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ELCDismissedNot stated in judgment (ELC at Kwale)· [2026] KEELC 2783 (KLR)

Mwanaloma v Bora & 2 others (Environment and Land Case E137 of 2025) [2026] KEELC 2783 (KLR)

Environment and Land Court
24 April 2026
4,697 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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A Kwale court rejected a landowner's bid to block Mwache Dam compensation payments, but froze all payouts and property dealings until the main case is heard.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kwale (Hon. Mr. Justice L. L. Naikuni) determined a Notice of Motion dated 17th December, 2025 by the Plaintiff/Applicant, Mwanaloma Kitumbo Mwanaloma, sought an interlocutory injunction restraining the Defendants/Respondents from actualizing compensation for land parcels known as Kwale/Chigato/705, 797-808, 811, 813-816 and 818 under the Mwache Dam Project compulsory acquisition, or in the alternative an order compelling the 3rd Respondent to deposit the compensation awards in court. The Applicant claimed beneficial and/or registered ownership of the suit parcels and asserted the intended compensation to the 1st and 2nd Respondents was erroneous and unlawful. The 1st Defendant, Mkala Mwero Bora, in a 31-paragraph replying affidavit, asserted registered ownership of parcels 797-808 backed by title deeds and an adjudication committee verdict of 16th November, 2010; the 2nd Defendant claimed parcels 811, 813-816 and 818. He further contended the dispute arose from adjudication concluded over 15 years ago, that the Applicant had already been compensated, and that the application was an abuse of process given a parallel suit, Kwale ELCPCC No. E004 of 2025, in which Justice Naikuni issued status quo orders on 19th December, 2025. Framing three issues - the Giella threshold, entitlement to reliefs, and costs - the court found a prima facie case but held the Applicant had not demonstrated irreparable harm beyond monetary compensation, and that the balance of convenience tilted toward the elderly Respondents. However, preservation of the substratum of the suit remained necessary. The application was dismissed for failing the Order 40 Rule 1 threshold, but the court directed that status quo as at the date of the ruling be maintained pending the hearing and determination of the main suit: no compensation to be released and no sale, lease, transfer or construction on the suit properties. A pre-trial conference was set for 17th June, 2026 and hearing for 17th July, 2026, with costs of the application in the cause.

Key legal issues

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01

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

Holding

The Applicant demonstrated a prima facie case, having raised issues touching on proprietary rights and compensation, though the Respondents' title deeds and adjudication committee verdicts cast doubt on the claim

Reasoning

The Applicant deponed ownership of the suit parcels and alleged compensation was being wrongly directed to the 1st and 2nd Respondents. Applying Mrao Ltd v First American Bank, the court found the Applicant had shown an apparent right arguably infringed so as to call for rebuttal, though the Respondents exhibited title deeds and adjudication committee verdicts dating back to 2010 confirming their ownership.

p. 7
02

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

The Applicant did not demonstrate irreparable harm beyond monetary compensation; the second Giella condition was not satisfied on the applicant's side

Reasoning

The Applicant averred he would be rendered homeless and landless if compensation was paid to the Respondents. However, the Respondents contended the Applicant had already been compensated in Kwale ELCPCC No. E004 of 2025. Applying Nguruman and Pius Kipchirchir Kogo, the court held the Applicant had not demonstrated irreparable harm beyond monetary compensation.

p. 7
03

Where the balance of convenience lay

Holding

The balance of convenience lay with the Respondents, but preservation of the substratum of the suit remained necessary, justifying maintenance of status quo

Reasoning

The Respondents are elderly and stand to suffer prejudice if their compensation is withheld, while the Applicant's claim was weakened by lack of documentary proof of ownership. Applying Amir Suleiman v Amboseli Resort, the court opted for the lower risk of injustice by preserving the subject matter to avoid rendering the proceedings nugatory.

p. 8
04

Costs of the application

Holding

Costs shall be in the cause, given the direction that status quo be maintained pending the hearing of the main suit

Reasoning

Under Section 27(1) of the Civil Procedure Act, costs follow the event, and the successful party is typically entitled to costs. However, since the court directed that status quo be maintained pending the hearing and determination of the main suit to preserve the substratum of the case, it was fair and reasonable that costs of the application be in the cause.

p. 10

Legal principles established

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  • The three Giella conditions for an interlocutory injunction must be applied as separate, distinct and logical hurdles to be surmounted sequentially; a prima facie case alone is not sufficient
  • An applicant for an interlocutory injunction must demonstrate irreparable injury that cannot be adequately compensated by an award of damages; speculative injury will not suffice
  • In responding to prayers for 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; the successful party is entitled to costs unless there are compelling reasons to decide otherwise

Court orders

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  1. 1.The Notice of Motion application dated 17th December, 2025 was dismissed for failing to meet the threshold for grant of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
  2. 2.Notwithstanding the dismissal, status quo prevailing as at the date of the ruling to be maintained pending hearing and determination of the main suit - no compensation to be released and no dealings (sale, lease, transfer, or construction) in respect of the suit properties until the suit is heard and determined
  3. 3.Pre-trial conference on 17th June, 2026 in accordance with the Civil Procedure Rules, 2016
  4. 4.Hearing on 17th July, 2026, preferably through physical means
  5. 5.Costs of the Notice of Motion application dated 17th December, 2025 to be in the cause
Jurisdiction invoked
Sections 3, 3A and 63 of the Civil Procedure Act, Cap. 21; Order 40 Rules 1 and 2 and Order 51 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, "Mwanaloma v Bora & 2 others (Environment and Land Case E137 of 2025) [2026] KEELC 2783 (KLR)", Case Analysis (2026). Not stated in judgment (ELC at Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24

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