Kiragu & another v Kenya National Highways Authority (Civil Appeal 83 of 2019) [2026] KECA 65 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the road reserve abutting the appellants' parcels measured 40 metres or 60 metres
- 2.Whether the respondent's demolition without prior notice or earmarking was lawful, given section 49(4) and (5) of the Kenya Roads Act and Article 47 of the Constitution
- 3.Whether the respondent discriminated against the appellants by demolishing only their structures
- 4.Whether the trial court lacked jurisdiction as the dispute was a boundary dispute under section 18(2) of the Land Registration Act
Key legal issues
#Width of the road reserve
The road reserve measured 60 metres; the appellants encroached by about 10 metres.
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.
Lawfulness of demolition without notice
Although section 49(4) of the Kenya Roads Act required prior written notice, the appellants could not found a claim on their own illegality.
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.
Jurisdiction of the trial court over alleged boundary dispute
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.
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.
Alleged discriminatory demolition
No credible basis was established that the appellants were targeted to the exclusion of other encroachers.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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)
Relief refused
#Setting aside the judgment of Munyao, J and substitution with a judgment of this court
The appeal lacked merit; the trial court correctly found a 60-metre road reserve and 10-metre encroachment
Declaration of unlawful demolition for want of prior notice
The appellants themselves erected structures on the road reserve without permission; no claim on breach of a right can be based on an illegality
Claim of discriminatory demolition
Demolition of other properties was an ongoing process pending measurement; no credible evidence of targeting
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is our finding that the trial court properly arrived at the conclusion that the road reserve measured 60 metres based on the cadastral map, the RIM and the evidence of DW1 who demonstrated to the trial court how he arrived at the figure by use of a scale rule.
Whereas section 49 requires that a notice be given and it ought to be given, the appellant was in contravention of the law and no claim on breach of a right can be based on an illegality.
In this appeal and in the suit at trial, the question was whether the actions of the respondent were legal. This was to be determined by ascertaining whether the appellants had encroached on the road reserve, and not another parcel of land.
This court thus ultimately finds that the present appeal lacks merit and it is dismissed with costs to the respondent. We so order.
Issues in the judgment
#Tangerine Investments quotation reproduced in the judgment contains internal contradictions with the passage this court endorses: it states the learned Judge 'erred in finding that the appellant's decision was tainted with procedural impropriety' while elsewhere criticising that party, apparently a verbatim quotation from that case whose context differs from the present appeal
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lapana Limited v County Government of Trans-nzoia (Environment and Land Case 8 of 2023) [2026] KEELC 1587 (KLR)[2026] KEELC 1587 (KLR)25 Feb 2026
Cite this brief
#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.