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ELCDismissedELC Petition No. 8 of 2020

Reuben Kioko Mutyaene v Kenya National Highways Authority & 3 Others

Environment and Land Court
23 September 2026
8,792 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The petitioner, owner of LR No. Masii/Mithini/774 and interested in LR No. Masii/Utithini/425 adjoining the Machakos–Kitui road, petitioned against KeNHA, the County Government of Machakos, the Ministry of Lands and the Attorney General. He sought declarations that the road reserve measures 40 metres (not 60), that the road is C97 not B62, that his Article 40 and 47 rights were infringed, a permanent injunction, mandatory removal of 'X' markings and beacons, compensation, exemplary damages and mesne profits. He alleged KeNHA was expanding the road to 60 metres without compulsory acquisition, public participation or notice. KeNHA countered that the reserve was always 60 metres since the 1972 acquisition, that the petitioner encroached on it, and that reclassification from C97 to B62 did not alter the reserve. The petitioner testified with a retired surveyor (PW2) who measured 36.58 metres on the ground; the respondents called no evidence. The court framed eight issues and held that the petitioner failed to prove the 40-metre width: his maps did not show the disputed road's width, the mutation form could not override the map, and the unchallenged Gazette notice showed the C97 reserve had been acquired and compensated. The court found the petitioner had encroached on the road reserve, that KeNHA complied with section 49 of the Kenya Roads Act by giving notice, and that no Article 40 or 47 violation was proved. The petition was dismissed; the 1st respondent's counterclaim was also dismissed for want of evidence; the court made no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 2.Whether the 1st respondent has arbitrarily and unlawfully acquired portions of the petitioner's land without full, prompt and adequate compensation
  3. 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. 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. 5.Whether the 1st respondent's actions violated the petitioner's rights under articles 40 and 47 of the Constitution
  6. 6.Whether the petitioner is entitled to the prayers sought
  7. 7.Whether the 1st respondent was entitled to its counterclaim
  8. 8.Who should bear the costs of the petition and counterclaim

Key legal issues

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01

Width of the road reserve adjoining the suit properties

Holding

Petitioner failed to prove the 40-metre width; the maps produced did not show the width of the disputed road and were materially inconsistent

Reasoning

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.

p. 46
02

Alleged arbitrary acquisition without compensation (Article 40)

Holding

No violation of Article 40 proved; the land encroached on formed part of the road reserve acquired in 1972

Reasoning

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.

p. 47
03

Fair administrative action (Article 47)

Holding

No violation; the 1st respondent complied with section 49 of the Kenya Roads Act by issuing notice before marking structures

Reasoning

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.

04

1st respondent's counterclaim

Holding

Dismissed because the 1st respondent called no witness and failed to prove it

Reasoning

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

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  • 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

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  1. 1.The petition is dismissed
  2. 2.The 1st respondent's counterclaim is dismissed
  3. 3.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 46

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

p. 46

Mandatory order to obliterate 'X' inscriptions and compensate affected property owners

Sufficient notice of intended demolition was given; no violation of Article 47

p. 57

Costs

No order as to costs - 'In view of the conclusions made above, I make no order as to costs.'

Quotable passages

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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
p. 46Burden of proof on road reserve width
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
p. 44Evidentiary value of a mutation form
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
Compliance with section 49 Kenya Roads Act
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
p. 57Disposition - petition 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
Final orders - counterclaim dismissed, no costs

Issues in the judgment

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minor

Court station stated as Machakos but judgment delivered at Kakamega

minor

Petition captioned as contravention of many articles but court determined only Articles 40 and 47

minor

Submissions dates inconsistent with hearing timeline (supplementary submissions dated 2026)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.