Kiboi v Kenya National Highways Authority & another (Environment and Land Case 59 of 2019) [2026] KEELC 4748 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's case against KeNHA because he couldn't prove who marked his wall or that his land was even under threat of demolition.
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 entire suit filed against the 2nd Defendant is entirely and fatally defective on account of the 2nd Defendant being a named agent of a disclosed principal, and whether it ought to be dismissed pursuant to the Preliminary Objection dated 2/09/2022
- 2.Whether the Plaintiff has proved, on a balance of probabilities, that the 1st and/or 2nd Defendants, through their agents, servants or employees, marked the letter "X" on the Plaintiff's perimeter wall with the intention of demolishing the structures thereon, and whether such conduct amounts to an unlawful threat to the Plaintiff's proprietary rights
- 3.Whether the suit property, Dagoretti/Kinoo/3954, falls within any road reserve or corridor of public land over which the Defendants exercise a lawful mandate, and whether any statutory notice was due to the Plaintiff before interference with his property
- 4.Whether the Plaintiff is entitled to the equitable remedy of a permanent injunction and, in the alternative or in addition, to an award of general damages, together with costs and interest
Key legal issues
#Preliminary objection against the 2nd Defendant as agent of a disclosed principal
The preliminary objection succeeded as a pure point of law and the suit against the 2nd Defendant was struck out and dismissed
The 2nd Defendant's status as a disclosed contractor engaged by the 1st Defendant was undisputed on the pleadings and conceded by the Plaintiff in cross-examination. Since the disclosed principal was already before the Court and no independent tortious acts outside the contract were established against the contractor, the common law immunity of a disclosed agent applied with full force.
Attribution of the 'X' marking to the Defendants
The Plaintiff failed on a balance of probabilities to prove that the 1st or 2nd Defendants marked the wall or threatened demolition
The Plaintiff admitted he did not witness the marking, called no witness who did, received no NLC notice, and produced no design plans. The 1st Defendant's surveyor testified the property was outside KeNHA's Class A/B jurisdiction and that the project never authorised acquisition or demolition. The evidence therefore could not link the impugned act to the 1st Defendant.
Whether the suit property lies in a road reserve triggering statutory notice obligations
No road reserve nexus was established and no statutory notice obligation arose
The notice obligations under the Land Act, 2012 and Kenya Roads Act, 2007 crystallise only where land is shown to fall within a gazetted or planned road reserve. The unchallenged survey evidence placed the property outside the 1st Defendant's jurisdiction, and the Plaintiff did not establish the nexus required to trigger constitutional and statutory protections.
Entitlement to permanent injunction and general damages
Both prayers were declined for want of proof
A permanent injunction rests on proof of a clear legal right under actual or imminent threat, per Giella v Cassman Brown, and nuisance requires evidence of ongoing unreasonable interference, not a temporary chalk mark from an unknown source. Since the Plaintiff failed to connect the 1st Defendant to any real threat, no violation of Articles 40 or 47 was established and both reliefs failed.
Legal principles established
#- An agent of a disclosed principal cannot be sued alongside the principal for acts done within the scope of the agency absent distinct allegations of fraud or personal tortious liability
- Trespass, once physically proved, is actionable per se, but the wrongful act must be linked to the defendant on evidence
- Special damages must be specifically pleaded and strictly proved
- A court cannot base its decision on speculation; reliefs must be anchored on cogent evidence
Court orders
#- 1.The Preliminary Objection dated 2/09/2022 succeeds; the suit as against the 2nd Defendant, China Wu Yi Limited, is struck out for disclosing no reasonable cause of action against a named, disclosed agent of the 1st Defendant, with costs to the 2nd Defendant
- 2.Declaration that the Plaintiff failed to prove, on a balance of probabilities, that the 1st Defendant or its agents marked or threatened to demolish the suit property
- 3.Declaration that the suit property was not shown to lie within any road reserve under the 1st Defendant's jurisdiction, and no statutory notice obligation arose in favour of the Plaintiff
- 4.The prayer for a permanent injunction as against the 1st Defendant is declined for want of proof of an imminent threat to a clear legal right
- 5.The prayer for general damages as against the 1st Defendant is declined for want of strict proof
- 6.The suit is wholly dismissed, the Plaintiff to bear the costs of the 1st Defendant, and the costs of the 2nd Defendant as ordered above
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 claims; Articles 40 and 47 of the Constitution and the Land Act, 2012 and Kenya Roads Act, 2007 invoked in the claim
Relief refused
#Permanent injunction against the 1st and 2nd Defendants
Plaintiff failed to prove an imminent threat to a clear legal right or to link the 1st Defendant to the marking
General damages
No strict proof of special damages or proved interference by the Defendants
Costs
The suit is wholly dismissed, the Plaintiff to bear the costs of the 1st Defendant, and the costs of the 2nd Defendant as ordered above (costs of the 2nd Defendant awarded on the striking out).
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.
The Preliminary Objection dated 2/09/2022 succeeds; the suit as against the 2nd Defendant, China Wu Yi Limited, is struck out for disclosing no reasonable cause of action against a named, disclosed agent of the 1st Defendant, with costs to the 2nd Defendant.
The suit is wholly dismissed, the Plaintiff to bear the costs of the 1st Defendant, and the costs of the 2nd Defendant as ordered above.
It is a well-settled principle of law that an agent of a disclosed principal cannot be sued alongside the principal for acts done within the scope of the agency, unless there are distinct allegations of fraud or personal tortious liability that lift the veil of protection.
A Court of law cannot base its decision on speculation or assumptions. A party who seeks reliefs from the Court must tender cogent evidence to anchor those reliefs, failing which the claim must collapse under the weight of its own evidentiary deficiency.
an Applicant must show a prima facie case with a probability of success
Issues in the judgment
#The date of the 2nd Defendant's preliminary objection is inconsistently stated: 02/09/2022 in the pleading references and submissions but 22/09/2022 in the issues-framing paragraph
The judgment contains an incomplete/garbled sentence in the 2nd Defendant's submissions record
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiboi v Kenya National Highways Authority & another (Environment and Land Case 59 of 2019) [2026] KEELC 4748 (KLR)", Case Analysis (2026). ELC NO. 59 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4748/eng@2026-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.