https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3949

Kenya National Highways Authority v Mandev Ltd & another (Environment and Land Appeal E050 of 2025) [2026] KEELC 3949 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEELC 3949 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Appeal E050 of 2025 EK Wabwoto, J June 30, 2026 Between Kenya National Highways Authority Appellant and Mandev Limited 1st Respondent National Land Commission 2nd Respondent (Being an appeal from the judgment and decree of the Land Acquisition Tribunal at Nairobi (Dr. N.M. Orina, Chairperson, and Mr. G. Supeyo, Member) delivered on 10th February 2025 in Tribunal Complaint No. TRLAP/E023 of 2024) Judgment 1.This is an appeal by the Kenya National Highways Authority (“the Appellant” or “KeNHA”) against the entire judgment and decree of the Land Acquisition Tribunal at Nairobi (“the Tribunal”) delivered on 10th February 2025 in Tribunal Complaint No. TRLAP/E023 of 2024. The appeal is brought pursuant to sections 128 and 133D of the Land Act, 2012, and the Land Acquisition (Appeals to the High Court) Rules, 2010. 2.By the impugned judgment, the Tribunal found that the Appellant and the National Land Commission (“the 2nd Respondent” or “NLC”) had violated the rights of Mandev Limited (“the 1st Respondent”) under Articles 40(3) and 47(1) of the Constitution by failing to pay compensation for the compulsory acquisition of part of L.R. No. 209/9724, and directed the Appellant and the 2nd Respondent to pay the 1st Respondent the sum of Kshs. 30,000,000.00 within forty-five (45) days, together with interest at the base lending rate set by the Central Bank of Kenya from 22nd January 2021 until payment in full, and costs. 3.The Appellant is aggrieved by that decision and prays that the appeal be allowed, the judgment and decree of the Tribunal set aside, and an order substituted dismissing the 1st Respondent’s complaint dated 31st May 2024. Background 4.The dispute concerns the compulsory acquisition of a portion measuring 0.0504 hectares of land known as L.R. No. 209/9724 (“the suit property”), situate along Mombasa Road, for the construction of the Nairobi Expressway Project. The suit property originates from alienated public land. It was first allotted to Globalfreight Holdings Limited under Grant I.R. No. 39859 for a term of 99 years from 1st November 1981, and the residue of that term was transferred to the 1st Respondent on 8th May 1991. 5.By a letter referenced MOTIHUD/1/A35.08 Vol. 1 dated 23rd August 2019, the 2nd Respondent was requested to acquire parcels of land for the construction of the Nairobi Expressway. The 2nd Respondent published a notice of intention to acquire vide Gazette Notice No. 2161 of 12th March 2020, and a notice of inquiry vide Gazette Notices No. 6601 and 6602 of 4th September 2020. An inquiry was held, and by an award dated 22nd January 2021 the sum of Kshs. 30,000,000.00 was awarded to the 1st Respondent in respect of the acquired portion. The 1st Respondent accepted the award. The award was, however, not paid. 6.The 1st Respondent’s case before the Tribunal was that it was the registered proprietor of the suit property; that part of it had been compulsorily acquired for the Nairobi Expressway; that an award had been made and accepted; and that the failure to pay the award violated its rights under Articles 40(3), 47 and 35 of the Constitution. It sought, among other reliefs, a declaration of unconstitutional deprivation, an order for immediate payment of the awarded sum, interest from 22nd January 2021, and costs. 7.The Appellant and the 2nd Respondent opposed the complaint. Their case was that, on due diligence, the acquired portion of L.R. No. 209/9724 was found to lie within a road reserve and buffer zone along Mombasa Road the Appellant putting the reservation at 88 metres with a 30-metre buffer and was therefore public land ineligible for compensation. They relied on the Nairobi Town Planning Liaison Committee Report and the sub-committee report on the Mombasa Road buffer zone, contending that the buffer zone had been planned on 16th April 1986, approved by the Director of Physical Planning on 7th May 1986, and sanctioned by the Commissioner of Lands on 20th June 1986 long before the 1st Respondent acquired the suit property in 1991. For that reason the acquired portion was excluded from the compensation schedule, and no payment was made. 8.The Tribunal heard oral evidence. The 1st Respondent called its director, Ms. Hema Niraj Shah, and a surveyor, Mr. James Mwangi. The Appellant called Mr. Eliud Munene, its Deputy Director (Surveys) and the project surveyor for the Nairobi Expressway. The 2nd Respondent called no witness. After the close of evidence, the Appellant and the 2nd Respondent also raised an objection to the Tribunal’s jurisdiction on the footing that the dispute was, in substance, a boundary and title dispute outside the Tribunal’s competence. 9.In its judgment, the Tribunal held: that it had jurisdiction under section 133C of the Land Act over the dispute relating to the process of compulsory acquisition; that it lacked, and did not purport to exercise, jurisdiction to determine the validity of the 1st Respondent’s title (section 127(1)(a) of the Land Act); that, the 1st Respondent’s registered interest being prima facie conclusive evidence of ownership under sections 24, 25 and 26 of the Land Registration Act and not having been impugned through any recognised legal process, that interest stood; that the Respondents had not proved that the acquired portion fell within a lawfully created road reserve or buffer zone; and that, an award having been made but not paid, the 1st Respondent’s rights under Articles 40(3) and 47(1) had been violated. It entered judgment accordingly. The appeal 10.By its Memorandum of Appeal dated 12th March 2025, the Appellant raises twelve grounds, lettered (a) to (l). Distilled, they fall into three clusters. The first concerns the Tribunal’s jurisdiction: that the Tribunal assumed jurisdiction when it was not validly constituted under section 133A(1) and (2) of the Land Act (ground (a)); and that it exceeded its jurisdiction, contrary to Article 162(2)(b) of the Constitution, by taking cognisance of and determining a claim on the occupation, use, existence of, and title to a road reserve and/or buffer zone (ground (b)). 11.The second cluster goes to the merits whether compensation was payable at all. The Appellant contends that the acquired portion was a road reserve, and therefore public land incapable of compulsory acquisition and ineligible for compensation; that the Tribunal failed to give effect to Article 40(6) of the Constitution and section 111(1D) of the Land Act; that it concluded that the 1st Respondent’s rights under Article 40(3) had been violated without any sufficient analysis of whether the 1st Respondent held any proprietary right over a road reserve; that it misapplied sections 24, 25 and 26 of the Land Registration Act; and, critically, that it founded its decision on the dicta in Shalein Masood Mughal v Attorney General & 5 others [2014] eKLR a decision of the High Court which had been overturned by the Court of Appeal in Kenya National Highway Authority v Shalein Masood Mughal & 5 others [2017] KECA 465 (KLR) and failed to apply binding authority including Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR) (grounds (c) to (j)). 12.The third cluster concerns interest: that the Tribunal misconstrued and misapplied sections 115(1) and 117(1) of the Land Act in awarding interest from 22nd January 2021 without sufficient justification, thereby departing from its own decision in Mbebe v National Land Commission & another (Tribunal Case E029 of 2024) [2024] KELAT 1213 (KLR) (ground (k)). Ground (l) is a general complaint that the Tribunal failed to consider the law and the evidence on record. Submissions 13.The Court directed the parties to file and exchange written submissions. The Appellant and the 1st Respondent each filed submissions; the 2nd Respondent did not. The Appellant’s submissions, filed by Prof. Albert Mumma & Company Advocates, distil the appeal into two issues: whether the Tribunal erred in ordering compensation for land which is a road reserve; and whether the Tribunal exceeded its statutory mandate. 14.On the first issue, the Appellant submits that the acquired portion encroached upon an 88-metre road reserve and a 30-metre buffer zone, and was therefore ineligible for compensation by operation of Article 40(6) of the Constitution as read with section 111(1D) of the Land Act. It urges that the existence of the road reserve is well documented through the 1972 Nairobi Town Planning Liaison Committee Report, the sub-committee report on the Mombasa Road buffer zone, and the 1986 planning approvals and that the buffer zone pre-dated the transfer of the suit property to the 1st Respondent in 1991. Absent an approved Part Development Plan effecting a change of user from buffer zone to commercial use, endorsed by the Director of Physical Planning and supported by a survey plan endorsed by the Director of Survey, the suit property remained public land; and no such evidence was tendered. 15.In support, the Appellant relies on Kenya National Highways Authority v Tangerine Investments Limited (Civil Appeal 84 of 2018) [2023] KECA 79 (KLR), for the proposition that no rights crystallise in favour of a person who encroaches upon a road reserve, encroachment being an offence under section 48(1)(a) of the Roads Act and section 91 of the Traffic Act; on Dina Management Limited v County Government of Mombasa & 5 others (supra), that a title whose root is irregular and flows from the unprocedural alienation of public land cannot be upheld; on Kyambia & 10 others v Kenya National Highways Authority & 2 others (Environment & Land Petition 1 of 2022) [2024] KEELC 226 (KLR), that the State cannot compulsorily acquire a road reserve and no compensation is payable to encroachers thereon; and on the Court of Appeal’s decision in Shalein Masood Mughal (supra), which it says authoritatively established an 80-metre road reserve and a 30-metre buffer zone on the Nairobi/Mombasa Highway at the interchange with the Southern Bypass, as an overriding interest which need not be noted on any register. On interest, it relies on Mbebe (supra). 16.On the second issue, the Appellant submits that the Tribunal exceeded its statutory mandate by purporting to adjudicate upon the 1st Respondent’s title and proprietary interest in land a matter within the exclusive jurisdiction of this Court under Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act. It relies on Kenya National Highway Authority v Pandya (Civil Appeal E103 of 2021) [2025] KECA 287 (KLR) for the proposition that a determination of the rightful owner of land, or orders that cannot be made without a finding on the legitimacy of a title, lie beyond the competence of any forum other than the Environment and Land Court. The Tribunal, it is said, had original jurisdiction over the process of compulsory acquisition under section 133C of the Land Act, but not over title to land. 17.The 1st Respondent’s submissions, filed by LJA Associates LLP and dated 23rd June 2026, resist the appeal in its entirety and raise three issues: whether the Tribunal was validly constituted; whether the root of the 1st Respondent’s title was challenged and whether the Tribunal determined a question of the title’s validity; and whether the Tribunal erred in directing payment of compensation. On the first, the 1st Respondent submits that the Land Act prescribes the membership of the Tribunal but not its quorum, so that a Tribunal sitting with two of its members is not, on that account, improperly constituted. It relies on Republic v Land Acquisition Tribunal; Mulu & 55 others & 2 others (Interested Parties); Kenya National Highways Authority (Ex parte Applicant) [2025] KEELC 3411 (KLR), Mulu & 55 others v National Land Commission & 2 others [2024] KELAT 1818 (KLR), and Republic v Industrial Property Tribunal Ex parte Sanitam Services (EA) Ltd [2012] KEHC 447 (KLR). 18.On the second issue, the 1st Respondent submits that its cause of action before the Tribunal was confined to the recovery of just and prompt compensation following the compulsory acquisition of its parcel a matter squarely within section 133C of the Land Act and that the Tribunal neither declared title nor adjudicated upon its validity. A challenge to jurisdiction, it argues, falls to be determined by reference to the averments in the complaint and not to the matters pleaded in the defences: Korea Nyamai v Neema Parcels Limited [2021] KEHC 6029 (KLR), citing Fazlehussein v Yusufally; and here the jurisdictional objection arose not from the complaint but from the defences of the Appellant and the 2nd Respondent. It further submits that the root of a registered title is not placed in issue merely by a defence; a challenge arises only upon a counterclaim by which a defendant asserts a competing interest and seeks relief against the title Njagi v Kariuki & 3 others [2024] KEELC 4790 (KLR) and no counterclaim was raised. Dina Management Limited (supra) is distinguished on the footing that there the acquisition had been impugned in separate, proper proceedings, whereas here it was not; and it is noted that the 2nd Respondent could have referred any question as to the persons interested in, or entitled to compensation for, the land to this Court under section 127 of the Land Act, but did not. 19.On the third issue, the 1st Respondent submits that the existence of the alleged 88-metre road reserve and 30-metre buffer zone over the suit property was never proved. The burden of proving that the acquired portion fell within an established public road reserve lay, under section 109 of the Evidence Act, upon the Appellant and the 2nd Respondent, who asserted it, and that burden was not discharged. The suit property is comprised in Survey Plan F/R No. 161/49 of 18th March 1982 an authenticated plan within sections 39 and 41 of the Survey Act which depicts a 60-metre road reserve only and no buffer zone, and which has never been cancelled or superseded. The 80-metre reserve and 30-metre buffer relied upon by the Appellant appear on different survey plans (F/R No. 204/133 and F/R No. 195/5) and relate to a different section of Mombasa Road, before the Likoni Road/Mombasa Road junction, whereas the suit property lies beyond that junction. The 1st Respondent contends that the Court of Appeal’s decision in Kenya National Highway Authority v Shalein Masood Mughal & 5 others (supra) in truth supports its case, the reserve and buffer there having been established by an independent survey relating to that other section; and that an allegation of encroachment must be proved through existing survey records, failing which gazette notices remain a mere expression of intention to acquire Kenya National Highways Authority v Mistry Premji Gangji (Investments) Ltd [2024] KECA 500 (KLR). 20.The 1st Respondent further submits that, the root of title being examined from the first allotment (Dina Management (supra)), the suit property was alienated to Globalfreight Holdings Limited on 1st November 1981 before the buffer zone is said to have been planned, approved and sanctioned in 1986 so that the land was already private, and any later reservation could bind it only through a fresh compulsory acquisition and resurvey, which never occurred. It points out that the suit property is not among those listed in the Ndung’u Report; that the 2nd Respondent, though custodian of the relevant records, called no witness before the Tribunal and did not participate in this appeal; and that, absent any finding that the suit property was unlawfully acquired, Article 40(6) of the Constitution cannot be invoked to defeat the protection of Article 40, while section 117 of the Land Act entitles it to interest on the award. It accordingly prays that the appeal be dismissed with costs. 21.The 2nd Respondent’s default in filing submissions does not, however, dispose of the appeal, nor does it relieve this Court of its duty. Written submissions are an aid to the Court; they are not evidence and cannot take the place of the pleadings, the evidence and the record: Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR. This being a first appeal, the Court is in any event obliged to reconsider and re-evaluate the whole of the evidence on record and to arrive at its own independent conclusions: Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123. I have approached the appeal in that manner, and the analysis that follows is founded upon the record and the proceedings as a whole, and upon the competing submissions of the Appellant and the 1st Respondent. Analysis and determination 22.This being a first appeal, the Court is under a duty to reconsider the evidence adduced before the Tribunal, to evaluate it afresh, and to draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses and making due allowance for that disadvantage: Selle & another v Associated Motor Boat Co. Ltd [1968] EA 123; Peters v Sunday Post Limited [1958] EA 424. The Court will be slow to disturb the Tribunal’s findings of fact unless they are shown to rest on no evidence, or on a misapprehension of the evidence, or on a demonstrable error of law or principle. But where the trial body has misdirected itself in law, the appellate court is at liberty to re-evaluate the evidence and to substitute its own findings. Issues for determination 23.Having considered the record, the grounds of appeal and the submissions, the issues that fall for determination are:(I)whether the Tribunal had jurisdiction to determine the dispute, and whether it exceeded that jurisdiction;(II)whether the acquired portion of L.R. No. 209/9724 was compensable, or whether it constituted public land a road reserve and/or buffer zone for which no compensation was payable;(III)whether the Tribunal erred in awarding interest; and(IV)what orders, including as to costs, ought to issue. (i) Jurisdiction 24.Ground (a) impugns the constitution of the Tribunal under section 133A(1) and (2) of the Land Act. The Appellant contends that the Tribunal, having sat with two members rather than three, was not validly constituted. The 1st Respondent answers that the Land Act prescribes the membership of the Tribunal but is silent as to its quorum, and that a decision-making body is properly constituted if it does not suffer a quorum impediment under its constituting statute. I accept the 1st Respondent’s submission, which accords with the authorities it cites. The statute fixes the membership at three but does not stipulate a quorum, and it would be an unreasonable construction to hold that the absence of a single member paralyses the Tribunal. Nothing on the record suggests that the members who sat did not meet the criteria for appointment, or that the constitution of the Tribunal was in truth irregular. Ground (a) accordingly fails. 25.Ground (b), and the Appellant’s second issue, raise a more substantial question: whether the Tribunal usurped the jurisdiction reserved to this Court under Article 162(2)(b) of the Constitution by entertaining what was, in substance, a dispute as to title to, and the existence of a road reserve over, the suit property. The Appellant’s reliance on Pandya (supra) is understandable, for the Court of Appeal there reaffirmed that the determination of the rightful owner of land, and orders that cannot be made without a finding on the legitimacy of a title, lie within the exclusive preserve of the Environment and Land Court. 26.I do not, accept that the Tribunal exceeded its jurisdiction. The Tribunal’s jurisdiction over matters relating to the process of compulsory acquisition of land is conferred by section 133C of the Land Act, and includes, by section 133C(8), the power to hear and determine a complaint arising under Articles 23(2) and 47(3) of the Constitution. A necessary incident of that jurisdiction is the power to determine whether the land said to have been acquired belonged to the claimant such as to ground a claim to compensation, or whether it was instead public land not capable of acquisition. The Tribunal expressly disavowed any jurisdiction to determine the validity of the 1st Respondent’s title and rightly so, having regard to section 127(1)(a) of the Land Act and Article 162(2)(b) of the Constitution and confined itself to the compensation question. The jurisdiction of a tribunal on a preliminary objection of this kind is, moreover, tested by reference to the claim as pleaded and not by reference to the matters raised in answer to it; and the 1st Respondent’s complaint, as pleaded, sought no determination of title but only the compensation due upon an acquisition already effected. To that extent, the jurisdictional objection is not made out, and ground (b) and the second issue fail. 27.It remains to determine the substantive question on which the appeal in truth turns: whether the acquired portion of L.R. No. 209/9724 was compensable private land, or whether it was public land a road reserve and/or buffer zone for which no compensation was payable. In addressing that question this Court does not, and need not, pronounce upon the validity of the 1st Respondent’s title, which is not in issue and which no party has impugned in any proper proceeding. The enquiry is the narrower, evidential one of whether it was established that the acquired portion fell within a lawfully constituted public road reserve. To that enquiry, re-evaluating the evidence for myself, I now turn. (ii) Was the acquired portion compensable? 28.The substantive contest is short to state but consequential. The 1st Respondent’s claim to compensation rests on its registered proprietorship of the suit property and on an award of compensation made, accepted and unpaid. The Appellant’s answer is that the acquired portion lay within a pre-existing public road reserve and buffer zone on Mombasa Road, and that public land of that character is, by force of the Constitution and statute, neither capable of compulsory acquisition nor compensable. 29.The starting point is Article 40 of the Constitution. Article 40(3) protects every person against arbitrary deprivation of property and requires that any compulsory acquisition be accompanied by prompt payment in full of just compensation. That protection is not unqualified: Article 40(6) provides that the rights under that Article do not extend to property that has been found to have been unlawfully acquired. But the qualification operates upon a finding. By its terms it withholds protection from property that “has been found” to have been unlawfully acquired, and so presupposes that the unlawfulness has been established, by evidence and through a competent process. It is not engaged by assertion alone. 30.The Appellant is correct that a public road reserve stands on a different footing from ordinary private land. Such land, being already public, is not amenable to private appropriation and is incapable of being acquired by the State from a private person. In Kyambia & 10 others v Kenya National Highways Authority & 2 others (supra), this Court held that portions of land reserved for a road remain part of the road reserve, are not compulsorily acquired by the Authority, and that those who have encroached upon them are not entitled to compensation. In Kenya National Highways Authority v Tangerine Investments Limited (supra), the Court of Appeal held that no rights crystallise in favour of one who encroaches upon a road reserve. And in Dina Management Limited v County Government of Mombasa & 5 others (supra), the Supreme Court held that a title whose root is traceable to an irregular and unprocedural alienation of public land confers no protectable right, the indefeasibility of registration notwithstanding. These principles are not in doubt. But each of them is predicated upon an established fact that the land in question is, or encroaches upon, a road reserve, or that the root of title is irregular. They are principles of consequence, not of proof: they tell one what follows once the predicate is shown, but they do not supply the predicate. The anterior question in every case remains whether, on the evidence, that predicate has been established. 31.Where, then, did the burden lie? It was the Appellant and the 2nd Respondent who asserted that the acquired portion registered private land held under an apparently regular title was in truth a public road reserve. He who asserts must prove. Section 109 of the Evidence Act places the burden of proving a fact upon the party who wishes the court to believe in its existence. The 1st Respondent, holding a registered title that is prima facie evidence of ownership under sections 24, 25 and 26 of the Land Registration Act, was not required to prove a negative. The burden of establishing the existence of the road reserve and buffer zone, and that the acquired portion fell within them, rested squarely upon the Appellant and the 2nd Respondent. 32.How is such an allegation to be proved? The Court of Appeal has given the answer. In Kenya National Highways Authority v Mistry Premji Gangji (Investments) Ltd [2024] KECA 500 (KLR) a decision concerning this very Authority and an allegation of the very kind now before me the Court held that an alleged encroachment into a road reserve must be demonstrated through existing survey records defining the reserve’s extent in relation to the subject plot; and that, in the absence of a survey plan and acquisition documentation showing that the portion had been acquired, gazette notices expressing an intention to acquire remain just that an intention from which no encroachment can be inferred. The proof of a road reserve over a particular parcel is, in short, a matter of survey, and not of assertion or of planning correspondence. 33.Measured against that standard, the Appellant’s case was not made out. The 1st Respondent produced Survey Plan F/R No. 161/49 of 18th March 1982 an authenticated plan within the meaning of sections 39 and 41 of the Survey Act, and therefore prima facie evidence of the boundaries of, and the road reserve bordering, the suit property. That plan depicts a road reserve of 60 metres and no buffer zone, and it was not disputed that it has never been cancelled or superseded by any subsequent registered plan. The 80-metre reserve and 30-metre buffer upon which the Appellant relies are shown on different survey plans F/R No. 204/133 and F/R No. 195/5 and, on the evidence, relate to a different section of Mombasa Road lying before the Likoni Road/Mombasa Road junction, whereas the suit property lies beyond that junction. The Appellant, by contrast, relied principally upon the Nairobi Town Planning Liaison Committee Report and upon Part Development Plans and maps none of which is a cadastral survey record, and none of which fixes, by an authenticated survey, the extent of any reserve in relation to the suit property. That is precisely the evidential deficiency that proved fatal to the Authority in Mistry Premji Gangji (supra). 34.The Appellant’s case on the existence of the reserve rested not upon any survey of its own, but upon the Nairobi Town Planning Liaison Committee Report, upon Part Development Plans and maps prepared by its own surveyor, Mr. Munene (exhibits EM-4 and EM-5), and upon a map prepared by a government consultant, John Burrow & Partners. None of that material established a lawfully constituted reserve over the suit property. The Part Development Plans and maps were planning instruments originated by Mr. Munene himself not an independent, authenticated cadastral survey; and the John Burrow & Partners map was, on Mr. Munene’s own evidence, unapproved, and it depicted a road reserve of 60 metres, not the 88 metres the Appellant pleaded. Critically, the Appellant produced no survey plan that had cancelled or superseded F/R No. 161/49. A survey plan is displaced only when a fresh plan is registered and the earlier one cancelled, and it was not disputed that this had not occurred. The Appellant in fact relied upon the 1st Respondent’s own 1982 plan, even while contesting its authentication, and Mr. Munene accepted that the Town Planning Report had never been incorporated into any survey plan. His own professional certification, moreover, was not placed in evidence. A road reserve cannot be brought into existence over a registered and uncancelled parcel by planning correspondence and maps purporting to depict a wider reservation than the authenticated survey discloses; it must be established by an authenticated survey and, where the land is already alienated, by a lawful acquisition. Neither was shown. Mr. Munene’s maps therefore did not displace F/R No. 161/49; they assumed the very conclusion they were tendered to prove. 35.Nor does the decision of the Court of Appeal in Kenya National Highway Authority v Shalein Masood Mughal & 5 others (supra) assist the Appellant. That case did establish, on this highway, a road reserve of 80 metres and a buffer of 30 metres. But the strength of that finding lay in an independent, non-partisan survey report, ordered by the trial court and prepared by surveyors appointed by both sides, which fixed the reserve’s location in relation to the specific plots there in issue. That report placed the 80-metre reserve and 30-metre buffer on a defined section of the highway the section captured in F/R No. 204/133 and F/R No. 195/5, around the Southern Bypass interchange the very section to which the Appellant’s own plans here relate, and which is not the section in which the suit property lies. So far from supporting the Appellant, Shalein (supra) illustrates what is absent in the present case: an independent survey tying an established reserve of the asserted width to this parcel. It bears adding that the Tribunal’s citation of the High Court decision in Shalein Masood Mughal v Attorney General & 5 others [2014] eKLR was not, as the Appellant suggested, a reliance on overruled authority. The Tribunal invoked that decision only for the proposition which the Court of Appeal did not disturb that a finding of unlawful acquisition must be made through a process established by law, and not by a committee or a commission of inquiry. That proposition is sound and remains good law, and the Tribunal’s reasoning upon it discloses no error. 36.There is a further and independent answer to the Appellant’s case. A challenge to the root of a title is examined from the first allotment: Dina Management (supra). The suit property was first alienated from public land to Globalfreight Holdings Limited for a term of 99 years from 1st November 1981, and the residue was transferred to the 1st Respondent in 1991. On the Appellant’s own evidence, the buffer zone was planned on 16th April 1986, approved on 7th May 1986 and sanctioned on 20th June 1986 that is to say, some five years after the land had ceased to be unalienated public land and had become private property. A reservation purportedly created in 1986 could not, of its own force, reach back and convert into a public road reserve land that had already been validly alienated in 1981. To bring such already-alienated land within a later reserve would have required a fresh compulsory acquisition from the registered proprietor, and a resurvey cancelling F/R No. 161/49 neither of which was done. The premise of the Appellant’s case that the suit property was carved out of land already encumbered by the reserve is therefore contradicted by the very chronology its own evidence establishes. 37.It follows that the condition upon which Article 40(6) operates is absent. There has been no finding by this or any other competent court, in any proper proceeding that the suit property or the acquired portion was unlawfully acquired or held. No such challenge was ever mounted. The root of a registered title is not impugned by a bare averment in a defence; it is impugned by a counterclaim through which the party asserts a competing interest and seeks relief against the title, upon which the proprietor is put to proof of the legality of his acquisition: Njagi v Kariuki & 3 others [2024] KEELC 4790 (KLR). The Appellant filed no counterclaim and sought no such relief. Dina Management (supra) is, in this respect, distinguishable: there, the acquisition had been impugned in separate and proper proceedings, and a finding of unlawfulness made; here, there was neither. Absent that finding, the 1st Respondent’s registered interest stands, and the protection of Article 40 including the right to prompt and just compensation is not displaced by Article 40(6). 38.Two features of the record fortify this conclusion. First, the 2nd Respondent the constitutional body charged with the acquisition, and the custodian of the records that would have established any reserve called no witness before the Tribunal and took no part in this appeal. The burden of proof it bore jointly with the Appellant was thus left wholly undischarged on its part, and its silence upon a matter peculiarly within its knowledge speaks for itself. Second, the 2nd Respondent gazetted the suit property for acquisition, conducted an inquiry, assessed compensation at Kshs. 30,000,000.00, and issued an award which the 1st Respondent accepted and which has never been revoked. Those are not the acts of an authority dealing with land it regarded as an unalienable public reserve; they are the acts of an authority acquiring private land for a public project. The award is consistent only with the suit property having been private land lawfully held, and is wholly inconsistent with the case the Appellant now advances. 39.The Appellant’s explanation that payments made in respect of other parcels along the corridor were for improvements rather than for land does not repair the deficiency in its proof. Whatever the basis of those payments, they do not establish the existence or the extent of a reserve over this parcel; and the fact remains that, for parcels the Appellant accepts were affected by the project, compensation was assessed and paid, while for the suit property an award was assessed, accepted, and then withheld upon a contention the Appellant has been unable to prove. 40.Standing back, the position is this. The Appellant and the 2nd Respondent bore the burden of proving that the acquired portion of L.R. No. 209/9724 lay within a lawfully constituted public road reserve and buffer zone. They sought to discharge that burden by planning correspondence and self-originated maps, unsupported by any survey record cancelling or superseding the authenticated plan of the suit property, and contradicted by the chronology of alienation. They did not discharge it. There being no proof of a reserve, and no finding of unlawful acquisition, Article 40(6) is not engaged; and the 1st Respondent the holder of a registered title and the beneficiary of an accepted and unrevoked award was entitled to the prompt and just compensation that Article 40(3) guarantees. The Tribunal reached that very conclusion, and reached it by sound reasoning: it correctly placed the burden upon the Respondents; it correctly held that a town planning committee report could not, of itself, defeat a registered proprietary interest; and it correctly found that no lawful creation of a reserve over the suit property whether through a process established by law or by compulsory acquisition had been proved. I find no basis upon which to disturb its findings. Grounds (c) to (j) accordingly fail. (iii) Interest 41.Ground (k) complains of the award of interest from 22nd January 2021. Having found that the 1st Respondent was entitled to compensation, the question of interest does arise and falls to be determined. Section 117 of the Land Act provides for the payment of interest on a compensation award at the prevailing Central Bank of Kenya base lending rate, from the date the acquiring body takes possession of the land until payment in full. Possession of the acquired portion having been taken for the Nairobi Expressway, and the award having gone unpaid, the Tribunal was entitled to award interest, and its selection of 22nd January 2021 the date of the award as the date from which interest runs was reasonable and within its discretion. Interest of this character is, in any event, an integral part of the “just compensation” guaranteed by Article 40(3): compensation that is delayed is not fully just unless the claimant is cushioned against the loss of the use of the money over the period of delay. The Appellant’s reliance on Mbebe (supra), for the narrower proposition that statutory interest under section 117(1) is confined to the circumstances in section 115(1), does not displace either the express terms of section 117 or this Court’s remedial discretion under Article 23(3) of the Constitution. The award of interest was properly made, and ground (k) fails. (iv) Disposition and costs 42.It follows that the appeal fails. The grounds going to jurisdiction (grounds (a) and (b)) are not made out; the grounds going to the merits (grounds (c) to (j)) are not made out; and the ground going to interest (ground (k)) is not made out. Ground (l), a general complaint that the Tribunal failed to consider the law and the evidence, adds nothing of substance and likewise fails. The judgment and decree of the Tribunal must therefore stand. 43.On costs, the ordinary rule is that costs follow the event. The 1st Respondent has succeeded in resisting the appeal and has asked for its costs. I see no reason to depart from the ordinary rule. The 1st Respondent, having been put to the expense of defending an award lawfully made in its favour, and having succeeded, is entitled to the costs of this appeal. The costs awarded to it before the Tribunal are unaffected by this judgment and stand. Final orders 44.For the reasons given, the Court make the following final orders:(i)The appeal is dismissed.(ii)The judgment and decree of the Land Acquisition Tribunal at Nairobi delivered on 10th February 2025 in Tribunal Complaint No. TRLAP/E023 of 2024 are upheld in their entirety.(iii)For the avoidance of doubt, the Appellant and the 2nd Respondent shall pay to the 1st Respondent the sum of Kshs. 30,000,000.00, together with interest thereon at the Central Bank of Kenya base lending rate from 22nd January 2021 until payment in full, in terms of the award of the Tribunal.(iv)The Appellant shall bear the 1st Respondent’s costs of this appeal. DATED, SIGNED AND DELIVERED VIRTUARLLY THIS 30TH DAY OF JUNE, 2026.E. K. WABWOTOJUDGEIn the presence of:Mr. Nyakite h/b for Prof. Mumma S.C for the Appellant.Mr. Orwenyo for the 1st Respondent.N/A for the 2nd Respondent.Court Assistant; Joseph Letisia.