Court thwarts property owner's bid for additional payout

The Court of Appeal in Mombasa has dismissed an appeal by a businessman who sought compensation after his petrol station was affected by a road expansion project.

Jacob Kawiti Lumunge sought nearly Sh15 million in compensation over Plot No LR 4118/340 along Voi-Taveta Road, which he had owned since 1991.

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When the Kenya National Highways Authority (KeNHA) began the expansion of the Mwatate-Taveta Road and Taveta Bypass, Lumunge claimed the China City Construction Company had encroached onto his property, acquiring a portion without compensation.

He sought Sh14,925,000 based on a valuation report that included land value, fuel tanks, pumps and other developments.

However, evidence presented by KeNHA, which was joined as the third respondent, showed that the road project operated within a 30-metre reserve that had been designated along the highway corridor.

Survey maps dating back to 1991 confirmed this reservation, meaning the land in question was not part of Lumunge's private property.

Daniel Kariuki Muteti, a land surveyor testifying for KeNHA on May 10, 2021, told the court; "All the land that was to be compulsorily acquired for the project was gazetted; the road reserve was not gazetted because it was not part of the land that was compulsorily acquired."

He explained that compensation paid to persons who had encroached on the road reserve was done as a goodwill measure, not as recognition of ownership rights.

The court heard that Lumunge was among the Project Affected Persons identified during a 2012 census survey conducted with the African Development Bank, which financed the road project.

Following valuation by the National Land Commission, the businessman received Sh6,624,600 in June 2016 for structures he had erected within the road corridor.

The Environment and Land Court thus ruled that Lumunge had been “ fairly compensated for the developments he made on the road reserve and received just compensation for it”.

Lumunge appealed.

The Court of Appeal conducted a fresh examination of all evidence, including conflicting survey reports presented by Lumunge's two expert witnesses.

While one surveyor reported encroachment of 0.0178 hectares (178 square metres) and another found 0.0431 hectares (431 square metres), both confirmed the existence of the 30-metre road reserve abutting [touched along an edge] the property.

This encroachment, the appellate court noted, fell within the designated 30-metre boundary rather than extending onto the registered plot itself.

In a judgment delivered on Friday, Justices Agnes Murgor, Kibaya Laibuta and Grace Ngenye-Macharia upheld the Environment and Land Court's decision that Lumunge was not entitled to additional compensation as the expansion was through a corridor that had been reserved for such purposes.

"By constructing a petrol station on a road reserve, the appellant ought to have known that that was land amenable for use by the government…Since the road was not constructed on the appellant’s land, but on the road reserve, the government did not compulsorily acquire the appellant’s land. Consequently, the appellant was not entitled to any compensation. Indeed, he is fortunate to have undeservedly benefited from a sum of Sh6,624,600 notwithstanding the fact that he was the aggressor, having encroached on a road reserve.”

Lumunge's appeal was dismissed with costs to KeNHA and the construction company.