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ELCPartially AllowedRuling in Notice of Motion dated 4th November 2025 (Plaint dated 4th November 2025)· [2026] KEELC 1700 (KLR)

Nyandigisi & 2 others (Suing as the Personal Representatives of Johnson Nyandigisi Maoga) v Kenya National Highways Authority (KeNHA) (Environment and Land Case E027 of 2025) [2026] KEELC 1700 (KLR)

Environment and Land Court
25 March 2026
DOD. O. Ohungo
1,376 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nyamira court blocked the county government from demolishing a family's petrol station, ruling the county failed to back its encroachment claims with actual evidence.

What this practically means

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Executive summary

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The Plaintiffs, personal representatives of the estate of Johnson Nyandigisi Maoga, registered proprietor of Kiberigo Market Plot No. 34, sued the County Government of Nyamira after it issued a demolition notice dated 9th October 2025 alleging encroachment of approximately five metres into the road reserve. In their Plaint they sought declarations of ownership and invalidity of the notice, a permanent injunction and general damages for trespass. By Notice of Motion dated 4th November 2025 they sought an interlocutory injunction restraining demolition or interference with the suit property pending trial. The Defendant opposed through Grounds of Opposition, asserting that official survey records, road reserve maps and a joint survey confirmed encroachment, and that the notice was lawfully issued under Section 49 of the Kenya Roads Act, 2007. The court framed a single issue: whether the orders sought should issue. Applying the Giella v Cassman Brown principles as sequential hurdles, the court found the Defendant had filed no replying affidavit; its allegations rested on survey material never introduced in evidence, whereas the Plaintiffs' sworn statements stood uncontroverted. A prima facie case was established, and the threatened demolition of a petrol station and permanent structures meant damages would be inadequate. The injunction was granted for twelve months or until determination of the suit, whichever came first, under Order 40 rule 6 of the Civil Procedure Rules. The prayer for police enforcement was refused, following Kamau Mucuha v Ripples Ltd, and the Plaintiffs were awarded costs of the application.

Key legal issues

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Whether the Plaintiffs established a prima facie case with a probability of success and entitlement to an interlocutory injunction

Holding

Yes; the Plaintiffs' sworn evidence that they had not encroached on the road reserve was uncontroverted, as the Defendant relied only on grounds of opposition without a replying affidavit or evidence, so damages would not be an adequate remedy.

Reasoning

The court applied the Giella v Cassman Brown sequential tests. The Defendant's claim of a five-metre encroachment rested on alleged survey records and a joint survey never introduced as evidence. Uncontroverted sworn assertions from the Plaintiffs therefore prevailed, establishing a prima facie case. The threatened demolition of a petrol station and permanent structures, the source of the Plaintiffs' livelihood, made damages inadequate, warranting the injunction.

Legal principles established

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  • Interlocutory injunctions are granted on the Giella v Cassman Brown principles applied as sequential hurdles: prima facie case, inadequacy of damages, then balance of convenience
  • Sworn statements carry more weight than bare assertions unsupported by evidence
  • The police should not be involved in enforcement of civil injunctions

Court orders

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  1. 1.Pending hearing and determination of the suit, an injunction restraining the Defendant by itself, agents, servants or anyone claiming under it from entering upon, trespassing onto, blocking access, taking possession of, demolishing or otherwise interfering with the Plaintiffs' right over Kiberigo Market Plot No. 34
  2. 2.The injunction to remain in force for twelve months from the date of the ruling or until the case is determined, whichever occurs first, per Order 40 rule 6 of the Civil Procedure Rules
  3. 3.Plaintiffs to have costs of the application
Jurisdiction invoked
Original civil jurisdiction over land disputes; interlocutory injunction under Order 40 of the Civil Procedure Rules

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, "Nyandigisi & 2 others (Suing as the Personal Representatives of Johnson Nyandigisi Maoga) v Kenya National Highways Authority (KeNHA) (Environment and Land Case E027 of 2025) [2026] KEELC 1700 (KLR)", Case Analysis (2026). Ruling in Notice of Motion dated 4th November 2025 (Plaint dated 4th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1700/eng@2026-03-25

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