Chigamba v Chigamba; National Land Commission (Interested Party) (Environment and Land Case E005 of 2024) [2025] KEELC 5836 (KLR)
The bottom line
#A Kwale court blocked compensation and any sale of disputed land parcels until trial, confirming that family land wrongly registered in another's name can be protected by injunction.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Notice of Motion dated 2nd September, 2024 meets the threshold required of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
- 2.Who will bear the costs of the Notice of Motion application dated 2nd September, 2024
Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
Yes - the Applicant, allegedly displaced from land wrongfully registered in the Defendant's name and facing uncompensated compulsory acquisition, demonstrated a prima facie case
The court applied the Mrao definition of a prima facie case and found that the Plaintiff's averments - inheritance of the disputed parcels, displacement by the Defendant, non-compensation following compulsory acquisition for the Mwache Dam, and the imminence of compensation payments to the Defendant - showed an apparently infringed right calling for rebuttal at trial.
Whether the Applicant would suffer irreparable injury not compensable by damages
Yes - the suit property is the Applicant's home, which cannot be adequately compensated in monetary damages
Applying the Nguruman and Kogo formulations of irreparable injury, the court found that loss of the Applicant's home would not be measurable or adequately cured by an award of damages, and that the property was at risk of being wasted if compensation were paid out before trial.
Whether the balance of convenience tilts in favour of the Applicant
Yes - preserving the suit property pending trial carries the lower risk of injustice
The court reasoned that the Applicant would be prejudiced if the Respondent were compensated before the suit was heard, and that since the court had not interrogated the full documentary history, preservation of the suit property until hearing served the interest of both parties, adopting the 'lower risk of injustice' principle from Amir Suleiman.
Who should bear the costs of the application
Costs in the cause
Although costs ordinarily follow the event under Section 27(1) of the Civil Procedure Act, the court, in its discretion and because the substantive suit remained pending, elected that costs of the application be in the cause rather than awarded to either party immediately.
Legal principles established
#- The three Giella conditions for an interlocutory injunction must all be satisfied sequentially, without leap-frogging
- In an interlocutory injunction application the court makes no final findings of contested fact but weighs the relative strength of the parties' cases
- Costs follow the event under Section 27(1) of the Civil Procedure Act, and the successful party is entitled to costs unless exceptional circumstances exist
Court orders
#- 1.The Notice of Motion application dated 2nd September, 2024 be and is hereby found to have merit and is allowed with regards to prayer 1 and 2
- 2.An order of temporary injunction do issue restraining the Respondent and the intended interested party, or their agents, from actualizing compensation regarding parcels Kwale Chigato 1423, 1414, 827, or any actions on selling, leasing or constructing under the suit property, pending the hearing and determination of the suit
- 3.Mention on 29th July, 2025 and hearing on 11th November (date truncated in the judgment)
- 4.The costs of the Notice of Motion application dated 2nd September, 2024 shall be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application brought under Order 40 Rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Costs of the application to the Applicant
The court elected to make costs in the cause rather than award them immediately
Costs
The costs of the Notice of Motion application dated 2nd September, 2024 shall be in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the Notice of Motion application dated 2nd September, 2024 be and is hereby found to have merit and is allowed with regards to prayer 1 and 2.
That an order of Temporary injunction do issue that the Respondent and the intended interested party, or their agents from actualizing compensation regarding parcels Kwale Chigato 1423, 1414,827, or any actions on selling, leasing or constructing under the suit property, pending the hearing and determination of the suit case.
That the cost of the Notice of Motion application dated 2nd September, 2024 shall be in the cause.
the Plaintifi has demonstrated a prima facie case with a probability of successat the trial as enunciated in the case of “Giella v Cassman Brown & Co. Ltd [Supra]”.
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.
In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.
Issues in the judgment
#The application itself is not anchored under any provision of law, as the court notes, yet the court proceeds to decide it under Order 40 Rule 1
The gender of the deponent Mazera Chigamba is inconsistently stated in consecutive passages
The applicant alternates between singular 'Plaintiff/Applicant' and plural 'Applicants' without any second applicant being named
Costs discussion references a Notice of Motion dated 7th December, 2021 which does not belong to this suit, apparently quoted from the court's earlier Sagalla Lodge decision
The hearing date in the final orders is truncated in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Chigamba v Chigamba; National Land Commission (Interested Party) (Environment and Land Case E005 of 2024) [2025] KEELC 5836 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5836/eng@2025-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.