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ELCDismissedELC Case No. 1 of Kwale (Notice of Motion dated 25th February 2026)· [2026] KEELC 5264 (KLR)

Tsango & 2 others v Mwachangoma & 3 others (Environment and Land Case E062 of 2025) [2026] KEELC 5264 (KLR)

Environment and Land Court
14 July 2026
5,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kwale court refused to stop tree-cutting and land sales because the claimants brought no title documents, only family history claims.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) determined a Notice of Motion dated 25th February 2026 by three Plaintiffs seeking a temporary injunction pending trial restraining four Defendants from cutting trees, selling timber or charcoal, burning charcoal, drilling boreholes, alienating or otherwise interfering with Kwale/Kirazini A/265, Kwale/Kirazini A/244 and Plot 115, land the Applicants claim as ancestral property of the estate of the late Betsango Mwaguta Chamoyo. The Defendants, sworn by Hussein Kaneno, denied the allegations, asserted registered proprietorship founded on the 1970s land adjudication process, produced copies of title deeds, OB reports and a prior criminal charge against members of the Applicants' family, and challenged the admissibility of the Applicants' photographs for want of a Section 106B certificate. Framing three issues, the court applied the Giella and Nguruman principles. It found the Applicants had failed to establish a prima facie case: no certificate of title, official search or other conclusive ownership evidence was tendered, while the Defendants had at least produced title deeds. Having failed the first hurdle, the remaining limbs of irreparable injury and balance of convenience fell away. On the photographs, the court held the certificate requirement is one of authentication, but where authenticity is not disputed the defect is one of form rather than substance at the interlocutory stage. The application was dismissed with each party bearing its own costs, and the suit was set down for pre-trial and hearing. The underlying ownership dispute remains for full trial.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

They did not; ownership allegations were unsupported by any title evidence while Defendants produced copies of title deeds

Reasoning

The Applicants claimed the suit properties as ancestral land of the estate of Betsango Mwaguta Chamoyo but tendered no certificate of title, official search or other conclusive evidence of ownership. The Defendants, as registered proprietors, produced copies of title deeds and OB reports. The court found the claim to be mere allegations unsupported by sufficient evidence, so the first Giella hurdle failed and the remaining limbs need not be considered.

p. 23
02

Admissibility of photographic (electronic) evidence without a Section 106B certificate

Holding

The certificate is required to authenticate electronic records, but where authenticity is not disputed, the photographs may be used at the interlocutory stage as a matter of form rather than substance

Reasoning

Section 106B of the Evidence Act requires a certificate identifying the electronic record and describing its production. The court accepted the mandatory nature of the requirement but noted the Defendants did not dispute the origin of the photographs, only the absence of a certificate. At the interlocutory stage the court treated this as an issue of form rather than substance, usable for preservation of the subject matter.

p. 30
03

Costs

Holding

Costs follow the event under Section 27(1) of the Civil Procedure Act, but the court exercised its discretion to order each party to bear its own costs

Reasoning

The court rehearsed the statutory discretion under Section 27(1) of the Civil Procedure Act, Cap. 21, noting that costs follow the event unless the court for good reason otherwise orders. Given the circumstances of the interlocutory dispute, the court directed that every party bear their own costs.

p. 31

Legal principles established

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  • The three Giella conditions for interlocutory injunction are conjunctive and must be satisfied sequentially; failure of one disposes of the application

Court orders

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  1. 1.The Notice of Motion application dated 25th February 2026 be and is hereby found to be unmeritorious and hence dismissed
  2. 2.A final Pre-Trial session on 19th October, 2026 pursuant to Order 11 of the Civil Procedure Rules, 2010; the scheduled hearing of 18th November, 2026 before ELC No. 1 Kwale preferably through Physical Means to be retained
  3. 3.Each party to bear its own costs
Jurisdiction invoked
Section 13(7)(a) of the Environment and Land Court Act, Environment and Land Court Practice Directions Rule 20, and Order 40 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, "Tsango & 2 others v Mwachangoma & 3 others (Environment and Land Case E062 of 2025) [2026] KEELC 5264 (KLR)", Case Analysis (2026). ELC Case No. 1 of Kwale (Notice of Motion dated 25th February 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5264/eng@2026-07-14

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