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ELCDismissedLand Case No. E097 of 2025

George Ongaya Omwodo & Another v Kenya National Highways Authority & National Land Commission

Environment and Land Court
24 September 2026
2,350 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiffs, chairman and member of a community-based organisation operating in the Bangladesh area of Jomvu Constituency, Mombasa, moved the Environment and Land Court by Notice of Motion dated 5th September 2025 seeking temporary injunctions to restrain the Kenya National Highways Authority and the National Land Commission from trespassing on, marking, demolishing or evicting them from premises they occupy in the riparian Bangladesh area, and from harassing them with threats of arrest and malicious prosecution, pending the hearing of the suit. They asserted lawful residence and occupation, complained of a Demolition Notice dated 7th August 2025, and alleged failure to carry out procedural compulsory acquisition, compensation and resettlement. KeNHA opposed, asserting the structures were illegally constructed within the designated road reserve of the Mombasa-Mariakani dual carriage project, that the Plaintiffs held no title or proprietary interest and were not Project Affected Persons, and that section 49 of the Kenya Roads Act empowered removal of unauthorised structures. The NLC similarly opposed, contending the orders sought fell outside its constitutional mandate under Article 67. Applying Giella v Cassman Brown, Mrao v First American Bank and Nguruman Limited, the court held the Plaintiffs had produced no ownership documents and failed to demonstrate lawful occupation or a proprietary interest, so no prima facie case was established. Relying on Paul Mutwiwa Wambua, it held Article 40 protection requires lawful title. The Demolition Notice was held lawful under section 49 of the Kenya Roads Act and not equivalent to compulsory acquisition. The balance of convenience and public interest favoured refusal. The Motion was dismissed with costs to the Defendants.

Questions the Court framed

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

  1. 1.Whether the Plaintiffs established a prima facie case with a probability of success to warrant a temporary injunction
  2. 2.Whether the Demolition Notice dated 7th August 2025 was unlawful
  3. 3.Whether the balance of convenience and public interest favoured granting the injunction

Key legal issues

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01

Whether the Plaintiffs demonstrated a prima facie case with probability of success

Holding

No prima facie case was established; the Plaintiffs produced no ownership documents and failed to show lawful occupation or proprietary interest.

Reasoning

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.

p. 11
02

Whether the Demolition Notice dated 7th August 2025 was unlawful

Holding

The Notice was lawful, being issued under section 49 of the Kenya Roads Act, and could not be equated with compulsory acquisition.

Reasoning

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.

p. 13
03

Balance of convenience and public interest

Holding

The balance of convenience, public interest and the law all favoured refusal of the injunction.

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.Dismissal of the Plaintiffs' Notice of Motion dated 5th September 2025
  2. 2.Costs of the application awarded to the Defendants

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 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

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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

p. 14

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

p. 14

Costs

Costs of the application to the Defendants

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 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.
p. 14Failure of prima facie case and balance of convenience
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.
p. 14Final orders - dismissal with costs
Where title and entitlement to land are disputed, the right can hardly arise.
p. 12Article 40 protection requires lawful title or entitlement
the Authority may by notice in writing direct that person to remove the unauthorised structure, other thing, alteration or addition within a reasonable period
p. 13KeNHA's statutory power to remove unauthorised road reserve structures

Issues in the judgment

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minor

Delivery date appears to be a typographical error given the 2025 case number and filing date.

minor

Inconsistent naming of the community-based organisation.

minor

Orders 1) to 4) of the Notice of Motion are not reproduced in the ruling.

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, "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.