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ELCDismissedPetition dated 13/11/2024 (Bungoma ELC)· [2025] KEELC 286 (KLR)

Nakitare & 18 others v Kenya National Highway Authority & 3 others (Constitutional Petition E003 of 2024) [2025] KEELC 286 (KLR)

Environment and Land Court
30 January 2025
2,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The petitioners, claiming to be registered owners of developed properties at Misikhu Market along the Webuye-Misikhu (A1) road in Bungoma County, filed a petition alleging violation or threatened violation of their constitutional rights to property, a hearing and fair administrative action, together with a Notice of Motion under Order 40 of the Civil Procedure Rules seeking temporary and conservatory orders to restrain the 1st respondent (KENHA) from demolishing their structures following demolition notices issued to allow maintenance and re-establishment of the Kisumu-Kakamega-Webuye-Kitale Highway. The 1st respondent replied that the affected portions were compulsorily acquired in 1973 and 1975 with compensation paid, forming part of the road reserve, but that the registry maps failed to reflect the excision; it also contended the dispute was a boundary matter for the Land Registrar. The court, sitting at the interlocutory stage, applied the Giella principles as modified in fundamental-rights cases (Satrose Ayuma, Gatirau Peter Munya) and the Mrao definition of a prima facie case. It found both parties' accounts of the road reserve plausible, held the petitioners had not demonstrated a prima facie case with overwhelming chances of success, that damages would be an adequate remedy against government entities, and that the balance of convenience favoured the public road project. The application dated 13/11/2024 was dismissed with costs in the petition.

Key legal issues

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01

Whether the petitioners established a prima facie case with overwhelming chances of success

Holding

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

Reasoning

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.

p. 5
02

Whether the petitioners would suffer irreparable injury absent conservatory orders

Holding

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

Reasoning

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.

p. 6
03

Where the balance of convenience lies

Holding

It favours the respondents because the road maintenance is a public project for the general benefit

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 13/11/2024 is dismissed
  2. 2.Costs shall be in the petition

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rules 1, 2 & 3
  • Roads Act No. 2 of 2007Sections 3, 4, 22, 23 and 24
  • Land Registration ActSections 18(1) & (3) and 19(1), (2) and (3)

Cases cited (5)

  • Giella –vs- Cassman Brown Co. Ltd
    (1973) EA 358
  • Symon Gatutu Kimamo & 587 Others –vs- East African Portland Cement Co. Ltd.
    [2011]eKLR, Machanakos High Court Petition No. 333 of 2011
  • Satrose Ayuma & 11 Others v The Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 2 Others
    [2011] eKLR
  • Gatirau Peter Munya –vs- Dickson Mwenda Kithinji and 2 others
    Supreme Court of Kenya, Application No. 5 of 2014, [2014]eKLR
  • Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
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

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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, "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.