Reuben Kioko Mutyaene v Kenya National Highways Authority & 3 Others

OF THE REGISTRATION OF TITLES ACT, KENYA ROADS ACT, CONSUMER ADMINISTRATIVE PROTECTION ACTION ACT ACT, AND THE FAIR ENVIRONMENT MANAGEMENT AND COORDINATION ACT BETWEEN REUBEN KIOKO MUTYAENE............................1 ST PETITIONER VERSUS KENYA NATIONAL HIGHWAYS AUTHORITY...1ST RESPONDENT COUNTY GOVERNMENT RESPONDENT OF MACHAKOS……2ND MINISTRY OF LANDS AND PHYSICAL RESPONDENT THE HON. PLANNING………………………………..3RD ATTORNEY GENERAL……………....4TH RESPONDENT JUDGMENT 2

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Introduction 1. By a petition dated 26th May 2020, the petitioner sought against the respondents herein, the following orders; a) A declaration that the 1st respondent’s actions amount to negligence and ignorance of the land acquisition laws and is in full disregard of the petitioner’s legitimate expectations of his proprietary rights over title LR No. Masii/Mithini/774. b) A declaration that the petitioner’s right to property, economic freedom and right to fair administrative action has been infringed and that he is being deprived of his rights to the said properties (protected by article 40 of the Constitution). c) A declaration that the petitioner and his spouse are the lawful registered proprietors of the parcel title LR No. Masii/Mithini/774 and that they hold indefeasible title over the property that is being illegally claimed by Kenya National Highways Authority (KeNHA) and that the authority can only 3

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acquire and said land through due process and procedure stipulated in law. d) A declaration that the width of the road known as Machakos(Kyumbi) – Kitui (Syongila) road C97 is 40 metres wide and that there acquisition (Kyumbi) has for been no expansion – Kitui (Syongila) formal of land Machakos road to 60 metres’ width. e) A finding and declaration that for lack of lawful procedure, the Machakos (Kyumbi) – Kitui(Syongila) road is currently classified as C97 and not B62 and that there has been no formal re-classification of the road by the 1 st respondent as per the Constitution and applicable laws. f) An order that the affected properties, the general public and the County Governments of Machakos and Kitui should be informed and involved by the respondents in regard to expansion of size of the Machakos (Kyumbi) – Kitui (Syongila) road as stipulated in the Constitution and the applicable laws. 4

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g) A permanent injunction restraining all the respondents either on their own, servants or agents from interfering with his development projects or trespassing on land title LR No. Masii/Mithini/774 and LR no Masii/Mithini/425. h)A mandatory order to issue to the 1 st respondent to obliterate/erase all the ‘X” inscriptions placed illegally on building/structures that are situated outside the documented 40 metres road reserve and to reinstitute the buildings to their former aesthetic state, and further order to compensate the affected property owners for trespass and defacing their properties. i) An order for compensation to the petitioner for breach of his constitutional rights and fundamental freedoms as enumerated in paragraph 42 herein above and in addition, order for exemplary/aggravated damages. j) An order for compensation of mesne profits and/or loss of earning capacity for business opportunity lost since October 2019 up to the time of determination of this petition. 5

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k) In the alternative of (j) above, an order for payment of full compensation at market rates for the parts of the petitioner’s parcels of land to be acquired by the 1 st respondent for expansion of the said road’s width to 60 metres, in addition to damages for loss of earning capacity affected to apply to land/property neighbouring the Machakos all other proprietors (Kyumbi) – Kitui(Syongila) road. l) Costs of the petition and interests on (i), (j) and (k) above at court rates. 2. The petitioner averred that he jointly owns with his spouse LR No. Masii/Mithini/774 and has an interest in LR No. Masii/Utithini/425 (suit properties) both situated at Masii market centre in Machakos county and adjoining the Machakos–Kitui road. He brought the petition in his own interest and on behalf of other land and property owners allegedly affected by the alleged proposed expansion of the approximately 100-kilometre road. 6

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3. He averred that he acquired his interest in LR No. Masii/Mithini/774 pursuant to a sale agreement dated 17th April 2020 and subsequently acquired interest in portions of LR No. Masii/Utithini/425. That before purchasing the suit properties, he undertook due diligence, including examination of survey maps, and established that the adjoining road reserve measured 40 metres and that the existing ground beacons corresponded with that measurement. That he further consulted the 2004 Ndungu report and google maps, which identified the road as C97. He therefore maintained that there was no indication in the records available to him that the road reserve had been increased or upgraded from 40 metres to 60 metres. 4. He further averred that LR No. Masii/Mithini/774 was created through subdivision of a larger parcel. That during the subdivision process, the Land Surveyor obtained the relevant survey records from the Machakos land survey office, including diagram No. 21, which indicated that the adjoining Machakos–Kitui road reserve 7

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measured 40 metres. That the surveyor thereafter demarcated the road reserve, incorporated the measurements in the mutation sketch and used GPS coordinates to establish the resulting parcels. That following completion of the subdivision, the parcels were registered and titles issued. 5. The petitioner stated that he subsequently obtained the necessary consents and completed the transfer and registration of his interest. He contended that his title and subsequent investment were therefore based on official survey and land registration records showing a 40-metre road reserve. 6. He further stated that he obtained financing from Kenya Women Finance Trust (KWFT) for construction and secured the requisite building plans and approvals from the County Government of Machakos, the National Construction Authority and NEMA. That he intended to commence construction in 2019 and, in preparation, obtained permission to remove temporary structures and 8

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fenced the property. According to him, it was during surveillance and maintenance activities undertaken by KeNHA in September/October 2019 that its officers alleged that the perimeter fence encroached on the road reserve and marked it with a red “X”. 7. The petitioner averred that he wrote to KeNHA on 25th November 2019 seeking clarification on the width of the road reserve and the effect of the alleged expansion on his construction project. KeNHA responded on 9 th December 2019 stating that the road reserve was 60 metres wide from Kyumbi junction in Machakos to Syongila junction in Kitui. He disputed this position and, by a letter dated 15th January 2020, requested documents demonstrating the legal and factual basis for the alleged increase from 40 metres to 60 metres. In particular, he sought the official map showing the 60metre reserve, the relevant Gazette notice, evidence of compulsory acquisition and compensation, and evidence of public participation landowners. 9 and notices to affected

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8. He states that he also requested a site visit to ascertain and re-measure the existing road beacons and establish the correct road reserve. He stated that KeNHA did not respond, prompting him to issue a further notice dated 19th February 2020 seeking reconsideration of its position. He maintained that he had halted construction pending determination of the correct road-reserve width and expressed his willingness to surrender the land if it had been lawfully acquired for a public project. He also proposed an amicable resolution or arbitration of the dispute. His efforts, however, did not yield a resolution and, on or about 11th May 2020, KeNHA allegedly proceeded to mark buildings and structures falling within what it considered to be the 60-metre road reserve for demolition. 9. He contended that the threatened demolition amounted to an attempt to forcibly acquire private land without compliance with the Constitutional and statutory procedure for compulsory acquisition. He relied on several survey records 10 which, according to him,

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indicated that the road reserve measured approximately 120 feet, equivalent to 40 metres. He further alleged that no notice of the intended demolition or compulsory acquisition had been published in the Kenya Gazette or served upon the affected proprietors. He therefore characterised KeNHA’s actions as premature, unlawful and discriminatory and contended that the threatened demolition would occasion substantial loss to property owners who had invested in reliance on the existing survey records. 10. He consequently alleged that the 1st respondent’s conduct violated his constitutional and proprietary rights. He contended that the proposed expansion of the road reserve to 60 metres was undertaken without lawful acquisition of the additional land, adequate public participation or compliance with the compulsory acquisition procedure under the Constitution and the Land Act. He further alleged that, although an Environmental Impact Assessment had been undertaken, he and other members of the public had not been 11

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adequately involved in the public participation process or given a meaningful opportunity to raise environmental and sustainable-development concerns. 11.He further maintained that the 1st respondent’s failure to provide the information he had requested concerning the alleged 60-metre road reserve amounted to a violation of his right to access information and his right to fair administrative action. He alleged infringement of his rights under Articles 28, 29, 33, 35, 40, 43, 46, 47 and 50 of the Constitution, including the rights to dignity, freedom from psychological torture, freedom of expression, access to information, property, economic and social rights, consumer rights, fair administrative action and fair hearing. 12. He contended that the threatened demolition and interference with his property had deprived him of the opportunity to develop and derive economic benefit from it, interfered with his approved commercial building project, exposed him to loss of tenants and business 12

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opportunities, and occasioned expenditure in the acquisition, registration, preparation and approval of the property. 13. He particularised his alleged losses to include interference with his reputation and future business opportunities, development expenditure, psychological distress and the risk of financial and reputational loss. He maintained the 1st respondent was liable for the alleged losses but, in the alternative, contended that if the court were to find that the road had lawfully been expanded to 60 metres, the 3 rd respondent, the Ministry of Lands and Physical Planning, ought to bear liability for the losses arising from allegedly defective, outdated or inaccurate survey records upon which he and other proprietors had relied. 14. Conversely, that if the court found that the 60-metre road reserve was unsupported by the official survey records, he maintained that the road reserve ought to be recognised as measuring 40 metres. He therefore 13

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contended that the dispute concerned land situated within Machakos county and fell within the jurisdiction of the court. In support of his case, he relied on his documents annexed and marked RKM 1 to RKM 27. 15. The petition was opposed. The 1st respondent filed a replying affidavit sworn on 27th October 2020 by Samuel Odoyo Orwa, the Regional Surveyor attached to the office of the Regional Director, Lower Eastern. It was the 1st respondent’s case that KeNHA is mandated to develop, rehabilitate, manage and maintain National Trunk roads, including the Machakos–Kitui Road B62 (formerly C97). That upon reviewing the relevant survey and acquisition records concerning L.R. No. Masii/Mithini/774, the respondent established that the parcel falls within land that was reserved as a road reserve during the construction of the Machakos–Kitui road. 16. The 1st respondent maintained that ownership of the parcel itself is not the dispute; rather, the issue concerns 14

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the boundary and alleged encroachment onto the road reserve. He stated that the road reserve acquired during construction in 1972 was and remains 60 metres, as no subsequent acquisition has been undertaken. He further contended that the petitioner had unlawfully erected structures and/or deposited materials within the road reserve. He asserted that it is within its statutory and constitutional mandate to issue notices to persons whose structures encroach on road reserves and, where necessary, take steps to protect the reserve. He further clarified that the subsequent reclassification of the road from C97 to B62 did not alter the size of the road reserve. 17. According to the 1st respondent, granting the orders sought by the petitioner would effectively prevent KeNHa from discharging its public mandate merely because an individual alleged to have encroached upon the road reserve claims that they will suffer damages. On the question of public interest, the 1 st respondent argued that the balance of convenience favours protection of the 15

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road reserve because it serves the wider public, whereas the petitioner is described as a trespasser upon the reserve. He further disputed the petitioner’s claim for compensation, arguing that compensation would only arise where the Authority is undertaking a fresh acquisition of land for development. 18. Since, according to the 1st respondent, there has been no fresh acquisition and the disputed parcel already encroaches on an existing road reserve, the claim for compensation is said to be misplaced. He also denied that the petitioner’s constitutional rights have been infringed by the measures taken to protect the road reserve. Finally, he maintained that KeNHa acted with due care and diligence and in accordance with the Land Act, 2012 and the Kenya Roads Act, 2007. He sought among other reliefs, declarations affirming the legality of its actions and a mandatory order compelling the petitioner to remove the alleged illegal structures erected on the road 16 reserve adjoining L.R. Nos.

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Masii/Mithini/774 and Masii/Mithini/425, together with costs of the suit. 19. The petitioner in his further affidavit dated 16 th November 2020 stated that he filed the instant petition on 28th May 2020 together with an application seeking orders to restrain the 1st respondent, from interfering with or demolishing structures erected on LR No. Masii/Mithini/774, LR No. Masii/Utithini/425 and other adjoining parcels of land affected by the Machakos–Kitui (Syongila) road. He stated that on 16th September 2020, the Court issued orders directing that the status quo be maintained pending the hearing and determination of the petition. He however alleged that despite the said orders, the 1st respondent continued to interfere with his properties and the road reserve. 20. The petitioner contended that the suit properties are situated within Masii location in Machakos county and are affected by the Machakos–Kitui road. He relied on survey maps, Kenya Gazette 17 notices and other

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documents to demonstrate that the road was historically established and acquired at a width of approximately 40 metres (120 feet). He alleged that the 1 st respondent had unlawfully treated the road reserve as extending beyond the established boundary and has encroached onto portions of his privately owned land. He further challenged the process through which the affected portions of land were allegedly acquired, contending that the compulsory acquisition process was not properly completed and that some of the land remained registered in the names of the original proprietors. 21. The petitioner further alleged that the 1 st respondent's actions have interfered with his intended development of the suit properties and caused him financial loss. He particularised various expenses incurred in relation to the proposed development, including payments to an architect, the County Government, the Department of Lands, the National Construction Authority and NEMA, as well as costs relating to environmental assessments, building approvals and preparation of Bills of quantities. 18

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He stated that the expenses amount to approximately Kshs. 272,078, and additionally claims compensation and mesne profits for loss of business and earnings, as well as compensation for the portions of land allegedly affected by the road reserve. 22. The petitioner therefore sought, several reliefs reliefs, a declaration that the lawful road reserve is 40 metres (120 feet) and an order compelling the 1 st respondent to remove any markings or works extending beyond that reserve. He also sought compensation for trespass and the loss occasioned by the alleged interference with his properties, together with other appropriate orders. He maintained that he lawfully acquired the suit properties and holds indefeasible title thereto, and consequently asked the court to dismiss 1st the respondent's counterclaim. He further relied on an affidavit by another affected landowner and a priced Bill of quantities in support of his claim, and indicated that he will call a registered surveyor as an expert witness to support his case. 19

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23. The petition was heard by way of viva voce evidence. The petitioner presented two witnesses. No witness was presented by the respondents. Petitioner’s evidence 24. PW1 was Reuben Kioko, the petitioner in this matter. He adopted his witness statement dated 26 th October 2021, supporting affidavit dated 26th May 2020 and further affidavit dated 16th November 2020 as his evidence-in-chief. He produced the documents listed in his bundle of exhibits/ list of documents dated 29 th November 2021. He stated that the dispute concerns the width of the road adjoining his parcels of land, which according to him is 40 metres, whereas the 1 st respondent had treated the road reserve as having a width of 60 metres. 20

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25. He testified that he owns L.R. No. Masii/Muthini/774 jointly with his spouse and had also purchased the adjoining parcel, L.R. No. Masii/Muthini/425, (suit properties), although the latter had not yet been transferred to him. He stated that in 2019, the 1 st respondent went to the suit properties and marked his fence for demolition and uprooted trees and subsequently placed beacons on what he considered to be his land based on a 60-metre road reserve. He further stated that in 2021, beacons were erected along the 60metre mark, affecting parcel No. 425 and interfering with his construction plans. He produced documents attached on his list of documents dated 29 th November 2021, which included title deed, several maps, mutation form, correspondence between him and the 1 st respondent and development plans. 26. In cross-examination, PW1 maintained that he had undertaken due diligence before purchasing the land and had obtained an earlier Registry Index Map showing a 40-metre road reserve. He conceded, that map he 21

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produced as P-Exhibit 13 did not indicate the width of the disputed road and that its scale was 1: 2,500. He confirmed that on that map, there was no indication that the width of the disputed road was 40 metres. He stated that the 1st respondent placed beacons on parcel No. 425 in 2021 and asserted that the respondent had trespassed onto his land. He confirmed having written to the 1 st respondent upon the marking of his fence and having received a response to his letter. 27. He further acknowledged that he had no surveyor’s report specifically showing the alleged encroachment, although he relied on the survey documents and mutation and RIM records in support of his position. He also testified that the marking of the fence for demolition and the placement of beacons had interfered with his intended construction and caused him loss. He stated that he had no report to demonstrate the extend of financial loss he incurred. He maintained that before marking his property for demolition, he was not consulted or notified. He emphasized that the affidavit by 22

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one Josiah gave the correct position. On being questioned why he sued the County Government of Machakos, he stated that they approved his building plans which showed that the road measured 40 metres in width. 28. PW1 further maintained that the mutation documents and the survey coordinates supported a 40-metre road reserve and disputed the 60-metre measurement relied upon by the respondents. He also stated that the relevant documents bore the stamp of the Machakos County Survey office and maintained that the respondents had exceeded the land required for the road. 29. On re-examination, PW1 referred specifically to the mutation and survey documents, stating that they demonstrated the subdivision of the land and the position of the road reserve, and reiterated that the measurements reflected a 40-metre road reserve. He maintained that the documents he had produced were 23

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sufficient to support his contention that the respondents had encroached beyond the lawful road reserve. 30. PW2 was Raphael Peter Otieno, who is a retired civil servant and a qualified Surveyor who worked in the department of Survey. He adopted his written statement dated 14th June 2021 as his evidence in chief and testified that he visited the suit property and took measurements in respect of parcel Nos. 774 and 425. That he had been asked by the petitioner to determine that the road measured a width of 40 metres and not 60 metres. That his mandate was to confirm what was on the ground. That he established that the road measured approximately 36.58 metres on the ground, while the survey/map records indicated a road width of approximately 37 metres. He further stated that the mutation relating to parcel No. 774 showed a road reserve of 40 metres, and that the acreage of the relevant parcel was approximately 0.0614 hectares. He testified that he had not come across any document showing that the road reserve was 60 metres wide, and 24

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stated that the survey records he relied upon supported a width of about 40 metres. That the survey maps and the mutation amendments indicated that the road was 120 feet. 31. In cross-examination, PW2 explained that his evidence was based on the official survey documents available at the Government survey office, including the RIM sheet relating to Parcel No. 774. He acknowledged that he did not prepare a report for the matter. 32. On re-examination, PW2 clarified that the stamp appearing on the map was that of the County Surveyor, and that the mutation document also bore the stamp of the Machakos County Survey Office. He further stated that he had renewed his certificate of practice in 2022, although the documents in question were from an earlier period. He maintained that the survey records supported the road reserve as reflected in the survey documentation and not the alleged 60-metre width. 25

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33. This marked the close of the petitioner’s case. The court ordered close of the 1st respondent’s case due to their absence, while the 2nd, 3rd and 4th respondents preferred not to call any witness and closed their case. This marked the close of the respondents’ case. 34. The petition was disposed by way of written submissions. On record are the petitioner’s submissions dated 22nd March 2023, supplementary submissions dated 17th September 2025 and 12th June 2026. Also on record are the 1st respondent’s submissions dated 2nd March 2026, 2nd respondent’s submissions dated 2nd May 2023 while the 3rd and 4th respondents did not file any submissions. Petitioner’s submissions 35. The petitioner submitted in essence, that the central dispute concerned Machakos–Kitui the road, lawful coded dimensions C97/B62, of the particularly whether its road reserve measured 40 metres (or approximately 36.5 metres/120 feet) as reflected in the 26

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Registry index maps (RIMs) and mutation form, or 60 metres as alleged by the 1st respondent. 36. He maintained that his evidence, including the documentary evidence and the testimony of PW1 and PW2, established the 40-metre dimension, whereas the 1st respondent failed to adduce credible and properly authenticated evidence demonstrating that an additional 20 metres had lawfully been acquired. 37. He further submitted that the 1st respondent's reliance on Gazette Notices and topographical maps did not establish that the petitioner's parcels had been acquired to create a 60-metre road reserve. He argued that some of the documents relied upon by the 1st respondent had not been produced in evidence or served upon him and that the 1st respondent could not introduce new evidence through submissions. He maintained that the Gazette notice relied upon did not relate to his particular parcels or establish acquisition of a 60-metre reserve, and that the 1st respondent had not produced the necessary 27

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survey or acquisition documentation to contradict the RIMs and Mutation form. 38. On the basis of the foregoing, the petitioner submitted that the 1st respondent had no lawful basis to enter upon his properties, alter the existing boundary from 40 metres to 60 metres, mark his structures with “X” marks for demolition, clear vegetation or erect boundary beacons on his land. He contended that these actions amounted to trespass and unlawful interference with his property rights, and were arbitrary, oppressive, unconstitutional and contrary to the protection accorded to property ownership under article 40 of the Constitution. He further argued that the 1st respondent failed to demonstrate that proper notices had been served before the threatened demolition of structures. 39. He also challenged the manner in which the 1st respondent purported to exercise its statutory mandate. He submitted that the re-classification of the road from class “C” to class “B” did not lawfully establish a 6028

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metre road reserve and that the requisite statutory and constitutional procedures had not been followed. In particular, he argued that there was no evidence of the requisite Gazette Notice or public disclosure concerning the re-classification, contrary to the Roads Act, the Fair Administrative Action Act and articles 33, 35, 47 and 50 of the Constitution. 40. A further issue raised by the petitioner concerned the credibility and competence of the 1 st respondent's evidence. He challenged the replying affidavit sworn by Samuel Odoyo Orwa, contending that the Land Surveyors' Board documentation demonstrated that Mr. Orwa was an approved assistant and not a qualified surveyor at the material time. The petitioner therefore argued that Mr. Orwa lacked the professional qualifications necessary to provide expert evidence on the dimensions of the road reserve and that the affidavit, together with the evidence founded upon it, ought to be disregarded. He contrasted this with the evidence of his 29

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own witness, Raphael Peter Otieno, whose qualifications and evidence, he maintained, remained uncontroverted. 41. The petitioner further submitted that the 1st respondent had disobeyed the court's status quo orders by undertaking activities that resulted in the erection of boundary beacons at the disputed 60-metre mark, particularly in June 2021 and May 2023. He relied on the subsequent ruling of the court finding the 1st respondent in contempt and the orders requiring removal of the impugned beacons. He maintained that the 1 st respondent's subsequent partial removal of the beacons, apology to the court and the affidavit in mitigation amounted to an acknowledgment of the disobedience. He therefore urged the court to order removal of all remaining beacons and obliteration of the “X” marks placed on his fence and other affected structures. 42. On damages, the petitioner submitted that the 1 st respondent's conduct had interfered with his use and enjoyment of his two parcels of land and had stalled his 30

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intended construction project for several years. He therefore sought compensation for violation of his constitutional rights, general damages for trespass, damages for loss of earning capacity based on anticipated rental income, and enhanced exemplary and aggravated damages. In particular, he proposed Kshs.20 million for constitutional violations, Kshs.57.6 million for loss of anticipated rental income, Kshs.24 million for trespass, Kshs.50 million exemplary damages and Kshs.5 million aggravated damages. 43. He also submitted that the conduct of the 1 st respondent was aggravated by its continued disregard of the court's orders, the subsequent erection of additional beacons and the prolonged delay in the disposal of the petition. He argued that these circumstances justified exemplary and aggravated damages and relied on the subsequent developments, including the court's finding of contempt, to support his contention that the respondent's conduct was oppressive and a violation of his property rights. 31

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44. With regard to the 1st respondent's counter-claim, the petitioner submitted that the same had not been substantiated by evidence and that the respondent had ultimately failed to advance it through its submissions. He therefore urged the court to dismiss the counterclaim with costs. He similarly complained that the 1 st respondent had prolonged the proceedings through filing and subsequently withdrawing several applications, thereby prejudicing the petitioner and delaying the final determination of the petition. 45. Ultimately, the petitioner urged the court to allow the petition and grant the declarations and other reliefs sought. He maintained that granting the reliefs sought would not only vindicate his rights but also prevent further unlawful expenditure of public funds arising from the disputed road reserve and maintenance of the impugned beacons. 1st respondent’s submissions 32 the continued

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46. Counsel for the 1st respondent submitted that the petitioner’s claim concerned LR No. Masii/Mithini/774, which bordered a public road reserve. They maintained that although ownership of the parcel itself was not disputed, the petitioner had encroached onto the road reserve. They contended that the road reserve had a width of 60 metres, as evidenced by Gazette Notice No. 3816 of 21st December 1973, and that the petitioner had failed to produce evidence showing that the reserve was only 40 metres wide. Further that the reclassification of the Machakos- Kitui road from class “C” to class “B” had not altered the existing 60-metre road reserve, but had merely transferred the responsibility for its management to the 1st respondent. 47. It was further contended for the 1 st respondent that the petitioner had unlawfully occupied approximately 20 metres of the road reserve without evidence of lawful allocation or approval. Counsel argued that the occupation and structures on the reserve contravened section 49(1) of the Kenya Roads Act, 2007. They 33

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maintained that it had acted within its statutory mandate to protect road reserves and to remove unlawful encroachments. approvals They allegedly submitted that the building obtained from the County Government of Machakos, NEMA and NCA did not override the respondent’s statutory mandate over road reserves. 48. Reliance was placed on section 91 of the Traffic Act and the decision in Samuel Maina Kabiru & Another v Kenya National Highways Authority [2018] KEELC 2922 (KLR) for the contention that the 1 st respondent had power to remove structures erected on a road reserve. They argued that the notices issued to the occupants to vacate and demolish the structures had been consistent with fair administrative action and the public interest. 49. On the alleged violation of constitutional rights, the 1 st respondent counsel submitted that the road reserve constituted public land 34 under article 62 of the

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Constitution and was therefore not available for private occupation. They argued that although article 40 protected the right to property, such protection did not extend to property that had been unlawfully acquired, in view of the provisions of article 40(6). Relying on Kenya National Highway Authority v Shalien Masood Mughal & 5 Others, Elizabeth Wambui Githinji & 29 Others v Kenya Urban Roads Authority & 4 Others and Chemey Investment Ltd Vs Attorney General & 2 Others, counsel submitted that the petitioner could not rely on constitutional protection in respect of an alleged encroachment onto public land. 50. Counsel maintained that the petitioner’s constitutional rights had not been violated and that he was not entitled to the reliefs sought. Counsel challenged the admissibility and credibility of the petitioner’s expert evidence, arguing that the expert, Raphael Peter Otieno, was an unlicensed surveyor and was therefore not competent to undertake the survey relied upon by the 35

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petitioner. They submitted that the Survey Act required surveyors to be licensed and that surveys affecting registered land had to be conducted in accordance with the directions of the Director of Surveys. 51. They further argued that the maps and plans produced by the petitioner had not been authenticated by the Director of Surveys and should therefore be expunged from the record. Counsel also contended that the expert had failed to disclose the historical acquisition of portions of Machakos- the land for Kitui road. the They construction concluded of the that the Government had lawfully acquired and compensated the former owners for the road reserve, that the petitioner had failed to undertake proper due diligence, and that his encroachment had been unlawful. They consequently urged the court to dismiss the petition in its entirety and award costs to the 1st respondent. 2nd respondent’s submissions 36

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52. The Counsel for the 2nd respondent submitted that during cross-examination of the petitioner, he maintained that the road was previously shown as measuring 40 metres and that the relevant beacons were only placed later. They further submitted that PW2, a retired surveyor/civil servant with extensive experience, testified that he conducted a ground check concerning the parcels and the neighbouring Machakos–Kitui road and stated that he did not have documentation demonstrating that the road was 60 metres wide. 53. Counsel for the 2nd respondent identified two issues for determination, namely: who has the mandate for road expansion within the country, and who should bear the costs of the suit. On the first issue, counsel argued that the Constitution’s distribution of functions between the National and County Governments, together with the Kenya Roads Act, 2007, places responsibility for highways with the Kenya National Highways Authority (KeNHA). That since the Machakos–Kitui road is classified as a highway, they contended that KeNHA, 37

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rather than the County Government of Machakos, has the mandate concerning its expansion arguing that the County Government’s role was limited to approving the petitioner’s building plans. 54. Counsel contended that KeNHA ought to have communicated its intention to expand the road to the petitioner. The court was referred to the case of Simonash Investments Ltd v Kenya National Highways Authority & 2 Others (2021) eKLR, where the court recognized KeNHA’s mandate in relation to compulsory acquisition for road expansion. On the second issue; counsel for the 2nd respondent urged the court to dismiss the petition awarded costs to the 2 nd respondent. Analysis and determination 55. The court has carefully considered the petition, response thereto, evidence as well as submissions. In its view, the issues that arises for determination are as follows; 38

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a) Whether the petitioner proved that the road reserve adjoining parcel Nos. L.R. Masii/Mithini/774 and Masii/Utithini/425 measures 40 metres. b) Whether the 1st respondent has arbitrarily and unlawfully acquired portions of the petitioner’s land without full, prompt and adequate compensation. c) Whether part of the petitioner’s parcels formed part of an existing road reserve or had otherwise been lawfully acquired by the Government for road purposes. d) Whether the 1st respondent acted within its statutory mandate in placing beacons, marking the petitioner’s structures and threatening or undertaking demolition of structures alleged to have encroached onto the road reserve. e) Whether the 1st respondent’s violated the petitioner’s rights actions under articles 40 and 47 of the Constitution. f) Whether the petitioner is entitled to the prayers sought. 39

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g) Whether the 1st respondent was entitled to its counterclaim. h)Who should bear the costs of the petition and counterclaim. 56. The petitioner’s case is that the Machakos – Kitui road measures 40 metre and not 60 metre as purported by the 1st respondent and that the 1st respondent has sought to expand the road into the petitioner’s parcel without compensating the petitioner and or granting him a fair administrative action. Basically, the petitioner argues that his right to property under article 40 of the Constitution has been violated and his right to a fair administrative action under article 47 of the Constitution has been violated as no notice of acquisition of his land was given to him and that the 1 st respondent arbitrarily intends to acquire his land without compensating him. 57. Article 40 (1) of the Constitution of Kenya provides for protection of the right to own and acquire property. Article 40 (3) provides that; 40

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“The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—(a)results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or(b)is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—(i)requires prompt payment in full, of just compensation to the person; and(ii)allows any person who has an interest in, or right over, that property a right of access to a court of law.” 58. Part VIII of the Land Act and more particularly sections 107 to 125 of the Land Act provide the processes to be followed in compulsory acquisition of land by the State. Therefore, compulsory acquisition can only be done by the state for a public purpose, and that process starts from issuance of notices to affected persons, assessment of the value of the land to be acquired, an inquiry for purposes of hearing the affected 41

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persons, award of compensation and prompt payment of full compensation where land is compulsorily acquired. 59. In Attorney General v Zinj Limited [2021] KESC 23 (KLR), the Supreme Court stated that: “The only way the Government could lawfully deprive the respondent of part or all of its property, was through a compulsory acquisition, in conformity with the provisions of article 40(3) of the Constitution.” ……Any compulsory acquisition process, ought to have commenced with a requisite Notice to the respondent, and any other persons claiming an interest in the land.” ……the resultant acquisition ought to have been attended with prompt payment in full, of a just compensation to the respondent.” 60. Therefore, it is only the state that can compulsorily acquire private property, and it can only do so for public purposes and where it has provided full, prompt and just compensation. 42

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61. The petitioner’s claim for compensation is predicated upon the allegation that the disputed road measures 40 metres but that the 1st respondent intends to expand it to 60 metres, thus arbitrarily acquiring the petitioner’s property. 62. Section 107 of the Evidence Act places the burden of proof of a claim on the claimant. In the instant case, for the petitioner was obligated to prove that the width of the disputed road was 40 metres; that the 1st respondent was arbitrarily expanding the width of the road to 60 metres; that the land outside the alleged 40 metres road adjoining his parcel was his and that if the road was being expanded to 60 metres, he was entitled to compensation. 63. In his attempt to prove that the disputed road had the width of 40 metres, the petitioner’s produced several maps together with mutation forms and also relied on the evidence of PW2. The court has considered the maps produced by the petitioner. 43 As conceded by the

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petitioner, the maps did not show the width of the disputed road. 64. From the maps produced by the petitioner, the road reserve for Machakos - Kitui road has no specified width. The mutation produced was in regard to the petitioner’s parcel of land and shows a width of 120 feet. The mutation is a document prepared by the surveyor under instructions from the owner of the land and therefore cannot form the basis of the correctness of the width of the road. A mutation does not override the map before mutation was prepared. The maps produced by the petitioner do not show the width of the disputed road. From the maps marked “RKM- 27”, “RKM-13” and “RMK -42”, the road reserve marked 120 feet is different from the disputed road in connection to the petitioner’s property. In those maps, the width of the disputed road is not indicated. Exhibits marked “RKM -25” and “RKM43” have no nexus with the suit properties. Besides, the maps presented by the petitioner although meant to demonstrate the position and width of the road in issue 44

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as relates to the suit property, those maps are materially inconsistent, despite purporting to represent the same locus in quo. This is evident from the comparison of Exhibit Marked “RKM-13” and “RKM-42”. 65. Besides, the petitioner did not inform this court either through his pleadings and or evidence the extend of the alleged encroachment of his property by the 1 st respondent. 66. From the 1st respondent’s replying affidavit and annexure thereto, the 1st respondent attached a Gazette notice showing that it acquired land for the entire C97 road reserve and compensated the owners of the land. That Gazette notice was not challenged or rebutted. The petitioner’s title was first registered in 2014 as a first registration. allegation The that petitioner the suit has property not disputed was before the his registration, trust land and owned by the County Government of Machakos. He also does not dispute the fact that part of the land owned by the then County 45

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Council, now County Government of Machakos was compulsorily acquired in 1972 for purposes of the road. The 1st respondent pleaded that there was no expansion of the road because it has always been 60 metres from when it was acquired in 1972 and the reclassification of the road from class “C” to “B” did not alter its size or violate the petitioner’s rights. PW2 confirmed that on the ground the disputed road was 36. 58 metres wide. It is therefore clear that the petitioner had encroached on the road reserve. 67. Having considered the totality of the petitioner’s case, I find and hold that the petitioner has failed to prove by clear and cogent evidence that the road reserve in dispute should have a width of 40 metres; or that the 1 st respondent has encroached on his parcel. The petitioner did not state how much of his land had been encroached upon by the 1st respondent and did not prove that he was the owner of the land where the 1 st respondent placed its beacons. The petitioner did not prove that the 1 st respondent arbitrarily 46 acquired his property and

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therefore he is not entitled to compensation. For the above reasons, I therefore find and hold that the petitioner has not proved that his rights under article 40 of the Constitution were violated. 68. Article 47 of the Constitution of Kenya provides that; “47. Fair administrative action (1) Every person administrative action has the that is right to expeditious, efficient, lawful, reasonable and procedurally fair. (2) If a right or fundamental freedom of a person has been or is likely to be adversely affected by administrative action, the person has the right to be given written reasons for the action. (3) Parliament shall enact legislation to give effect to the rights in clause (1) and that legislation shall— (a) Provide for the review of administrative action by a court or, if appropriate, an independent and impartial tribunal; and 47

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(b) Promote efficient administration.” 69. Therefore Article 47 of the Constitution places on every decision maker, the obligation to avail procedural fairness and fair administrative action to those affected by their decision. 70. The Supreme Court has consistently held that the right to fair administrative action under article 47 of the Constitution incorporates the requirements of procedural fairness. In Sonko v County Assembly of Nairobi City & 11 others [2022] KESC 76 (KLR) at paragraph 114, the Supreme Court stated: “The audi alteram partem rule requires that those who are likely to be directly affected by the outcome of a decision should be given prior notification of the action proposed to be taken, of the time and place of any hearing that is to be conducted, and of the charge or case they will be called upon to meet.” 71. More recently, in Gikenyi v County Government of Nakuru & 4 others [2026] KESC 12 (KLR), the 48

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Supreme Court reiterated that the audi alteram partem rule was a facet of procedural fairness and required prior notification and an opportunity to be heard. 72. The Court of Appeal in Judicial Service Commission v Mbalu Mutava & another [2015] eKLR stated that: “Article 47(1) marks transformative an important development and of administrative justice for, it not only lays a constitutional foundation for control of the powers of state organs and other administrative bodies, but also entrenches the right to fair administrative action in the Bill of Rights.” “……The right to fair administrative action is a reflection of some of the national values in article 10 such as the rule of law, human dignity, social justice, good governance, transparency and accountability.” 73. Therefore, any administrative decision by a public authority that affects a person’s rights must be executed reasonably, efficiently, lawfully and with procedural fairness. 49

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74. The 1st respondent has powers and functions vested in it by provisions of the Kenya Roads Act. Section 4 of the said Act provide for the functions of KenHa as follows; “ 4. Functions of the Authority (1)The Highways Authority shall be responsible for the management, development, rehabilitation and maintenance of national roads.(2)For the purposes of discharging its responsibility under subsection (1), the Highways Authority shall have the following (a)constructing, maintaining functions upgrading, roads and duties— rehabilitating under its and control; (b)controlling national roads and road reserves and access to (c)implementing roadside road policies developments; in relation to national roads;(d)ensuring adherence to the rules and guidelines on axle load control prescribed under the Traffic Act (Cap. 403) and under any regulations under this Act;(e)ensuring that the quality of road works is in accordance with such standards as may be prescribed by the Cabinet Secretary;(f)in collaboration with the Ministry responsible for Transport Department, overseeing 50 the and the Police management of

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traffic and road safety on national roads; (g)collecting and collating all such data related to the use of national roads as may be necessary for efficient forward planning under this Act; (h)monitoring and evaluating the use of national roads;(i)planning maintenance of the development and national roads;(j)advising Cabinet Secretary on all issues national roads;(k)preparing the relating road the to works programmes for all national roads;(l)liaising and co-ordinating with other road authorities in planning and on operations in respect of roads; and(m)performing such other functions related to the implementation of this Act as may be directed by the Cabinet Secretary.” 75. On the other hand, section 49 of the Kenya Roads Act provides the manner of exercise of the mandate of KenHA in instances where structures and other works are on, over or below roads as follows; “49. Structures and other works on, over, and below roads or certain other land (1)Except as provided in subsection (2), no person or body may do any of the following 51

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things without the responsible Authority’s written permission permission—(a)erect, or contrary construct to or such lay, or establish any structure or other thing, on or over or below the surface of a road reserve or land in a building restricted area;(b)make any structural alteration or addition to a structure or that other thing situated on or over, or below the surface of a road or road reserve or land in a building restriction area; or(c)give permission constructing, laying or for erecting, establishing, any structure or that other thing on or over, or below the surface of, a road or road reserve or land in a building restriction area, or for any structural alteration or addition to any structure or other thing so situated.(2)An Authority may, in its discretion, give or refuse to give permission under this section. (3)When giving permission the Authority may prescribe—(a)the specifications with which the structure, other thing, alteration or addition for which permission is requested must comply;(b)the manner and circumstances in which, the place where, the conditions on which the structure, other 52

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thing, alteration or addition may be erected, constructed, laid, established or made; and(c)the obligations to be fulfilled by the owner in respect of the land on which the structure, other thing, alteration or addition is to be established without erected, or the constructed, made.(4)Where permission a laid, person, required by subsection (1) or contrary to any permission given thereunder, erects, constructs, lays or establishes a structure or other thing, or makes a structural alteration or addition to a structure or other thing, an Authority may by notice in writing direct that person to remove the unauthorised structure, other thing, alteration or addition within a reasonable period which shall be stated in the notice but which may not be shorter than thirty days calculated from the date of the notice.(5)If the person to whom a notice has been issued in terms of subsection (4) fails to remove the structure, other thing, alteration or addition mentioned in the notice, within the period stated therein, such item may be removed by the Authority itself which may recover the cost of the removal from that 53

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person.(6)A person who contravenes any of the provisions of subsection (1) commits an offence and is liable on conviction to a term of imprisonment not exceeding one year or to a fine not exceeding one hundred thousand shillings, or to both.” 76. Therefore, where a person encroaches on a public road by constructing any unauthorized structure thereon, KenHA has the power to direct such person to remove the unauthorized structures. To do this it has first to issue a notice of not less than 30 days and where there is noncompliance, it may proceed to remove such unauthorized structures at the trespasser’s cost. 77. In Mukira v Kirinya & 2 others [2023] KEELC 15762 (KLR), the court held that: “The burden was more on the 3rd respondents to justify that the action to remove the alleged offending developments on a road reserve, were not only statutory but also constitutional in terms of fair hearing and fair administrative action.” 54

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78. In Kiragu & another v Kenya National Highways Authority [2026] KECA 65 (KLR), the Court of Appeal confirmed the statutory mandate of KeNHA under sections 4(1) and 4(2) of the Kenya Roads Act. It stated: “It is not in dispute that the respondent is a creature of statute by dint of section 3 of the Kenya Roads Act. Section 4 (1) states that the respondent shall be responsible for the management, development, rehabilitation and maintenance of national roads.” “….In discharge of the responsibilities set out in section 4 (1), section 4 (2) sets out the functions and duties of the respondent which include inter alia, controlling national roads and road reserves and access to roadside developments and performing such other functions related to the implementation of this Act as may be directed by the Minister.” 79. However, the Court expressly said: “Looking at the provisions of section 49 of the Kenya Roads Act, a notice ought to have been given to the appellants to remove the 55

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illegal structures constructed on the road reserve.” 80. The Court of Appeal in Kenya National Highways Authority v Tangerine Investments Limited [2023] KECA 79 (KLR) considered section 49(1) of the Kenya Roads Act and held that permission from the responsible authority was mandatory before a structure could be erected on a road reserve. The Court stated that: “The use of the word ‘may’ in section 49(1) leave us with no doubt that the provision is obligatory. Therefore, the respondent was obligated under the said provision to seek and obtain permission from the appellant before erecting the bill boards.” 81. In the instant case, the respondent pleaded that notice for trespassers and encroachers was given and encroaching buildings marked. This position is confirmed by the petitioner’s evidence which demonstrated several correspondences between the parties in 2019 and 2020 and the fact that the encroaching structures were duly marked. The correspondence between the parties had 56

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been preceded by a formal notice. I am therefore satisfied the 1st respondent complied with section 49 of the Kenya Roads Act. That being the case, I am satisfied that the petitioner was given sufficient notice of the intended demolition. For that reason, there is no evidence that the petitioner’s right to a fair administrative action under Article 47 of the Constitution was violated. 82. In the premises, I find and hold that the petitioner has failed to prove his claim on the required standard and therefore the same is hereby dismissed. The 1 st respondent did not present any testimony in this case and therefore failed to prove its counterclaim. For that reason, I hereby dismiss the 1st respondent’s counterclaim. In view of the conclusions made above, I make no order as to costs. 83. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN COURT/VIRTUALLY 57 THROUGH

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MICROSOFT TEAMS VIDEO CONFERENCING PLATFORM THIS 23RD DAY OF SEPTEMBER 2026 A. NYUKURI JUDGE In the presence of; The petitioner in person Mr. Najojo holding brief for Mr. Wanyama for the 1 st respondent Court Assistant: Delphine 58

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