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ELCPartially AllowedNot stated in judgment· [2026] KEELC 1659 (KLR)

Ongwenya & 2 others v Kenya National Highways Authority (Environment and Land Case 272 of 2016) [2026] KEELC 1659 (KLR)

Environment and Land Court
12 March 2026
5,483 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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A Kisii land court saved one property from KeNHA demolition but gave owners of encroaching structures 90 days to move them off the road reserve.

What this practically means

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Executive summary

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The Plaintiffs, registered owners of parcels along the Kisii Junction (Daraja Moja)-Ngoima Road, sued the Kenya National Highways Authority over a notice dated 27th July 2016 threatening demolition of structures allegedly encroaching on the road reserve, seeking a permanent injunction and costs. The Defendant maintained the road reserve had been lawfully expanded from 120 feet to 131 feet (40 metres) through compulsory acquisition gazetted in 1986, and that the Plaintiffs' structures encroached on the acquired reserve. The court adopted two issues: whether the Plaintiffs encroached on the road reserve, and whether the court could grant orders in vain. On the evidence, the court found that parcel 2345 merely abuts the new road reserve and any encroachment (0.0007ha per the court-ordered survey) was too minor to justify demolition, so the claim over 2345 succeeded. Parcel 1058, however, was found on the same court-ordered survey to encroach on the reserve by 0.2798 hectares; the 1st Plaintiff's reliance on a county Physical Planning officer failed because that office lacks authority to determine boundaries under the Land Registration Act. No evidence was led for parcels 2418, 2577, 1236, 497, 2299 and 895, so those claims were dismissed. The court rejected the Defendant's 'orders in vain' argument, holding the pleading error curable under Article 159. The owners were granted 90 days to remove the marked structures, failing which the Defendant may demolish, and each party was ordered to bear its own costs.

Key legal issues

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01

Whether the Plaintiffs' parcels encroach on the road reserve

Holding

Parcel 2345 has not encroached; parcel 1058's structures encroach on the road reserve by 0.2798 hectares per the court-ordered survey; claims on 2418, 2577, 1236, 497, 2299 and 895 were unproven for want of evidence

Reasoning

The court relied on the survey report prepared pursuant to its own order and taken in the presence of the 1st Plaintiff and his counsel, who did not seek to cross-examine its maker. DW2 admitted parcel 2345 merely abuts the new road. Pw2, a Physical Planning draftsman, could not authoritatively determine boundaries. No evidence supported the 2nd and 3rd Plaintiffs or the other parcels, so no positive finding could be made.

p. 7
02

Whether the court can grant orders in vain given the injunction was pleaded as pending determination of the suit

Holding

The mislabelling of the injunction as temporary/pending determination was a curable, non-prejudicial error; the court declined to follow the defendant's authorities on futility

Reasoning

Although the plaint described the injunction as pending determination of the suit, the court found the error curable under Article 159 of the Constitution because the Defendant knew the case against it and suffered no prejudice. The court was thus not persuaded by Omuya and Obara Oendo on orders in vain.

p. 10
03

Whether failure to register acquired land invalidates the Defendant's maps and acquisition

Holding

Failure to register the acquired portions does not permit neighbouring plots to alter boundaries, and the Plaintiffs' late objection to the maps was rejected

Reasoning

The acquired parcels were privately owned and compensation was paid to the specific individuals, who raised no complaints. The Plaintiffs did not object when the maps were produced, and gave no particulars of what exhibits ought to have emanated from the lands office. Their assertion that the maps were unofficial was therefore too late in the day.

p. 9

Legal principles established

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  • A party alleging absence of encroachment bears the burden of proving it, best by a survey map drawn by a qualified surveyor or Land Registrar
  • Physical Planning officials lack authority to resolve boundary disputes or determine road reserve encroachment; that role lies with the Land Registrar and government surveyor under the Land Registration Act
  • An error in pleading temporary instead of permanent injunction is curable and not fatal where the defendant was aware of the case it faced

Court orders

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  1. 1.Declared that the claim over land parcel North Mugirango/Ikonge/2345 succeeds, the court determining it has not encroached on the road reserve of Kisii Junction-Ngoima road
  2. 2.Dismissed the claims on the remaining parcels North Mugirango/Ikonge/1058, 2418, 2577, North Mugirango/Mokomoni/1236 and North Mugirango/Boisanga/497, 2299 and 895 as unproven
  3. 3.Granted the owners Ninety (90) days from the date of the judgment to remove the structures marked for demolition due to encroachment on the road reserve; failing which the Defendant shall proceed with the demolitions
  4. 4.Ordered each party to bear their own costs of the suit
Jurisdiction invoked
Original civil jurisdiction over the plaint dated 8th September 2016 (Article 159 of the Constitution invoked on curability of pleading error)

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, "Ongwenya & 2 others v Kenya National Highways Authority (Environment and Land Case 272 of 2016) [2026] KEELC 1659 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1659/eng@2026-03-12

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