Court voids Nyamira access road built across private land
Written on
The Environment and Land Court in Nyamira has declared an access road opened by the county government across privately registered land illegal, ordering the road materials removed and the parcel restored.
Justice Dalmas Ohungo of the Environment and Land Court in Nyamira has ruled that the county government and community representatives acted unlawfully when they built an access road across privately registered land. The road was constructed on Central Kitutu/Mwabosire/765, a parcel registered to Ronald Morara Angwenyi and Walter Peter Mayaka as joint absolute proprietors and trustees for themselves and four others, with a title issued on 30 March 2015.
The court heard that on 3 December 2022 county authorities deployed an excavator to open the access road. Although a road reserve was designated on the registry index map, a court-ordered site visit and surveyors' reports established that the road actually built deviated from the mapped route onto the plaintiff's land by about eight metres. The judge described the plaintiff's surveyor's finding as credible.
"Convenience is not the same thing as ownership. It cannot trump rights of registered proprietors of land," Justice Ohungo said, adding that if the defendants wanted the road in place they should have invoked and followed the procedure for lawfully acquiring the portion. "Anything else is both an illegality and an irregular expenditure of public funds," he said.
The county's director of Works and Development, Zacharia Ocharo, testified that the land was private property neighbouring a public road where the government was carrying out maintenance, and that excavators were sent to the edge of the suit property and neighbouring parcels. The interested parties argued that the road had existed and been used by the public for years and that it was the community, not the county, that wanted it constructed. The Land Registrar did not enter appearance.
During a locus visit on 30 October 2024 the court observed that retaining the road on its mapped alignment would hinder vehicle movement because of its sharpness. It nevertheless held that administrative or engineering convenience could not override constitutional property rights, declared the construction illegal and a trespass, ordered the removal of the road materials and restoration of the land, and awarded the plaintiff the costs of the suit.