Lumunge v China City Construction LimitedChina City Construction Limited & 2 others (Civil Appeal E007 of 2023) [2026] KECA 330 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that land within a designated road reserve can be used for road expansion without compensation.
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 appellant's suit property was compulsorily acquired within the province of the law
- 2.Whether, to that end, the appellant was entitled to compensation
Key legal issues
#Whether the suit property was compulsorily acquired so as to trigger a right to compensation under Article 40(3) of the Constitution
No compulsory acquisition occurred because the road was constructed on the pre-existing 30-metre road reserve, not on the appellant's land; the suit property remained intact and was never gazetted for acquisition.
Scrutiny of the survey maps F/R214/47, 312/16 and 136/174 showed a 30-metre-wide road provision on either side of the highway abutting the suit property. The road expansion took place within that designated reserve, an automatic reservation for the road authority, so no gazettement or acquisition of the appellant's parcel was necessary. Compensation already paid (Kshs.6,624,600) covered structures erected on the reserve.
Whether the appellant, having built a petrol station on the road reserve, was entitled to compensation for the land
No. The appellant was the encroaching party, not the victim of trespass, and his receipt of Kshs.6,624,600 for structures on the reserve was an undeserved benefit.
The court held that by constructing a petrol station on the road reserve the appellant ought to have known the land was amenable to use by the government and the road authority. Payment for structures was made out of goodwill under the financier's resettlement framework, and no further compensation for land not compulsorily acquired could arise.
Whether the trial court erred in failing to find encroachment on the suit property despite the two survey reports
No error. The survey reports were inconsistent as to the extent of encroachment, and the official survey maps and Land Acquisition Drawings showed the road project confined within the 30-metre reserve.
The court noted the two surveyors produced differing measurements (0.0178 Ha and 0.0431 Ha) and that the topo-cadastral survey showed the suit property intact. The trial judge's findings were supported by the evidence, and the appellant failed to demonstrate any misdirection in law or fact warranting appellate interference.
Legal principles established
#- Land within a designated road reserve, though adjoining or forming part of a private title, is amenable to use by the road authority for road expansion and does not require compulsory acquisition or compensation for the land itself.
- A first appellate court may interfere with findings of fact only where they are based on no evidence, on a misapprehension of the evidence, or where the trial judge acted on wrong principles.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal to the 1st and 3rd respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Mombasa
- ELC Case No. 234 of 2017
- Jurisdiction invoked
- First appeal to the Court of Appeal under rule 31(1) of the Court of Appeal Rules, 2022
Relief refused
#Setting aside of the trial judgment and entry of judgment for the appellant for Kshs.14,925,000 special damages plus general damages
The suit property was not compulsorily acquired; the road was constructed on the 30-metre road reserve and the appellant was already compensated for structures on the reserve
Costs
Appeal dismissed with costs to the 1st and 3rd respondents
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.
The road having not passed through the appellant's suit parcel, we reach the ineluctable conclusion that there was no reason for the suit property to be compulsorily acquired, and conversely, the 3rd respondent had no business in compulsorily acquiring a road reserve.
Indeed, he is fortunate to have undeservedly benefited from a sum of Kshs.6,624,600 notwithstanding the fact that he was the aggressor, having encroached on a road reserve.
Consequently, we find that this appeal lacks merit and is hereby dismissed with costs to the 1st and 3rd respondents.
Issues in the judgment
#The judgment records the 1st respondent's contract date inconsistently with the evidence, stating a contract dated 13th December 2023 while the witness produced a contract agreement dated 31st December 2013 for a project commencing May 2014.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lumunge v China City Construction LimitedChina City Construction Limited & 2 others (Civil Appeal E007 of 2023) [2026] KECA 330 (KLR)", Case Analysis (2026). Court of Appeal at Mombasa, appeal from Mombasa Environment and Land Court Case No. 234 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/330/eng@2026-02-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.