George Ongaya Omwodo & Another v Kenya National Highways Authority & National Land Commission
The bottom line
#The Mombasa Environment and Land Court refused to stop KeNHA from demolishing structures in a road reserve because the occupants proved no ownership documents.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs established a prima facie case with a probability of success to warrant a temporary injunction
- 2.Whether the Demolition Notice dated 7th August 2025 was unlawful
- 3.Whether the balance of convenience and public interest favoured granting the injunction
Key legal issues
#Whether the Plaintiffs demonstrated a prima facie case with probability of success
No prima facie case was established; the Plaintiffs produced no ownership documents and failed to show lawful occupation or proprietary interest.
Applying Giella v Cassman Brown and Mrao v First American Bank, the court found the Plaintiffs alleged proprietary rights under Article 40 but produced no ownership documents, title or lease. Their occupation was not shown to be lawful, and the Defendants asserted the structures were illegally constructed within a designated road reserve. Without a demonstrable right, the first Giella condition failed and the injunction could not issue.
Whether the Demolition Notice dated 7th August 2025 was unlawful
The Notice was lawful, being issued under section 49 of the Kenya Roads Act, and could not be equated with compulsory acquisition.
Section 49 of the Kenya Roads Act empowers KeNHA to direct removal of unauthorised structures within a road reserve by written notice. Since the Plaintiffs' structures were alleged to be within the designated road reserve of the Mombasa-Mariakani dual carriage, the notice was a lawful exercise of statutory power, not a compulsory acquisition requiring compensation and resettlement.
Balance of convenience and public interest
The balance of convenience, public interest and the law all favoured refusal of the injunction.
The court held that granting the injunction would undermine statutory preservation of the road reserve, prejudice the public interest and obstruct development and maintenance of critical national infrastructure. Even if in doubt on the prima facie case, the third Giella condition (balance of convenience) resolved against the Plaintiffs given the public infrastructure project involved.
Legal principles established
#- A party invoking Article 40 protection must demonstrate lawful acquisition of, or title to, the property; where title or entitlement is disputed, the Article 40 right hardly arises.
- Structures erected without permission within a road reserve may be removed by KeNHA by notice in writing under section 49 of the Kenya Roads Act.
Court orders
#- 1.Dismissal of the Plaintiffs' Notice of Motion dated 5th September 2025
- 2.Costs of the application awarded to the Defendants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land and environment disputes (Article 162(2)(b) of the Constitution, as implied by the suit's nature); not expressly stated in the judgment.
Relief refused
#Temporary injunction restraining the Defendants from trespassing upon, marking, demolishing, evicting or interfering with the Plaintiffs' possession of premises at riparian in Bangladesh area, Jomvu
No prima facie case established; balance of convenience, public interest and the law against granting the orders
Temporary injunction restraining the Defendants from harassing and blackmailing the Plaintiffs with threats of arrests and malicious prosecutions
Fell with the dismissal of the Motion; no prima facie case established
Costs
Costs of the application to the Defendants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I was not persuaded that the Plaintiffs had established a prima facie case with a probability of success at the trial. Instead, I was persuaded that the balance of convenience, public interest and the law are all against granting of the orders sought by the Plaintiffs.
It follows that I did not find any merit in the Plaintiffs Motion dated 5th September 2025. I dismiss the same with costs to the Defendants.
Where title and entitlement to land are disputed, the right can hardly arise.
the Authority may by notice in writing direct that person to remove the unauthorised structure, other thing, alteration or addition within a reasonable period
Issues in the judgment
#Delivery date appears to be a typographical error given the 2025 case number and filing date.
Inconsistent naming of the community-based organisation.
Orders 1) to 4) of the Notice of Motion are not reproduced in the ruling.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "George Ongaya Omwodo & Another v Kenya National Highways Authority & National Land Commission", Case Analysis (2026). Land Case No. E097 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5714/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.