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ELCAllowedELC Case (Kisii), Plaint dated 8th September 2016· [2021] KEELC 3703 (KLR)

John Kabinga Ongwenya & 2 others v Kenya National Highway Authority [2021] KEELC 3703 (KLR)

Environment and Land Court
13 April 2021
JOJ.M Onyango
893 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court permanently barred KeNHA from demolishing the landowners' buildings, finding they stood outside the 120-foot road reserve.

What this practically means

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Executive summary

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The Plaintiffs, registered owners of land parcels in North Mugirango (Ikonge, Mokomoni and Boisanga), sued the Kenya National Highways Authority alleging that its agents had marked their business premises along the Kisii-Ngoina Highway for demolition on the ground that the buildings encroached on the road reserve. They sought an injunction restraining demolition or interference pending hearing and determination of the suit. The Defendant filed a Defence denying the claim and asserting that the Plaintiffs' developments lay within the road reserve. An interim order maintaining status quo was issued. After a failed attempt at Alternative Dispute Resolution, the suit proceeded ex-parte on 27th January 2020, the Defendant and its advocate failing to attend despite service. The 1st Plaintiff testified for all Plaintiffs, producing certificates of official search confirming ownership. The Plaintiffs called Elias Rioba, a Draftsman in the Department of Physical Planning, Nyamira, who testified that the road reserve per the Registry Index Map measures 120 feet, and that after taking measurements from the road's centre line to the Plaintiffs' buildings he ascertained they were not on the road reserve; he produced his Sketch Plan. The court framed three issues: encroachment, the width of the road reserve, and entitlement to relief. Finding the Plaintiffs' evidence uncontroverted, the court held they had proved their case on a balance of probabilities and issued a permanent injunction restraining the Defendant from demolishing or interfering with the suit properties, and awarded the Plaintiffs costs of the suit.

Key legal issues

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01

Whether the Plaintiffs' buildings encroached on the Kisii-Ngoina Road reserve

Holding

The Plaintiffs did not encroach on the road reserve; their buildings are outside the 120-foot reserve

Reasoning

The Plaintiffs called a Draftsman from the Department of Physical Planning, Nyamira, who personally visited the suit properties, took measurements from the centre line of the road to the buildings, and confirmed the buildings were not on the road reserve. His Sketch Plan was produced in evidence. The Defendant, despite filing a Defence and being served, did not attend the hearing, leaving this expert evidence uncontroverted. The court found the claim proved on a balance of probabilities.

p. 1
02

Whether the Plaintiffs are entitled to injunction and costs

Holding

Permanent injunction issued restraining demolition or interference with the Plaintiffs' properties; costs awarded to the Plaintiffs

Reasoning

Having found the Plaintiffs' ownership undisputed (supported by certificates of official search) and the encroachment allegation unproven on uncontroverted evidence, the court held the Plaintiffs had proved their case on a balance of probabilities and granted the permanent injunction sought, together with costs of the suit.

p. 2

Legal principles established

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  • Where a defendant, though having filed a defence and been served with a hearing notice, fails to attend court, the plaintiff's uncontroverted evidence stands in support of the plaintiff's case and may be sufficient to prove the claim on a balance of probabilities.

Court orders

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  1. 1.Permanent injunction restraining the Defendant, its agents and/or servants from demolishing or in any way interfering with the Plaintiffs' properties on land parcels NORTH MUGIRANGO/IKONGE/1058, 2345, 2418 and 2577, NORTH MUGIRANGO/MOKOMONI/1236 and NORTH MUGIRANGO/BOISANGA/497, 2299 and 895
  2. 2.Plaintiffs awarded the costs of the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcels in North Mugirango (dispute as to whether developments encroach on a road reserve); not expressly stated in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "John Kabinga Ongwenya & 2 others v Kenya National Highway Authority [2021] KEELC 3703 (KLR)", Case Analysis (2021). ELC Case (Kisii), Plaint dated 8th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3703/eng@2021-04-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.