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ELCPartially AllowedEnvironment and Land Appeal No. E002 of 2026 (Fast-Track)

Hassan Hussein Hassan Mitan (Suing on his own behalf and as the Administrator of the Estate of Hussein Hassan Mitan) v Isamil Maalim Alio

Environment and Land Court
8 October 2026
3,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Garissa temporarily stopped quarrying on disputed Mandera land, but only for sixty days while the appeal is fast-tracked.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Garissa, delivered by Dr. Omondi R. Owino on 8 October 2026, determines a Notice of Motion dated 6 February 2026 in a fast-track appeal against a subordinate court ruling of 21 January 2026 that discharged interim injunctive orders in Mandera CMELC No. E009 of 2024, a land dispute over Jirma Farm, Farm No. 11, in Fikow Location, Mandera East, involving alleged quarrying on land claimed by the estate of Hussein Hassan Mitan. The Appellant sought a temporary injunction against mining, excavation and quarrying pending the appeal, and a stay of the subordinate court suit. The Respondent opposed, alleging the Appellant was using interim protection to delay the trial. The Court grounded its jurisdiction in Order 42 Rule 6(6) of the Civil Procedure Rules, holding that the mistaken citation of rule 5(2)(b) of the Court of Appeal Rules was not fatal. Applying Patricia Njeri v National Museum of Kenya, Giella v Cassman Brown and related authorities, it found the appeal not frivolous, particularly on the question whether the parties were heard before discharge; found a real risk of irreparable injury to the land not compensable in damages; and found the appeal would be rendered nugatory if quarrying resumed. It held that a stay requires separate justification but found a short continuation justified within a defined period. The motion was allowed on terms: the injunction and stay continue conditionally upon prosecution of the appeal to disposal within sixty days (on or before 7 December 2026), with a complete record of appeal to be filed within fourteen days, priority directions on 9 November 2026, automatic lapse on default, no authorization of eviction or self-help, and costs to abide the appeal.

Questions the Court framed

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

  1. 1.Whether a temporary injunction should issue pending determination of the appeal.
  2. 2.Whether proceedings in Mandera CMELC No. E009 of 2024 should be stayed.
  3. 3.What conditions and consequential directions should accompany the relief.

Key legal issues

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01

Jurisdiction to grant a temporary injunction pending appeal

Holding

The Court has jurisdiction under Order 42 Rule 6(6); the appeal was instituted within the prescribed period, and the mistaken citation of rule 5(2)(b) of the Court of Appeal Rules does not defeat the application.

Reasoning

The memorandum of appeal was filed on 6 February 2026 against the ruling of 21 January 2026, within the prescribed period. Rule 5(2)(b) governs Court of Appeal applications only, but the substantive foundation is Order 42 rule 6(6), so the erroneous citation is not fatal.

p. 3
02

Arguability of the appeal against discharge of the interim injunction

Holding

The appeal is not frivolous; it raises bona fide procedural and discretionary questions, particularly the alleged lack of opportunity to be heard before discharge.

Reasoning

The Appellant questions the discharge in a ruling also concerned with expunging documents, the opportunity to address discharge, and consideration of threatened degradation. These are identifiable questions of procedure and discretion, sufficient at the interlocutory stage without conclusively deciding the appeal.

p. 5
03

Irreparable harm and risk of rendering the appeal nugatory

Holding

Resumed quarrying poses a real risk of injury not compensable in damages, and a successful appeal could be rendered nugatory if the land is depleted before determination.

Reasoning

The apprehended harm is removal of soil and stone, creation of pits and permanent alteration of the land's physical character; monetary value of extracted material does not mean damages would restore depleted land. If quarrying resumes, a successful appeal may restore an injunction only after the resource is gone.

p. 6
04

Stay of the subordinate court proceedings

Holding

A short continuation of the existing stay is justified only within a defined sixty-day period, because the appeal concerns withdrawal of protection arising from the conduct of the ongoing trial and could be overtaken by the suit.

Reasoning

A stay requires separate justification beyond preservation; an arguable appeal alone does not justify suspension. Protection pending appeal can coexist with continued proceedings. A short continuation allows the interlocutory controversy to be resolved before the trial proceeds further.

p. 7
05

Effect of the beneficiary's conduct on equitable relief

Holding

Delay concerns justify conditions on further protection but do not require the Court to assume every disputed procedural step was abuse or to leave the property exposed.

Reasoning

An injunction is equitable and its beneficiary must prosecute proceedings diligently; the Nguruman rationale on delaying tactics is relevant. But the adequacy of the Appellant's explanations remains for the appeal, so the Court neither disregards the trial court's concerns nor absolves the Appellant.

p. 6

Legal principles established

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  • Order 42 Rule 6(6) of the Civil Procedure Rules empowers the Environment and Land Court, when exercising appellate jurisdiction, to grant a temporary injunction on just terms where the appeal has been properly instituted.
  • An injunction pending appeal is discretionary; the appeal must not be frivolous, refusal must risk rendering the appeal nugatory, and the relief must not inflict greater hardship than it avoids.
  • A stay of proceedings seriously interferes with a litigant's right to conduct proceedings and must be granted sparingly; an arguable interlocutory appeal alone does not justify suspending the substantive suit.
  • An interlocutory appeal should not resolve issues reserved for trial.

Court orders

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  1. 1.Prayer 3 on the face of the Notice of Motion dated 6 February 2026 granted.
  2. 2.Grant of prayer 3 and stay of proceedings in Mandera CMELC No. E009 of 2024 granted on 25 February 2026 to continue, subject to conditions.
  3. 3.Injunction and continued stay conditional upon completion of filing requirements and prosecuting the appeal to disposal within sixty (60) days from 8 October 2026, being on or before 7 December 2026.
  4. 4.Appellant to file and serve a complete record of appeal within fourteen days from 8 October 2026.
  5. 5.Appellant to file and serve submissions on the substantive appeal within seven days after service of the record; Respondent within seven days thereafter.
  6. 6.Deputy Registrar to promptly call for the subordinate court file and place the appeal before the Court for directions on 9 November 2026, for priority hearing and determination within the prescribed sixty days.
  7. 7.If the Appellant fails to file and serve the record within the directed period, the injunction and stay shall automatically lapse unless the Court orders otherwise; both orders to cease upon determination of the appeal or expiry of the sixty-day period on 7 December 2026, whichever occurs first; upon lapse of the stay, the subordinate court proceedings may resume.
  8. 8.The orders do not authorize eviction, transfer of possession or self-help by either party.
  9. 9.Costs of the application to abide the outcome of the appeal.

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court (Mandera CMELC)
Mandera CMELC No. E009 of 2024
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules

Relief refused

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Any determination of ownership, validity of the allotment letter or ultimate entitlement to possession

Interlocutory appeal should not resolve issues reserved for trial.

p. 4

Setting aside the subordinate court's discharge order or final reinstatement of its injunction

Those questions remain for the substantive appeal.

p. 7

Costs

Costs of the application shall abide the outcome of the appeal.

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.

The Notice of Motion dated 6 February 2026 is therefore allowed on the following terms:
p. 7Disposition
The injunction and continued stay are conditional upon completion of the filing requirements and prosecuting the appeal to disposal within sixty (60) days from 8 October 2026, being on or before 7 December 2026.
p. 8Conditional relief and timetable
If the Appellant fails to file and serve the record within the directed period, the injunction and stay shall automatically lapse, unless the Court orders otherwise before that period expires.
p. 8Default/lapse provision
These orders do not authorize eviction, transfer of possession or self-help by either party.
p. 8Limits of the orders
Costs of the application shall abide the outcome of the appeal.
p. 8Costs
I am therefore satisfied, for purposes of temporary protection, that the evidence demonstrates a real risk of injury which would not be adequately remedied by an eventual monetary award.
p. 6Irreparable harm
The Appellant has therefore demonstrated the risk of rendering the appeal nugatory, as contemplated in Patricia Njeri & 3 others v National Museum of Kenya.
p. 6Nugatory risk

Issues in the judgment

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minor

Sixty-day period from 8 October 2026 stated to end on 7 December 2026; date arithmetic not verifiable on the face of the judgment.

minor

Respondent's name printed inconsistently ('ISAMIL MAALIM' in caption, 'Isamil Maalim Alio' in heading).

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, "Hassan Hussein Hassan Mitan (Suing on his own behalf and as the Administrator of the Estate of Hussein Hassan Mitan) v Isamil Maalim Alio", Case Analysis (2026). Environment and Land Appeal No. E002 of 2026 (Fast-Track). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6297/eng@2026-10-08

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