https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3589

Esmail v Cine Investment Ltd & 2 others (Land Acquisition Appeal E235 of 2025) [2026] KEELC 3589 (KLR) (11 June 2026) (Ruling) Neutral citation: [2026] KEELC 3589 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Land Acquisition Appeal E235 of 2025 MN Kullow, J June 11, 2026 Between Fatmabai Sherali Esmail Appellant and Cine Investment Limited 1st Respondent National Land Commission 2nd Respondent Business Registration Service 3rd Respondent (Being an appeal from the ruling of the Chairperson, the Land Acquisition Tribunal, Dr. Nabil Orina PHD (as he then was) dated 6th October 2025 in TRLAP E101 of 2025) Ruling Introduction 1.What is before the Court for determination is the Appellant’s Notice of Motion application dated 4th November 2024 seeking the following ordersi.Spentii.That pending inter parte hearing and determination of this application, the honourable court be and is hereby pleased to make an order of temporary injunction restraining the 2nd Respondent from continuing with the process of compulsory acquisition for the land as published in the Kenya Gazette Notice No 2372 published on 24th February 2023 to the 1st Respondent using public fundsiii.That pending inter parte hearing and determination of this appeal, the honourable court be and is hereby pleased to make an order of temporary injunction restraining the 2nd Respondent from continuing with the process of compulsory acquisition for the land as published in the Kenya Gazette Notice No 2372 published on 24th February 2023 to the 1st Respondent using public funds 2.The application is premised on the grounds as in the applicant’s supporting affidavit which grounds are that the tribunal errored in holding that it did not have jurisdiction to entertain the claim filed by the Appellant. 3.That further the tribunal did not accord the Appellant the chance to be heard on the issue of jurisdiction and further on its Notice of Motion dated 12th September 2025 4.The 2nd Respondent opposed the application by filing a replying affidavit sworn by Brian Ikol. He deponed that the application was incompetent as the tribunal did not determine the dispute rather addressed itself to the question of jurisdiction which only it was mandated to determine and the Appellant could not seek to be heard on the same.He deponed that the tribunal rightly downed its tool for lack of jurisdiction having found that the issues raised were touching on the legal status of the 1st Respondent and fraud which fell out of the scope of compulsorily acquisitionHe further deponed that the tribunal had earlier dismissed a similar matter in which the Appellant sought for the same orders indicating that the Appellant was abusing the court’s process by trying to litigate on private matters disguised as being a public matter. 5.The court directed that the matter be canvassed by way of written submissions with the Appellant filing submissions dated 15th April 2026 whereas the 2nd Respondent filed submissions dated 7th May 2026. 6.The Appellant submitted that he had met the conditions for issuance of temporary injunctive orders being proof of a prima facie case as in Mrao Ltd Vs First American Bank of Kenya Ltd & 2 others (Civil Appeal 39 of 2002) [2003] KECA 175 (KLR) (7 March 2003) (Judgment). That she had demonstrated that her right to fair hearing was violated as she was not heard on the question of jurisdiction before the tribunal struck out her claim.She further indicated that there would be loss on the public being that if the compensation is allowed to go through the members of the public will be prejudiced with the money going to an entity that did not exist. – 7.The 2nd Respondent submitted reiterating the contents of its replying affidavit. Counsel submitted that the tribunal rightly downed its tools for lack of jurisdiction being that the dispute did not involve the issue of compulsory acquisition but rather the legality of the 1st Respondent and issues of fraud which tribunal indicated the Ethics and Anti-corruption commission was vested with the requisite jurisdiction relying on the case of Owners of the Motor Vessel “Lillian S” Vs Caltex Oil (Kenya) Ltd Civil Appeal No. 50 of 1989, 8.The Respondent further submitted that the application in the tribunal was an abuse of the court process as held in Muchanga Investments Ltd Vs Safaris Unlimited (Africa) Ltd Civil Appeal 25 of 2002, being that the Appellant had instituted a similar application before which application was dismissed. 9.Counsel submitted that this court should not entertain the application as it would be interfering with what the tribunal sought to preserve being the jurisdictional boundaries. Analysis and determination 10.This court has carefully considered the motion, the supporting affidavit the legal framework and jurisprudence and the single issue arising for determination is whether the Appellant has satisfied the conditions for issuance of injunctive orders 11.The often-cited case of Giella Vs Cassman Brown (1973) EA 358 is the leading authority on the conditions to be satisfied by an applicant for the grant of an interlocutory injunction. It provides as follows; The conditions for the grant of an interlocutory injunction are now, I think, well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be 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. “what amounts to a prima facie case was explained in Mrao Ltd Vs First American Bank of Kenya Ltd & 2 Others [2003] eKLR as follows: “A prima facie case is more than an arguable case. It is not sufficient to raise issues. The evidence must show an infringement of a right, and the probability of success of the applicant’s case upon trial. That is clearly a standard which is higher than an arguable case. More recently, the Court of Appeal in the case of Nguruman Limited Vs Jan Bonde Nielsen & 2 Others [2014] eKLR while agreeing with the definition of a prima facie case in the Mrao Case (supra) went ahead to further expound as follows; “We adopt that definition save to add the following conditions by way of explaining it. 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. We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must not examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation. 12.In the present case the Appellant has argued that having demonstrated he was not heard on the issue of jurisdiction before the claim was struck out, points to infringement of her rights hence proof of a prima facie case. Going on the definition as in the above cases the Appellant has not demonstrated any unmistakable right to be protected which is directly threatened by an act sought to be restrained and as such not proven existence of a prima facie case 13.Moving on to the 2nd issue of whether irreparable harm has been demonstrated ,In Nguruman Limited Vs Jan Bonde Nielsen & 2 Others (supra) the Court stated as follows on irreparable injury or damage: “On the second factor, that the applicant must establish that he might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.”Having submitted that the applicant has not established a prima facie case, then the limb of irreparable harm then does not need to be established but needless to say, the applicant has not demonstrated what losses would be attributed to her that cannot be compensated by way of monetary damages. She has highlighted the issue of loss to the public but none attributed to her in her capacity as the applicant 14.The applicant having failed to meet the two limbs as above, the balance of convenience tilts in not granting the injunction. It is now settled that the three limbs set out in the Giella case must be proved sequentially and failure to meet any one defeats the application. Final disposition 15.For the reasons and findings stated above, this court finds the Notice of Motion application dated 4th November 2025 is not merited and is hereby dismissed with costs to the Respondents.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 11TH DAY OF JUNE 2026.MOHAMMED N. KULLOWJUDGERuling delivered in the presence of: -Mr. Hans Ochoi for the Plaintiff/ApplicantMs. Makara for 2nd RespondentN/A for 1st and 3rd RespondentPhilomena W Court Assistant