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ELCPartially AllowedNotice of Motion dated 14th May, 2025 (main suit number not stated in the judgment)· [2026] KEELC 2731 (KLR)

Wanjiru v County Government of Kwale (Environment and Land Case E041 of 2025) [2026] KEELC 2731 (KLR)

Environment and Land Court
4 April 2026
3,611 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kwale court stopped the County Government from demolishing a woman's property until the full case is heard, because no valid court order backed the demolition notices.

What this practically means

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Executive summary

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The Environment and Land Court at Kwale (L. L. Naikuni, J) determined a Notice of Motion dated 14th May, 2025 by Esther Njeri Wanjiru, the Plaintiff/Applicant, seeking a temporary injunction restraining the Defendant/Respondent (a county entity) from implementing or enforcing demolition notices and administrative decisions against her property situated between the Ward Office and County Social Hall, Kwale. The Applicant, unopposed despite proper service evidenced by affidavits of service, claimed she was allocated the parcel by the County Council of Kwale in 1995 and annexed her application form, payment receipts and correspondence. She contended the enforcement notices were issued without a valid court order as required by Section 152G of the Land Laws (Amendment) Act, 2016, without compliance with compulsory acquisition procedures under the Land Act, 2012, and in violation of Articles 40 and 47 of the Constitution. Framing two issues - the injunction threshold under Order 40 Rule 1 and costs - the court applied the Giella v Cassman Brown principles as elaborated in Nguruman Limited v Jan Bonde Nielsen. It found a prima facie case with probability of success, irreparable harm from demolition without compensation given Article 40 protection, and the balance of convenience favouring preservation of the status quo, the Respondent exhibiting no lawful authority. On costs, although costs follow the event under Section 27(1) of the Civil Procedure Act, the court ordered costs of the interlocutory application to be in the cause. The application was allowed; a temporary injunction issued restraining demolition, eviction, trespass or interference pending determination of the main suit, with a Pre-Trial Conference set for 30th June, 2026 and hearing on 27th October, 2026.

Key legal issues

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01

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

Holding

Yes - the Applicant showed allocation documents and receipts from 1995 and enforcement notices issued without a valid court order, prima facie infringing Article 40 and Section 152G

Reasoning

The Applicant deposed she was allocated the suit property by the County Council of Kwale in 1995 and annexed allocation documents and receipts. The Respondent issued enforcement notices demanding demolition without a valid court order or adherence to compulsory acquisition procedures. The court found this prima facie infringes Article 40 of the Constitution and Section 152G of the Land Laws (Amendment) Act, 2016, satisfying the first Giella condition.

02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

Yes - demolition without compensation would deprive the Applicant of property protected under Article 40, occasioning irreparable harm

Reasoning

The Applicant averred she would suffer irreparable loss if demolition proceeded, as she would be deprived of her property without compensation. Guided by Nguruman and Pius Kipchirchir Kogo, the court held that given the nature of property rights and constitutional protection under Article 40, demolition without compensation would occasion irreparable harm, satisfying the second Giella limb.

p. 5
03

Whether the balance of convenience tilts in favour of the Applicant

Holding

Yes - preservation of the status quo favours the Applicant since demolition would destroy the substratum of the suit

Reasoning

The court weighed the comparative mischief of granting or withholding the injunction. If demolition proceeded, the substratum of the suit would be destroyed; restraining the Respondent merely preserves the property pending trial. Applying Amir Suleiman and Paul Gitonga Wanjau, the court found the balance of convenience tilts in favour of the Applicant and maintenance of the status quo.

p. 6
04

Who should bear the costs of the application

Holding

Costs of the application to be in the cause, to be determined with the final outcome of the main suit

Reasoning

Although costs follow the event under Section 27(1) of the Civil Procedure Act and the application succeeded, the court noted the application is interlocutory and the substantive issues remain for trial. It considered it just and equitable that costs be in the cause so the question of costs is determined alongside the final outcome, preserving fairness to both parties.

p. 7

Legal principles established

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  • All three Giella conditions must be satisfied sequentially for an interlocutory injunction
  • A prima facie case is one where a right appears to have been infringed calling for an explanation from the opposite party
  • Irreparable injury is injury that cannot be adequately compensated by damages
  • In interlocutory injunction applications the court does not make final findings on contested facts
  • On interlocutory injunctive relief the court should opt for the lower rather than the higher risk of injustice
  • Costs follow the event under Section 27(1) of the Civil Procedure Act

Court orders

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  1. 1.That the Notice of Motion application dated 14th May, 2025 be and is hereby allowed, having met the threshold for grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
  2. 2.That pending the hearing and determination of the main suit, a temporary injunction is issued restraining the Defendant/Respondent, whether by itself, its officers, agents, assigns or any other person claiming through it, from demolishing, evicting, trespassing, or in any way interfering with the Plaintiff/Applicant's possession, occupation and use of the parcel of land situated between the Ward Office and County Social Hall, Kwale
  3. 3.That no demolition, eviction, or administrative enforcement shall be undertaken in respect of the suit property until the suit is heard and determined
  4. 4.That there be a mention on 30th June, 2026 for Pre-Trial Conference in accordance with Order 11 of the Civil Procedure Rules, 2010, and a hearing on 27th October, 2026 preferably through physical means
  5. 5.That the costs of the Notice of Motion application dated 14th May, 2025 shall be in the cause
Jurisdiction invoked
Articles 22, 23, 40, 47 and 50 of the Constitution of Kenya, 2010; Section 152G of the Land Laws (Amendment) Act, 2016; Sections 107–133 of the Land Act, No. 6 of 2012; Sections 4–8 of the Fair Administrative Action Act, 2015; Order 40 Rule 1 of the Civil Procedure Rules, 2010

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, "Wanjiru v County Government of Kwale (Environment and Land Case E041 of 2025) [2026] KEELC 2731 (KLR)", Case Analysis (2026). Notice of Motion dated 14th May, 2025 (main suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2731/eng@2026-04-24

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