Miheso v County Director Survey, Kakamega County & 3 others (Environment and Land Petition E004 of 2025) [2026] KEELC 1151 (KLR)
The bottom line
#The Environment and Land Court dismissed a landowner's injunction, ruling that reopening a public access road he had encroached on is not compulsory acquisition.
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 petitioner has met the conditions for grant of a temporary injunction
Key legal issues
#Whether the petitioner met the conditions for grant of a temporary injunction (prima facie case, irreparable injury, balance of convenience)
The application was dismissed because the petitioner failed to establish a prima facie case and was guilty of non-disclosure, rendering the equitable remedy unavailable
The court applied the settled injunction principles from American Cyanamid, Mrao and Kogo. It found the petitioner's framing of the dispute as compulsory acquisition misleading, since the respondents' evidence showed the petitioner had encroached on an existing public access road. Having failed to demonstrate a prima facie case, irreparable loss and balance of convenience fell away as moot, and non-disclosure of material facts further disentitled him to equitable relief.
Legal principles established
#- Restoration of a public access road which had been encroached upon cannot amount to compulsory acquisition
- Injunction is an equitable remedy; an applicant must come with clean hands and disclose all material facts
Court orders
#- 1.The application dated 13th March 2025 is dismissed
- 2.Costs of the application awarded to the respondents
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 disputes; provisions not expressly cited in the excerpt
Relief refused
#Temporary injunction restraining the 1st, 2nd and 3rd respondents from compulsorily acquiring, demarcating, surveying, constructing or demolishing premises on Isukha/Shitoto/688
No prima facie case established; the petitioner framed an encroachment-on-public-access-road dispute as compulsory acquisition and was guilty of non-disclosure of material facts
Temporary injunction restraining sale by public auction, transfer or disposal of the property
No prima facie case of compulsory acquisition was demonstrated; the dispute concerned opening of a public way
Order directing the OCS Khayega Police Station to enforce the orders
Ancillary to the injunction, which was refused as the application lacked merit
Costs
Application dismissed with costs to the respondents
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 find and hold that the application dated 13th March 2025 lacks merit and the same is hereby dismissed with costs to the respondents.
It is clear to me that the petitioner is guilty of nondisclosure of material facts and therefore undeserving of the equitable remedy of temporary injunction.
restoration of a public access road which had been encroached upon, cannot amount to compulsory acquisition
Issues in the judgment
#The application is dated 13th March 2025 but the petitioner deponed to receiving a letter dated 9th October 2025 through the Assistant chief, a date after the application was filed; the record elsewhere refers to letters dated 9th October 2024
The 1st and 3rd respondents' replying affidavit was sworn by Caleb Shiundu, described as 'the 1st respondent', yet the 1st and 3rd respondents filed it jointly; the identity of the 3rd respondent is not stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Miheso v County Director Survey, Kakamega County & 3 others (Environment and Land Petition E004 of 2025) [2026] KEELC 1151 (KLR)", Case Analysis (2026). Not stated in judgment (Petition, Notice of Motion dated 13th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1151/eng@2026-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.