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Court of AppealDismissedNot stated in the judgment· [2026] KECA 65 (KLR)

Kiragu & another v Kenya National Highways Authority (Civil Appeal 83 of 2019) [2026] KECA 65 (KLR)

Court of Appeal
30 January 2026
Mohamed Abdulahi WarsameM. WarsameJMJamila MohammedMGM. Gachoka
4,449 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal confirmed that buildings on a 60-metre Nakuru road reserve were illegal, so KeNHA could demolish them even without prior notice.

What this practically means

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Executive summary

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This was a first appeal from the judgment of Munyao, J (15th November 2018), dismissing the appellants' suit and allowing the Kenya National Highways Authority's counterclaim after the Authority demolished structures said to encroach on a 60-metre road reserve along the Nakuru-Kabarak road. The sole decisive issue was whether the road reserve measured 40 metres, as the appellants contended on the strength of beacons and mutation forms, or 60 metres as shown on the cadastral map and RIM. The Court of Appeal held that the cadastral map of 1953 and the RIM derived from it were authoritative public documents whose authenticity was unchallenged, and that the appellants' subdivision had been undertaken without the benefit of cadastral coordinates. The trial court's finding of a 10-metre encroachment was affirmed. On the notice issue, the court accepted that no prior notice or earmarking preceded the demolition, as required by section 49(4) of the Kenya Roads Act, but held that the appellants, having themselves erected structures on the road reserve without permission, could not found a claim on their own illegality - the clean hands doctrine precluding relief. The court also held the trial court had jurisdiction, since the suit concerned the legality of the demolition rather than a boundary dispute under section 18(2) of the Land Registration Act, and found no evidence of discriminatory targeting. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Width of the road reserve

Holding

The road reserve measured 60 metres; the appellants encroached by about 10 metres.

Reasoning

The cadastral plan of 1953 and the RIM derived from it are public documents whose authenticity was never questioned; DW1 demonstrated by scale rule that the reserve is 60 metres. The appellants' subdivision was done on the RIM without the benefit of cadastral coordinates, and no evidence supported their claim of a 40-metre reserve. The trial court's finding therefore stood.

p. 3
02

Lawfulness of demolition without notice

Holding

Although section 49(4) of the Kenya Roads Act required prior written notice, the appellants could not found a claim on their own illegality.

Reasoning

All witnesses confirmed no notice or earmarking preceded the demolition. However, the appellants had erected structures on the road reserve without the respondent's permission, contrary to section 49(1), and could not invoke equity with unclean hands. Following Tangerine Investments, no right can be founded on an illegality.

p. 8
03

Jurisdiction of the trial court over alleged boundary dispute

Holding

Section 18(2) of the Land Registration Act did not oust jurisdiction because the dispute concerned encroachment on a road reserve, not a boundary dispute between registered parcels.

Reasoning

Section 18(2) bars court proceedings on boundaries of registered land unless determined under that section, but the question here was the legality of the respondent's demolition action, requiring ascertainment of whether the appellants had encroached on a road reserve rather than another parcel of land.

p. 8
04

Alleged discriminatory demolition

Holding

No credible basis was established that the appellants were targeted to the exclusion of other encroachers.

Reasoning

DW1 confirmed that other properties had encroached but demolition was an ongoing process requiring measurement of each encroachment; a suit had been filed halting the process. The appellants offered no credible evidence of selective targeting.

p. 8

Legal principles established

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  • The Registry Index Map and cadastral map are the authoritative sources for ascertaining the width of a road reserve, and subdivisions done without reference to the cadastral map risk encroachment
  • No claim on breach of the right to fair administrative action can be founded on the claimant's own illegality; a person encroaching on a road reserve without permission cannot invoke the want of prior notice to invalidate removal action
  • A suit questioning the lawfulness of demolition over an alleged road-reserve encroachment is not a boundary dispute within section 18(2) of the Land Registration Act
  • A first appellate court must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
On appeal from
High Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction over the High Court (relied on the role of a first appellate court as explained in Kenya Ports Authority v Kuston (Kenya) Limited)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kiragu & another v Kenya National Highways Authority (Civil Appeal 83 of 2019) [2026] KECA 65 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/65/eng@2026-01-30

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