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ELCPartially AllowedMalindi MCELC Appeal (Chamber Summons application dated 16th April 2025; appeal against ruling in Malindi MCELC Number E 081 of 2024)· [2025] KEELC 3759 (KLR)

Kenya Electricity Transmission Co Ltd v Kasina & another (Environment and Land Appeal E023 of 2025) [2025] KEELC 3759 (KLR)

Environment and Land Court
13 May 2025
5,550 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~22 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused KETRACO immediate access to disputed land for a power line, but paused the lower court case pending the appeal.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Malindi (Mwangi Njoroge, J) on a Notice of Motion dated 16th April 2025 by KETRACO, the appellant in an appeal against the ruling of Hon. E.K. Usui, CM delivered on 17th March 2025 in Malindi MCELC No E081 of 2024 (Nelly Kasina & Another v KETRACO), which had issued a temporary injunction restraining KETRACO from entering the respondents' land (LR 12889/63) to construct the Rabai-Bamburi-Kilifi 132kV transmission line. KETRACO sought a mandatory injunction/leave to access the land to complete the project under its EPC contract with HOMT Espana, a stay of the trial proceedings, and leave to deposit Kshs 934,020/- compensation in an escrow account. The court framed four issues. Applying the Halsbury/Locabail principles as approved in Kenya Breweries v Okeyo, it held that no special circumstances justified an interlocutory mandatory injunction: an existing parallel power line mitigated urgency; the alleged daily delay penalties of Kshs 150,000-500,000 were unproven; the appellant had no counterclaim below; and whether the suit land was listed in Gazette Notice No 7489 remained live at trial. Further, the order sought would conflict with the subsisting trial injunction. The court nevertheless stayed the subordinate court proceedings pending disposal of the appeal, holding the appellant equally deserved to be heard. The escrow prayer was rejected as a matter for the trial court. The application was dismissed with costs to abide the main appeal.

Key legal issues

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01

Whether a mandatory injunction pending appeal should issue to allow the appellant access to the suit land

Holding

Refused. The appellant failed to establish special circumstances or a clear case warranting an interlocutory mandatory injunction, and the order would conflict with the trial court's injunction

Reasoning

The court applied the Halsbury/Locabail test as approved in Kenya Breweries v Okeyo: mandatory injunctions at interlocutory stage require special circumstances, a clear case, or a defendant stealing a march, plus a high degree of assurance. The existence of an old parallel power line mitigated urgency; alleged delay penalties were unproven; and the appellant's lack of a counterclaim weighed against relief. An order allowing access would also contradict the trial court's injunction, since the application did not seek to set it aside.

p. 9
02

Whether the proceedings in the Magistrate's Court should be stayed pending appeal

Holding

Granted. Both parties deserve to be heard - the appellant on appeal, the respondents at trial - so the trial proceedings are stayed pending disposal of the appeal

Reasoning

The court balanced the respondents' Article 50 right to a fair hearing against the appellant's right to have its appeal heard substantively before the trial court determines the merits. Since granting the mandatory injunction would effectively summarily determine the trial dispute, and the appellant equally deserves to be heard on appeal, a stay of the subordinate court proceedings was found necessary.

p. 9
03

Whether the compensation funds should be deposited in an escrow account

Holding

Rejected, on the basis that this is an appellate court and such orders belong to the trial court at the execution stage

Reasoning

The court found the escrow proposal not inimical to the parties' interests and noted the funds could ultimately form part of any compensation award. However, as the application was before an appellate court rather than the trial court, it was pointless to issue the order; the proper forum is the trial court, which can make substantive orders at the execution stage.

p. 10

Legal principles established

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  • Mandatory injunctions should be granted sparingly at an interlocutory stage and only in clear cases or where special circumstances exist
  • Mere unproven allegation of large public losses is not of itself a special circumstance justifying an interlocutory mandatory injunction

Court orders

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  1. 1.Prayer for leave to access the suit land and for a mandatory injunction refused for lack of special circumstances
  2. 2.Stay of the proceedings in Malindi MCELC No E081 of 2024 granted pending the disposal of the present appeal
  3. 3.Prayer for deposit of Kshs 934,020/- in an escrow account rejected, with leave to apply to the trial court if necessary
  4. 4.Costs of the application to abide the outcome of the substantive appeal
On appeal from
Chief Magistrate's Court, Malindi
Malindi MCELC Number E 081 of 2024 - Nelly Kasina and Another v KETRACO
Jurisdiction invoked
First appeal from the Chief Magistrate's Court under the Environment and Land Court Act (not expressly stated in the judgment)

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, "Kenya Electricity Transmission Co Ltd v Kasina & another (Environment and Land Appeal E023 of 2025) [2025] KEELC 3759 (KLR)", Case Analysis (2025). Malindi MCELC Appeal (Chamber Summons application dated 16th April 2025; appeal against ruling in Malindi MCELC Number E 081 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3759/eng@2025-05-13

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