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ELCDismissedNot stated in judgment (Petition, Notice of Motion dated 13th March 2025)

Miheso v County Director Survey, Kakamega County & 3 others (Environment and Land Petition E004 of 2025) [2026] KEELC 1151 (KLR)

Environment and Land Court of Kenya
26 February 2026
2,520 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 landowner's injunction, ruling that reopening a public access road he had encroached on is not compulsory acquisition.

What this practically means

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Executive summary

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The petitioner, registered proprietor of parcel Isukha/Shitoto/688 measuring 0.45 hectares, moved the court by Notice of Motion dated 13th March 2025 seeking temporary injunctions restraining the respondents from compulsorily acquiring, demarcating, surveying, constructing on, or demolishing premises on the parcel, and from selling or transferring it, plus an order that the OCS Khayega Police Station enforce any orders. He alleged that respondents' agents entered the land, surveyed it, demolished his fence and destroyed crops for an access road, without compensation and without compliance with the Land Act's compulsory acquisition procedure. The respondents denied any compulsory acquisition: the 2nd respondent stated unclassified roads fall under the County Government's mandate; the 1st and 3rd respondents maintained they were lawfully reopening an existing public access road encroached upon by the petitioner and others; the 4th respondent denied involvement in any acquisition. The court framed a single issue: whether the petitioner met the conditions for a temporary injunction. Applying American Cyanamid, Mrao and Kogo, the court found no prima facie case, holding that restoration of an encroached public access road is not compulsory acquisition. The petitioner was also found guilty of non-disclosure of material facts and undeserving of equitable relief. Irreparable loss and balance of convenience became moot. The application was dismissed with costs to the respondents on 26th February 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the petitioner has met the conditions for grant of a temporary injunction

Key legal issues

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01

Whether the petitioner met the conditions for grant of a temporary injunction (prima facie case, irreparable injury, balance of convenience)

Holding

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

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The application dated 13th March 2025 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 5

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

p. 5

Order directing the OCS Khayega Police Station to enforce the orders

Ancillary to the injunction, which was refused as the application lacked merit

p. 5

Costs

Application dismissed with costs to the respondents

Quotable passages

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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.
p. 5Final orders - dismissal of the injunction application
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.
p. 5Clean hands and full disclosure as conditions for equitable relief
restoration of a public access road which had been encroached upon, cannot amount to compulsory acquisition
p. 5Restoration of public way distinguished from compulsory acquisition

Issues in the judgment

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minor

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

minor

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

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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, "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.