The Kenya National Highways Authority (KeNHA) has been ordered to pay Sh20 million to a property developer whose apartment block in Nairobi’s Langata area was erroneously marked for demolition, triggering panic among buyers and disrupting business.
The Environment and Land Court found that the State agency unlawfully placed “X” marks on Park Gardens Court, a 60-unit residential development, claiming it lay on the Southern Bypass road corridor. The property is owned by Mwaafa Court Limited.
The court held that evidence on record, including from the government’s own survey officials, confirmed the property “does not encroach on the Southern bypass road or corridor.”
The dispute dates back to October 8, 2010, when KeNHA officers, accompanied by police, entered the Lang’ata site and marked buildings for demolition without notice.
The agency argued that the land fell within a transport corridor reserved for the Nairobi Southern Bypass, a key infrastructure project linking Mombasa Road to Nairobi-Nakuru Highway at Gitaru to ease traffic congestion in Nairobi.
The developer, Mwaafa, told the court it had completed construction and entered into sale agreements for several units when the markings were made.
It said construction of the suit premises was complete and that it had sale agreements for 26 apartments.
The firm added that, following the ‘X’ markings, buyers withdrew, demanded refunds and confidence in the project collapsed.
The company maintained it had lawfully acquired the land in 2007 after due diligence, obtained approvals, and built 42 three-bedroom and 18 two-bedroom apartments. Some units had already been sold and occupied.
Johnson Ngarari Mwaura, an architect and director of the company, testified that relevant maps showed the suit property was 276 metres from the road reserve.
KeNHA defended its actions, citing planning maps and a 2003 gazette notice on the removal of illegal structures on road reserves.
It argued that the property sat on a reserved corridor and sought cancellation of the title and demolition of the buildings.
The agency added that a confirmation letter from the Director of Physical Planning and Development indicated the suit property encroached on a road reserve and that the plaintiff must have acquired it through illegalities.
However, the court noted critical inconsistencies in the authority’s case. Its own witness admitted the gazette notice did not list the contested Lang’ata property. Another senior survey official confirmed in testimony that the land did not encroach on the bypass.
“The gazette notice relied on did not list the suit property,” the court observed, adding that the defendants ultimately narrowed their case to contesting damages after the encroachment issue collapsed.
Damages claim
The court issued a permanent injunction barring KeNHA and the State from trespassing on, demolishing, or interfering with the property.
On compensation, the developer had sought more than Sh2.7 billion in special damages, arguing it lost projected profits and reinvestment opportunities following the disruption.
However, the court rejected the claim, ruling that special damages must be strictly proved. It found the figures speculative, unsupported by records, and failing to account for income already earned from sold and rented units.
“The calculation was global and failed to consider amounts already received,” the court said, adding that there was no evidence of similar past projects to justify projected profit cycles.
Still, the court found that KeNHA’s actions caused real harm. It said the “X” markings created fear among buyers and tenants, stalled transactions, and forced the developer into prolonged litigation.
“Once the property was marked ‘X’, it caused fear in both the plaintiff and its clients,” the court stated. “The plaintiff could not freely deal with the property.”
The court faulted the authority for failing to remove the markings even after survey evidence showed no encroachment, forcing the developer to pursue legal action.
For the disruption and reputational damage, the court awarded Sh20 million in general damages, describing the sum as “moderate and reasonable” given the circumstances and passage of time.
The award is payable within 30 days, failing which the developer may enforce the judgment. KeNHA’s counterclaim seeking cancellation of the title and demolition was dismissed.
