https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4667

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KWALE** **CIVIL CASE NO. E004 OF 2026** **JABIRI NYOTA MGUNYA………………. PLAINTIFF/APPLICANT** * **VERSUS -** **CHENGO CHONGOWE…………………….………1ST RESPONDENT** **NATIONAL LAND COMMISSION……………...2ND RESPONDENT** **RULING** 1. **Introduction** 2. This ruling of the Honourable Court is informed by a Notice of Motion application dated 28th January, 2026 by the *Jabiri Nyota Mgunya,* the Plaintiff/Applicant herein. It was brought pursuant to the provisions of Article 40 of the Constitution, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21; Order 51 Rule 1 of the Civil Procedure Rules, 2010. 3. Upon service, the he application was opposed through a Replying Affidavit sworn by the Principal Valuation Officer of the 2nd Defendant/Respondent and the contents thereof will be enumerated later in the ruling. 4. The court notes that the 1st Respondent did not participate in the application. It was further noted that on 12th March, 2026, the Plaintiff was directed to serve the 1st Defendant by substituted service, proof of compliance with the said directive by way of an affidavit of service has however not been availed before this court. 5. **The case of the Plaintiff/Applicant** 6. The Plaintiff/Applicant sought for the following orders:- 7. ***Spent.*** 8. ***That this Honourable Court be pleased to issue a temporary injunction to restrain the 2nd Respondent and its agents/officers from actualizing compensation regarding the parcel of land known as Kwale/Chigato/1080 to the 1st Respondent pending the hearing determination of this Application.*** 9. ***That this Honourable court be pleased to issue a temporary injunction to restrain the 2nd Respondent and its agents/officers from actualizing compensation regarding the parcel of land known as KWALE/CHIGATO/1080 to the 1st Respondent pending the hearing and determination of the Suit herein.*** 10. ***That this Honourable court be pleased to issue a temporary injunction to restrain the 1st Defendant/Respondent whether by himself or his servants or agents from trespassing, encroaching, constructing, selling, offering for sale, alienating, transferring by public auction private treaty, disposing of or otherwise completing by conveyance, transfer of any sale concluded by public auction or private treaty, leasing, subdividing, receiving, constructing or taking possession, or otherwise interfering with all that land parcel known as Kwale/Chigato/1080 measuring approximately 2.36 Ha situated in Kwale County pending the hearing and determination of this Application.*** 11. ***That this Honourable court be pleased to issue a temporary injunction to restrain the 1st Defendant/Respondent whether by himself or his servants or agents from trespassing, encroaching, constructing, selling, offering for sale, alienating, transferring by public auction or private treaty, disposing of or otherwise completing by conveyance, transfer of any sale included by public auction or private treaty, leasing, subdividing, receiving, constructing or taking possession, or otherwise interfering with all that land parcel known Kwale/Chigato/1080 measuring approximately 2.36 Ha situated in Kwale County pending the hearing and determination of the Suit herein.*** 12. ***That this Honourable Court be pleased to review, reassess and/or enhance the amount awarded to the Plaintiff/Applicant.*** 13. ***That this Honourable Court make such further orders that may be appropriate in the interests of justice.*** 14. ***That the costs of this Application be provided for.*** 15. The application was premised on the grounds, testimonial facts and averments made out under a 15 Paragraphed Supporting Affidavit sworn by JABIRI NYOTA MGUNYA the Plaintiff/Applicant herein who averred as follows that:- 16. He was and still is the registered owner of the parcel of land known as KWALE/CHIGATO/1080 (Hereinafter referred to as “The Suit Land”) measuring approximately 2.36 Ha situated in Kwale County as per a copy of title annexed. 17. The suit property had been earmarked for compulsory acquisition by the 2nd Respondent to enable the construction of the Mwache Dam Project. 18. Despite not having any title document, the 1st Respondent was claiming ownership of the suit property and claiming compensation as well. 19. The parties tried to settle the matter amicably but the 1st Defendant/Respondent never attended a meeting that had been scheduled at the Chief s Office. 20. He wrote a letter dated 10th December, 2025 to the 2nd Defendant/Respondent seeking clarity and an update of the compensation for the suit property but there had been no responses todate. 21. The intended compensation to the 1st Defendant/Respondent was erroneous, unjust, unlawful and without regard to the Plaintiff/Applicant’s proprietary rights. 22. Unless this Honourable Court intervened and issues injunctive orders stopping compensation to the 1st Defendant/Respondent, the 2nd Defendant/Respondent would proceed to release compensation monies to the 1st Defendant/Respondent, thereby occasioning the Plaintiff/Applicant irreparable loss and harm, by extinguishing his interest in the suit property. 23. The 2nd Defendant/Respondent had already issued award letters including the award letter dated 13th December, 2025 for the sum of Kenya Shillings One Hundred and Eighty Thousand Five Fifty Hundred (Kshs. 180,550/-). 24. He was dissatisfied with the said award as it was grossly undervalued, unjust, and never reflected the true market value of the land and developments. 25. Unless this Honourable Court intervened urgently, the 1st Defendant/Respondent would receive compensation for the Plaintiff/Applicant's property. 26. Should the this application be allowed and the prayers sought granted, it would not prejudice the Defendants/Respondents. 27. It was in the interest of justice that the orders were being sought and hat what was deponed herein was true to the best of his knowledge and belief. 28. **The responses by the Respondents** 29. As already indicated herein, the 1st Defendant/Respondent did not participate in the application. 30. However, the 2nd Defendant/Respondent filed a Replying Affidavit dated 11th May, 2026 sworn by Mariko Kaliamoi, its Principal Valuation Officer in the Valuation and Taxation Department. He averred as follows that:- 31. The 2nd Defendant/Respondent is a Constitutional Commission established under Article 67 of the Constitution of Kenya, 2010, mandated to, among other things, manage compulsory acquisition of land on behalf of the national and county governments. 32. The 2nd Defendant/Respondent confirmed that the suit property, Land Reference Number Kwale/Chigato/1080 fell within the gazetted area for the Muache Multi-Purpose Dam Project and was subject to compulsory acquisition. 33. Regarding the status of compensation:- 34. No compensation had been paid to any party in respect of the suit property. 35. The process of verification and identification of bona fide proprietor was still ongoing. 36. Following the ownership dispute between the Plaintiff/Applicant and the 1st Defendant/Respondent, the National Land Commission suspended issuance of any award in respect of the property until the dispute was resolved. 37. The only role of the Commission was on payment of compensation for compulsory acquisition to the rightful owner once that owner was determined by this Honourable court. 38. The Commission would abide by the final decision of this Honourable Court regarding ownership. 39. It would only pay compensation to the party that the court declared as the rightful owner. 40. **Submissions** 41. On 12th March, 2026 the court directed that the application be canvassed by way of written submissions. However, at the time of drafting this ruling, it was only the 2nd Defendant/Respondent had complied by filing its submissions. The court will nevertheless proceed to render its ruling. 42. **The Written Submissions by the 2nd Defendant/Respondent** 43. M/s. Magdalene Mutheu Advocate prepared and filed written submissions on behalf of the 2nd Defendant/Respondent. In summary, M/s. Mutheu Advocate submitted that the Applicant had failed to meet the threshold set in the infamous case of “***Giella – Versus - Cassman Brown & Co. Ltd [1973] EA 358*** on grant of interlocutory injunctions. 44. The Learned Counsel stated that the National Land Commission had suspended making payment of the compensation pending the determination of the dispute on ownership of the suit property. 45. On the aspect of a prima facie case, it was submitted that both the Plaintiff/Applicant and the 1st Defendant/Respondent claimed ownership of the suit property. Despite a title deed being registered in the name of the Applicant, it was not a guarantee that he was the rightful owner as the title was being challenged. There was need for a order of Court on this aspect. 46. On the second aspect of irreparable loss and harm. The Learned Counsel averred that there was no irreparable loss to be incurred as compensation was a monetary remedy. Besides, there had been no payment made as yet. Indeed, the status was that the Commission still held the compensation funds. 47. According to the Counsel, should the Court ultimately declares the Plaintiff/Applicant as the absolute and rightful registered owner to the suit land, the Commission will pay him the compensation. Even if payment were made to the 1st Defendant/Respondent which the Commission had undertaken not to do, the loss would be pecuniary and capable of compensation by damages. 48. Lastly, it was submitted that the balance of convenience favours the 2nd Defendant/Respondent and the public interest. That the Mwache Multi‑Purpose Dam Project was a public infrastructure project of immense national importance. Also that delay in compensation was causing delays on the implementation of the entire project. That the 2nd Defendant/Respondent had already suspended payment pending determination of ownership. 49. In conclusion, the 2nd Defendant/Respondent reiterated its commitment to abide by the final decision of this Court regarding ownership of Kwale/Chigato/1080 and stated that it would pay compensation to the party so declared. 50. **Analysis and determination** 51. I have keenly perused and assessed the Notice of Motion application dated 28th January 2026 by the Plaintiff/Applicant herein, the response by the 2nd Defendant/Respondent herein and the submissions by the 2nd Defendant/Respondent. I have also considered the provisions of the [Constitution](https://kenyalaw.org/akn/ke/act/2010/constitution) of Kenya 2010 and the statutes. 52. In order to attain a just and fair and reasonable decision hereof the Honorable Court has drawn the following three ( 3 ) salient issues for its determination. These are:- 53. ***Whether the Notice of Motion application dated 28th January, 2026 by the Plaintiff/Applicant meets the threshold for granting of injunctive orders.*** 54. ***Whether the Notice of Motion application dated 28th January, 2026 by the Plaintiff/Applicant has any merit.*** 55. ***Who will bear the costs of the application?*** ***ISSUE No. a). Whether the Notice of Motion application dated 28th January, 2026 by the Plaintiff/Applicant meets the threshold for granting of injunctive orders.*** 1. Under this sub-heading the court will determine whether the orders sought by the Plaintiff/Applicant for grant of orders of injunction against the Defendants/Respondents restraining the 1st Defendant/Respondent from interfering with the suit property, by way of receiving compensation for compulsory acquisition from the 2nd Defendant/Respondent over the suit property have any merit whatsoever. 2. Primarily, the provision of Article 23 of the Constitution specifically identifies an order of injunction as one of the reliefs that a Court can grant if it is satisfied that a person’s right or fundamental freedom under the bill of rights has been denied, violated or infringed or is threatened. 3. This Court is further guided by the provisions of Section 63 of the Civil Procedure Act, 21 and Order 40 (1) of the Civil Procedure Rules, 2010 where in any suit it is proved by affidavit or otherwise— **“[a] That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree;** **[b] That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the Court thinks fit until the disposal of the suit or until further orders."** 1. The principles to determine the threshold for temporary injunction are well enunciated in the now famous case of “***Giella – Versus - Cassman Brown (Supra)”***to the effect that a party seeking a temporary injunction has to establish “***a prima facie***” case, whether the party seeking injunction will suffer irreparable damage if injunction is denied, and in case of doubt the issue in contention ought to be decided on the scale of a balance of convenience. 2. This position was also reiterated in the case of “***Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others CA No 77 of 2012”****,* where the Court stated that: “In an interlocutory injunction application, the Applicant has to satisfy the three requirements to; 1. Establish his case only at a prima facie level, 2. Demonstrate irreparable injury if a temporary injunction is not granted, and 3. Ally any doubts as to (b) by showing that the balance of convenience is in his favour” 3. These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the Applicant is expected to surmount sequentially. ***See******Kenya Commercial Finance Co. Limited – Versus - Afraha Education Society [2001] Vol. 1 EA 86.*** 4. If the Applicant establishes a prima facie case, that alone is not sufficient basis to grant an interlocutory injunction, the Court must further be satisfied that the injury the Respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the Respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the Applicant’s claim may appear at that stage. 5. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit **“leap-frogging”** by the Applicant to injunction directly without crossing the other hurdles in between. **(*See Doshi – Versus - Central Bank of Kenya (Civil Case 27 of 2023) [2023] KEHC 18286 (KLR) (16th May, 2023) (Ruling)”*** 6. Has the Applicant made out a prima facie case with probability of success? In the case of “***Mrao Limited - Versus -First American Bank of Kenya Limited & 2 Others (2003) KLR 125”****,* “***a prima facie***” case was described as follows: ***“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.”*** ***ISSUE No. b). Whether the notice of motion application dated 28th January, 2026 by the Plaintiff/Applicant has any merit.*** 1. Under this sub – tile, the Honourable Court will proceed to apply these principles to in the present case. From the surrounding facts, the whole substratum of the matter is on compensation after the 2nd Defendant/Respondent compulsorily acquired the suit land for purposes of public use – construction of the Mwache Water Dam for the public in accordance with the provision of Article 40 ( 3 ) of the Constitution of Kenya, 2010 and Sections 101 to 118 f the land Act, No. 6 of 2012. 2. Nonetheless, there exists an evident dispute as to the legal ownership of the suit property though it should be noted that the court has been presented with a title deed indicating that the Applicant is the proprietor of the suit property. The It is also a common ground that the 2nd Defendant/Respondent have expressed its intention to compulsorily acquire the suit property for public use specifically construction of the Mwache Dam Project, infact, I believe acquisition has already taken place and what is remaining is payment of the compensation. 3. Be that as it may, the Court is rather concerned that by the time the 2nd Defendant/Respondent has arrived at this stage of the compensation process all the due diligence aspects ought to have been undertaken effectively. These include but not limited to conducting of both physical and official searches and all investigation informing it formally on the ownership of the land they would be dealing with herein. If these pre – cautionary legal procedures were never undertaken it will be extremely unfortunate and unfair to the Project Affected Parties (PAPs). 4. Indeed, it is not in dispute that awards have been made by the Respondents to the other parties whose properties have been acquired as per the list availed before court but are yet to pay the applicant due to the ownership dispute over the suit property. It is noted that the 1st Defendant/Respondent is yet to present any evidence before this court to cement his claim over the suit property. Thus, so far the title deed for the Plaintiff/Applicant is uncontested though the court is alive to the fact that substituted service of the pleadings is not yet confirmed. 5. Having regard to all the material presented by the Plaintiff/Applicant to the 2nd Defendant/Respondent, I am satisfied that the Plaintiff/Applicant has established a prima facie case with a probability of success. Article 40 of the Constitution of Kenya protects rights to property and the state can only deprive an individual of that right under circumstances specifically provided in law. A registered proprietor whose property by way of compulsory acquisition is entitled to compensation which should be adequate, prompt, fair and reasonable. 6. As to whether the Applicant is bound to suffer irreparable damage and loss in the event that the orders sought are not granted, I first wish to reiterate the dictum of the court in the case of “***Robert Mugo Wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR”***where the court in deciding on an injunction application stated:- **“circumstances for consideration before granting a temporary injunction under order 40 rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to grant a temporary injunction to restrain such acts...”** 1. The Plaintiff/Applicant avers that unless the orders sought are allowed, he stands to suffer irreparable injury as the 2nd Defendant/Respondent might compensate the 1st Defendant/Respondent who also claims ownership over the suit property. The 2nd Defendant/Respondent on the other hand submits that it is yet to make any compensation to either of the parties and states that it is awaiting the decision of this court as to who the rightful owner of the suit property is before releasing any funds. 2. I am in agreement with the 2nd Defendant/Respondent’s argument that since it is well aware of the ownership dispute between the parties herein, it is not ready and willing to make any payments until the court settles the matter of who the rightful owner of the suit property is between the two parties herein. The Plaintiff/ Applicant is therefore not at risk or imminent threat of being unlawfully disposed of his property by missing out on the payment. Irreparable harm or injury must be one that cannot be adequately compensated in damages. The 2nd Defendant/Respondent has stated that it remains willing to pay the compensation once the issue of ownership is settled. 3. In my considered view, the Plaintiff/Applicant has not demonstrated that he is likely to suffer irreparable harm or injury. 4. As for the balance of convenience, with the 2nd Defendant/Respondents’ undertaking that they shall pay the compensation only when the issue on ownership is settled, the balance of convenience tilts in not granting the injunction but rather preserving the suit property. In my view the Plaintiff/ Applicant has therefore failed to meet the threshold for the grant of the injunctive orders sought. 5. However, this court is aware that when the application was first placed before it, status quo orders were issued in a bid to preserve the suit property. Despite the pledge by the 2nd Defendant/Respondent that no finds will be released pending the determination of the suit on ownership, this court opines that it will be in the interest of justice for the status quo orders to remain in place. ***ISSUE No. b.) Who will bear the costs of the application?*** 1. The issue of costs is at the discretion of the court. Costs mean an award that a party is granted at the conclusion of any legal action or proceedings in any litigation. The proviso of section 27(1) of the [Civil Procedure Act](https://kenyalaw.org/akn/ke/act/1924/3), Cap. 21 holds that costs follow the events. By events it means the results or outcome in any legal action. 2. In the instant case, the Plaintiff/Applicant has unsuccessfully prosecuted his application in terms of securing injunctive orders. However, bearing the circumstances of the case it will be proper for each party to bear its own costs. 3. **Conclusion** 4. Having conducted such an elaborate analysis to the framed issues herein, the honorable court now guided by the principles of Preponderance of Probabilities and the balance of convenience do make the following specific orders:- 5. **THAT the status quo orders earlier issued by this court on 2nd January 2026 to remain in place pending the hearing and determination of the suit.** 6. **THAT each party to bear its own costs.** **IT IS ORDERED ACCORDINGLY.** **RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS……. 9TH …. DAY OF ………JULY …….2026** **………………………………** **HON. MR. JUSTICE L.L NAIKUNI,** **ENVIRONMENT & LAND COURT** **AT** **KWALE.** **Ruling delivered in the presence of: -** 1. Mr. Daniel Disii, the Court Assistant. 2. Mr. Mramba Advocate for the Plaintiff/Applicant. 3. Mr. Siminyu Advocate for the 1st Defendant/Respondent. 4. M/s. Magdalene Advocate for the 2nd Defendant/Respondent.