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ELCDismissedELCLC NO. E442 OF 2024· [2026] KEELC 4586 (KLR)

Radheshyam Tranport Ltd v Assistant County Commissioner, Embakasi East & 3 others (Land Case E442 of 2024) [2026] KEELC 4586 (KLR)

Environment and Land Court
20 July 2026
MCMBOGO C.G.
1,970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed a demolition damages claim because the property owner could not prove who tore down the wall or the actual loss suffered.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of LR no. 22898/2 (IR 202969) and LR no. 22898/3 (IR 202966) since October 1995, sued the defendants seeking declarations that demolitions of its perimeter wall on 21st May 2024 and 15th October 2024 were illegal, a boundary declaration per deed plans 418872 and 418873, a permanent injunction against further demolitions, damages of Kshs.10,500,000/-, costs and interest. It pleaded that the 1st defendant, accompanied by the area chief, assistant chief and police officers, demolished the wall on grounds that it stood on riparian land, allegedly in implementation of a presidential directive. The defendants denied the demolition and contended that the Water Resources Management Authority (2nd interested party) is the authority on riparian reserve. At trial, a valuer (PW1) valued the demolition at Kshs.10,500,000/- and the plaintiff's manager (PW2) gave an account of the demolitions but admitted he had no documentary evidence of approvals of the wall's setback distance, no photos of the demolition in progress, and no survey report for the alleged loss of 12 acres. The defendants called no witness. The court, applying sections 107 and 109 of the Evidence Act, held that the plaintiff failed to discharge the burden of proof: the photographs did not show the 1st defendant or officers demolishing the wall, and the claims of attempted engagement with the Authority and loss of acreage were unsubstantiated. The plaint was dismissed with each party bearing its own costs.

Key legal issues

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01

Burden and standard of proof on the plaintiff

Holding

The plaintiff failed to discharge the burden of proving that the 1st defendant and officers under his command demolished the wall

Reasoning

Applying sections 107 and 109 of the Evidence Act, the court held that a party alleging violation must substantiate it. The photographs showed a demolished wall but no demolition in progress and no officers appearing. Claims of engagement with the Water Resources Management Authority and loss of 12 acres lacked documentary support. The defendants called no witness, but the plaintiff still had to prove its case.

p. 4
02

Proof of liability where defendants do not testify

Holding

The defendants' failure to call witnesses did not relieve the plaintiff of its burden of proof

Reasoning

The defendants opted not to call any witness and instead filed written submissions inviting strict proof. The court analysed only the plaintiff's evidence and found it insufficient. Absence of rebuttal cannot substitute for proof of the plaintiff's allegations on a balance of probability.

p. 3

Legal principles established

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  • He who alleges must prove; the burden of proof lies on the person asserting a legal right or liability dependent on facts

Court orders

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  1. 1.The plaint dated 25th October, 2024 is dismissed
  2. 2.Each party to bear its own costs
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes

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, "Radheshyam Tranport Ltd v Assistant County Commissioner, Embakasi East & 3 others (Land Case E442 of 2024) [2026] KEELC 4586 (KLR)", Case Analysis (2026). ELCLC NO. E442 OF 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4586/eng@2026-07-20

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