Diamond Fazal Velji & Rita Fazal Velji v Kenya National Highways Authority, National Land Commission & The Hon. Attorney General
The bottom line
#The Environment and Land Court in Homa Bay has stopped KeNHA from demolishing a Homa Bay property until the ownership dispute is fully heard.
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 application relates to an existing property right or possession
- 2.Whether there has been unlawful interference with that right or possession
- 3.If so, under which of the three rules does the interference fall to be considered
Key legal issues
#Whether the Applicants established a prima facie case for temporary injunction
Yes - the Applicants produced a title deed showing joint registered ownership and unchallenged evidence of structures and a fish processing factory on the land.
The court looked at the face of the petition and application, applying the American Cyanamid serious-question test. The title deed showed joint registered ownership with permanent structures and an operating fish factory. No party disputed the title, and under Section 26 of the Land Registration Act the certificate is conclusive evidence of proprietorship, so a serious issue to be tried existed.
Effect of the Respondents' failure to file a reply
The uncontroverted factual assertions in the supporting affidavit are presumed admitted and accepted as true.
The 1st Respondent only entered appearance and filed no replying affidavit or grounds of opposition despite latitude. Relying on H.G. Gandesha v G.J. Lutaya and Order 51 Rule 14(1), the court held that uncontroverted affidavit facts stand unchallenged, leaving credible admitted evidence of valid title and absence of compulsory acquisition.
Irreparable loss and balance of convenience
The greater risk of injustice lies in denying the injunction; maintaining the status quo prejudices neither party.
The property at risk of demolition was valued at over Kshs. 35,000,000 and its demolition would shut down the fish factory, causing loss of business and jobs, while the Respondent would suffer no damage if the businesses remained open. The balance of convenience therefore tilted in favour of the Petitioners.
Scope of Article 40 property rights and horizontal application of fundamental rights
Article 40 protects existing property and peaceful possession and enjoyment, imposing duties on the State and private actors alike; any interference must be legitimate and proportionate.
The court distinguished ordinary civil rights from fundamental human rights, held that fundamental rights impose correlative duties on all persons and the State (citing the Irish and German authorities), and framed three questions: existing property right, unlawful interference, and which of the three Article 40 principles the interference falls under. The application was premised on peaceful possession and enjoyment.
Legal principles established
#- Facts sworn to in an affidavit that are not denied by a replying affidavit are presumed admitted and accepted as true, provided they are credible.
- A certificate of title under the Land Registration Act is conclusive evidence of proprietorship.
- Any interference with property rights must serve a legitimate public interest and be proportionate.
Court orders
#- 1.Pending the hearing and final determination of the Petition, an order of temporary injunction restraining the 1st Respondent from demolishing, removing, interfering with or encroaching upon the Petitioners' perimeter wall and the South Nyanza Industry Offices on LR No. 1432/143, Grant No. I.R.N 1870, Homa Bay
- 2.Costs of the application shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 22, 23, 40, 47, 50 and 165(3) of the Constitution of Kenya, 2010
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.
PENDING the hearing and final determination of the Petition, an order of temporary injunction is hereby issued restraining the 1st Respondent, whether by itself, its servants, agents, employees, contractors or otherwise howsoever, from demolishing, removing, interfering with, or in any other manner howsoever encroaching upon the Petitioners’ perimeter wall and the South Nyanza Industry Offices
THE COSTS of this application shall be in the cause.
Our business is justice and not convenience.
It is settled law that where certain facts are sworn to in an affidavit, the burden to deny them is on the other party. Failure to do that, they are presumed to have been accepted.
For a threat of infringement to justify action under this provision, it must be direct and immediate rather than conjectural, hypothetical, or remote.
Issues in the judgment
#Conflicting representation of the 1st Respondent.
Appearance list names different counsel for 1st Respondent.
H.G. Gandesha attributed to the Supreme Court in 1989, predating Kenya's Supreme Court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diamond Fazal Velji & Rita Fazal Velji v Kenya National Highways Authority, National Land Commission & The Hon. Attorney General", Case Analysis (2026). Constitutional Petition No. 1 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6076/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.