Mkala v Kinago & 2 others (Environment and Land Appeal E012 of 2024) [2025] KEELC 5855 (KLR)
The bottom line
#Kwale's Environment and Land Court froze Mwache Dam compensation payments until a land ownership dispute between two claimants is finally resolved on appeal.
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 application dated 29th August, 2024 by the Appellant/Applicant has any merit whatsoever
- 2.Whether the parties are entitled to the reliefs sought
- 3.Who will bear the costs of the application
Key legal issues
#Whether the application for injunction pending appeal has merit
The appeal is not frivolous, as the issue of ownership of the suit property is substantial and determines who the rightful beneficiary of compensation should be.
The court held it would not delve into the merits of the appeal but found nothing frivolous in it, since the substantial question is ownership of the suit property and thus entitlement to compensation. The applicant's long occupation was undisputed, the property was unregistered in either party's name, and the compensation monies were at risk of being paid out, which would render the appeal nugatory.
Whether a prima facie case was established
A prima facie case was established because ownership of the suit property is contested and must be determined before compensation is paid.
The court noted the gazette notice naming the 1st Respondent as owner was disputed by the Appellant, whose occupation of the suit property with his family was not disputed by the 1st Respondent. Applying the Giella and Nguruman principles, the court found the applicant demonstrated a fair and bona fide question as to the existence of the right, warranting that ownership be established before the 3rd Respondent effects compensation.
Whether substantial loss, hardship and nugatory-ness were demonstrated
Substantial loss and hardship were proved; the appeal would be rendered nugatory if compensation were released.
Having found a contest as to rightful ownership, the court held the Applicant's apprehension of compensation being paid to a wrong party established substantial loss. Hardship was demonstrated, and since the gist of the appeal is the impending compensation, refusal of the orders would render the appeal nugatory. The balance of convenience tilted towards the Appellant.
Entitlement to costs
The Appellant/Applicant, having successfully prosecuted the application, is entitled to costs.
Costs are at the discretion of the court and follow the event under Section 27(1) of the Civil Procedure Act. Because the Appellant/Applicant successfully prosecuted the application, the court awarded costs to him.
Legal principles established
#- An arguable appeal need not necessarily succeed; a single arguable, non-frivolous ground suffices.
- The High Court in exercise of its appellate jurisdiction may grant a temporary injunction where the procedure for instituting the appeal from a subordinate court has been complied with.
- Costs follow the event under Section 27(1) of the Civil Procedure Act.
Court orders
#- 1.The Notice of Motion application dated 29th August 2024 be and is hereby merited and thus allowed
- 2.Conservatory orders by way of injunction barring the release of any compensatory monies by the 3rd Respondent to the 1st Respondent in respect of the suit property measuring 8.0674 hectares and numbered Mwavumbo 409 and Mwavumbo 804, pending the hearing and determination of the appeal, for purposes of compensation for Mwache Multi Purpose Dam Project
- 3.Appellant/Applicant to compile and serve the Record of Appeal within 21 days, and the matter to be mentioned on 15th July, 2025 for admission of the appeal and directions under Section 79B of the Civil Procedure Act and Order 42 Rules 11, 13 and 16 of the Civil Procedure Rules, 2010 on a priority basis
- 4.Costs awarded to the Appellant/Applicant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kwale (Kwale MCELC No. E059 of 2023)
- MCELC No. E059 of 2023
- Jurisdiction invoked
- Sections 1A and 3B of the Civil Procedure Act, Cap. 21; Order 42 Rules 6 and 51 Rule 1 of the Civil Procedure Rules, 2010 (appellate jurisdiction to grant temporary injunction under Order 42 Rule 6(6))
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 29th August 2024 be and is hereby merited and thus allowed.
That pending the hearing and determination of this appeal herein this Honourable Court be pleased to grant conservatory orders by way of injunction barring the release of any compensatory monies by the 3rd Respondent to the 1st Respondent in respect of the suit property measuring 8.0674 hectares and numbered Mwavumbo 409 and Mwavumbo 804 by the 3rd Respondent for purposes of compensation for Mwache Multi Purpose Dam Project.
Based on this this court finds that a prima facie case has been established.
The appeal will be rendered nugatory if the orders sought are not granted for the reason that the gist of the appeal is the impending compensation, the issue of ownership of the suit property comes in second.
That costs be and is hereby awarded to the Appellant/Applicant.
Issues in the judgment
#Internal contradiction on hardship/nugatory analysis: the court first doubts then affirms hardship
The parties' roles are inconsistent - the notice of motion is brought by an 'Appellant/Applicant' against 'Respondents', but the ruling itself is an interlocutory application rather than the appeal; the 2nd and 3rd Respondents are named but did not respond
Missing sentence fragment in submissions paragraph regarding respondent's counsel
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mkala v Kinago & 2 others (Environment and Land Appeal E012 of 2024) [2025] KEELC 5855 (KLR)", Case Analysis (2025). Kwale ELCA / Appeal from Kwale MCELC No. E059 of 2023 (Notice of Motion dated 29th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5855/eng@2025-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.