Riverside Farm Malindi Limited v Dala & 81 others (Environment and Land Case E116 of 2025) [2025] KEELC 7953 (KLR)

The court held that mandatory injunctions involve compulsion carrying a final tone while litigation is pending and all parties must be heard on the merits before judgment. A temporary injunction was viewed as equally efficacious since the incursions had previously been reported to police and the invaders are known persons who can be restrained by an interim injunction. The court also relied on prior findings that the defendants were not in occupation of the vacant portion.

The plaintiff demonstrated a prima facie case from its dealings with the suit land, and prejudice was shown because any party defending an adverse possession claim would be prejudiced by an invasion occurring during the litigation. Further, environmental considerations under the precautionary principle in EMCA and Articles 69(2) and 70 established probability of loss not compensable by damages, so the two Giella ingredients were proved.

The court referred to the bundle of exhibits to the supporting affidavit and concluded the dealings with the suit land justified finding a prima facie case against all parties. The res judicata objection failed because the renewed invasion is a new event sought to be averted, not the same matter previously determined.

The court invoked Section 5(1) of EMCA and Articles 69(2) and 70(1) and (3) of the Constitution, noting that settlement in an ecologically sensitive riverbank zone involves breaking soil and clearing vegetation, causing soil erosion and biodiversity loss, and that no governmental authorization for the occupation was indicated. Lack of full certainty does not excuse inaction under the precautionary principle.