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

5) That pending the hearing and determination of this suit, the Honourable Court do issue a temporary injunction restraining the Defendants, either by themselves, their agents, servants and/or proxies from trespassing upon, marking, demolishing, evicting or in any manner whatsoever interfering with the Plaintiffs' quiet possession and enjoyment of the premises and buildings at riparian in Bangladesh area, Jomvu Constituency, Mombasa County; 6) That pending the hearing and determination of this suit, the Honourable Court do issue a temporary injunction restraining the Defendants, either by themselves, their agents, servants and/or proxies from harassing and blackmailing the Applicants with threats of arrests and malicious prosecutions; and 7) That costs of this application be provided for. 2. The Application is supported by an Affidavit sworn by the 1 st Plaintiff and is based inter alia, on the grounds that: a. The Plaintiffs are lawful residents, owners and occupants of houses and business premises as well as environment enhancement and poverty RULING Page 2 of 15 MSA. ELCLC. E097 OF 2025

page 2 of 15

eradication champions within the slums of Bangladesh area Jomvu Constituency; 1st b. The Defendant has issued an unlawful Demolition Notice dated 07/08/2025 threatening to demolish the Plaintiff’s buildings and may do so any time as from 7th September 2025 without due process or compensation; c. The Defendants have failed and/or neglected to carry out procedural compensation and compulsory resettlement acquisition, as required under the Constitution and the Land Act; d. The Defendants threatening the have Plaintiffs constantly been with and arrest prosecution for being at the forefront demanding for compensation and justice regarding the already been subject project; e. The subject road project has completed and the 1st Defendant has demolished some of the structures they deemed to be forming part of the road reserve hence their present claim on the land occupied by the Plaintiffs is malicious and without basis; RULING Page 3 of 15 MSA. ELCLC. E097 OF 2025

page 3 of 15

f. That one of the buildings targeted by the intended demolition exercise is a community library under construction hence it is in the public and/or community interest that they be stopped forthwith; g. Unless restrained, the Defendants' actions will violate the Plaintiffs' rights to property, housing, dignity and fair administrative action; and h. The balance of convenience tilts in favour of the Plaintiffs, and it is in the public interest to preserve their homes, businesses and community welfare buildings pending the resolution of the dispute. 3. The Kenya National Highways Authority (the 1 st Defendant) is opposed to the application. In a Replying Affidavit sworn on 21st October 2025 by its Deputy Director, Directorate of Highway Design & Survey Eliud Munene, the 1 st Defendant avers that the application is misconceived, frivolous, vexatious and an abuse of the Court process as it seeks to restrain the 1st Respondent from lawfully exercising its mandate under the Kenya Roads Act, 2007. RULING Page 4 of 15 MSA. ELCLC. E097 OF 2025

page 4 of 15

4. The 1st Defendant asserts that it is mandated under the Act to manage, develop, rehabilitate and maintain national roads, and to protect and preserve road reserves by preventing thereon. encroachments and illegal developments The 1st Defendant avers that the structures the Plaintiffs seek to protect were illegally constructed within the designated road reserve of the Mombasa-Mariakani (Lot 1) Dual Carriage, and therefore cannot attract constitutional protection or compensation. 5. The 1st Defendant further avers that the Plaintiffs have not demonstrated any proprietary interest or lawful occupation of the land in question as they have not produced any ownership documents, title or lease nor have they alleged any registered legal interest in the property they claim. 6. The 1st Defendant avers further that the Plaintiffs are not Project Affected Persons (PAPs) and consequently, they are not eligible to any form of compensation or resettlement. It is the 1st Defendant’s case that the Plaintiffs are mere RULING Page 5 of 15 MSA. ELCLC. E097 OF 2025

page 5 of 15

encroachers on the land seeking to unjustly enrich themselves at the expense of public resources. 7. The 1st Defendant avers that the Plaintiff’s allegations of harassment, blackmail and malicious prosecutions are baseless, unsubstantiated and intended to malign the lawful exercise of the 1st Defendant’s statutory obligations. The 1 st Defendant asserts that it issued a valid Demolition Notice dated 7th August 2025 giving the encroachers adequate time to vacate and remove their structures prior to the intended clearance that was scheduled for 7 th September 2025. The Plaintiffs ignored the notice and opted to institute these proceedings to frustrate lawful enforcement. 8. The 1st Defendant avers that granting the injunctive orders sought herein would undermine the statutory preservation of the road reserve, prejudice the public interest and obstruct the development and maintenance of critical national infrastructure. RULING Page 6 of 15 MSA. ELCLC. E097 OF 2025

page 6 of 15

9. The National Land Commission (the 2 nd Defendant) is equally opposed to the application. In a Replying Affidavit sworn on its behalf by its Director, Legal Affairs and Dispute Resolution Directorate Brian Ikol, the 2nd Defendant asserts that the Plaintiffs’ application is misconceived, incompetent and an abuse of the Court process. 10. The 2nd Defendant asserts that its constitutional mandate is clearly delineated under Article 67 of the Constitution which confines its role to behalf of the national and county governments and the undertaking of compulsory acquisition strictly in accordance with the law. 11. The 2nd Defendant avers that it does not allocate land, issue titles, register interest in land or make entries in the land register and that to the extent that the Plaintiffs seek orders compelling it to undertake acts falling outside its constitutional mandate, the application before the Court is fatally defective, untenable in law and incapable of being granted. RULING Page 7 of 15 MSA. ELCLC. E097 OF 2025

page 7 of 15

12. I have carefully perused and considered the Plaintiffs’ application as well as the respective responses thereto by the two Defendants. I have similarly perused the submissions and authorities placed before the Court by the Learned Advocates representing the parties. 13. By their application herein the Plaintiffs who are the Chairperson and member respectively of Okoa Watu Cobweb, a Community – based Organization said to be operating within Bangladesh area of Mombasa have urged the Court to issue a temporary order of injunction restraining the two Defendants from trespassing upon, marking, demolishing, evicting them or in any way interfering with their quiet possession and enjoyment of the premises and buildings they occupy in the said Bangladesh area, pending the hearing and determination of this suit. 14. In addition, the Plaintiffs pray for a temporary order of injunction restraining the Defendants and/or their agents and servants from harassing and blackmailing the Plaintiffs with RULING Page 8 of 15 MSA. ELCLC. E097 OF 2025

page 8 of 15

what they term as threats of arrest and malicious prosecution. 15. The principles governing the issuance of an injunction were long set out in the locus classicus case of Giella –vsCassman Brown & Company Limited (1973) EA 358, where the Court stated as follows: “The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. facie First, an applicant must show a prima case with a probability of success. Secondly, an interlocutory injunction will not be normally granted unless the applicant might otherwise suffer irreparable injury which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 16. As to what amounts to a prima facie case in a Civil matter as this, the Court of Appeal offered guidance in Mrao –vsFirst American Bank of Kenya Limited & 2 Others (2003) KLR 125, as follows: RULING Page 9 of 15 MSA. ELCLC. E097 OF 2025

page 9 of 15

“…. a prima facie case in a Civil Application includes but is not confined to a ‘genuine and arguable case’. It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 17. Considering the matter further in Nguruman Limited –vsJan Bonde Nielsen & 2 Others (2014) KECA 606 (KLR) the Court of Appeal held as follows: “The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion.” 18. In the matter herein, the Plaintiffs aver that together with their members, they are the lawful residents and occupants of the slums of Bangladesh area in Jomvu Constituency, RULING Page 10 of 15 MSA. ELCLC. E097 OF 2025

page 10 of 15

Mombasa County. They state that the 1 st Defendant has issued them with an unlawful Demolition Notice dated 7 th August 2025 requiring them to remove their buildings and structures from the suit premises failure to which the 1 st Defendant would demolish the same. 19. The Plaintiffs assert that the two Defendants have failed and/or neglected to carry out procedural compulsory acquisition, compensation and resettlement as required by law and assert that unless the Defendants are restrained, their actions will violate the Plaintiffs’ rights to property, housing, dignity and fair administrative action. 20. As it were, while the Plaintiffs allege that their proprietary rights under Article 40 of the Constitution are being threatened by the Defendants, they have not demonstrated any proprietary interest over the land in question. They have equally failed to demonstrate that their occupation thereof is lawful. The Plaintiffs have not produced any ownership documents. RULING Page 11 of 15 MSA. ELCLC. E097 OF 2025

page 11 of 15

21. As was held in Paul Mutwiwa Wambua –vs- Komarock Ranching & Farming Society (2016) eKLR: “..... a party invoking Article 40 must bring itself squarely within its expectations and to my mind the said Article 40 of the Constitution also upholds and protects the sanctity of title and the primary consideration for a Court to enforce that right is that the property in question must have been lawfully obtained and the Petitioner has title to the property in question. Where title and entitlement to land are disputed, the right can hardly arise. From the evidence tendered in this Petition, it is clear that the Petitioner has no title over the suit property.... Having found as I have, it is obvious that this Court cannot address the issue as to whether the Petitioner’s rights under Article 40 of the Constitution have been violated and I must therefore agree with the Respondent that the Petitioner fundamental cannot rights enforce his under Article alleged 40 of the Constitution while his title or entitlement to the suit property is controverted and strongly so.” RULING Page 12 of 15 MSA. ELCLC. E097 OF 2025

page 12 of 15

22. In the matter before me, the Plaintiffs assert that they are the lawful residents and occupants of houses on the land which they describe as “riparian”. They have not given the basis upon which they are entitled to the land. On the other hand, the Defendants hold that the structures the Plaintiffs seek to protect were illegally constructed within a designated road reserve and that the 1 st Defendant has the duty to remove the said structures. 23. Indeed, Section 49 of the Kenya Roads Act gives authority to the 1st Defendant to do so as follows: “Where a person, without the permission required by subsection (1) or contrary to any permission given thereunder, erects, constructs, lays or establishes a structure or other thing, or makes a structural alteration or addition to a structure or other thing, the Authority may by notice in writing direct that person to remove the unauthorised structure, other thing, alteration or addition within a reasonable period .....” 24. Arising from the foregoing, it was apparent to me that the Demolition Notice issued by the 1 st Defendant could not be RULING Page 13 of 15 MSA. ELCLC. E097 OF 2025

page 13 of 15

termed as unlawful as stated by the Plaintiffs. The same cannot equally be equated with compulsory acquisition. 25. In the circumstances herein, 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. Granting the injunctive orders sought would undermine the statutory preservation of the road reserve, prejudice the public interest, obstruct the development and maintenance of critical national infrastructure and jeopardize infrastructural development. 26. 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. Ruling dated, signed and delivered in open court and virtually at Mombasa this 24th day of September, 2026. ………………………….. J.O. OLOLA RULING Page 14 of 15 MSA. ELCLC. E097 OF 2025

page 14 of 15

JUDGE In the presence of: a) Ms. Firdaus Court Assistant. b) Mr. Otieno Advocate for the Plaintiffs c) Ms. Kering holding brief for Enock Willy Advocate for the 1 st Defendant/Respondent d) Ms. Kalaine holding brief for Ms. Kala Advocate for the 2 nd Defendant RULING Page 15 of 15 MSA. ELCLC. E097 OF 2025

page 15 of 15