KeNHA blocked from demolishing Kebirigo supermarket building

A multi-storey building housing a supermarket in Kebirigo market, Nyamira County, has been temporarily spared demolition following a court injunction against the Kenya National Highways Authority (KeNHA).

In a ruling delivered on Wednesday, Justice Dalmas Ohungo of the Environment and Land Court in Nyamira restrained the roads authority from proceeding with a planned demolition of the property belonging to Edward Anyona Ongera, pending the determination of a broader ownership dispute.

Ongera moved to court on November 4, 2025, after receiving a notice from the Kenya National Highways Authority indicating its intention to demolish the structure.

The authority stated that the building encroached on the B5 road reserve along the Kebirigo-Keroka road, based on a 1995 layout plan that established a 36.58-metre road reserve.

However, Ongera maintained that he is the lawful allottee of Plot 33B Kebirigo market and that his construction remained within the approved boundaries.

He further stated that he obtained approvals from the Land Registrar, Land Surveyor and the county government before commencing construction, and noted that other buildings along the same lane had not been issued with demolition notices.

KeNHA sought to have the case struck out through a preliminary objection filed on February 17, arguing that the suit was premature because the plaintiff had not served the director general with a one-month notice of intention to sue, as required under section 67(a) of the Kenya Roads Act, 2007.

The provision states that no legal action shall be commenced against the authority until at least one month after written notice containing particulars of the claim has been served.

In his ruling, Justice Ohungo held that determining whether such notice was served and whether it complied with statutory requirements would require the taking of evidence.

“To that extent, Notice of Preliminary Objection dated February 17, 2026 is not a valid preliminary objection,” judge Ohungo said, citing the longstanding principle that a preliminary objection must raise a pure point of law.

The judge found that Ongera had established a prima facie case with a probability of success, noting that the first defendant did not dispute the plaintiff’s proprietorship but only the physical extent of the building.

He further noted that the dispute involves land and held that damages would not be an adequate remedy. The court found that the balance of convenience favoured preserving the building pending trial.

However, the court declined the plaintiff’s request to involve the Nyamira Police Station in enforcing the order.

Citing established case law, Justice Ohungo stated that the police should not be involved in the enforcement of civil injunctions, noting that adequate procedures exist under the Civil Procedure Rules to address non-compliance.

“As the Court of Appeal held in Kamau Mucuha v Ripples Ltd (1993) KECA 82 (KLR), the police should never be involved in enforcement of an injunction,” the judge said.

The injunction will remain in force for 12 months or until the case is determined, whichever comes first.

The court also ordered KeNHA to bear the costs of the application. Other parties in the suit include the Land Registrar, the Land Surveyor and the County Government of Nyamira.

The second, third and fifth defendants — the Land Registrar, Land Surveyor and Attorney General — did not actively contest the application.

The fourth defendant, the Director of Physical and Land Use Planning for Nyamira County, did not file any response.