Reuben Kioko Mutyaene v Kenya National Highways Authority & 3 Others
The bottom line
#A landowner who built near a highway lost his case because he couldn't prove the road reserve was narrower than KeNHA claimed.
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 petitioner proved that the road reserve adjoining parcel Nos. L.R. Masii/Mithini/774 and Masii/Utithini/425 measures 40 metres
- 2.Whether the 1st respondent has arbitrarily and unlawfully acquired portions of the petitioner's land without full, prompt and adequate compensation
- 3.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
- 4.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
- 5.Whether the 1st respondent's actions violated the petitioner's rights under articles 40 and 47 of the Constitution
- 6.Whether the petitioner is entitled to the prayers sought
- 7.Whether the 1st respondent was entitled to its counterclaim
- 8.Who should bear the costs of the petition and counterclaim
Key legal issues
#Width of the road reserve adjoining the suit properties
Petitioner failed to prove the 40-metre width; the maps produced did not show the width of the disputed road and were materially inconsistent
The petitioner's maps did not indicate the width of the disputed road; the mutation showed 120 feet but a mutation cannot override the map. PW2 measured 36.58 metres on the ground. The Gazette notice showing acquisition of the C97 reserve was unchallenged. The petitioner also never quantified the alleged encroachment.
Alleged arbitrary acquisition without compensation (Article 40)
No violation of Article 40 proved; the land encroached on formed part of the road reserve acquired in 1972
The petitioner did not dispute that part of the then County Council's land was compulsorily acquired in 1972 for the road, nor that his title was a first registration in 2014. The Gazette notice showing acquisition and compensation of the C97 reserve was not rebutted, so no fresh acquisition occurred.
Fair administrative action (Article 47)
No violation; the 1st respondent complied with section 49 of the Kenya Roads Act by issuing notice before marking structures
Correspondence between the parties in 2019 and 2020 preceded the marking of structures, and a formal notice preceded that correspondence. The petitioner was given sufficient notice of the intended demolition, satisfying the audi alteram partem requirement under Article 47.
1st respondent's counterclaim
Dismissed because the 1st respondent called no witness and failed to prove it
The 1st respondent presented no testimony; its counterclaim for removal of structures was therefore unproven despite the court's findings on the petition.
Legal principles established
#- Compulsory acquisition of private property can only be done by the State for a public purpose with full, prompt and just compensation following the process in sections 107-125 of the Land Act
- A mutation form is prepared by a surveyor on the owner's instructions and cannot override the map or form the basis of the correctness of a road's width
- Where a person encroaches on a public road reserve, KeNHA may direct removal of unauthorised structures after issuing a notice of not less than 30 days under section 49 of the Kenya Roads Act
Court orders
#- 1.The petition is dismissed
- 2.The 1st respondent's counterclaim is dismissed
- 3.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 25, 27, 28, 29, 31, 33, 35, 40, 42, 43, 46, 47, 48, 50, 60, 64, 67, 69 and 70 of the Constitution; Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013
Relief refused
#Declarations that the road reserve is 40 metres wide and that the road is C97 not B62
Petitioner failed to prove by clear and cogent evidence that the road reserve should be 40 metres; maps did not show the width of the disputed road
Compensation for breach of constitutional rights, exemplary/aggravated damages, mesne profits and loss of earning capacity
Petitioner did not prove arbitrary acquisition of his property or encroachment by the 1st respondent
Permanent injunction restraining interference with the suit properties
Petitioner encroached on the road reserve; 1st respondent acted within its statutory mandate under section 49 of the Kenya Roads Act
Mandatory order to obliterate 'X' inscriptions and compensate affected property owners
Sufficient notice of intended demolition was given; no violation of Article 47
Costs
No order as to costs - 'In view of the conclusions made above, I make no order as to costs.'
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.
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
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
I am 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
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 1st 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
Issues in the judgment
#Court station stated as Machakos but judgment delivered at Kakamega
Petition captioned as contravention of many articles but court determined only Articles 40 and 47
Submissions dates inconsistent with hearing timeline (supplementary submissions dated 2026)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Reuben Kioko Mutyaene v Kenya National Highways Authority & 3 Others", Case Analysis (2026). ELC Petition No. 8 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6068/eng@2026-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.