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ELCAllowedNotice of Motion application dated 17th December, 2025 (ELC, Kwale)

Bati v Maunga & another (Land Case E138 of 2025) [2026] KEELC 3871 (KLR)

Environment and Land Court
15 June 2026
5,457 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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The Environment and Land Court in Kwale has frozen a Kshs 9.19 million compensation payout for acquired land until a family ownership dispute is resolved.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale (Hon. Mr. Justice L.L Naikuni, J) on a Notice of Motion dated 17th December, 2025 by Nguttah Nyamawi Bati, the Plaintiff/Applicant, seeking interlocutory injunctions restraining the Defendants/Respondents from actualizing compensation for parcel Kwale/Chigato/699, earmarked for compulsory acquisition under the Mwache Dam Project, or in the alternative an order compelling the National Land Commission (NLC) to deposit the compensation in court. The Applicant claimed to be a beneficial owner of the suit property, registered in the name of Guni Bati (deceased), said to have held it in trust for the family of Bati Mbui. The 1st Respondent, son and successor of the registered owner, opposed the application, asserting he was the rightful heir entitled to the award of Kshs. 9,190,070/-. The NLC stated it had not paid any compensation, was holding payment in abeyance pending resolution of the ownership dispute, and would abide by the court's determination. The court framed three issues: merit of the application, entitlement to the orders sought, and costs. Setting out the compulsory acquisition process from Patrick Musimba v NLC and applying the Giella v Cassman Brown principles, the court found the suit had merit, that irreparable loss was proved and the balance of convenience favoured the Applicant. The application was allowed; an injunction was issued restraining actualization of compensation and any selling, leasing or constructing on the suit property pending determination of the suit. A Pre-Trial Conference was set for 15th July, 2026 before ELC No. 2 Kwale, and costs were awarded to the Applicant against the Defendants/Respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Motion application dated 17th December, 2025 by the Plaintiff/Applicant has any merit.
  2. 2.Whether the Applicant herein is entitled to the orders sought.
  3. 3.Who will bear the costs of the application?

Key legal issues

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01

Whether the application for injunction pending determination of the suit had merit

Holding

The application had merit because the substratum of the suit was the apprehension that compensation for the compulsorily acquired property may be paid to the wrong party before proprietary rights are determined.

Reasoning

The court set out the compulsory acquisition process under the Land Act as explained in Patrick Musimba v NLC, noting that compensation is to be paid promptly in full to persons whose interests in land have been determined. Since the ownership dispute was unresolved, the application rightfully came before the court.

p. 9
02

Whether the Applicant established a prima facie case, irreparable loss and balance of convenience

Holding

The Applicant established irreparable loss and that the balance of convenience tilted in his favour; he was entitled to the injunction orders sought.

Reasoning

The court noted the Applicant annexed a family agreement on sharing compensation and evidence of pursuing a grievance through Frontman Consultants which was unaddressed. The 1st Respondent was adamant on receiving the compensation to the detriment of other claimants, while the 2nd Respondent had not released the funds pending resolution of ownership. Preserving the property pending trial protected the court from issuing orders in vain.

p. 10
03

Costs of the application

Holding

Costs follow the event under section 27(1) of the Civil Procedure Act; the successful Applicant was awarded costs against the Defendants/Respondents.

Reasoning

The court exercised its discretion on costs, noting that costs mean an award granted at the conclusion of proceedings and by the proviso to section 27(1) of the Civil Procedure Act costs follow the events, meaning the results or outcome in any legal action. Having successfully prosecuted the application, the Applicant was entitled to costs.

p. 11

Legal principles established

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  • The conditions for the grant of an interlocutory injunction are: a prima facie case with a probability of success; irreparable injury not adequately compensable by damages; and, if in doubt, the balance of convenience.
  • Before payment of compensation for compulsory acquisition, the court must establish who the legitimate owner of the suit property is so compensation is paid to the rightful owner.
  • Property in dispute in a suit which is in danger of being wasted, damaged or alienated may be preserved by temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules.

Court orders

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  1. 1.That the Notice of Motion application dated 17th December, 2025 be and is hereby found to be meritorious and hence allowed.
  2. 2.That pending the hearing and determination of this suit, an injunction be issued against the Defendants/Respondents and/or their agents from actualizing compensation regarding parcel Kwale/Chigato/699, or any actions on selling, leasing or constructing under the suit property, pending the hearing and determination of the suit.
  3. 3.That a Pre-Trial Conference be conducted on 15th July, 2026 pursuant to Order 11 of the Civil Procedure Rules, 2010 before ELC No. 2 Kwale, which Court shall fix the matter for hearing appropriately.
  4. 4.That costs of the application to be paid to the Plaintiff/Applicant by the Defendants/Respondents.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Sections 3, 3A and 63 of the Civil Procedure Act, Cap. 21; Order 40 Rule 1 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That pending the hearing and determination of this suit, the Honourable Court be pleased to issue an injunction against the Defendants/Respondents and/or their agents from actualizing compensation regarding parcel Kwale/ Chigato/ 699, or any actions on selling, leasing or constructing under the suit property, pending the hearing and determination of the suit case.
p. 11Final orders - injunction restraining actualization of compensation
That the Notice of Motion application dated 17th December, 2025 be and is hereby found to be meritorious and hence allowed.
p. 11Final orders - application allowed
That costs of the application to be paid to the Plaintifi/Applicant by the Defendants/ Respondents herein.
p. 11Final orders - costs
The conditions for the grant of an interlocutory injunction are well settled in East Africa. First, an Applicant must show a prima facie case with a probability of success.
p. 9Giella v Cassman Brown principles
The Court in responding to prayers for interlocutory injunctive reliefs, should always opt for the lower rather than the higher risk of injustice.
p. 10Balance of convenience
Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself suficient.
p. 10Irreparable injury

Issues in the judgment

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minor

The judgment is internally inconsistent as to the 1st Respondent's position: the 1st Respondent's Replying Affidavit asserts he holds the title and is entitled to the award, while the 2nd Respondent's affidavit states the person in the Gazette Notice (Nguni/Guni Bati) had not presented a valid title document and compensation was held in abeyance pending resolution of the ownership dispute.

minor

The Applicant's further affidavit describes the 1st Respondent as having taken out limited Letters of Administration ad litem 'as confessed in his Replying Affidavit', but the Replying Affidavit as extracted does not contain that confession, creating a possible inconsistency in the record as summarized.

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, "Bati v Maunga & another (Land Case E138 of 2025) [2026] KEELC 3871 (KLR)", Case Analysis (2026). Notice of Motion application dated 17th December, 2025 (ELC, Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3871/eng@2026-06-15

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