each of the limbs separately. 36.Section 67 of the Kenya Roads Act provides as follows: 67. Limitation of actions Where any action or other legal proceeding lies against an pursuance Authority of ELCLPET No. E001 of 2025 (Nyamira) or in for any act done execution, or intended Page 16 of 25 in

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execution of an order made pursuant to this Act or of any public duty, or in respect of any alleged neglect or default in the execution of this Act or of any such duty, the following provisions shall have effect — (a) the action or legal proceeding shall not be commenced against the Authority until at least one month after written notice containing the particulars of the claim and of intention to commence the action or legal proceedings, has been served upon the Director-General by the plaintiff or his agent; and (b) such action or legal proceedings shall be instituted within twelve months next after the act, neglect, default complained of or, in the case of a continuing injury or damage, within six months next after the cessation thereof. 37.The import of the foregoing is that any person intending to file a suit against the Respondent concerning any omission or commission in the discharge of its statutory mandate must first serve on the Director-General of the Respondent one month written notice containing the particulars of the claim and of intention to commence the legal proceedings. The question that arises is whether that requirement extends to constitutional petitions. ELCLPET No. E001 of 2025 (Nyamira) Page 17 of 25

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38.The Petitioners jurisdiction have pursuant invoked to the Articles Court’s constitutional 22 23 and of the Constitution. They have filed a constitutional petition, as opposed to an ordinary civil suit. That is an important distinction. The Court of Appeal addressed the unique nature of a constitutional petition and applicability of the requirement of notice under Section 13A of the Government Proceedings Act in Senate & 48 others v Council of County Governors & 54 others [2019] KECA 705 (KLR) where it held: 79. … Under the 2010 Constitutional framework, constitutional fundamental alleging petitions rights violation freedoms of the procedures envisioned by Article To enforcement or different Constitution. on and 22 this or of petitions Constitution have framework as (3) and (4) of the extent, we hold a constitutional petition is not civil proceedings mandatorily subject to the ordinary rules of Civil Procedure and the Government Proceedings Act. It is a procedure sui generis and we would be slow to admit to any procedural fetters and hurdles to access to justice in matters constitutional. 39.The requirement of notice under Section 67 of the Kenya Roads Act is similar to that under Section 13A of the ELCLPET No. E001 of 2025 (Nyamira) Page 18 of 25

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Government Proceedings Act. Due to the sui generis nature of constitutional petitions, Section 67 of the Kenya Roads Act not apply to this matter. 40.The other aspect of the jurisdictional challenge raised by the Respondent is that the Petitioners did not prove ownership of the suit properties and consequently lack locus standi. As the Court of Appeal held in Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR), locus standi is the right to bring an action or to be heard in a given forum. Without it, a litigant lacks the right to institute and maintain a suit in Court. 41.The sui generis nature of constitutional petitions should instantly put to rest the Respondent’s objection on locus standi. The constitution itself also answers the question with finality at Article 22 (2) which expressly provides that proceedings concerning denial, violation, infringement, or threat to a right or fundamental freedom in the Bill of Rights may be instituted by a person acting on behalf of another person, a person acting as a member of a group or class of persons, a person acting in the public interest or an association acting in the interest of its member(s). Thus, the objection on locus standi is dismissed. 42.The final part of the jurisdictional challenge raised by the Respondent is that the Constitutional Court cannot intervene in the matter since there is an adequate statutory procedure for the redress of ELCLPET No. E001 of 2025 (Nyamira) the grievance. Page 19 of 25 Put differently, the

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Respondent is invoking Supreme Court the principle of constitutional avoidance. 43.The discussed the principle in Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR as follows: The appellants in this case are seeking to invoke the “principle of avoidance”, also known as “constitutional avoidance”. The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. In South Africa, in S v. Mhlungu, 1995 (3) SA 867 (CC) the Constitutional Court Kentridge AJ, articulated the principle of avoidance in his minority Judgment as follows [at paragraph 59]: “I would lay it down as a general principle that where it is possible to decide any case, civil or criminal, without reaching a constitutional issue, that is the course which should be followed.” …. From the foundation of principle well developed in the comparative practice, we hold that the 1st, second and 3rd respondents’ claim in the High Court, regarding property rights, ELCLPET No. E001 of 2025 (Nyamira) infringement was Page 20 of 25 a of intellectual plain copyright-

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infringement claim, and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court. 44.The Respondent’s argument is that the substratum of the Petition concerns alleged encroachment onto a road reserve, adequacy of enforcement notices issued, and legality of enforcement action undertaken pursuant to the Kenya Roads Act. According to the Respondent, are statutory and evidentiary issues which can adequately be resolved through an ordinary civil suit as opposed to a constitutional petition. In contending so, the Respondent is also invoking the doctrine of exhaustion of remedies. 45.The Supreme Court discussed the doctrine of exhaustion of remedies in Nicholus v Attorney General & 13 others [2023] KESC 113 (KLR) thus: 94. The principle, expressed in the above decision, which we agree with, is therefore that, where there is an alternative remedy, especially where Parliament has provided a statutory appeal procedure, then it is only in exceptional circumstances that the court can resort to any other process known to law. … ELCLPET No. E001 of 2025 (Nyamira) Page 21 of 25

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107. Flowing from the above findings and in that context, it is our view that, where the reliefs under the alternative mechanism are not adequate or effective, then there is nothing that precludes the adoption of a nuanced approach, as we have stated. What must matter at the end is that a path is chosen that safeguards a litigant’s right to access justice while also recognizing the efficiency and specificity that established alternative dispute resolution mechanisms can offer. This is because, to achieve a harmonious and effective legal framework, it is imperative to strike a judicious balance between the emphasis on providing the initial opportunity for resolution to entities established by law and the assertion of a litigant’s right to access the court. However, such convergence requires a case-by-case assessment by considering issues such as the nature of the dispute and the adequacy of the alternative dispute mechanism. … 108. It was therefore sufficient that the appellant alleged that a right in the Constitution had been infringed or threatened with violation, making it clear that in light of the provisions of the ELCLPET No. E001 of 2025 (Nyamira) Page 22 of 25

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Constitution and the ELC Act, the issues raised were within the original jurisdiction of the ELC ... 46.The Respondent has not identified specific provisions of Kenya Roads Act through which the Petitioners could access justice. In those circumstances, there is good reason for the Court to adopt a nuanced approach which safeguards the Petitioners’ right to access justice. I also note that the Petitioners have pleaded in their petition arbitrary deprivation of property contrary to Articles 40 and 64 and violation of Articles 10 and 47. Those are matters that fall within the jurisdiction of the Court. 47.Arising from the foregoing, I find and hold that the Court has jurisdiction to hear and determine this petition. 48.The Petitioners’ case is that the First and Second Petitioners are allottees and occupants of Plot Numbers Plot No. 21A and 20B (suit properties) which they developed and that on 9 th October 2025, the Respondent issued a notice requiring demolition of the structures for allegedly encroaching on road reserves. To have any chance of success, the Petitioners must demonstrate ownership of the suit properties and that there is no encroachment. The rule still remains; he who alleges must prove. 49.The Petitioners’ claim of ownership is based on allotment cards. They do not have title. It is trite that an allotment card or letter is not title to land. It is merely an offer on specified ELCLPET No. E001 of 2025 (Nyamira) Page 23 of 25

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terms and conditions. The allottee has to follow it up, comply with all the conditions of the offer as well as the procedure for obtaining title to public land before he gets a valid title document. See Wreck Motor Enterprises v Commissioner of Lands & 3 others [1997] eKLR. 50.In Torino Enterprises Limited v Attorney General (Petition 5 (E006) of 2022) [2023] KESC 79 (KLR) (22 September 2023) (Judgment) where it held, the Supreme Court held that an allotment letter is incapable of conferring interest in land since it is nothing more than an offer which awaits the fulfilment of its terms and conditions. See also Sehmi & another v Tarabana Company Limited & 5 others (Petition E033 of 2023) [2025] KESC 21 (KLR) (11 April 2025) (Judgment). 51.The Petitioners’ claims of arbitrary deprivation of property contrary to Articles 40 must be seen against the backdrop of their not having demonstrated proprietorship. Even if they had demonstrated proprietorship, which they have not, they would next need to demonstrate that their buildings and developments on the suit properties were constructed strictly within the said properties and did not encroach on the road reserve. 52.On that issue, all that the Petitioners have provided are their bare allegations. No approved building plans have been availed. In fact, the Petitioners have not even provided any ELCLPET No. E001 of 2025 (Nyamira) Page 24 of 25

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survey sketch to demonstrate to the Court the position of their structures in relation to the road reserve. 53.On its part, the Respondent has provided evidence from an Approved Survey Assistant, supported by annexed copies of survey plan for Bonyamatuta Registration Section/Diagram No. 5 and layout plan for Kebirigo Market which was issued by the County Government as the head lessor, stating explicitly that the Petitioners’ developments had encroached into the established road reserve of 120 feet. 54.In view of the foregoing, the Petitioners have failed to prove their case. I find no merit in the Petition and I therefore dismiss it. No order on costs. Dated, signed, and delivered at Nyamira, this 23 rd day of September 2026. D. O. OHUNGO JUDGE Delivered in the presence of: Ms Kwamboka for the Petitioners Mr Ndichu for the Respondent Court Assistant: B Kerubo ELCLPET No. E001 of 2025 (Nyamira) Page 25 of 25

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