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ELCDismissedVoi ELCLC No. E019 of 2025· [2026] KEELC 1456 (KLR)

Mwawasi v Kenya National Highways Authority & another (Environment and Land Case E019 of 2025) (Environment and Land) [2026] KEELC 1456 (KLR)

Environment and Land Court
12 March 2026
2,759 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling on the Applicant/Plaintiff's Notice of Motion dated 22nd December 2025 seeking interlocutory injunctions restraining the 1st Respondent (CECM Lands, Taita Taveta County) from demolishing, removing or interfering with his property at Caltex along the Mombasa A8 Road in Voi, and from disconnecting water and electricity services. The Applicant claimed to be the registered and beneficial owner of L.R No. 4637/7, relying on his title and building-plan approvals issued by the County Government in August 2025 following a judicial review judgment in Voi ELC J.R. Appl. No. E002 of 2024, and alleged violation of Articles 40 and 47 of the Constitution. The 1st Respondent countered that the JR judgment merely quashed the County Director's rejection of the building plans for want of a hearing and reasons; that the suit property lies wholly within the Nairobi–Mombasa Highway (A8) road reserve, being a sight triangle at the Mombasa Road–Voi Road junction; and that it is public land under Articles 62 and 40(6), incapable of lawful private allocation. The Respondent produced cadastral survey plans (F.R Nos. 120/86, 124/135, 8/91 and 152/91) which the Applicant did not rebut with any contrary expert survey. Applying Giella v Cassman Brown and Nguruman, and noting that expert evidence is properly challenged only by contrary expert opinion, the Court held that the Applicant failed to meet the sequential threshold for an interlocutory injunction, public interest in road safety outweighing his private commercial interest. The application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

No prima facie case was established; the Applicant's registered title and county building approvals were not rebutted by evidence, but the Respondent's uncontroverted cadastral survey plans showed the suit property lies wholly within the Nairobi–Mombasa Highway (A8) road reserve as a sight triangle

Reasoning

The Applicant relied on a registered title and county building-plan approvals. The Respondent produced cadastral survey plans (F.R No. 120/86, 124/135, 8/91, 152/91) prepared by survey professionals, which are expert evidence placing the parcel in the road reserve. The Applicant produced no contrary survey or expert opinion to controvert them, so the survey material remained uncontroverted at the interlocutory stage.

p. 6
02

Whether irreparable injury and balance of convenience favour the Applicant

Holding

Neither was established in the Applicant's favour; the public interest in road safety and preservation of road reserves on a major highway outweighs the Applicant's private commercial interest

Reasoning

The Applicant sought to protect a private commercial interest, while the Respondent sought to protect a sight triangle on the international A8 highway. Public safety and preservation of road reserves outweigh private interests, so the balance of convenience and public interest favoured the Respondent.

p. 6
03

Effect of the earlier judicial review judgment on the Applicant's proprietary rights

Holding

As argued by the 1st Respondent, the judicial review judgment merely quashed the County Director's rejection of building plans for want of a hearing and reasons; it did not confer proprietary or developmental rights

Reasoning

The Respondent's replying affidavit explained that the JR court quashed the rejection solely because the Applicant was not heard and no written reasons were given, and that the court could not validate developments offending the law; approval of building plans is a mere administrative act under the Physical and Land Use Planning Act that does not override questions of title or public land status.

p. 3

Legal principles established

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  • Expert reports can only properly be rebutted by another expert opinion; unchallenged expert findings may remain uncontroverted
  • The three Giella conditions for interlocutory injunctions are sequential and each must be satisfied
  • Public interest is a central consideration in Land and Environment matters

Court orders

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  1. 1.The Notice of Motion dated 22nd December 2025 is dismissed
  2. 2.Costs of the application shall abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 47
  • Constitution of Kenya, 2010Article 62
  • Constitution of Kenya, 2010Article 40(6)
  • Physical and Land Use Planning Act, No. 13 of 2019Sections 57 to 63

Cases cited (9)

  • Mrao Ltd v First American Bank of Kenya & 2 Others
    (2003) KLR 125
  • Highbury Properties Ltd v Nairobi City County
    (2017) eKLR
  • Hosea Nyandika Mosagwe v County Government of Nyamira
    (2016) eKLR
  • Ibrahim Sango Osman v Minister of State of Provincial Administration
    (2011) eKLR
  • Nguruman Limited v Jan Bonde Nielson & 2 Others
    [2014] eKLR
  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358
  • Williams & Kennedy Limited & 3 Others v Gicharu & 10 Others
    [2026] KECA 130 (KLR)
  • Ali Mohamed Sukar v Diamond Trust Bank Kenya Limited
    [2011] eKLR
  • Parvin Singh Dhalay v Republic
    [1997] eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over land matters in Taita Taveta County (injunctive relief pending hearing of the main suit)

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, "Mwawasi v Kenya National Highways Authority & another (Environment and Land Case E019 of 2025)  (Environment and Land) [2026] KEELC 1456 (KLR)", Case Analysis (2026). Voi ELCLC No. E019 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1456/eng@2026-03-12

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