https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5252

**REPUBLIC OF KENYA** **IN THE LAND & ENVIRONMENT COURT AT KWALE** **ELC CASE NO. E096 OF 2025** **JOSEPH NGANA ROCHAR** **MARIAM UMAZI MWANYOHA *(suing as Administrators for and on*** ***behalf of the Estate of Mwanyoha Naan Chirumo, [deceased]*....................................... PLAINTIFFS/APPLICANTS** * **VERSUS -** **NYANJE JAWA CHINAGO –** **NATIONAL LAND** **COMMISSION…………………….DEFENDANTS/RESPONDENTS** **RULING** 1. **Introduction** 2. The Ruling of this Honourable Court relates to a Notice of Motion application dated 24th September, 2025. It was instituted by *JOSEPH NGANA ROCHAR MARIAM UMAZI MWANYOHA* *(suing as Administrators for and on behalf of the Estate of Mwanyoha Naan Chirumo, [deceased], on behalf of the* Plaintiff/Applicant herein against the Defendants, *Nyanje Jawa Chinango and the National Land Commission herein.*. 3. The application was brought under the provision of Sections 1A,1B and 3A Civil Procedure Act, Cap. 21; Order 40 Rules (1) & (2), Order 51 Rule 1 of the Civil Procedure Rules, 2010 and all enabling provisions of law. 4. Upon service, the application was opposed by the 1st Defendant/Respondent vide a Replying Affidavit dated 30th October, 2025 sworn by Nyanje Jawa Chinago. Further, the 2nd Respondent also opposed the application vide a replying affidavit dated 20th February, 2026 sworn by its Principal Valuation Officer, Mariko Kalimoi. The contents of both affidavits will be expounded on later in the ruling. 5. Fundamentally, the Plaintiffs/Applicants filed the application subject of this ruling arguing that the suit properties, Title Number: Mwavumbo/477 & Mwavumbo/479 measuring 1.2484 Hectares & 3.6336 Hectares respectively fall entirely within the Muache Multi-Purpose Dam Project that was now due for compensation by the 2nd Defendant but it had now emerged that the 1st Defendant had been gazetted by the 2nd Defendant as the sole beneficial owner for purposes of compensation in total disregard of the Plaintiffs who are in occupation and claim property rights stretching back over 50 years. 6. The Plaintiffs/Applicants argued that unless temporary restraining orders barring release of the compensation monies were issued against the Defendants pending the hearing and determination of the suit the Plaintiffs stood to be materially prejudiced and to suffer irreparable loss and damage. 7. **The case of the Plaintiffs/Applicants** 8. The Plaintiffs/Applicants sought for the following orders:- 9. ***Spent.*** 10. ***That pending the hearing and determination of the Plaintiffs' application inter - partes an order of temporary injunction do issue against the Defendants restraining them whether by themselves, their servants and/or agents from paying out any compensation monies relating to the properties gazetted as title numbers: MWAVUMBO/477 and MWAVUMBO/479 by the 2nd Defendant for purposes of compensation for the Muache Multi-Purpose Dam Project.*** 11. ***That pending the hearing and determination of this suit an injunction do issue against the Defendants restraining them whether by themselves, their servants and/or agents from paying out any compensation monies, entering, trespassing into, mining, excavating, cultivating, developing, building, selling, disposing of and/ or interfering in any way whatsoever with the Plaintiffs' possession and quiet enjoyment of the suit properties measuring approximately 1.2484 and 3.6336 Hectares respectively and gazette as title numbers: MWAVUMBO/477 and MWAVUMBO/479 by the 2nd Defendant for purposes of compensation for the Muache Multi-Purpose Dam Project.*** 12. The application was premised on the grounds, testimonial facts and the averments made out under the 10 Paragraphed sworn by JOSEPH NGANA ROCHAR the 1st Plaintiff/Applicant herein. He averred as follows that:- 13. He was the Co - Administrator and heir of the Estate of the late Mwanyoha Ngana Chirumo, deceased, and had authority to so plead from the 2nd Plaintiff. 14. The estate of the late Mwanyoha Ngana Chirumo, deceased, was the legal and beneficial owner of the initially unsurveyed ancestral family land so held and still occupied for the last 50 years plus which land has now been titled into 2 parcels as title numbers: MWAVUMBO/477 and MWAVUMBO/479 and wrongfully, illegally and unlawfully assigned to the 1st Defendant by the 2nd Defendant for purposes of compensation for the Muache Multi-Purpose Dam Project. 15. The suit properties were wholly within the declared public project known as Muache Multi-Purpose Dam Project and the entire suit properties have been acquired by the 2nd Defendant for purposes of the project vide Gazette Notice No.5783 of 5th May, 2023. 16. Contrary to the Plaintiffs/Applicants' legitimate expectation for prompt and just compensation for their acquired property interests, the 1st Defendant had swiftly moved and overtaken the Plaintiffs/Applicants by lodging illegitimate claims to the suit properties which claims appear surprisingly to have received the 2nd Defendant's as evidenced by the gazettement despite protestations lodged by the heirs of the late Mwanyoha Ngana Chirumo, deceased. 17. The Plaintiffs/Applicants were apprehensive that the conduct of the Defendants in the circumstances was designed to suppress and deny their property rights and the right to prompt and just compensation for their entire ancestral land and the was wrongful, illegal and unlawful. 18. It was common knowledge on the ground that the 1st Defendant who was kin to the former officials of Mwavumbo Group Ranch within which the suit properties fall had embarked on an unprecedented move backed by the said persons to illegally acquire land once it was established that land acquisition for Muache Multi-Purpose Dam Project covered vast areas within the former Ranch. 19. At all material times the local officials and the Defendants were all aware of the true, correct, legal and beneficial ownership of the suit properties as held by the Estate of Mwanyoha Ngana Chirumo, (deceased) but chose to ignore the same for purposes of compensation for the Muache Multi-Purpose Dam Project. 20. The Plaintiffs/Applicants were apprehensive that if the Defendants were not restrained as a matter of priority, their property rights to the suit property stood to be violated, suppressed and out-rightly denied thereby subjecting the estates to immense and irreparable loss and damage. 21. **The responses by the 1st Respondent** 22. As already indicated, the 1st Defendant/Respondent opposed the application by filing a Replying Affidavit dated 30th October, 2025 by the deponent. He deponed as follows:- 23. The application and the supporting affidavit were full of allegations without evidence and misleading to the court. 24. Before gazettement was done by the 2nd Defendant/Respondent, due diligence was done and everyone gazetted had to prove being in possession of their particular portions. This was done in the presence of both the Group Ranch officials and the local administration. 25. The claim by the Applicants on plot No. 477 & 479 is superfluous as they had not shown any nexus to the plots. The Applicants have their own plots and to which they already received compensation from the 2nd Defendant/Respondent. 26. The 1st Plaintiff/Applicant was paid for his crops on Plot No. 500 while the 2nd Plaintiff/Applicant was paid for plot No.496. 27. It was not in the domain of the 1st Respondent herein to do gazettement nor was he in any position to stop anyone from whatsoever queries they had. 28. The gazettement was done purely based on the list provided by the Group Ranch who were the registered proprietors. That the accusations against the 1st Respondent are farfetched as the list was produced after a meticulous process. 29. The matters raised herein by the Applicants had been heard and determined by the relevant Group Ranch as stipulated under the provisions of the Group Representatives Act, Cap 287. 30. Several awards had been issued in favour of the 1st Respondent over the said plots. 31. The Applicants had not proved in any way their case on a balance of probability. 32. The Application was wanting and lacked merit and never complied with the principles enunciated in the case of “***Giella – Versus - Cassman Brown”.*** 33. The only party charged under the now repealed (Group Representatives Act to deal with the Plaintiffs' issues was the Representatives of the Group Ranch. 34. The impasse prevailing was orchestrated by the Applicants as they refused to accept the official’s findings. 35. Also that the dispute had been addressed severally and the verdict came out the same. 36. This Honourable Court has no jurisdiction under Cap. 287 to award anyone land. 37. The application herein was bereft of merit and the court was thus urged to dismiss it with costs to the 1st Defendant/Respondent. 38. **The responses by the 2nd Respondent** 39. While opposing the application, the 2nd Respondent filed a 14 Paragraphed Replying Affidavit dated 20th February, 2026 and sworn by MARIKO KALIAMOI the Principal Valuation Officer in the Valuation and Taxation Department at the National Land Commission. He averred as follows that:- 40. He was aware that the suit was filed on or about 24th September, 2025. 41. The pleadings were served upon the Commission on 21st October, 2025, and the 2nd Respondent duly entered appearance on 3rd November, 2025. 42. Prior to the filing of this suit, a formal dispute resolution process was undertaken. A complaint regarding the ownership of KWALE/MWAVUMBO/477 was lodged by one Fatuma Mwanyoha (on behalf of the Estate) against the 1st Defendant during the gazette Inquiry date. 43. This complaint was received by the Grievance Redress Committee on 20th February, 2025. However, KWALE/MWAVUMBO/479 was not disputed by the aforementioned Fatuma Mwanyoha during the Inquiry date even though both parcels Inquiry date & venue was the same. 44. The Committee, which was chaired by the Deputy County Commissioner, heard both parties and reviewed the findings of the Mwavumbo Group Ranch Committee. 45. In its final resolution, the Committee upheld the 1st Defendant's ownership of the parcel. 46. The Committee specifically noted that if the complainants were dissatisfied, they had 14 working days to present a court order, failing which compensation should proceed. 47. The Plaintiffs/Applicants failed to challenge this decision within the stipulated timeline or at all until the filing of this suit approximately 7 months later. 48. By the time the Plaintiffs/Applicants filed this suit in September, 2025, the Commission had already concluded its mandate regarding these specific parcels. 49. Pursuant to the clear directive of the Grievance Redress Committee and the absence of any court order stopping the process as confirmed by the Order of 2nd October, 2025, the Commission lawfully disbursed the compensation funds for the suit properties to the 1st Defendant in September, 2025. 50. The status quo as at 2nd October, 2025 was that the funds had already been paid. 51. Therefore, the Commission was in full compliance with the Court's orders. 52. Furthermore, and as deponed by the 1st Defendant, before gazettement was done, every person gazetted had to prove ownership before both the Group Ranch officials and the local administration. 53. The 1st Defendant successfully navigated this verification process, which was why his name appeared in the Mwavumbo Group Ranch records, County Government of Kwale records and the Kenya Gazette Notices for the project acquisition. 54. It was stated that the allegations of collusion against the Commission were false, malicious and were denied. 55. The Commission acted strictly within its statutory mandate and relied on the official dispute resolution mechanisms set up for the project. 56. The Commission was aware of the ownership dispute, which was precisely why the matter was referred to the Grievance Redress Committee for determination. 57. He wished to associate himself with the 1st Defendant’s characterization of the Plaintiffs/Applicants' Supporting Affidavit as containing mere allegations without evidence and falsehoods calculated at misleading this Honourable court. 58. The Plaintiffs/Applicants had not provided any evidence to substantiate their claims of collusion or illegality. 59. The application had already been overtaken by events and was thus an exercise in futility. 60. **Further Supporting Affidavit by the Plaintiffs/Applicants** 61. Upon attaining the leave of Court, the Plaintiff/Applicant while responding to the Replying Affidavit sworn and filed by the 2nd Respondent herein, filed a Further Supporting Affidavit dated 4th February, 2026. In summary, it was averred that:- 62. The Estate of the late Mwanyoha Ngana Chirumo, deceased, contends and properly so that it is the legal and beneficial owner of the suit properties that are the subject of compensation by the 2nd Defendant/Respondent, National Land Commission. 63. Under the provision of Section 26 of the Land Registration Act, No. 3 of 2012, the title of a person representing himself as proprietor is subject to challenge on grounds of fraud or misrepresentation to which he is proved to be a party and also in circumstances where the title has been acquired illegally, unprocedurally or through a corrupt scheme. The Plaintiffs/Applicants contended that position obtains in the present case. 64. **Submissions** 65. On 21st January, 2026, the court provided directions that the application dated be canvassed by way of written submissions. A ruling date was reserved for 8th July 2026. 66. Pursuant to that all parties had complied with the said directive. The court will therefore proceed to render its verdict after a brief summary of the submissions. 67. **The Written Submissions by the Plaintiffs/Applicants** 68. The Law firm of Messrs. Mburu Kariuki & Co Advocates filed written submissions dated 6th February, 2026 on behalf of the Applicants herein. M/s. Nduku Advocate, in summary submitted that the Plaintiffs/Applicants had met the set down threshold for gran of temporary injunctive orders as was set in the famous case of:- “***Giella - Versus - Cassman Brown*** ***case” (Supra).*** That there was imminent danger to the Plaintiffs/Applicants’ ownership of the suit property that necessitated the intervention of the court. The court was urged to allow the application as prayed. 69. **The Written Submissions by the 1st Defendants Respondents** 70. The Law firm of Messrs. Odour Siminyu & Co Advocates filed written submissions dated 2nd February, 2026 on behalf of the 1st Respondent. Mr. Siminyu Advocate submitted that the suit property falls under the Land (Group Representatives) Act, Cap. 287 (now repealed). 71. Parties owned under the now repealed law in undivided shares. The said plots did not exist anywhere nor had the Plaintiffs/Applicants provided any copies of the titles to the property for him to have any claim that the property belongs to him. In any event the gazette notice annexed to the applicants list clearly demonstrates that the property belongs to the 1st Respondent. 72. According to Learned Counsel, the Plaintiffs/Applicants had not established a prima facie case that would warrant grant of the orders sought. That despite making allegations of ownership of the suit property, no document had been annexed to confirm the said ownership. The 1st Defendant/Respondent maintained that he had on the other hand proved his stake on the suit property and hence he was entitled to compensation over the suit property. 73. **The Written Submissions by the 2nd Respondent** 74. Magdalene Mutheu Advocates filed written submissions dated 10th March 2026 on behalf of the 2nd Respondent. The Learned Counsel averred that a case had not been made for grant of the injunctive orders sought by the Plaintiffs/Applicants. 75. Learned Counsel further submitted that the Plaintiffs/Applicants had failed to exhaust the laid down procedure for dispute resolution regarding land under group ranches. 76. Therefore, the suit and application were an affront to the principles of the doctrine of exhaustion. 77. **Analysis and Determination** 78. I have keenly perused and assessed the Notice of Motion application dated 24th September, 2025 by the Plaintiff/Applicant herein, the responses by the Defendants/Respondents herein and the written submissions by the parties and the relevant provision of the [Constitution](https://kenyalaw.org/akn/ke/act/2010/constitution) of Kenya 2010 and the statutes. 79. In order to attain a just and fair and reasonable decision hereof the Honorable Court has drawn the following three ( 3 ) issues for its determination. These are:- 80. ***Whether the Notice of Motion application dated 24th September 2025 by the Plaintiff/Applicant meets the threshold for granting the injunctive orders sought as per the requirement of law.*** 81. ***Whether the parties are entitled to the reliefs sought.*** 82. ***Who will bear the costs of the application?*** ***ISSUE No. a). Whether the Notice of Motion application dated 24th September, 2025 by the Plaintiff/Applicant meets the threshold for granting the injunctive orders sought as per the requirement of law.*** 1. Before proceeding with the analysis under this sub – heading, its imperative to extrapolate on the historical background of the matter. The Mwache Multipurpose Dam Development Project is a project under the Vision 2030 mission by the Government of Kenya and the World Bank through the Ministry of water sanitation and irrigation whose purpose is to improve water infrastructure in Kael County and the coast region as a whole. The County of Kwale is an arid and semi-arid area making it prone to perennial drought. 2. The project is designed to end chronic water shortages in order to sustain communities within Kwale County through dry spells and cushion them from famine. In realising the project, the government through the 2nd Respondent [National Land Commission] acquired several hectares of land and facilitated compensation of the same. 3. The suit and application before court emanates from issues surrounding compensation of the acquired parcel the suit property herein. 4. It is noted from the affidavit of the 2nd Respondent’s principal valuation officer sworn in response to the application that payments to the 1st Respondent has already been effected. As it is, even if the court were to further discuss the case before it in terms of whether the threshold for grant of orders of injunction has been met, the end result would be no orders granted by the court would serve any purpose at this point. ***ISSUE No. b). Whether the parties are entitled to the reliefs sought.*** 1. Under this sub – heading, the Honourable Court will be considering whether the parties are entitled to the relief sought. Nonetheless, from the filed pleadings and based on the above analysis, the only reprieve that might be available for the Applicants is to contest the said compensation. Clearly, based on the Principle of Exhaustion, the said issue is not before this court at this moment. It has to be allowed to proceed at the correcte forum legally speaking. 2. Therefore, be that as it may, I wish not to belabour much on this matter as it is evident that the application herein has been overtaken by events. For this reason, therefore, I strongly hold that the application shall be dismissed for this reason. ***ISSUE No. c). Who will bear the costs of the application?*** 1. It is now well established that the issue of costs is at the discretion of Court. Costs means the award that a party is granted upon the conclusion of legal action and proceedings of any litigation. The proviso of Section 27 of the [Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3), Cap. 21 stipulates that costs follow the event. 2. By event it means the result of the legal action. 3. Given the circumstances as outlined above it will be proper that each party bears its own costs. 4. **Conclusion & Findings** 5. Consequently, upon causing an analysis of the framed issues herein, the Honourable Court arrives at the following specific orders:- 6. **THAT the Notice of Motion application dated 24th September, 2025 be and is hereby dismissed.** 7. **THAT there be a mention on 13th October 2026 to ascertain progress made and further direction thereof.** 8. **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. Siminyu Advocate for the 1st Defendant/Respondent. 3. M/s. Magdalene Advocate for the 2nd Defendant/Respondent. 4. No appearance for the Plaintiffs/Applicants.