Malalo & 25 others v Mzee (Environment and Land Case E071 of 2025) [2026] KEELC 611 (KLR)
The bottom line
#Mombasa's Environment and Land Court refused to stop an auction of houses because the homeowners couldn't prove they had a strong legal case.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs established a prima facie case with a probability of success for the grant of a temporary injunction
The plaintiffs failed to demonstrate a prima facie case; they admitted defaulting on ground rent and produced no evidence of the alleged advice by the National Land Commission to stop paying rent
The court applied the Giella v Cassman Brown principles and the Mrao Ltd definition of a prima facie case. The plaintiffs admitted paying ground rent to the defendant for a long period and admitted defaulting before the threat of auction. Their claim that the National Land Commission advised them to stop paying rent was unsupported by any evidence. Having admitted default and adduced no proof of an infringement of a right, they fell below the threshold of a prima facie case, which is higher than an arguable case.
Whether the plaintiffs demonstrated a clear and unmistakable right warranting protection by temporary injunction
The plaintiffs failed to prove a right to be protected by an order of temporary injunction; failing the first Giella principle, the application fails without considering the other limbs
Relying on Nguruman Limited v Jan Bonde Nielsen, the court held that an applicant must show a clear and unmistakable right directly threatened by the act sought to be restrained, with material and substantive invasion and urgent necessity to prevent irreparable damage. Since the plaintiffs failed to establish a prima facie case, the court did not proceed to consider irreparable injury or the balance of convenience, and the application necessarily failed.
Who should bear the costs of the dismissed application
Although costs ordinarily follow the event and would be awarded against the applicant, the defendant did not oppose the application and is therefore not entitled to costs
The court invoked the proviso to Section 27 of the Civil Procedure Act (Cap 21) that costs follow the event, and Giella v Cassman Brown on costs in injunction applications. Ordinarily a dismissed application attracts costs against the applicant, but because the defendant only filed a notice of appointment of advocates and filed no response, and did not oppose the application, he was not entitled to costs. The application was accordingly dismissed with no order as to costs.
Legal principles established
#- Without establishing a prima facie case, the court need not consider irreparable injury and balance of convenience; the injunction application must fail.
- Costs follow the event under the proviso to Section 27 of the Civil Procedure Act, but a party who does not oppose an application is not entitled to costs.
Court orders
#- 1.The chamber summons dated 16.06.2025 is hereby dismissed with no order as to costs.
- Jurisdiction invoked
- Not expressly stated; interlocutory application in a pending suit before the Environment and Land Court concerning land plots
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malalo & 25 others v Mzee (Environment and Land Case E071 of 2025) [2026] KEELC 611 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/611/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.