https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3569

County Government of Meru v Liberty Mall Ltd & another (Environment and Land Appeal E065 of 2025) [2026] KEELC 3569 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEELC 3569 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E065 of 2025 JO Mboya, J June 2, 2026 Between County Government Of Meru Appellant and Liberty Mall Limited 1st Respondent National Land Commission 2nd Respondent (Being and appeal from the Judgment and Decree from Hon. S. K Ngetich – S R M delivered on the 25.08.2025 in Nkubu ELC No.93 of 2018) Judgment 1.The dispute before the lower court touched on and concerned the interpretation and application of the Second schedule, Part 2 of the Constitution, 2010; and essentially whether all the roads that fall within the county “obviously” constitute County Roads and are therefore under the mandate of the County Government. Suffice it to state, that the impugned judgment of the learned trial magistrate held that because the particular street in question falls within Nkubu Township, then “obviously” it was a county road and hence the county government of Meru [the appellant] was chargeable with its construction and the consequential encroachment onto the 1st Respondent’s land. 2.However, before venturing to interrogate the crux of the appeal, it is imperative to put the facts into context. The facts leading to the dispute are thus: The 1st respondent is the registered proprietor of LR No. Nkuene/Taita /3351[the suit property]; the suit property arose from amalgamation of LR Nos. Nkuene/Taita/321 and 565; the suit land is located within Nkubu township; Nkubu township falls within the county of Meru; the 1st respondent posits that there was excision and encroachment onto a portion of the suit land; the portion encroached upon measures 0.24 acres; the encroachment was by/ at the instance of the appellant and the 2nd respondent; and the 1st respondent has since suffered loss and damages. 3.Additionally, the 1st respondent contended that arising from the excision and encroachment onto the suit land, he wrote/exchanged correspondence with the appellant and the 2nd respondent; the correspondence did not elicit/bear any fruit; the 1st respondent was thereafter constrained to and engaged a surveyor; the surveyor prepared/generated a report; the 1st respondent also engaged a valuer; the valuer prepared a valuation report; the valuation report shows a value of Kshs. 8,625,000/= only; and thereafter the 1st respondent approached the lower court seeking recompense. 4.The appellant [who was the 1st defendant in the lower court] duly entered appearance; filed a statement of defence and two sets of witness statements. The appellant contended thus: The road in question is not a county government road, the road in question falls within the purview of Kenya Urban Roads Authority [KURA]; the appellant was not responsible of the impugned road; the impugned road was constructed by the National Government; the appellant has been improperly sued; the suit against the appellant is misconceived; and the suit ought to be dismissed. 5.The 2nd respondent [who was the 2nd defendant in the lower court] neither entered appearance nor filed a statement of defence. Furthermore, the 2nd respondent did not file any witness statement. In addition, the 2nd respondent did not participate in the proceedings. 6.The suit in the lower court was heard and disposed of vide judgment dated the 20.08.2025 and wherein the learned trial magistrate [Hon. S K Ngetich- S R M] found and held that because the street was in Nkubu Township, same obviously fell under the mandate of the county government of Meru. To this end, the learned trial magistrate proceeded to and held that the appellant and the 2nd respondent were liable to and in favor of the 1st respondent. The trial court proceeded and entered judgment in the sum of Kshs. 8,675,000/= only plus costs and interest, to be borne by the appellant and the 2nd respondent jointly. 7.It is the said judgment and the consequential decree, which has aggrieved the appellant and thus provoked the subject appeal. The appellant filed the memorandum of appeal dated the [sic] the 05.08.2025. However, the memorandum of appeal was thereafter amended. The amended memorandum of appeal is dated the 02.02.2026 and the grounds highlighted thereunder are:i.The Learned Magistrate erred in law and in fact by finding that the subject road which is allegedly encroached on the respondent’s land was being constructed by Meru County Government.ii.The learned trial magistrate erred in law and in fact by ignoring the direct and clear evidence that the subject road alleged to have encroached on the plaintiff’s land was a National Government Road financed by the National government road maintenance levy fund, and that the contractor named as Pride Essence Company Limited appears nowhere.iii.The learned trial magistrate erred in law and in fact by ignoring its own observation made during the site visit despite witnessing a signage showing that the said construction, which disclosed all the parties involved excluding the appellant herein.iv.The learned trial magistrate erred in law and in fact by filling in the gaps exposed by the Respondent’s witnesses i.ea.Lack of knowledge of the contractorb.Lack of knowledge of the financierc.Respondent’s own testimony or lack of involvement of the appellant in the entire construction process.v.The learned trial magistrate erred in law and in fact by dismissing non joinder of responsible parties in the suit.vi.The learned magistrate erred in law and in fact by making assumptions that the appellant was responsible for the construction of the road without evidence.vii.The learned magistrate erred in law and fact by failing to involve government officers like valuers, surveyors, and land registrar, instead relied on private entities who gave subjective evidence.viii.The learned magistrate erred in law and fact by dismissing the appellant’s submissions and pleadings filed in the lower court. 8.The appeal came up for directions on the 18.03.2026, whereupon learned counsel for the appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. To this end, learned counsel sought directions of the court as pertains to the hearing and disposal of the appeal. Moreover, learned counsel proposed to have the appeal canvassed by way of written submissions. 9.With the concurrence of learned counsel for the 1st respondent, the court proceeded to and issued directions. The directions were: The record of appeal is deemed complete; the appeal shall be canvassed by way of written submissions; the appellant shall file and serve written submissions within 21 days from the date of the directions; the 1st respondent shall file and serve written submissions within 21 days from the date of service; and the appellant shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service by the 1st respondent. 10.The appellant filed written submissions dated the 09.04.2026. The appellant has raised and canvassed three key issues. The issues are: The road in question, which is the subject of the encroachment is not a county road; the appellant was not responsible for the construction of the impugned road and the offensive encroachment; and the learned trial magistrate misapprehended and misapplied the law and thus arrived at an erroneous conclusion. 11.Furthermore, learned counsel for the appellant has submitted that the 1st respondent failed to tender and adduce credible evidence, to demonstrate that the appellant herein was responsible for the offensive encroachment, which underpinned the suit before the lower court. In addition, it has also been submitted that the learned trial magistrate ignored and disregarded the evidence that was discernable from the site, when the court visited the locus in quo. In particular, learned counsel has referenced the signage which was affixed on the site of the project and which showed that the project belonged to [KURA] Kenya Urban Roads Authority; and was funded by the government of Kenya; and not otherwise. 12.Premised on the foregoing, learned counsel for the appellant has invited the court to find and hold that the entirety of the judgment is wrought with errors and thus the impugned judgment ought to be set aside. The appellant has thereafter implored the court to allow the appeal; set aside the impugned judgment; and to dismiss the 1st respondent’s suit in the lower court. The appellant has equally sought to be awarded costs of the appeal. 13.The 1st respondent filed written submissions dated the 23.04.2026 and whereupon learned counsel has canvassed four key issues. The issues are: the 1st respondent tendered and adduced cogent evidence before the trial court; the evidence demonstrated that the road in question is a county road falling within the mandate of the appellant; the appellant had encroached unto a portion of the suit property; and the learned trial magistrate properly appreciated the issues for consideration and arrived at the correct decision. 14.Furthermore, it has been contended that even though the appellant had disputed that the suit road falls within her mandate, the appellant did not tender or adduce any evidence to that effect. In addition, it has been submitted that evidence was placed before the trial court to prove the offensive excision and encroachment onto a portion of the suit property measuring 0.24 acres. To this end, the court has been invited to find and hold that the learned trial magistrate correctly appreciated the evidence; and correctly applied the law. 15.Flowing from the foregoing, the court has been implored to find and hold that the appeal beforehand is devoid of merits. In this regard, learned counsel has invited the court to affirm the judgment of the lower court; to dismiss the appeal; and to award costs to the 1st respondent. 16.Having reviewed the record of appeal; the amended memorandum of appeal; the impugned judgment; and upon taking into account the submissions by/ on behalf of the respective parties, two [2] key issues crystalize for determination by this court. The issues are: Whether the 1st respondent proved and established her claim before the lower court to the requisite standard or otherwise; and Whether the judgment of the learned trial magistrate reeks of errors of commission and omission. 17.Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first appeal. By virtue of being a first appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the legal principles. 18.The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principles, which vitiates the findings of the trial court. 19.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. In addition, there is no gainsaying that the Jurisdiction is not to ne exercised for the mere asking. Equally, it cannot be exercised willy nilly. 20.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. 21.The court stated thus:46.We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429:“It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses 19.Recently, the court of appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court stated thus:37.We have considered the appeal, and this being a first appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyze the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.”[see also County Government of Bungoma and another versus J O O and another 2023 KECA; and County Government of Narok versus Livingstone Kunini Ntutu [2026] KECA, respectively]. 22.Back to the thematic issues highlighted elsewhere herein before. I beg to start with the first issue, namely; Whether the 1st respondent established and proved its case before the lower court to the requisite standards. Suffice it to state that the 1st respondent was obligated to prove the assertions at the foot to the plaint dated the 17.07.2017 on a balance of probabilities or balance of preponderance. 23.To start with, the 1st respondent contended that the appellant herein and the 2nd respondent [National Land Commission] had excised a portion of the suit property measuring 0.24 acres and thereafter encroached thereon. The basis of encroachment was the construction of a road, which was contended to be a county road falling within the mandate and jurisdiction of appellant. In addition, it was contended that the offensive activities [excision and encroachment] constituted illegal compulsory acquisition of private land. 24.It was the further contention by/on behalf of the 1st respondent that the offensive activities had denied and deprived same of its property rights to and in respect of the suit property. Moreover, the 1st respondent also posited that the impugned actions constituted violations and infringement upon its rights under Article 40 of the Constitution, 2010. 25.Did the 1st respondent prove the foregoing assertions? I wish to deal with the assertions sequentially. Firstly, it was contended that the impugned road was a county road falling within the mandate and jurisdiction of the county government of Meru. To this end, it was posited that the county government of Meru had encroached onto the suit property on the basis of the offensive road. 26.Though the 1st respondent had contended that the suit road is a county road, no evidence was tendered or adduced by the 1st respondent to prove the said assertions. The fact that the road in question falls within or passes through the county of Meru, does not by and of itself, constitute the road to be a county road. Notably, there are several trunk roads/highways that bypass/transcend the counties, but which are essentially roads under the supervision and mandates of Kenya National Highways Authority [KeNHA]. 27.Similarly, there are roads which falls within the cities and municipalities, but which are roads which fall under the jurisdiction and mandate of Kenya Urban Road Authority [KURA]. Instructively, KURA is a state agency/instrumentality created and established under the Kenya Roads Act, 2007. In addition, the functions of KURA are stipulated vide Section 10 of the Act. Moreover, the functions of KURA were thereafter highlighted vide January 2016 gazettement. 28.The appellant had contended that the suit road belonged to KURA and was constructed and rehabilitated by KURA and not the county government. The appellant thereafter produced and tendered before the court a copy of the signage/project bill board erected/mounted on the said road. The signage indicated that the project in question belonged to and was being managed by KURA. In addition, the signage also highlighted that the project, namely; improvement of the road in question was a national government project and not otherwise. 29.Furthermore, the project board also indicated that the financier of the project was the Government of Kenya. The source of funds being deployed towards the repairs/maintenance was indicated to be road maintenance levy funds. Finally, the board indicated that the overall supervisor was the deputy director- KURA [Upper Eastern Region]. 30.Additionally, the record of the lower court shows that the learned trial magistrate actually went to the locus in quo on the 19.03.2025 and same saw/witnessed the project board. Instructively, the visitation to the locus in quo was intended to enable the trial magistrate to appreciate the issues on the ground and to juxtapose the observations vis a viz the evidence by the parties. 31.It is not lost on me that DW1 during cross examination maintained and insisted the impugned road belonged to KURA. The evidence of DW1 was vindicated and corroborated by the signage/project board, which was displayed on site. This evidence, which was so glaring, was neither challenged nor impeached by the 1st respondent. Suffice it to state that the totality of the evidence on record, exonerates the appellant from the construction/rehabilitation/ownership of the road. 32.Secondly, the 1st respondent had contended that there was encroachment onto the suit property by a portion measuring 0.24 acres. To prove the encroachment onto the suit property, the appellant tendered and produced a copy of survey report dated the 26.20.2022. The survey report is indicated to have been prepared and signed by one Royford Gituma Kiruja. The said person describes himself as approved assistant surveyor. In addition, the said person/author of the report- exhibit P9, attended court and testified as PW2. 33.The question that does arise is whether an approved assistant surveyor, PW2 inclusive, is authorized and qualified to prepare a survey report and to attend court to give [sic] expert evidence or otherwise. The answer to this question is found in regulations 2 and 14 of the Licensed surveyors code of conduct, legal notice number 48 of 1997. The provisions state thus:“approved assistant" means any person other than a licensed surveyor who assists a licensed surveyor in the execution of field survey, but does not include skilled and semi-skilled chainmen and labourers."licensed surveyor" means a surveyor duly licensed as a surveyor under or by virtue of the provision of the Survey Act, but shall not include a Government Surveyor. "profession" means the profession of the licensed surveyor. Without limiting the ordinary meaning of the expression professional misconduct, it shall be considered professional misconduct for a licensed surveyor to contravene the following Regulations of Conduct. 14.Supervision of approved assistants A licensed surveyor shall not allow an unlicensed partner, co-director or subordinate to act as though he were licensed in the giving of evidence, carrying out of surveys or the charging of fees in connection with titles to land, except under the licensed surveyor's full supervison. 34.The crux of the 1st respondent’s contention that there was encroachment onto the suit land is traceable to the survey report which was produced. Nevertheless, there is no gainsaying that an expert document can only be deployed and used, only and only if the author of the documents demonstrates that same is duly qualified and authorized under the relevant law. In this case, PW2 is not qualified to practice as a licensed surveyor. In addition, PW2 is precluded from generating and signing any surveyor document or even attending court to give evidence. 35.Notwithstanding the foregoing, PW2 prepared a report and thereafter attended court to give evidence. Most importantly, the report and the evidence by PW2, were used and relied upon by the trial court in finding and holding that there was proven excision and encroachment onto the suit land. I am afraid that the survey report was prepared by an unqualified person; and thus the document was a nullity. Similarly, the evidence tendered by PW2 could not and cannot be deemed and relied upon as [sic] expert evidence. Simply put, PW2 was not an expert in anything. 36.Before a court of law can rely upon a document prepared by or evidence of an expert, it is incumbent upon the court to satisfy itself as to the competence or expertise of the person. Courts of law must not proceed on the basis of assumptions; belief[s]; and hypothesis. 37.In the case of STEPHEN KININI WANG'ONDU VS THE ARK LIMITED [2016] eKLR, the court [per Mativo J – as he then was laid out the criteria that a court ought to use in weighing the probative value of expert evidence. The court stated as hereunder:While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criteria a court should use to weigh the probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. [Huntley (also known as Hopkins) (a protected party by his litigation friend, McClure) v. Simmons [2010] E.W.C.A. Civ 54]. Four consequences flow from this.Firstly, expert evidence does not “trump all other evidence”. [Abringer v Ashton {1873} 17 LR Eq 358 at 374]. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision. [Evan Bell, Judicial Assessment of Expert Evidence, Judicial Studies Institute Journal, 2010 Page 55]Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. [Jakto Transport Ltd. v. Derek Hall [2005] E.W.C.A Civ. 1327] A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones. [Jakto Transport Ltd. v. Derek Hall [2005] E.W.C.A Civ. 1327]A further criteria for assessing an expert’s evidence focuses on the quality of the expert’s reasoning. A court should examine each expert’s testimony in terms of its rationality and internal consistency in relation to all the evidence presented. In Routestone Ltd. v. Minories Finance Ltd. and Another [Same v. Bird and others [1997] B.C.C. 180] Jacob J. observed that what really mattered in most cases was the reasons given for an expert’s opinion, noting that a well-constructed expert report containing opinion evidence sets out both the opinion and the reasons for it. The judge pithily commented “[i]f the reasons stand up the opinion does, if not, not.” A court should not therefore allow an expert merely to present their conclusion without also presenting the analytical process by which they reached that conclusion. Where there is a conflict between experts on a fundamental point, it is the court’s task to justify its preference for one over the other by an analysis of the underlying material and of their reasoning”.(Emphasis given) 38.The 1st respondent was the one chargeable with proving the assertions at the foot of the claim. The standard of proof is established and settled. However, the assertions at the foot of the plaint by 1st respondent were never proven. The said assertions remained at the level of allegations. I am afraid that the learned trial magistrate failed to properly guide himself on the assertions that were canvassed before him/her. 39.The law as pertains to the burden and standard of proof is settled. Nevertheless, I do wish to reference the decision is the case of James Muniu Mucheru v National Bank of Kenya Limited [2019] KECA 1058 (KLR)The Evidence Act is clear enough upon whom the burden of proof lies. Section 107 provides as follows:“1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person.”Section 109 of the same Act further provides:“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lie on any particular person.”19.In Karugi & Another v Kabiya & 3 Others [1987] KLR 347, this Court held that the burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. 40.Before departing from this issue, and more particularly, as pertains to the categorization of roads in the republic of Kenya; and their [sic] ownership, it is important to take cognizance of the decision in the case of Base Titanium Ltd v County Government of Mombasa & another [2021] KESC 33 (KLR). The Supreme court stated as hereunder:KeNHA is responsible for the development, rehabilitation, management, and maintenance of all National Trunk Roads comprising Classes S, A, and B roads. Class-S Road is defined as a highway that connects two or more cities and carries safely a large volume of traffic at the highest speed of operation; Class-A Road is defined as a highway that forms a strategic route and corridor connecting international boundaries at an identified immigration entry and exit points and international terminals such as international air or sea ports; and finally a Class-B Road, which is a highway that forms an important national route linking national trading or economic hubs, County Headquarters and other nationally important centres to each other and to the National Capital or to Class A roads.35.KURA is responsible for the management, development, rehabilitation and maintenance of all public roads in cities and municipalities except where the roads are categorized as national roads. After the January 2016 gazettement, KURA’s mandate was expanded to all counties in line with article 6(3) of the Constitution.36 .On their part, KERRA is in charge of constructing, upgrading, rehabilitating and maintaining rural roads, controlling reserves for rural roads and access to roadside developments and implementing road policies in relation to rural roads. Under the classification of roads, KERRA is in charge of categories D, E, F, G, K, L, P, R, S, T, U, W.37.It is therefore clear to us that there is a distinction between national roads and county roads. National roads are maintained solely by the national government through KeNHA while Counties, maintain their roads in collaboration with the other authorities. 41.With regard to the second issue, namely; whether the learned trial magistrate correctly apprehended the facts and the law, in respect of the dispute that was before same or otherwise, I wish to highlight that the trial magistrate failed to direct his judicial mind to the pertinent issues that were before him. Firstly, it does not mean that because a particular road falls within the county or a particular county, then “obviously” that road falls under the mandate of the county government. To my mind, the holding by the learned trial magistrate, which revolves about “obviously”, was a serious ad grave misdirection. 42.The other issue touches on the disregard of the evidence that was tendered by DW1 and the observations that were procured from the locus in quo. Suffice it to underscore that the appellant herein had clearly denied being responsible for the construction/rehabilitation of the offensive road. Furthermore, DW1 even posited that the county did not budget for that particular road and neither was any tender awarded by the county government. 43.Additionally, it is worthy to recall that when the learned trail magistrate went to the locus in quo, same encountered the project bill board, which clearly stipulated the details of the client; the contractor; the financier; and the designated supervisor of the project. Quite clearly, the name of the appellant herein was not shown/contained therein. 44.Be that as it may, the learned trial magistrate disregarded all this information and chose to be persuaded by the belief of PW1. Notably, PW1 did not tender any evidence to show that the appellant was responsible. The only thing that PW1 posited was [sic] belief. 45.At this juncture, it is apposite to reproduce the evidence of PW1 while under Cross examination by learned counsel for the appellant. The witness stated thus:“I settled on suing the County Government since I believed it is responsible. I have not attached any document to show that the County Government was the one constructing the road, but there are the ones who prepared the map for this town” 46.In my humble view, there is a whole world of difference between constructing a road and preparing the development plan, master plan; or generally undertaking planning, the latter, which is a devolved function under the fourth Schedule under the constitution. To my mind, the preparation of the map [which I believe, references the master plan/development plan] is different from the construction of the road. The two cannot be conflated. 47.It is also important to state that the witness PW1 did not make things better during the re-examination. This is what the witness said on re-examination:“The county government is in charge of planning in urban areas.” 48.The learned trial magistrate clearly misapprehended the facts that were before him. Based on the misapprehension, the learned trial magistrate framed and determined irrelevant issues, while letting the relevant issues escape from his judicial attention. 49.I wish now to address the limb of the judgment that touches on and concerns the liability of [sic] the 2nd respondent. To start with, the 2nd respondent is a creature of the constitution. The functions of the 2nd respondent are highlighted vide Articles 67 and 68 of the Constitution. I do not wish to rehash the said functions because they are common ground. [See the decision of the court of appeal in the case of Cordison International versus the Chairman, National Land Commission [2019] Eklr. 50.Be that as is may, I wish to address my mind to the question as to whether the 2nd respondent could and was involved in [sic] excision and encroachment onto the suit property to warrant being found liable in favour of the 1st respondent. For good measure, our jurisprudence is yet to come to terms with liability without fault. Quite clearly, there must be fault by the tortfeassor, to warrant attaching liability. 51.I have examined the pleadings that were filed by/on behalf of the 1st respondent and the evidence that was tendered; and I must confess that I have not seen even a single aspect that touches on any commission or omission on the part of the National Land Commission. In any event, nothing was placed before the trial court to show that the 2nd respondent involved itself in excising the part of the suit land; constructing the road; or encroaching on the suit land. 52.Additionally, even though the 1st respondent had addressed itself to the question of compulsory acquisition, there was no evidence of any compulsory acquisition. Instructively, the provisions of Sections 109 to 113 of the Land Act, 2012 [2016] show that the commission can only engage itself with the compulsory acquisition upon request by the acquiring authority. In this case, there was no evidence to that effect. 53.Moreover, it is worthy to posit there is nothing like constructive compulsory acquisition. If there is any entry or encroachment onto private land by a public body or state agency, such entry does not ipso facto denotes compulsory acquisition. In ordinary parlance, the claim could be one of trespass, which ought not to be conflated with [sic] compulsory acquisition. [See the decision of the Supreme Court in the case of Attorney General vs Zinj Limited (Petition 1 of 2020) [2021] KESC 23 ( KLR ) ( Civ ) (3 December 2021) (Judgment). 54.Finally, and without belaboring the point, I wish to state that it was incumbent upon the learned trial magistrate to reflect on all the evidence was tendered before the court and to assign reason[s] for believing or not believing that evidence. In this case, DW1 testified about the project not being a county project ; the project not having been budgeted for by the county; the project being a national government project; and the road being one under the authority of KURA, but, however the totality of the evidence was neither considered nor taken into account. For good measure, there is no good reason that has been alluded to as to why the evidence was ignored. The provisions of Order 21 Rule 4 of the Civil Procedure Rules, 2010, are instructive and peremptory in terms of supplying reason[s], one way or the other. 55.I find and hold that the impugned judgment is replete with several errors of commission and omissions. To this end, I am constrained to and do hereby depart from the factual findings and conclusions of the trial court. I do so mindful of the principles espoused in the case of Mwanasokoni versus Kenya Bus Services Limited [1985] eKLR; and Jabene versus Olenja [1986] eKLR, respectively. Conclusion 56.It is trite and established law that the claimant bears the burden of proof, namely; the burden of proving all the assertions alluded to and adverted in the pleadings before the court. Where the burden is not discharged, the claimant must of necessity, fail. 57.In the matter before the lower court, the 1st respondent clearly failed to prove its case. To this end, there was clearly no basis or foundation upon which judgment ought to have been entered in its favour. The judgment was, in my humble view, clearly entered in vacuum. Final orders: 58.Consequently, and in the premises, the final orders that commend themselves to me are:i.The Appeal be and is hereby allowed.ii.The Judgment of the trial magistrate dated and delivered on the 20.08.2025, together with the consequential decree, be and are hereby set aside.iii.In lieu thereof, there be and is hereby issued an order dismissing the 1st respondent suit vide plaint dated the 17.07.2017.iv.Costs of the appeal be and are hereby awarded to the Appellant.v.Costs of the suit in the lower court are similarly awarded to the Appellant.vi.Costs in terms of clause [iv] and [v] shall be agreed upon and default, be taxed in the conventional manner. 59.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS 2ND DAY OF JUNE , 2026.OGUTTU MBOYA, FCIArb;CPM[MTI-EA]JUDGEIn the presence of-:Court Assistant: Mukami/ZakayoMs. Asuma holding brief for Mr. Mutembei for the AppellantMr. Kopere and Mr. Ogoncho for the 1st RespondentN/A for the 2nd Respondent