Mgunya v Chongowe & another (Civil Case E004 of 2026) [2026] KEELC 4667 (KLR)
The bottom line
#A Kwale landowner won't block compensation payment over his disputed Mwache Dam land, but the National Land Commission must hold the money until a court decides who owns it.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicant established a prima facie case with probability of success
Yes - the title deed in the applicant's favour was uncontested and the 1st Defendant had adduced no evidence of ownership
The court noted the title deed presented showing the applicant as proprietor, that the 1st Defendant claimed ownership despite having no title document and had not presented evidence, and that substituted service was unconfirmed. Article 40 protects property rights and compulsory acquisition attracts fair compensation. On that material the applicant crossed the first Giella hurdle.
Whether the applicant demonstrated irreparable harm
No - the 2nd Defendant had suspended compensation and undertook to pay only the party declared the rightful owner by the court
The National Land Commission confirmed no compensation had been paid, verification of the bona fide proprietor was ongoing, and awards in respect of the property were suspended pending resolution of the ownership dispute. Any loss would be pecuniary and capable of being remedied since the Commission would abide by the court's final decision on ownership. The applicant therefore failed the second hurdle.
Balance of convenience
It favoured preserving the suit property rather than granting the injunction
Given the Commission's undertaking not to release compensation until ownership was settled, the balance of convenience lay in maintaining the status quo rather than injuncting the statutory acquisition process for a project of national importance. The court therefore preserved the property by continuing the status quo orders issued on 2nd January 2026.
Costs of the application
Each party to bear its own costs
Although costs normally follow the event under section 27(1) of the Civil Procedure Act and the applicant did not secure the injunctive orders, the court considered the circumstances of the case - the ongoing ownership dispute and the preservation of status quo - and directed each party to bear its own costs.
Legal principles established
#- The three Giella v Cassman Brown conditions for a temporary injunction are sequential hurdles which must each be surmounted; a prima facie case alone is insufficient and leap-frogging to the balance of convenience is impermissible
- A registered proprietor whose property is compulsorily acquired is entitled to compensation which is adequate, prompt, fair and reasonable
- Irreparable harm is harm that cannot be adequately compensated in damages; where the acquiring authority undertakes to withhold compensation pending determination of ownership, no such harm is demonstrated
Court orders
#- 1.That the status quo orders earlier issued by this court on 2nd January 2026 to remain in place pending the hearing and determination of the suit
- 2.That each party to bear its own costs
- Jurisdiction invoked
- Article 40 of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Cap. 21; Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mgunya v Chongowe & another (Civil Case E004 of 2026) [2026] KEELC 4667 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 28th January, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4667/eng@2026-07-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.