https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4748

 **REPUBLIC OF KENYA** **ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. 59 OF 2019** **CHARLES WAHOME KIBOI……………………………..…..….……PLAINTIFF** **VERSUS** **KENYA NATIONAL HIGHWAYS AUTHORITY……........…..1ST DEFENDANT** **CHINA WU-YI LIMITED………………………….......………2ND DEFENDANT** **JUDGMENT** 1. The Plaintiff Charles Wahome Kiboi claiming ownership of parcel known as Dagoretti/Kinoo/3954 situated in Kinoo, Kiambu having bought the same from David Ndungu Kariuki and a Certificate of Title Deed was subsequently issued on 25/06/2003. He claims that the said suit property is not on a road reserve and that he has erected a residential, permanent building on the said parcel of land comprising several quarters which have been leased out to tenants who live there. 2. He claims that on 18/07/2018, in breach of the law and in clear violation of the Plaintiff’s rights and without any lawful authority or notice, the Defendants by their agents, servants and/or employees, marked **‘X’** on the perimeter wall of the said parcel of land denoting their intention to demolish the buildings. 3. According to him, the Government of Kenya has not compulsorily acquired the said land. He claims that the Defendants’ action shave adversely affects the Plaintiff/Applicant’s rights as a land owner and landlord causing panic, anxiety and fear to the Plaintiff’s management and their tenants. This has made the Plaintiff to suffer loss and he therefore claims damages. It is his contention that the 1st Defendant has not issued any notice to the Plaintiff or indicated the basis of the intended demolitions. 4. As a result, the Plaintiff brought this suit vide a Plaint dated 29/03/2019 praying for Judgment against the 1st and 2nd Defendants for: 5. A permanent injunction restraining the 1st and 2nd Defendants its agents, servants and employees from entering into, alienating or taking possession of the land parcel known as Dagoretti/Kinoo/3954 or destroying, demolishing or in any way interfering with the buildings erected thereon. 6. General Damages. 7. Costs of this suit. 8. Interest on (b) and (c) above. **1st Defendant’s Statement of Defence** 1. The 1st Defendant filed their Statement of Defence dated 3/07/2022 through **Kaloki Ilia & Mbugua Advocates LLP** and denied the claim. They stated that the suit property was not demised as a property to be acquired and/or demolished during the construction of James Gichuru-Rironi Road under project A104/B3 and therefore negates the requirement by the 1st Defendant to issue notice under the Land Act. 2. Further the 1st Defendant denies specifically that its agents, servants and/or employees marked **“X”** on the suit property with the intention to demolish the building. **2nd Defendant’s Statement of Defence** 1. In this pleading, the 2nd Defendant denied the claim and stated that it has never been mandated to mark buildings which are to be demolished and that it is not its role in any construction contract to mark buildings. Further in response to paragraph 7 and 8 of the Plaint the 2nd Defendant avers that it cannot issue notices that it is not mandated to issue and that all it does is within the contractual obligations it out to perform which then negates the aspect of an injunction being given against the 2nd Defendant as regards to their roles. 2. The 2nd Defendant denies that there is any cause of action against them and that this suit is frivolous, vexatious and scandalous and a waste of this Honorable Court’s precious time. And 3. prays that the Plaintiff’s suit be dismissed with costs. **Plaintiff’s Evidence** 1. The Plaintiff testified as PW1 on 17/11/2022 and adopted his witness statement as his evidence-in-chief. The Plaintiff testified that he is in real estate business. That the suit property belongs to him he adopted his witness statement dated 29/03/2019. He produced the list of documents dated 29/03/2019 in support of his case. He told the Court that he seeks the prayers in the Plaint. 2. It is his testimony that the tenants moved out of his property and he has lost income. He told the Court that he wants the Defendants to be restrained from demolishing his property. He indicated that the evaluation report shows the income derived from his house/buildings which is Ksh.71,000. He indicated that there are five units in total. 3. He stated that there were public barazas held in the neighborhood and the Chief informed them that the road was going to be constructed. That he sent a neighbor to represent him who informed him that his property would be one of the properties that would be demolished and that he was required to go to the 2nd Defendant’s office. He stated that he visited the offices and saw the project map which showed that his property would be affected by road tunnel connector No. 3. A meeting was called in July 2018 where the 2nd Defendant was present. 4. He testified that he wrote a demand to the Defendants but he received no response and therefore he filed this suit. 5. Upon cross examination by Miss Mugua he told the Court that his property is number 3954 and that it is under the underpass. He confirmed that he is in real estate industry. He testified that he did not receive any nominee forms from National Land Commission (NLC) that his property had been earmarked for demolition. He stated that the **“X”** was marked on his property by the project teams comprising of the 1st and 2nd Defendants. 6. He stated that he did not issue the 30-day notice upon the Director General of the first Defendant but he also stated that this issue was determined by the Court in 2020. According to him he stated that his property is 200 meters from James Gishuru Road. Further he testified that the project has stalled and that the underpass is not started yet. 7. He told the Court that he did not have a project design plan in respect to connector No. 3, and no notices have been issued to him by NLC indicating that his property is being affected 8. It was his testimony that the project was a CSR project road springing from the construction of the main road the connector road stalled and his house was not demolished. 9. On further cross examination by Miss Akelo he stated that his property is identifiable on the map being property number 3954 and that his property does not fit on a road on the road reserve. He told the Court that he has not presented any evidence of a road construction. He stated that the second Defendant was constructing A104 James Gichuru Rd and further that his property does not form the highway 104 and that it is about 100 to 150 meters to the highway of James Gichuru Road. He denied that his property is situated two kilometers from the highway. 10. The Plaintiff stated that he was aware that evaluation is an opinion. That in the valuation report he produced there is a disclaimer on page 2 of the report. It was to give the opinion on open market value. He said that the 3rd party is not before the Court today. That there is no guarantee as to structural soundness of the property. That his property is one block within five units whereas the valuation report states four units. Next paragraph 11. He attributed the genesis of the problem to have emanated from the baraza held in the area. He stated that he was not present at the barazas and that he has also not called the people who gave him the information to Court. Further that he has not tabled any evidence to show that he engaged the 2nd Defendant. He told the Court that he attended the public barrazas although he has not produced any minutes. 12. He told the Court that although he referred to the invitation to the Barazas he has not produced or tabled the invitations before the Court. Further that he had no evidence to show that he engaged the barrazas. According to him the second defender did not indicate to him that they would require his property. He told the Court that he had not produced the design plan that he saw at the second Defendant’s office. 13. It was his testimony that he met the social enforcement officer although she will not come to Court as a witness. He admitted not having evidence to show that he had a meeting with her and with the second Defendant. He also admitted not having seen any person who marked the property with letter X. He also said that the second Defendant was not mentioned in the barazas. However, he stated that he wanted the second Defendant to be injuncted so that they do not demolish his property. Next paragraph 14. That CSR project connector 3 is giving back to society. It should be beneficial to society. However, he stated that he did not have any evidence in support of the CSR project. That for any CSR project the residents should be consulted but that he was not consulted and that he was not aware that the CSR stopped because there was any consensus. 15. On re-examination he stated that he did not get any letter from NLC nor the 1st Defendant. He further stated that the 1st Defendant and the contractor would have the project design and not himself. He told the Court that he has not made any application for compensation. That the invitations to the public barrazas were made to the whole village and he attended one of the barazas. He testified that the Defendants were in attendance but that he did not see the people who marked his properties. That the markings are done by road contractors. That on his property there were markings, at the front and rear side. 16. He told testified that 3954 is not on the survey plan because the mutation had not been registered and that from the main road A104 the distance to his property is 100 to 150 meters. He stated that there were no minutes taken in the meeting that he had with the 2nd Defendant and that his concerns have never been addressed. He stated that the project has stalled and he was not consulted by the Defendants on the CSR project. 17. It was his testimony that according to the valuation report there are five permanent rental units. His property has not been demolished. With that the Plaintiff closed his case. **1st and 2nd Defendant’s Evidence** 1. After several adjournments defence hearing resumed on 30/06/2025. DW1 - testified through a senior surveyor in KENHA, Kusimba Antony who stated that he had served with KENHA for the past 8 (eight)years adopted his witness statement as his evidence in chief. He also produced as exhibit as DW1-Exh1. 2. He testified that at the moment there are no ongoing activities on the suit property he stated that KENHA handles Class S A and B therefore the suit property is not under their jurisdiction. That it was used as a diversion by KENHA during the construction of the main carriage way. So, the authority improved the section along the section used by vehicles but not affecting private property including the soot property. 3. That at the moment since it was used as a diversion there is no activity ongoing on it. The authority is not responsible for the markings on the suit property since markings are usually done by maintenance team. 4. Upon cross examination DW1 told the Court that he was working at KENHA in 2018 as a surveyor. That although the department for maintenance is still at KENHA he was not working at that department but he knows Engineer Karura Mwangi. 5. He further stated that at page 303 or page 4 of the 2nd Defendant supplementary bundle there are minutes of a meeting which he did not attend. At minute No.3 the meeting discussed encroachment of the Plaintiffs property Mr Wahome although he stated that he did not know if it is still the suit property in question. The minute that he referred to a dated 8/08/2023. 6. It was his testimony that the pictures in the Plaintiffs document have markings including marks of X which usually connotes that it is encroaching a road reserve. That if it is marked by the authority then it would connote that it shall be demolished. It is his evidence that they never marked the building and neither were they interested in the feeder road. However, KENHA never responded to the two demand letters dated 18/07/2018 and 5/09/2018. The contractor that upgraded the road on their behalf is the 2nd Defendant China Wu Yi Limited. 7. He stated that the mutation form shows the property to be having a feeder road. The debt in the mutation is 2003 and the date on the map is indicated as being 1959. At the time of purchase of the soot property the Plaintiffs mutation form and the map show that the 9 meter road was a private road terminating at the Plaintiff’s property. The map by China Wu Yi Limited shows the property of the Plaintiff as being No. 3954. At the back of the drawn map there is another map which shows the property of the Plaintiff again drawn by the 2nd Defendant who is a contractor of the 1st Defendant. Therefore, DW1 stated that it is correct for the Plaintiff to have assumed that the 1st Defendant is the one who marked his property so he could go to Court. 8. When reexamined he testified that before taking up any project the first Defendant usually involves local administration and the land owners. Therefore, the decisions made Are not binding. But minute number four showed that the first Defendant was not to interfere with existing private land. 9. It was his testimony that when they take up new projects, they rely on RIM provided by director of survey. That the 1st Defendant never made any marking on the suit property. Anyone can make markings on a property it is not necessarily the 1st Defendant to do it. 10. DW2- Mary Wangare Gatu, testified as an employee of China Wu-Yi Limited and adopted her witness statement and produced five documents as exhibits three of which were in the supplementary list of documents. She testified that the preliminary objection dated 02/09/ 2022 will be considered alongside this main suit. She stated that their contract does not provide for marking of buildings. That they are the ones who did the road and completed without any demolitions. But they never told the Plaintiff that they would mark nor demolish his property. That she never participated in the consolidative meeting. 11. When she was cross examined she stated that she was not the representative of China Wu Xi Limited in the meeting of 8/08/2023. That the road in question was upgraded by their Company. Further, that the letter dated 05/09/2018 was received by the 2nd Defendant but they never wrote to Kenya about the issue. But the road in question is a collector road it was collecting traffic and emptying to James Gichuru. And the intersection of Reagan is part of James Gichuru. 12. On reexamination she told the Court that the addresses in the letter belong to the 1st and 2nd Defendants and so they saw no need to write to the first Defendant. It was her testimony that the mandate they got was to construct the road using the existing road corridor without touching on private property. So, they had no need of using any private property. At this point the 2nd Defendant closed their case. 13. The parties were granted 21 days each to write, exchange and file written submissions. The Plaintiff filed their written submissions dated 19/10/2025, the 1st Defendant filed theirs dated 6/01/2026 and the 2nd Defendant filed theirs dated 11/03/2026. **Submissions of the Parties** **Plaintiff’s Submissions** 1. The Plaintiff, in his submissions identifies himself as the absolute registered proprietor of the freehold land parcel known as **Dagoretti/Kinoo/3954**, contends that the Defendants’ high-handed and unprocedural actions constitute a gross violation of his constitutionally protected property rights. He submits that having lawfully acquired the suit property on 25/06/2003 and developed a valuable commercial-residential building thereon, the Plaintiff’s quiet enjoyment was unlawfully disrupted on or about 18/07/2018 when the Defendants’ agents placed an "X" mark on his perimeter wall. This impugned action, done under the imminent threat of demolition without any statutory notice, structural inquiry, or justification, sparked widespread alarm among his tenants and disrupted his management of the premises. 2. Given that the suit property does not sit on a road reserve, the Plaintiff reiterates that the ongoing construction of Chief’s Road (Collector Road 3) has arbitrarily encroached onto his land through a non-gazetted footpath. Despite formal demand letters being served, the Defendants have maintained a stonewall silence, thereby necessitating this suit before the Environment and Land Court for a permanent injunction and damages. 3. On the first issue for determination, the Plaintiff avers that the Defendants' actions are an egregious infraction of Articles 40 and 47 of the Constitution of Kenya, 2010, which guarantee the right to property and fair administrative action, alongside explicit provisions within the Physical Planning and Land Use Act, 2019, the Kenya Roads Act, 2007, and the Land Act, 2012. The Plaintiff relies heavily on the jurisprudence established in **Satrose Ayuma & 11 Others v Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme & 3 Others [2013] eKLR** to demonstrate that the state must adhere strictly to international standards of procedural due process and genuine consultation prior to taking any adverse action. 4. Furthermore, the Plaintiff cites **Nyongesa v County Government of Nakuru & Another (Environment & Land Case 66 of 2022) [2024] eKLR** to reinforce the principle that a statutory enforcement notice must be fair, reasonable, and afford the developer an explicit right of appeal, failing which any intended demolition is premature and unconstitutional. To anchor the strict boundaries of public land acquisition, the Plaintiff further invokes **Patrick Musimba vs. National Land Commission & 4 Others (2016) eKLR**, which sets out the mandatory, multi-stage preliminary inquiries, gazettement, and prompt compensation parameters that the Defendants completely bypassed. 5. Regarding the second issue, the Plaintiff argues that he is fully entitled to a final decree of a permanent injunction and general damages for nuisance due to the continuing threat of irreparable harm. To support the Court's jurisdiction to grant perpetual injunctive relief, the Plaintiff cites **Kenya Power & Lighting Co. Limited v Sheriff Molana Habib [2018] eKLR** and **Mburu v Kibara & 2 others (Environment & Land Case 237 of 2021) [2022] KEELC 3226 eKLR**, establishing that a permanent injunction is an appropriate equitable remedy to definitively secure a party's threatened proprietary interests post-trial. The persistent threat of bulldozers and the arbitrary marking of the wall fit the classic threshold of an actionable civil wrong as defined in **Nakuru Industries Limited Vs S.S Mehta & Sons (2016) eKLR**, where nuisance is characterized as an unjustified escape of consequences that unduly interferes with a neighbor’s land use. While referencing **John Chumia Nganga v Attorney General & Another [2019] KEELC 3621 (KLR)**, **Park Towers Limited versus John Mithamo Njika & 7 Others (2014) eKLR**, and **Philip Aluchio Vs Crispinus Ngayo [2014] eKLR**, the Plaintiff underscores that even in the absence of exact mathematical valuations of the physical damage, the Court holds the judicial discretion to award substantial nominal general damages to assuage the distress, trespass, and unlawful interference suffered. 6. In conclusion, the Plaintiff submits that he has effectively discharged the burden of proof to demonstrate that the Defendants’ arbitrary maneuvers are riddled with procedural impropriety, devoid of legal authority, and executed in complete disregard of the rule of law. The total lack of engagement, coupled with the profound psychological distress inflicted upon the Plaintiff and his tenants, demonstrates a malicious and actionable nuisance that cannot be remedied by mere monetary compensation alone. 7. Consequently, the Plaintiff humbly prays this Honourable Court to enter Judgment in his favor by granting a permanent injunction restraining the Defendants and their agents from entering, alienating, or demolishing land parcel Dagoretti/Kinoo/3954. Ultimately, the Plaintiff seeks an award of general damages for nuisance, the costs of this suit, and interest thereon at Court rates until payment in full. **1st Defendant’s Submissions** 1. The 1st Defendant, a statutory body established under Section 3 of the Kenya Roads Act, submits that the Plaintiff’s claim is entirely misconceived, unsubstantiated, and devoid of legal or factual merit. While the 1st Defendant does not contest that the Plaintiff is the lawful and registered proprietor of the freehold land parcel known as Dagoretti/Kinoo/3954, it vehemently denies ever marking an "X" on the Plaintiff's perimeter wall or harbouring any intention to compulsorily acquire or demolish the suit property. Although the Kenyan Government had tasked the 1st Defendant with rehabilitating the James Gichuru Rironi Junction Project Road along the larger A104 highway to curb traffic congestion, a thorough survey and analysis conducted in tandem with relevant government agencies conclusively showed that the Plaintiff’s property was never identified for acquisition. 2. To support this position, the 1st Defendant’s expert witness, Dr. Anthony Kusimba, testified that the road adjacent to the subject property does not fall within the Authority’s jurisdiction, a fact further corroborated by the Registry Index Map produced in Court. Consequently, the 1st Defendant maintains that it owed no legal obligation to issue any statutory notice to the Plaintiff and cannot be held liable for actions it did not commit. 3. In analyzing the legal threshold of the case, the 1st Defendant relies on Sections 107(1) and 109 of the Evidence Act (Cap 80), averring that the burden of proof strictly shifts to the Plaintiff to substantiate his allegations on a balance of probabilities. The 1st Defendant invokes the authority of **Bata Brands SA & Another v Umoja Rubber Products Limited [2025] KEHC 5186 (KLR)**, which cited the classic English precedent of Denning J. in **Miller v Minister of Pensions [1947] 2 All ER 372**, to emphasize that where both parties' explanations are equally unconvincing and the probabilities stand at a draw, the party bearing the burden of proof must fail. 4. This legal position is further fortified by the decision in **Ashioya v Amunaya [2025] KEELC 8322 (KLR)**, which reiterates that a Plaintiff's failure to place credible, empirical evidence of physical encroachment or interference before the trial Court must inevitably lead to the dismissal of the claim. The 1st Defendant submits that beyond mere bare assertions and speculation, the Plaintiff has completely failed to link the 1st Defendant or its authorized agents to the impugned markings, thereby failing to discharge the requisite standard of proof in civil litigation. 5. Ultimately, the 1st Defendant contends that because the Plaintiff has failed to establish that the Authority interfered with or intended to compulsorily acquire his property, the entire factual foundation upon which his prayers rest has collapsed. Addressing the prayer for a permanent injunction, the 1st Defendant draws upon the landmark jurisprudence of the Court of Appeal in **Nguruman Limited v Jan Bonde Nielsen & 2 Others [2014] eKLR**, which settled the principle that injunctive relief is an equitable remedy available only where an Applicant demonstrates the existence of an actual or highly imminent threat of violation to a clear legal right. 6. In the absence of any credible nexus between the 1st Defendant and the alleged threat, the Plaintiff's claim remains purely speculative and incapable of moving the Court to grant perpetual injunctive orders. The 1st Defendant therefore humbly prays that this Honourable Court finds the Plaintiff's suit against it to be a downstream product of conjecture, fails to disclose any viable cause of action, and should be dismissed with costs to the 1st Defendant. **2nd Defendant’s Submissions** 1. On his part, the 2nd Defendant submits that the Plaintiff has failed to discharge the evidentiary and legal burdens of proof mandated under Sections 107, 108, and 109 of the Evidence Act (Cap 80). The Defendant citing the case of **Maria Ciarabitaru M'Mairanyi & Others v. Blue Shield Insurance Company Limited, Civil Appeal No. 101 of 2000 [2005] 1 EA 280,** argues that the onus remains strictly on the party asserting the affirmative of an issue. T 2. he 2nd Defendant maintains that the Plaintiff offered nothing beyond mere conjecture regarding who inscribed the "X" on the perimeter wall. Invoking **Bata Brands SA & Another v. Umoja Rubber Products Limited [2025] KEHC 5186 (KLR) and Miller v. Minister of Pensions [1947] 2 All ER 372**, the 2nd Defendant posits that where competing explanations are equally unconvincing, the party bearing the burden must fail. This position is supported by **James Muniu Mucheru v. National Bank of Kenya Limited [2019] KECA 1058 (KLR) and Karugi & Another v. Kabiya & 3 Others [1987] KLR 347**, which affirm that the rigorous standard of a balance of probabilities is never lessened, even in undefended actions or formal proof proceedings. 3. Ancillary to the evidentiary deficiencies, the 2nd Defendant seeks the striking out of the suit on account of misjoinder, asserting that as an agent executing a road rehabilitation contract for a disclosed principal, the Kenya National Highways Authority it cannot be sued. Citing the decision of the Court of Appeal in **City Council of Nairobi v. Wilfred Kamau Githua t/a Githua Associates & Another [2016] eKLR**, which approved the holding in **Anthony Francis Wareheim t/a Wareheim & 2 Others v. Kenya Post Office Savings Bank, Civil Application Nos. Nai 5 & 48 of 2002**, the 2nd Defendant emphasizes the trite common law principle that an agent of a disclosed principal is immune to suit. This stance is bolstered by **Nepro Capital Investment Limited v. S.G.S (Kenya) Limited and Another [2018] eKLR**, which reinforces that actions taken by an agent within the scope of authority are legally the actions of the principal alone, thereby rendering the enjoining of the agent unwarranted and disclosing no reasonable cause of action. 4. Furthermore, the 2nd Defendant contends that the Plaintiff has failed to establish any basis to be joined as a necessary party under the test articulated in **Pizza Harvest Limited v. Felix Midigo [2013] eKLR,** which cited **Amon v. Raphael Tuck & Sons Ltd [1956] 1 All ER 273**. They argue that the core controversy of the suit can be completely and effectually settled without its participation since the 1st Defendant principal has been actively present throughout the proceedings. The Plaintiff failed to show any exceptional circumstances to deviate from this established principal-agent doctrine, meaning the **Preliminary Objection dated 2nd September 2022** raises an absolute bar to the current multi-party framework of the suit. 5. Finally, regarding the final remedies claimed, the 2nd Defendant submits that the Plaintiff has failed to scale the sequential hurdles necessary for the grant of a permanent injunction. Adverting to the classic triple test reinstated in **Nguruman Limited v. Jan Bonde Nielsen & 2 Others, Civil Appeal No. 77 of 2012; [2014] eKLR**, the 2nd Defendant notes that because the Plaintiff has failed to establish a *prima facie* case against it, the ancillary pillars of irreparable injury and the balance of convenience do not fall away or come to his aid. Additionally, the 2nd Defendant maintains that the claim for general damages for nuisance is legally untenable and entirely unsubstantiated, as the road construction is complete and the suit property remains physically intact without any proof of damage or interference. Consequently, the 2nd Defendant prays that the suit against it be dismissed with costs. **Issues for Determination** 1. Having considered the pleadings, oral evidence, written witness statements, the preliminary objection filed on 22/09/2022 and the written submissions. I have distilled the following to be the issues I consider critical in determining this suit: 2. *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.* 3. *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.* 4. *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.* 5. *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.* **Analysis and Determination** 1. Briefly stated, the Plaintiff, Plaintiff instituted this suit vide a Plaint dated 29/03/2019, seeking a permanent injunction, general damages, and costs against the Defendants for an alleged imminent threat of demolition targeting his freehold property, parcel Dagoretti/Kinoo/3954. The Plaintiff asserts that he bought the suit property on 25/06/2003 from David Ndungu Kariuki, obtained a Certificate of Title Deed, and subsequently constructed a multi-unit permanent residential building that yields rental income. This is an undisputed fact. 2. He claims that on 18/07/2018, the Defendants’ agents placed an **"X"** mark on his perimeter wall without statutory notice or lawful authorization, signaling an intention to demolish his buildings for the construction of a non-gazetted collector road, occasioning panic among his tenants and loss of rental income, all without notice or lawful authority. The 1st Defendant, the Kenya National Highways Authority, denied responsibility and denied that the property fell within its road reserve for the James Gichuru–Rironi Road project, while the 2nd Defendant, China Wu Yi Limited, denied any mandate to mark or demolish buildings and, by Preliminary Objection dated 2/09/2022, took the firm position that the entire suit against it was fatally and incurably defective, it being a mere named agent contracted to execute road works for the 1st Defendant as disclosed principal, and prayed that the suit against it be dismissed at that threshold rather than await the outcome of a full trial. Evidence was nonetheless led from both sides before submissions were filed, the Preliminary Objection having been reserved to be canvassed alongside the main suit. 3. On the Preliminary Objection, this Court is guided by the classical formulation that a preliminary objection is properly raised where it raises a pure point of law argued on the footing that the facts pleaded by the opposite side are correct, and cannot be entertained where a fact remains to be ascertained. Applying that test to the present record, the status of the 2nd Defendant as a named, disclosed contractor engaged to execute the road rehabilitation works on behalf of the 1st Defendant is not seriously in dispute. It is pleaded by the 2nd Defendant, it is borne out by DW2's uncontroverted testimony that her company's mandate flowed entirely from its contract with the 1st Defendant, and it was conceded by the Plaintiff himself in cross-examination that all the addresses and correspondence in respect of the project pointed to the 1st Defendant as principal. 4. Where, as here, the identity of the disclosed principal is not merely asserted but is admitted and undisputed on the pleadings, and where that principal is already properly enjoined and able to answer for any liability arising from the project, the common law rule applies with full force that since the principal was known, the appellant ought to have sued it, a principle this Court adopts from **Mwago v Kings Pride Properties Limited [2023] KEHC 21733 (KLR)** as squarely applicable to the 2nd Defendant's position. The Preliminary Objection accordingly succeeds as a pure point of law requiring no further evidentiary inquiry, and the suit as against the 2nd Defendant is struck out in limine, the Plaintiff's remedy, if any, lying solely against the disclosed principal already before the Court. In **Transnational Bank Limited v R.R. [2018] eKLR,** the Court directly addressed this protection, stating: ***"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."*** 1. In the present matter, the 2nd Defendant was contracted by the 1st Defendant to upgrade the adjacent road corridor using the existing road corridor without touching private land. Since the Plaintiff has failed to establish any independent tortious acts outside the contract by the 2nd Defendant, the Preliminary Objection succeeds, the suit against the 2nd Defendant is declared entirely and fatally defective, and the claim against the 2nd Defendant is dismissed. 2. Turning to the merits as against the 1st Defendant alone, the burden remained on the Plaintiff to prove, on a balance of probabilities as mandated by Sections 107 and 108 of the Evidence Act (Cap 80) on both the fact of the marking and its attribution to the 1st Defendant's agents. His own testimony under cross-examination materially undermined this burden, he having admitted that he neither witnessed the marking nor called any witness who did, that he received no notice from the National Land Commission, and that the connector road project had in any event stalled without his house being demolished. The Plaintiff failed to call witnesses from the local baraza, did not present the engineering plans he claimed to have seen at the contractor's office, and admitted during cross-examination that he did not see the specific individuals who placed the "X" mark on his wall. In contrast, the 1st Defendant, through its senior surveyor, established and testified that the suit property was outside KeNHA's Class A/B jurisdiction and that markings of the kind described are commonly made by maintenance teams unconnected to the Authority, a version of events the Plaintiff did not seriously dispute and that no acquisition or demolition was ever authorized. 3. This Court remains alive to the principle that in actions of this character trespass is an injury to a possessory right and, once physically proved, is actionable per se, such that neither the Plaintiff's continued occupation of the property nor the ultimate non-demolition of his buildings would by itself defeat a properly proved claim; the difficulty is that the wrongful act was never sufficiently linked to the 1st Defendant on the evidence. A party who, like the Plaintiff, advances a specific quantified loss anchored on a disclaimed valuation report bears a burden analogous to that restated in **Equity Bank Ltd v Gerald Wang'ombe Thuni [2015] KEHC 2474 (KLR)**, that ***"special damages must be specifically pleaded and strictly proved",*** a standard not met here. See also **Charles Ogejo Ochieng v Geoffrey Okumu [1995] eKLR**, trespass is ***"an injury to a possessory right",*** and it is further settled, as held in **Mohamed v Kenga & 13 others (Environment & Land Case 41 of 2018) [2022] KEELC 14837 (KLR),** that ***"trespass is actionable per se"*** once the physical interference is proved. 4. On remedy, a final injunction being equitable relief resting on proof of a clear legal right under actual or imminent threat, this Court draws guidance from the enduring principle in **Giella v Cassman Brown & Co Ltd [1973] EA 358** that ***"an Applicant must show a prima facie case with a probability of success"*** before equity will intervene, a threshold whose underlying rationale extends with equal force to final orders. 5. Article 40 of the Constitution protects the right to property and Article 47 guarantees fair administrative action, yet these are triggered only once interference by a state organ is established as fact, and the notice obligations under the Land Act, 2012 and the Kenya Roads Act, 2007 arise only where land is shown to fall within a gazetted or planned road reserve, a nexus this Plaintiff did not establish against the 1st Defendant on the unchallenged survey evidence. 6. A permanent injunction is an equitable remedy that requires proof of an impending or continuous injury that cannot be adequately compensated by damages. Similarly, an action for nuisance requires evidence of an ongoing, unreasonable interference with the use or enjoyment of land, which cannot be proven by the mere appearance of a temporary chalk mark from an unknown source. 7. Established commentary on compulsory acquisition and road infrastructure development in Kenya has consistently emphasised that these statutory safeguards crystallise only upon a demonstrable link between the subject parcel and the designated public work, a principle entirely consistent with the evidentiary shortfall in this case. In the result, while a proved threat of demolition would ordinarily find both an injunction and an award of general damages, the absence of cogent proof linking the 1st Defendant to the impugned act, coupled with the successful threshold disposal of the claim against the 2nd Defendant, is fatal to the reliefs sought in their entirety 8. Legal scholars agree that where a development project is completed or abandoned without encroaching on a private boundary, the claim for a permanent injunction becomes moot. In **Kenleb Cons Ltd v Newland Court Ltd [2014] eKLR**, the Court clearly reinforced this doctrine by stating: ***"Where development occurs strictly within the confines of the Defendant's registered parcel and does not cross, violate, or encroach upon the private boundaries of the adjoining owner, the Plaintiff lacks the foundational substratum of trespass required to sustain a permanent injunction."*** 1. In **National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR**, the Court noted the rigidity of proof in civil claims, stating: ***"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." Because the Plaintiff failed to connect the 1st Defendant to the markings or prove any real, concrete threat of demolition, no violation of Articles 40 or 47 of the Constitution has been established***. **Disposal Orders** 1. In the end the Court makes the following orders: 2. ***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.*** 3. ***The Plaintiff has failed to prove, on a balance of probabilities, that the 1st Defendant or its agents marked or threatened to demolish the suit property.*** 4. ***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.*** 5. ***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.*** 6. ***The prayer for general damages as against the 1st Defendant is declined for want of strict proof.*** 7. ***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.*** Orders Accordingly. **DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 22ND DAY OF JULY 2026.** **…………………….** **MOGENI J** **JUDGE** **In the virtual presence of**: Mr. Ambani for the Plaintiff Miss Bala holding brief for Kaloki for 1st Defendant Miss Akello for the 2nd Defendant Mr. Melita - Court Assistant **...........................** **MOGENI J** **JUDGE**