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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedNot stated in the judgment· [2025] KECA 808 (KLR)

Mambrui Sea Dunes Limited & 3 others v Alfred Kahindi Yeri & 9 others

Court of Appeal of Kenya
9 May 2025
3,090 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal froze the Ngomeni land dispute as it stands but refused orders blocking the squatter settlement scheme pending full trial.

What this practically means

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Executive summary

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The Court of Appeal at Mombasa (Kairu, Laibuta and Ngenye-Macharia, JJA) disposed of an interlocutory appeal against a ruling of the Environment and Land Court at Malindi (Olola, J) delivered on 28th April 2022, dismissing the appellants' application for a conservatory order, a mandatory injunction and a temporary injunction pending the hearing of their petition concerning Portions No. 658 to 707 (Original No. 652/2-51) North of Mambrui Town, which they claimed had been encroached upon through the Ngomeni Squatter Settlement Scheme. Framing the sole issue as whether the Judge properly exercised his discretion, the Court reiterated that an appellate court may interfere only where the judge erred in principle, considered irrelevant matters, omitted relevant ones, or was wholly wrong, and has no jurisdiction to exercise an independent original discretion. The Court held the Judge correctly refused the mandatory injunction absent special circumstances (Kenya Breweries v Washington Okeyo) and correctly refused the conservatory order under the Munya principles, given that the scheme had existed since 1999 and titles had issued. However, the Judge failed to consider the Giella v Cassman Brown threshold for the temporary injunction; on the material, the registered-proprietor appellants had established a prima facie case per Mrao Ltd. Mindful of the over 10,000 families resident on the land, the Court substituted an order maintaining the status quo as at the date of the ruling pending the petition. The appeal succeeded only to that extent, with each party bearing its own costs.

Key legal issues

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01

Whether the ELC Judge properly exercised discretion in refusing a mandatory injunction

Holding

The Judge correctly declined to grant a mandatory injunction at the interlocutory stage as no special or clear circumstances were shown

Reasoning

Applying Kenya Breweries Ltd v Washington Okeyo, a mandatory injunction may be granted interlocutorily only where special circumstances exist or the case is clear and easily remedied. Given the complexities, including thousands of resident families and contestation of the Settlement Scheme's validity, the Judge rightly required a high degree of assurance before granting such an order at an interlocutory stage.

p. 5
02

Whether the ELC Judge properly exercised discretion in refusing a conservatory order

Holding

The Judge properly applied the Gatirau Peter Munya principles and his refusal of a conservatory order could not be faulted

Reasoning

The Judge considered the Munya principles and concluded that, since the Settlement Scheme has been in place since 1999 with various titles issued, a conservatory order would not facilitate the ordered functioning of public agencies. The Court of Appeal found no error in that exercise of discretion and declined to interfere.

p. 5
03

Whether the ELC Judge properly exercised discretion in refusing a temporary injunction

Holding

The Judge erred by not fully applying the Giella v Cassman Brown test; the appellants had established a prima facie case and the Court substituted a status quo order

Reasoning

Beyond noting the appellants learned of the infringements in 1999, the Judge did not consider whether the application met the Giella threshold. On the material presented, the appellants as registered proprietors showed a right apparently infringed, calling for an explanation or rebuttal by the Respondents per Mrao Ltd v First American Bank. The Court was therefore entitled to interfere, but mindful of the 10,000 resident families, it granted only maintenance of the status quo pending the petition.

p. 6

Legal principles established

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  • An appellate court may only interfere with the exercise of a judge's discretion where the judge erred in principle, took into account irrelevant factors, left out relevant factors, or the decision was wholly wrong
  • An appellate court has no jurisdiction to exercise an independent original discretion on an appeal from a grant or refusal of an injunction
  • A mandatory injunction should not normally be granted at the interlocutory stage unless there are special circumstances or the case is clear and easily remedied
  • In considering whether a prima facie case has been established for an injunction, the court does not hold a mini trial; it need only see that the applicant has a right apparently infringed or threatened with violation

Court orders

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  1. 1.The status quo obtaining as at the date of delivery of the ruling with respect to the properties known as Portions No. 658 to 707 (Original No. 652/2-51) situated North of Mambrui Town shall be maintained by all the parties pending the hearing and determination of the appellants' petition before the ELC
  2. 2.Each party shall bear its own costs of the appeal
On appeal from
Environment and Land Court, Malindi
Not stated in the judgment
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over a decision of the Environment and Land Court (constitutional provision not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mambrui Sea Dunes Limited & 3 others v Alfred Kahindi Yeri & 9 others", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/808/eng@2025-05-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.