Mambrui Sea Dunes Limited & 3 others v Yeri & 11 others (Civil Appeal E033 of 2022) [2025] KECA 808 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge of the ELC properly exercised the court's discretion in rejecting the appellants' application for a conservatory order, for a mandatory injunction and for a temporary injunction
Key legal issues
#Whether the ELC Judge properly exercised discretion in refusing a mandatory injunction
The Judge correctly declined to grant a mandatory injunction at the interlocutory stage as no special or clear circumstances were shown
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.
Whether the ELC Judge properly exercised discretion in refusing a conservatory order
The Judge properly applied the Gatirau Peter Munya principles and his refusal of a conservatory order could not be faulted
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.
Whether the ELC Judge properly exercised discretion in refusing a temporary injunction
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
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.
Legal principles established
#- 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
#- 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.Each party shall bear its own costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- 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)
Relief refused
#Mandatory injunction compelling removal of the barbed wire fence and developments
No special or clear circumstances were established to justify a mandatory injunction at the interlocutory stage
Conservatory order restraining dealings with the Ngomeni Squatter Settlement Scheme register
The Judge properly applied the Munya principles; the scheme had been in place since 1999 and titles had been issued
Costs
Each party shall bear its own costs of the appeal
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.
The order that commends itself to us in the circumstances, which we hereby grant is that the status quo obtaining as at the date of delivery of this ruling with respect to the properties known 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.
To that extent only, the appeal succeeds. Each party shall bear its own costs of the appeal.
Before this Court can interfere with the exercise of a discretion of a judge, it must be shown that the judge has either erred in principle in his approach or has left out of account factors he ought to have considered or has taken into account some factors that he should not have considered or that his decision was wholly wrong
All that the court is to see is that on the face of it the person applying for an injunction has a right which has been or is threatened with violation.
I would say that in civil cases it is a case in which on the material presented to the Court a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.
Issues in the judgment
#Paragraph 22 contains a grammatical incomplete construction ('where, as here, it was asserted, that thousands of families are resident...') which does not affect the holding
Kenya Breweries v Washington Okeyo and Nguruman v Jan Bonde Nielsen were cited both by counsel and by the court, so the same case appears in citationTreatment under both entries; the judgment does not distinguish which uses were which in all instances
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mambrui Sea Dunes Limited & 3 others v Yeri & 11 others (Civil Appeal E033 of 2022) [2025] KECA 808 (KLR)", 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.