https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3674

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MOMBASA** **ELC CIVIL SUIT NO. 82 OF 2020** **FORT PROPERTIES LIMITED ……………………..…… PLAINTIFF** **VERSUS** **KENYA RURAL ROADS AUTHORITY (KERRA) ..... DEFENDANT** **JUDGMENT** **Background** 1. By a Plaint dated 15th July 2020 as amended on 13th September 2023, Fort Properties Limited (hereinafter “the Plaintiff”) prays for the following: 2. **A declaration that the proprietary interest in the portion of the property known as MN/II/1872 including its access roads absolutely vests in the Plaintiff;** 3. **A declaration that the Plaintiff’s rights to acquire and own property guaranteed under Article 40 of the Constitution of Kenya and Section 111 (1) and 115 (1) of the Land Act, 2012 have been contravened by the Defendant;** 4. **A declaration that the attempted compulsory acquisition of the Plaintiff’s portion of the property known as MN/II/1872 including its access roads without consent or compensation violated Article 40 of the 2010 Constitution;** 5. **A declaration that the Plaintiff is entitled to compensation for General Damages for infringement of its rights;** 6. **A declaration that the Defendant is attempting to compulsorily acquire the Plaintiff’s portion of the property known as MN/II/1872 including its access roads without compensation;** 7. **An order that the Defendant initiates and concludes the process of compulsory acquisition of the Plaintiff’s portion of the property known as MN/II/1872 including its access roads within 90 days;** 8. **Compensation for compulsory acquisition of the Plaintiff’s portion of the property known as MN/II/1872 including the access roads;** 9. **A permanent injunction be and is hereby issued against the Defendant, its contractors, agents, servants and/or employees against interfering with the peaceful and private occupation of the Plaintiff’s property known as MN/II/1872 including its access roads and/or;** 10. **A permanent injunction be and is hereby issued against the Defendant, its contractors, agents, servants and/or employees against developing, levelling and/or constructing the private access road wrongly referred to as the road link “Ugatuzi Mulji Road” and appearing in the advertisement as item number 36 KERRA/011/MSA/39/036/19/20 KISAUNI CONSTITUENCY ROAD No. P. 833;** 11. **An injunction be and is hereby issued immediately compelling the Defendant, its agents, servants, employees and/or contractors to remove any material, machinery and/or tools placed and kept in the Plaintiff’s property;** 12. **The OCPD Kisauni and OCS Kiembeni Police do approve compliance of these orders at all times and if necessary including the County Commissioner’s Office;** 13. **Costs and interests of this suit; and** 14. **Any other orders the Court may deem fit.** 15. Those prayers arise from the Plaintiff’s contention that at all material times relevant to this suit it is the registered proprietor of the property known as Title No. 1872/II/MN. It is the Plaintiff’s case that on 26th November 2019, the Defendant by way of public advertisement invited the public to participate in the construction of various roads within the County of Mombasa in particular the Plaintiff’s access road wrongly named as “Ugatuzi Mulji Road.” 16. It is further the Plaintiff’s case that on 6th July 2020, without any colour of right, the Defendant trespassed into the Plaintiff’s property by instructing its agents, contractors, servants and/or employees to move to site and begin construction works on the Plaintiff’s property. the Plaintiff contends that the Defendant is attempting to compulsorily acquire its property without following the laid down procedure for such an acquisition. 17. Kenya Rural Roads Authority (“the Defendant”) is opposed to the suit. In its Statement of Defence dated 21st October 2022 as amended on 24th October 2023, the Defendant denies that the Plaintiff has been in possession and is the sole owner of the suit property. It avers that the road has always been in use and that in fact the Plaintiff sought approval of the then County Council of Mombasa and that the Plaintiff’s development plan was approved with the conditions that the access roads within the plot would be inherited by the County of Mombasa for free public use. 18. The Defendant denies that the Plaintiff’s access road was wrongly named and it asserts that the road is a public road that has always been in use by members of the public. The Defendant further denies that it has on 6th July 2020 trespassed the Plaintiff’s property by instructing people to begin construction there. It further avers that the road in question is a public road and as such it cannot be subject to compulsory acquisition. 19. At the trial herein the Plaintiff called one (1) witness in support of its case. The Defendant similarly called one (1) witness at the trial. **Analysis and Determination** 1. By this suit, the Plaintiff, a limited liability company said to be engaged in construction of low income houses prays for a declaration that the proprietary interest in all that portion of land known as MN/II/1872 including the access roads thereto absolutely vests in itself and that its rights to acquire and own property as guaranteed under the Constitution have been contravened by the Defendant. 2. The Plaintiff accuses the Defendant of entering the said parcel of land and attempting to construct a link road thereon on 6th July 2020. It is the Plaintiff’s case that in doing so, the Defendant intends to compulsorily acquire the Plaintiff’s property without compensation as provided under Article 40 of the Constitution. 3. On its part, the Defendant, a statutory corporation established under the Kenya Roads Act, 2007, does not deny that its agents and contractors entered the suit land to construct a road thereon. It is the Defendant’s case that its entry into the land was lawful as the same is a public road known as Ugatuzi Mulji Road falling within its jurisdiction for purposes of maintenance and repair. 4. In that respect, it was the Defendant’s case that the subject land having been designated as a public road, the Plaintiff was not entitled to any compensation for its upgrading or construction for use by the public. 5. In support of its position, the Plaintiff called its Operational and Property Manager Yunus Haroon (PW1) who told the court that the Plaintiff is the registered proprietor of the parcel of land situated in Kiembeni area of Mombasa. PW1 told the Court that the suit property borders Plot No. MN/II/8408 which is owned by an entity known as Zumzum Investments. He further told the Court that after acquiring the land, the Plaintiff had constructed a boundary wall between its land and the one owned by Zumzum Investments for security purposes for their estate. It was further his case that sometimes in the year 2018, some unknown persons brought down a section of the wall so as to create a road through the Plaintiff’s property. 6. PW1 further told the Court that later on 29th November 2019, the Defendant carried out an advertisement inviting bids for the construction of what the Defendant termed as Ugatuzi Mulji access road. He told the Court the advertisement was wrong as there was no such road and the road referred to fell on private land. By a letter dated 4th December 2019, the Plaintiff wrote to the Defendant to register their displeasure with the position. The Defendant however ignored the letter and proceeded on 6th July 2020 to deploy its contractors and staff onto the property to carry out the road works. 7. From the material placed before the Court, it was apparent that the Plaintiff had acquired a leasehold interest in the suit property on 27th December 1984 from the then County Council of Mombasa for purposes of developing houses therein for sale. During his cross – examination, PW1 was referred to the Part Development Plan for the said parcel of land (“Pex 3”) and the record captures him responding as follows: **“ … there exists a road for 15M. Before we constructed the plots/residential houses, we got approvals for it but I have not produced it. There was no restriction or condition that the 15 meters’ road to remain as access road.** **The access road is used by several vehicles and people. When developing our houses, we were given condition for public utilities. We have provided a police station, schools, health centres and fire bridge (sic).”** 1. Arising from that testimony, it was evident that the Plaintiff was indeed aware of the existence of the disputed road and that the same was used by many people. Indeed, PW1 acknowledged that the Plaintiff’s development was subject to conditions which required the provisions of public utilities. 2. In support of their case, the Defendants called as their witness their Surveyor Roland Matika (DW1). DW1 told the Court that it is true the Defendant undertook the construction of the Ugatuzi – Mulji access road and that it was completed in June 2020. Relying on a letter dated 26th November 2020 from the County Government of Mombasa (Dexh 1) DW1 told the Court that prior to the development of the land, the Plaintiff had sought the approval of the defunct Municipal Council of Mombasa and their plan was approved on condition inter alia, that the access roads within the land measuring 15M would revert to the Government as public roads. 3. Asked about the access road in cross – examination, DW1 testified that the road originated from the PDP and clarified that while part of the road may have not been surveyed at the time, that fact did not mean that the road terminated at that point as contended by the Plaintiff. 4. As it were, under Section 2 of the Public Roads and Roads of Access Act, Cap 399, a “public road” is defined as: **“a) any road which the public had a right to use immediately before the commencement of the Act;** **b) all proclaimed or reserved roads and thorough fares being or existing on any land sold or leased or otherwise held under the Crown Lands Act, 1902 or the Government Lands Act (Cap 280) at any time before the commencement of the Act;** **c) all roads and thorough fares hereafter reserved for public use.”** 1. In the circumstances herein, it was clear to me that the Plaintiff was clearly mistaken in its position that the road passing through the property it had developed had become ‘private’ simply because it had developed the estate adjacent thereto. The subject road remained a public road reserved for public use as per the approved scheme plans for the sub-division of the suit property. That being the case, it was evident that the road fell within the mandate of the Defendant and there was therefore no basis upon which the Defendant could be accused of trespass thereto and/or asked to compensate the Plaintiff for its use. 2. In the premises, it is self-evident that I did not find any merit in the Plaintiff’s suit. The same is hereby accordingly dismissed with costs to the Defendant. **Judgment dated, signed and delivered in open court and virtually at Mombasa this 17th day of June, 2026.** **…………………………..** **J.O. OLOLA** **JUDGE** **In the presence of:** a) Ms. Firdaus Court Assistant. b) Mr. Mathare holding brief for Matheka Advocate for the Plaintiff c) Ms. Bosire holding brief for Naneu Advocate for the Defendant