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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 28th January, 2026)

Mgunya v Chongowe & another (Civil Case E004 of 2026) [2026] KEELC 4667 (KLR)

Environment & Land Court
9 July 2026
3,638 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kwale landowner won't block compensation payment over his disputed Mwache Dam land, but the National Land Commission must hold the money until a court decides who owns it.

What this practically means

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Executive summary

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This is a ruling of the Environment & Land Court at Kwale (L.L Naikuni, J) on a Notice of Motion dated 28th January 2026 by Jabiri Nyota Mgunya, the registered owner of parcel Kwale/Chigato/1080 measuring approximately 2.36 Ha in Kwale County. The land fell within the gazetted area for the Mwache Multi-Purpose Dam Project and was subject to compulsory acquisition by the National Land Commission. The applicant sought temporary injunctions restraining the Commission from releasing compensation to the 1st Defendant, who claimed ownership without any title document, and also sought review and enhancement of the award of Kshs. 180,550/- which he termed grossly undervalued. The 1st Defendant did not participate despite substituted service, whose proof was never availed. The Commission, through its Principal Valuation Officer Mariko Kaliamoi, confirmed no compensation had been paid, that verification of the bona fide proprietor was ongoing, that awards were suspended pending resolution of the ownership dispute, and undertook to pay only the party the court declared the rightful owner. Applying the Giella v Cassman Brown principles as reinforced in Nguruman, the court found a prima facie case given the applicant's uncontested title, but held no irreparable harm was shown since the Commission would not pay until ownership was settled. The balance of convenience favoured preservation over injunction. The court declined the injunctive and enhancement prayers but ordered that the status quo orders issued on 2nd January 2026 remain in place pending the hearing and determination of the suit, with each party bearing its own costs.

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 28th January, 2026 by the Plaintiff/Applicant meets the threshold for granting of injunctive orders
  2. 2.Whether the Notice of Motion application dated 28th January, 2026 by the Plaintiff/Applicant has any merit
  3. 3.Who will bear the costs of the application

Key legal issues

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01

Whether the applicant established a prima facie case with probability of success

Holding

Yes - the title deed in the applicant's favour was uncontested and the 1st Defendant had adduced no evidence of ownership

Reasoning

The court noted the title deed presented showing the applicant as proprietor, that the 1st Defendant claimed ownership despite having no title document and had not presented evidence, and that substituted service was unconfirmed. Article 40 protects property rights and compulsory acquisition attracts fair compensation. On that material the applicant crossed the first Giella hurdle.

p. 7
02

Whether the applicant demonstrated irreparable harm

Holding

No - the 2nd Defendant had suspended compensation and undertook to pay only the party declared the rightful owner by the court

Reasoning

The National Land Commission confirmed no compensation had been paid, verification of the bona fide proprietor was ongoing, and awards in respect of the property were suspended pending resolution of the ownership dispute. Any loss would be pecuniary and capable of being remedied since the Commission would abide by the court's final decision on ownership. The applicant therefore failed the second hurdle.

p. 7
03

Balance of convenience

Holding

It favoured preserving the suit property rather than granting the injunction

Reasoning

Given the Commission's undertaking not to release compensation until ownership was settled, the balance of convenience lay in maintaining the status quo rather than injuncting the statutory acquisition process for a project of national importance. The court therefore preserved the property by continuing the status quo orders issued on 2nd January 2026.

p. 7
04

Costs of the application

Holding

Each party to bear its own costs

Reasoning

Although costs normally follow the event under section 27(1) of the Civil Procedure Act and the applicant did not secure the injunctive orders, the court considered the circumstances of the case - the ongoing ownership dispute and the preservation of status quo - and directed each party to bear its own costs.

p. 8

Legal principles established

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  • The three Giella v Cassman Brown conditions for a temporary injunction are sequential hurdles which must each be surmounted; a prima facie case alone is insufficient and leap-frogging to the balance of convenience is impermissible
  • A registered proprietor whose property is compulsorily acquired is entitled to compensation which is adequate, prompt, fair and reasonable
  • Irreparable harm is harm that cannot be adequately compensated in damages; where the acquiring authority undertakes to withhold compensation pending determination of ownership, no such harm is demonstrated

Court orders

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  1. 1.That the status quo orders earlier issued by this court on 2nd January 2026 to remain in place pending the hearing and determination of the suit
  2. 2.That each party to bear its own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 40 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21; Order 51 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Temporary injunction restraining the 2nd Respondent from actualizing compensation to the 1st Respondent pending hearing of the application and the suit

The applicant failed to establish irreparable harm; the National Land Commission had suspended payment pending determination of ownership and was willing to abide by the court's decision on ownership

p. 7

Temporary injunction restraining the 1st Defendant from trespassing on, alienating or interfering with parcel Kwale/Chigato/1080

No prima facie case of imminent interference was made out beyond the ownership dispute already before the court; the balance of convenience favoured preservation of the property rather than an injunction

p. 7

Order for review, reassessment and/or enhancement of the compensation award

Not addressed on the merits; the applicant failed on the injunctive threshold and only status quo orders were preserved

Costs

Each party to bear its own costs

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 status quo orders earlier issued by this court on 2nd January 2026 to remain in place pending the hearing and determination of the suit.
p. 8Final orders - status quo
That each party to bear its own costs.
p. 8Final orders - costs
I am satisfied that the Plaintifi/Applicant has established a prima facie case with a probability of success.
p. 7Prima facie case
the Plaintifi/Applicant has not demonstrated that he is likely to sufier irreparable harm or injury
p. 7Irreparable harm
the balance of convenience tilts in not granting the injunction but rather preserving the suit property
p. 7Balance of convenience
A registered proprietor whose property by way of compulsory acquisition is entitled to compensation which should be adequate, prompt, fair and reasonable.
p. 7Compulsory acquisition compensation
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
p. 6Sequential application of Giella principles

Issues in the judgment

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material

The 1st Defendant/Respondent is never named in the judgment, making party identification incomplete

minor

Both the merits issue and the costs issue are labelled 'ISSUE No. b)'

material

The suit number of the main suit is not disclosed anywhere in the ruling

minor

The compensation award figure is rendered with a garbled description ('One Hundred and Eighty Thousand Five Fifty Hundred') against the numeral

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, "Mgunya v Chongowe & another (Civil Case E004 of 2026) [2026] KEELC 4667 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 28th January, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4667/eng@2026-07-09

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