https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4586

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELCLCCASE NO. E442 OF 2024** **RADHESHYAM TRANPORT LIMITED……...................…....…… PLAINTIFF** **VERSUS** **THE ASSISTANT COUNTY** **COMMISSIONER, EMBAKASI EAST.................................1ST DEFENDANT** **THE HONOURABLE ATTORNEY GENERAL....................2ND DEFENDANT** **AND** **NATIONAL ENVIRONMENT** **MANAGEMENT AUTHORITY...............................1ST INTERESTED PARTY** **WATER RESOURCE AUTHORITY.......................2ND INTERESTED PARTY** **JUDGMENT** 1. The plaintiff filed the plaint dated 25th October, 2024 seeking judgment against the defendants jointly and severally for:- 2. ***A declaration that the 1st defendant’s action in demolishing the wall of the plaintiff was illegal and unjustified.*** 3. ***A declaration that the boundaries of the properties known as LR no. 22898/2 (IR 202969) and LR no. 22898/3 (IR 202966) are as per the deed plans number 418872 and 418873.*** 4. ***A permanent injunction restraining the 1st defendant and officers under his command from demolishing any structure erected within the properties known as LR no. 22898/2 (IR 202969) and LR no. 22989/3 (IR 202966).*** 5. ***An order directing the defendants to cater for the damages accrued due to the illegal demolition.*** 6. ***Costs of the suit and interest on d above at court rates.*** 7. The plaintiff pleaded that it is the registered proprietor of the parcels of land known as LR no. 22989/2 (IR 202969) and LR no. 22898/3 (IR 202966), the suit properties having acquired the respective title deeds on 1st October, 1995. The plaintiff pleaded that for security reasons and to mark the beacons, it constructed a perimeter wall and an electric fence considering that one side borders an informal settlement. 8. The plaintiff pleaded that on 21st May, 2024 the 1st defendant accompanied by the area chief and other unknown persons went to the suit properties and began demolishing part of the perimeter wall that borders the stream and upon enquiry, they were informed that the wall had been constructed on riparian land. Thereafter, the plaintiff made a follow up with the survey office and the Nairobi county government to confirm its beacons. 9. The plaintiff pleaded that it was shown its beacons and were advised to reconstruct the wall as the approvals were still in operation and valid. For security reasons, they put up a semi permanent fence which was pulled down on 15th October, 2024 by the 1st defendant and the assistant chief despite showing them the requisite approvals. The plaintiff conducted valuation on the demolitions which was estimated to be Kshs.10,500,000/- and subsequently lost about 12 acres of land which is claimed to be riparian land. The plaintiff pleaded illegal actions of the 1st defendant and officers under his command which included exposing the suit properties to all and sundry and failing to engage it to reach an amicable and legal solution. 10. The defendants filed their statement of defence dated 20th March, 2025. They denied the contents of the plaint and stated that there is no evidence produced indicating that the demolition was carried out by the 1st defendant. Further, that the only authority pertaining to riparian reserve is the 2nd interested party and there is no evidence produced to show that it was consulted concerning the same. The defendants denied the particulars of illegal actions of the 1st defendant and invited strict proof. 11. The plaintiff’s case proceeded for hearing on 25th February, 2026. Dean Denis Auma (PW1) introduced himself as a registered valuer, and a director of Adomag Valuers and Associates. He produced the report dated 24th August, 2024 as P. exhibit 1 which indicates the estimated costs of demolition of the wall at Kshs.10,500,000/-. 12. On cross-examination, PW1 testified that he obtained a map to determine the length of the perimeter on the ground because the maps are drawn to scale, and he measured the particular length and went to the ground and measured the length across which the perimeter wall was demolished to arrive at the figure of Kshs.10,500,000/=. He obtained the costs of construction from the institution of quantity surveyors of Kenya (IQS) handbook 2024 which he consulted amongst several quantity surveyors. He was able to determine that the cost of constructing a perimeter wall in 2024 would have been Kshs.18,000/= per metre run. He stated that he visited the suit properties with the quantity surveyor whose input is contained in the report. According to him, he gave an estimation of the wall on its pre-loss condition and adopted Kshs.12,600/= as opposed to Kshs.18,000/=. PW1 did not bother to acquire the bills of quantities (BQ) that were used. He stated that there is an active quarry at the place, and he could not be able to tell whether the blasting could bring down a wall. 13. On re-examination, PW1 testified that part of the wall was demolished, and that the active quarry is a distance from the wall. 14. Peter Mbaya Miriti (PW2) adopted his witness statement dated 25th October, 2024 as his evidence in chief and introduced himself as the manager of the plaintiff. He also produced P. exhibits nos. 2 to 8 respectively. He testified that they were accused of constructing the wall on riparian land which was later demolished by the 1st defendant and other officials. He said that they thereafter, they put up a temporary wall a few metres from where the original wall was but the same was also demolished. He stated that as a result, they are now forced to engage security services and police protection. 15. On cross-examination, PW2 testified that there are buildings and a large yard since they do excavation and constructions, and that there is a quarry at the site. He stated that they do not excavate stones from underground, and that they carry stones from whatever sites and blasting is done in the yard. It was his testimony that they submitted applications to the Nairobi County government to obtain approvals for construction of the wall. 16. PW2 admitted that the yard is near a river, and that they only obtained approvals from Nairobi County government and constructed the wall at a distance of thirty (30) metres from the river based on the advice of the Water Resources Management Authority. However, he did not have any documentary evidence to support this. He informed the court that on 21st January, 2024 the 1st defendant, the chief and police officers introduced themselves before they demolished the wall. He stated that they were not issued with any notice and that instead, they were informed that the officers were implementing a presidential directive. PW2 stated that the first and second perimeter walls were demolished by the assistant county commissioner and other officers. He did not take any photos of the demolition as it took place. It was his testimony that they tried to seek the Water Resources Management Authority to point out where the edge of riparian land was, but they were not co-operative. 17. PW2 testified that they built about sixty (60) meters from the riparian land, and that they did not seek approval before building the second wall. As it is, there is no perimeter wall at the site for fear of another demolition. While they have sought security services including police officer to guard the suit properties, PW2 did not have any evidence to show such engagement. He stated that they have lost about 12 acres due to moving of the wall, but there is no survey report to that effect. 18. On re-examination, PW2 stated that they do not carry out blasting at the site, but they have a grinding machine that grinds stone. He said he has not seen any report from Water Resource Management Authority before the wall was constructed. He reiterated that he was present when the wall was demolished by the assistant county commissioner, chief and police officers, and that by moving the perimeter wall, they would have lost twelve (12) acres of the suit properties. With the testimony of PW2, the plaintiff rested its case. 19. The defendants opted not to call any witness. The parties filed their written submissions. The plaintiff filed written submissions dated 5th May, 2026. The defendants filed their written submissions dated 6th July, 2026. I have considered the pleadings, evidence tendered and the written submissions filed by the parties. The issue for determination is *whether the plaintiff’s suit has merit.* 20. The plaintiff case is that the 1st defendant together with the assistant chief and some police officers demolished the perimeter wall on the suit properties on grounds that the same was on riparian land. The demolition took place on diverse dates in May and October 2024, and that these acts were allegedly done based on a presidential directive. For this reason, the plaintiff seeks a declaration that the demolitions were illegal and unjustified, a permanent injunction and an order seeking damages as a result of the illegal demolition.On the other hand, the defendants denied the demolition and the illegal acts. Particularly, they stated that the 2nd interested party is best suited to speak on matters pertaining riparian land. 21. The ownership of the suit properties by the plaintiff has not been challenged. This leads me to querry the weight of the evidence adduced to support the allegations that the 1st defendant conducted the said demolitions and whether as a consequence, it is entitled to the orders sought in the plaint. 22. **Section 107** of the **Evidence Act** provides:- ***“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** 1. **Section 109** of the Act further provides: - ***“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”*** 1. The above provisions of the law place a burden on any person alleging that a right has been violated or whether any act or omission has been done to prove the same. The evidence must substantiate these claims to a degree which is reasonable for the court to be persuaded that indeed such unlawful acts alleged to have been committed by the defendants took place and appropriate relief (s) ought to be granted. In this case, PW2 produced pictures of a demolished wall which was allegedly brought down by the 1st defendant and officers under his command. The costs of the demolitions were estimated to be Kshs.10,500,000/-. 2. Having analyzed the evidence produced, I am not satisfied that the claims made against the defendants permit the court’s intervention. There is no evidence showing indeed these acts were committed by the 1st defendant. These photographs show a demolished wall and an existing wall with no actual demolition taking place. No officers of the 1st defendant, the assistant chief or the police appear in these photographs. Secondly, there is no documentary evidence placed before the court to show that the plaintiff sought an amicable resolution of the alleged encroachment of the riparian land. PW2 testified that they tried to involve the Water Resources Management Authority to determine the extent of the riparian land but there was no cooperation. No evidence supported these claims. In addition, the alleged loss of 12 acres was not proved either. 3. In my view, the plaintiff has failed to prove the allegations against the 1st defendant to the required standard. This bring me to the conclusion that burden of proof has not been discharged. Thus, the plaint dated 25th October, 2024 lacks merit and the same is hereby dismissed. Each party to bear its own costs. It is so ordered. **DATED, SIGNED & DELIVERED VIRTUALLY ON THIS** **20TH DAY OF JULY, 2026.** **HON. MBOGO C.G.** **JUDGE** **20/07/2026.** ***In the presence of:*** *Ms. Benson Agunga - Court assistant* *Mr. Mwachofi for the Plaitniff* *No appearance for Ms. Kubai for the Defendants*