Ongera v Kenya National Highways Authority & 4 others (Land Case E028 of 2025) [2026] KEELC 1920 (KLR)
The bottom line
#The Environment and Land Court in Nyamira stopped KeNHA from demolishing a Kebirigo market building, ruling that disputed facts about statutory notice cannot be decided through a preliminary objection.
What this practically means
#Executive summary
#Key legal issues
#Whether non-compliance with section 67(a) of the Kenya Roads Act (one-month notice to the Director-General before suing the Authority) could found a preliminary objection
No. Establishing whether notice was served and whether it complied with statutory content and timing requirements would require evidence, so the objection is not a pure point of law and fails as a preliminary objection.
Relying on Mukisa Biscuit and Oraro v Mbaja, the court reiterated that a preliminary objection must be a pure point of law, argued on assumed pleaded facts, and cannot stand if facts must be ascertained or evidence adduced. Whether the statutory notice was served, and whether it met the requirements as to particulars and timelines, are contested factual matters requiring evidence. The objection was therefore incompetent, irrespective of material introduced after its filing.
Whether the Plaintiff was entitled to a temporary injunction restraining demolition
Yes. The Plaintiff established a prima facie case with probability of success, damages would not be adequate for a land dispute, and the balance of convenience favoured preservation of the building.
The First Defendant did not dispute the Plaintiff's proprietorship or that it issued the demolition notice. The dispute over encroachment on the road reserve would turn on survey reports and plans at trial. The court found an apparent infringement of a right calling for rebuttal, held that land disputes are not adequately compensated by damages, and found the balance of convenience favoured preserving the building pending determination.
Whether the OCS should be directed to enforce the injunction
No. Adequate enforcement procedures exist within the Civil Procedure Rules, and police should not be involved in enforcing injunctions.
The court noted this is a civil dispute and cited Kamau Mucuha v Ripples Ltd for the proposition that police should never be involved in enforcing injunctions. Prayer 5 was therefore refused, though the injunction itself was granted under prayer 3.
Legal principles established
#- A valid preliminary objection must raise a pure point of law, argued on the assumption that all pleaded facts are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised
- Where determination of a preliminary objection requires the court to receive and consider evidence, it is not a valid preliminary objection
- The three Giella conditions for an interlocutory injunction are separate, distinct and sequential hurdles which the applicant must surmount in order
- Police should never be involved in enforcement of an injunction
Court orders
#- 1.Pending hearing and determination of the suit, an injunction restraining the First Defendant, its agents, servants and anyone claiming under it from demolishing the multi-storey building on plot number 33B Kebirigo market within Nyamira County
- 2.Under Order 40 rule 6 of the Civil Procedure Rules, the injunction to remain in force for twelve months from the date of the ruling or until the case is determined, whichever occurs first, with parties urged to expeditiously prosecute the suit
- 3.Plaintiff granted costs of the application, to be borne by the First Defendant
- Jurisdiction invoked
- Original civil jurisdiction over land disputes (Article 162(2)(b) framework; not expressly stated in judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ongera v Kenya National Highways Authority & 4 others (Land Case E028 of 2025) [2026] KEELC 1920 (KLR)", Case Analysis (2026). Not stated in judgment (Plaint dated 4th November 2025, Nyamira). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1920/eng@2026-04-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.