Kenyan Court Orders Removal of Road Built Illegally on Private Land in Nyamira

On December 3, 2022, an excavator working for the Nyamira county government began opening an access road in the Kitutu area. The route it cut did not follow the one drawn on the official map. It ran across land that belonged to someone else. Nearly four years later, the Environment and Land Court in Nyamira has ruled that the road was illegal and must come out.

Justice Dalmas Ohungo declared the construction unlawful and ordered the county and the community representatives involved to remove the road materials and return the parcel to its earlier state. The land is Central Kitutu/Mwabosire/765. It is registered to Ronald Morara Angwenyi and Walter Peter Mayaka as joint absolute proprietors, holding as trustees for themselves and four others. The title was issued on March 30, 2015.

Angwenyi brought the case. He told the court the road encroached on his land by about eight metres. He said there had been no public participation on the project, and that he refused to join a re-survey to which the land registrar summoned proprietors on December 14, 2022. He also reported the matter to Sengera Manga police station. Jones Maranga Makori, named in the case as the third interested party, was arrested but never charged. Angwenyi asked the court to declare the defendants' actions a trespass, declare the construction illegal, order the road materials removed and the land restored, and award him costs.

The county's account was narrower. Zacharia Ocharo, its director of Works and Development, testified that the land was private and bordered a public road on which the government was working. He said excavators were sent to the edge of the suit property and neighbouring parcels on December 3, 2022, as part of maintenance on an existing road. The land registrar, named as the second defendant, did not enter an appearance.

Four interested parties denied the claims. They argued that the road had long existed and had been used by the public for years. One of them, Joseph Makworo Ochoi, testified that it was a public road useful to the community. He said it was started in 1984 by the late Chief Hezekiah and existed on the ground as a narrow path, though on the map it appeared as a road. Ochoi told the court that it was the community, not the county, that wanted the road built.

The physical evidence settled the question. A court-ordered site visit and the surveyors' reports established that a road reserve did exist on the official map, but that the road actually built was somewhere else. Angwenyi's surveyor found that the eight-metre road did not match its mapped position, and the judge called that finding credible. During a visit to the site on October 30, 2024, the court observed that keeping the road on its mapped alignment would hinder vehicle movement because of how sharp the route is. Rather than use the reserve, the court found, the defendants and interested parties built a new road elsewhere on the plaintiff's private land without his consent.

The judge was direct about the reasoning behind the ruling. "Convenience is not the same thing as ownership," Ohungo said. "It cannot trump rights of registered proprietors of land." He added that if the defendants want the road in place, they should follow the lawful procedure for acquiring the portion of land. Anything else, he said, is both an illegality and an irregular expenditure of public funds.

The court declared that the actions of the defendants and interested parties amounted to trespass and that the construction was illegal. It ordered the road materials removed and the land restored, and it awarded Angwenyi the costs of the suit. If the county or the community still wants a road there, the judgment points to formal land acquisition as the only lawful route. The judge's remark about irregular spending leaves open a question about the money already spent on the road.