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ELCDismissedELC CASE NO. E035 OF 2023· [2026] KEELC 3933 (KLR)

Morigi v National Land Commission & 2 others (Environment and Land Case E035 of 2023) [2026] KEELC 3933 (KLR)

Environment and Land Court
23 June 2026
NMN. A. Matheka
2,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A landowner's bid to stop construction on his Athi River plot failed because partial compensation meant money, not an injunction, was the right remedy.

What this practically means

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Executive summary

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The Plaintiff, registered owner of L.R No. Athi River/Athi River Block 1/30 (0.8256 Ha) since 31st July 2008, moved the Court by amended Notice of Motion dated 6th November 2025 seeking temporary injunctions restraining the Defendants from interfering with, constructing on, transferring or dealing with the suit property, an order that the OCS Machakos provide security, and an order that the Defendants deposit Kshs. 38,087,036/= (the unpaid balance of a Kshs. 50,135,036/= compulsory acquisition award) in a joint interest-earning account. The Plaintiff alleged that a portion of his land (0.1951 Ha) was compulsorily acquired for the Athi River-Machakos Turnoff section of the Nairobi-Mombasa Road; he received Kshs. 12,000,000/= in two installments (2018 and 2019) leaving the balance unpaid, and that the 2nd and 3rd Defendants encroached on the entire parcel, constructing a water tunnel causing flooding and dumping construction materials. The 2nd Defendant contended the Plaintiff was compensated, possession taken, and that the road alignment was revised with no encroachment on the unacquired portion. Applying Giella vs Cassman Brown, Nguruman, Mrao, Kogo, Amir Suleiman and Robert Mugo wa Karanja, the court found the land was admittedly acquired for a public project and partially compensated; the 1st and 2nd Defendants being public bodies able to pay, damages were an adequate remedy, and the balance of convenience did not favour the Plaintiff. The application was dismissed with costs, the suit to proceed to full trial.

Key legal issues

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01

Prima facie case

Holding

Plaintiff showed ownership of the suit land but that alone, in the face of an admitted compulsory acquisition and part compensation, did not establish the required prima facie case for injunction

Reasoning

The court applied Giella and Nguruman, requiring a legal right apparently infringed. The land was acquired for a public road project and compensation was partly paid; the court noted it had not interrogated all documents, and found the risk of granting the injunction greater than refusing it, awaiting full trial.

p. 9
02

Irreparable injury and balance of convenience

Holding

Injury was compensable in damages; the public bodies could pay any decretal sum, so damages were an adequate remedy and the balance of convenience did not favour the Plaintiff

Reasoning

Relying on Kogo and Amir Suleiman, the court held the inconvenience/risk of granting the injunction outweighed refusing it, particularly since the compensation claim is quantifiable at Kshs. 38,087,036/=.

p. 8

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially satisfy prima facie case, irreparable injury and balance of convenience
  • Irreparable injury is injury that cannot be adequately compensated for in damages

Court orders

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  1. 1.The amended Notice of Motion dated 6th November 2025 is dismissed
  2. 2.Costs of the application to the Defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(1)
  • Land Registration ActSection 68(1)
  • Civil Procedure Rules, 2010Order 40 Rule 1

Cases cited (6)

  • Giella vs Cassman Brown
    (1973) EA 358
  • Nguruman Limited vs Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd vs First American Bank of Kenya Ltd
    (2003) EKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    (2018) eKLR
  • Amir Suleiman vs Amboseli Resort Limited
    (2004) eKLR
  • Robert Mugo wa Karanja vs Ecobank (Kenya) Limited & Another
    (2019) eKLR
Jurisdiction invoked
Article 40(1) of the Constitution of Kenya 2010; Section 68(1) of the Land Registration Act, 2012; 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, "Morigi v National Land Commission & 2 others (Environment and Land Case E035 of 2023) [2026] KEELC 3933 (KLR)", Case Analysis (2026). ELC CASE NO. E035 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3933/eng@2026-06-23

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