Nakitare & 18 others v Kenya National Highway Authority & 3 others (Constitutional Petition E003 of 2024) [2025] KEELC 286 (KLR)
The bottom line
#Bungoma court allowed KENHA to proceed with highway works at Misikhu Market, finding property owners failed to prove their case could stop demolition.
What this practically means
#Executive summary
#Key legal issues
#Whether the petitioners established a prima facie case with overwhelming chances of success
No - both rival positions on the existence of the road reserve are plausible at the interlocutory stage, so the extent of the petitioners' rights awaits trial
The court applied the Mrao definition of a prima facie case. It noted the petitioners hold titles, but the 1st respondent deposed that the land was compulsorily acquired in 1973/1975 and the owners compensated, with the registry maps failing to reflect this. Finding both scenarios plausible, the judge declined to conclusively determine the extent of the petitioners' rights at the interlocutory stage and held the prima facie standard unmet.
Whether the petitioners would suffer irreparable injury absent conservatory orders
Injury would occur, but it does not follow that relief should issue; the injury must stem from an unlawful act and the government respondents can compensate
The court acknowledged demolition and dispossession would cause injury, but held that a conservatory order cannot rest on the mere possibility of injury. The threatened injury must arise from an unlawful act, which was not established at this stage, and the respondents being government entities are capable of compensating the petitioners if they ultimately succeed.
Where the balance of convenience lies
It favours the respondents because the road maintenance is a public project for the general benefit
The court held that the re-establishment and maintenance of the Kisumu-Kakamega-Webuye-Kitale Highway is a public project benefiting the general public including the petitioners. Whether the acquired section was compulsorily acquired and whether compensation is due can only be determined at the full hearing, and stopping the project would forestall proper infrastructure development.
Legal principles established
#- A conservatory order cannot be granted solely on the possibility of injury; the injury must be occasioned or threatened by an unlawful act
- In constitutional-rights applications, the court may go beyond the ordinary Giella tests and consider whether the relief will enhance constitutional values and the public interest
Court orders
#- 1.The Notice of Motion dated 13/11/2024 is dismissed
- 2.Costs shall be in the petition
- Jurisdiction invoked
- Original constitutional petition jurisdiction (Bill of Rights enforcement) with interlocutory application under Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nakitare & 18 others v Kenya National Highway Authority & 3 others (Constitutional Petition E003 of 2024) [2025] KEELC 286 (KLR)", Case Analysis (2025). Petition dated 13/11/2024 (Bungoma ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/286/eng@2025-01-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.