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ELCAllowedKwale ELCA / Appeal from Kwale MCELC No. E059 of 2023 (Notice of Motion dated 29th August 2024)

Mkala v Kinago & 2 others (Environment and Land Appeal E012 of 2024) [2025] KEELC 5855 (KLR)

Environment and Land Court
28 May 2025
3,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) delivered on 28th May 2025 on a Notice of Motion dated 29th August 2024 by the Appellant/Applicant, Mwarema Kaingu Mkala, brought under Sections 1A and 3B of the Civil Procedure Act and Order 42 Rules 6 and 51 Rule 1 of the Civil Procedure Rules, 2010. The application sought conservatory orders by way of injunction barring the release of compensatory monies by the 3rd Respondent to the 1st Respondent in respect of suit property Mwavumbo/409 and Mwavumbo/804 (8.0674 hectares) for the Mwache Multi Purpose Dam Project, pending the hearing of an appeal against the ruling of Hon C K Auka [SRM] of 31st July 2024 in Kwale MCELC No. E059 of 2023, which had dismissed the Appellant's injunction application. The 1st Respondent opposed, relying on a gazette notice designating him owner and on Section 116 of the Land Act for refund of monies paid to a wrong party. The court framed three issues: merit, entitlement to reliefs, and costs. Applying Giella v Cassman Brown, Patricia Njeri, Nguruman and related authorities, the court found the appeal not frivolous and arguable; a prima facie case was established since ownership of the unregistered suit property was contested and the Appellant's occupation was undisputed; substantial loss, hardship and the risk of the appeal being rendered nugatory were demonstrated; and the balance of convenience favoured the Appellant. The application was allowed, an injunction barring release of compensation pending appeal was granted, the Appellant was ordered to compile and serve the Record of Appeal within 21 days with mention on 15th July 2025 for admission and directions, and costs were awarded to the Appellant/Applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion application dated 29th August, 2024 by the Appellant/Applicant has any merit whatsoever
  2. 2.Whether the parties are entitled to the reliefs sought
  3. 3.Who will bear the costs of the application

Key legal issues

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01

Whether the application for injunction pending appeal has merit

Holding

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.

Reasoning

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.

p. 5
02

Whether a prima facie case was established

Holding

A prima facie case was established because ownership of the suit property is contested and must be determined before compensation is paid.

Reasoning

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.

p. 7
03

Whether substantial loss, hardship and nugatory-ness were demonstrated

Holding

Substantial loss and hardship were proved; the appeal would be rendered nugatory if compensation were released.

Reasoning

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.

p. 8
04

Entitlement to costs

Holding

The Appellant/Applicant, having successfully prosecuted the application, is entitled to costs.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Notice of Motion application dated 29th August 2024 be and is hereby merited and thus allowed
  2. 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. 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. 4.Costs awarded to the Appellant/Applicant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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.
p. 8Final orders - allowance of the application
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.
p. 8Final orders - injunction pending appeal
Based on this this court finds that a prima facie case has been established.
p. 7Prima facie case
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.
p. 8Nugatory appeal and substantial loss
That costs be and is hereby awarded to the Appellant/Applicant.
p. 8Costs

Issues in the judgment

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minor

Internal contradiction on hardship/nugatory analysis: the court first doubts then affirms hardship

minor

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

minor

Missing sentence fragment in submissions paragraph regarding respondent's counsel

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, "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.