Mwanaloma v Bora & 2 others (Environment and Land Case E137 of 2025) [2026] KEELC 2783 (KLR)

II. The Plaintifi/Applicant’s case 3. 4. The Applicant sought for the following orders: a. Spent. b. Spent. c. That pending the hearing and determination of this suit, the Honourable Court be pleased to issue an injunction against the Respondents and/ or their agents from actualizing compensation regarding Kwale/Chigato/705, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 811, 813, 814, 815, 816, and 818, or any actions on selling, leasing or constructing under the suit property, pending the hearing and determination of the suit case. d. That in the alternative to 2 and 3 above, the Honourable Court issues orders compelling the 3rd Respondent to deposit the awards/compensations regarding Kwale/Chigato/ 705, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 811, 813, 814, 815, 816, and 818 in court. e. That cost of this application be provided for. The application by the Applicant was premised on the grounds, facts and testimony on the face of the application and further supported by the 13 paragraphed annexed afidavit of Mwanaloma Kitumbo Mwanaloma, the Applicant herein sworn on the same day as the Application . The Deponent averred that: a. He was the beneficial and/or registered owner of all those parcels of land known as the Land Reference Number Kwale/Chigato/705, 797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807, 808, 811, 813, 814, 815, 816 and 818 (Hereinafter referred to as “The Suit Property”). b. The suit properties had been earmarked for compulsory acquisition for public use under the Mwache Dam Project. c. The 3rd Respondent had commenced and/or initiated the compensation process in respect of the said compulsory acquisition. d. Despite his ownership and/or beneficial interest in the suit properties, the 3rd Respondent had indicated its intention to compensate the 1st and 2nd Respondents as the owners of the said parcels of land. e. The intended compensation of the 1st and 2nd Respondents was erroneous, unlawful, and was being undertaken without regard to his proprietary interest in the suit properties. f. Unless the Honourable Court urgently intervened and issued injunctive orders stopping the compensation, the 3rd Respondent would proceed to release compensation monies to the 1st and 2nd Respondents, thereby extinguishing his interest in the suit properties without due process. g. He stood to sufier irreparable loss and damage if the compensation was paid out to the wrong parties, as he would be rendered homeless and landless, a loss which could not be adequately compensated by an award of damages. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 2

page 2 of 10

h. He was aware the 3rd Respondent had already issued award letters, and there existed a real and imminent risk that compensation monies would be released without further notice unless the application was certified as urgent and heard immediately. i. Once compensation was paid to the 1st and 2nd Respondents, the substratum of the suit would be destroyed and the suit rendered nugatory. j. It was in the interest of justice, equity, and fairness that the orders sought in the Notice of Motion be granted to preserve the suit properties and/or compensation pending the hearing and determination of the suit. k. The application had been brought in good faith, timeously, and without undue delay. l. What was deponed to therein was true to the best of his knowledge, information, and belief. III. The Response by the 1st Defendant 5. The 1st Defendant responded to the Notice of Motion application dated 17th December, 2025 through a 31 Paragraphed Replying Afidavit sworn by Mkala Mwero Bora, on 10th February, 2026 wherein the Afiant deponed as follows that:a. Categorically stated from the onset that the 1st Defendant owned land parcels No. Kwale/ Chigato/797, 798, 799, 800, 801, 802, 803, 804, 805, 806, 807 and 808, all situated at Kinango within Kwale County. The Afiant annexed and marked as “MM – 2” were copies of the title deeds. b. Further deponed that the 2nd Respondent owned land known as Land Reference number Kwale/Chigato/811, 813, 814, 815, 816 and 818. c. The Applicant had sued two separate landowners claiming an interest in their land in the same suit, thereby rendering the suit defective. d. In any event, the 2nd Respondent had already been compensated for his land by the 3rd Respondent. e. The Applicant was not a beneficial owner and did not have any interest known in law over the suit properties. f. The dispute between the Applicant and the 1st Respondent arose during the adjudication process and was determined by the Adjudication Committee, which awarded the 1st Defendant the suit properties. Thereafter, title deeds were issued. The Afiant annexed and marked as “MM - 3 (a) and (b)” were copies of the Complaint and the verdict of the adjudication committee issued on 16th November, 2010. g. The Applicant had approached the Honourable Court with unclean hands, having together with others filed “Kwale ELCPCC No. E004 of 2025 – Mgandi Mzungu Mgandi & 9 Others – Versus - Mkala Mwero Bora & 3 Others” dated 17th December, 2025. On 19th December, 2025, the matter was placed before Hon. Justice Naikuni, who issued orders of status quo. The Afiant annexed and marked as “MM – 4” was a copy of the said application and consequent order. h. Being the 7th Applicant in the above-mentioned suit, dissatisfied with the order of the Court, proceeded to file the present suit without disclosing the existence of a similar suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 3

page 3 of 10

i. The orders issued herein were at variance with those issued by Hon. Justice Naikuni on 19th December, 2025, the present orders having been issued on 22nd December, 2025. j. The suit properties and parties concerned were similar. k. Based on the order issued in Kwale ELCPCC No. E004 of 2025, the Applicant deliberately omitted the Adjudication Land Oficer (Kinango) and the Land Registrar Kwale to disguise the matter as a common land dispute, yet the actual issue was a dispute arising out of adjudication concluded over 15 years ago. l. It was in the interest of justice that both applications be placed before the Honourable Judge to unravel the mischief. m. His advocates on record had written to the Deputy Registrar, Environment and Land Court at Kwale, requesting that the other file be placed before the Learned Judge on 26th February, 2026. n. His family and he were issued with awards for compensation by the National Land Commission in a process that involved inquiries and presentation of title documents. o. The Applicant only moved the Honourable Court after he had been issued with awards for compensation for his properties. p. The Applicant had already been compensated for his parcels of land and did not sufier any damage since he had no valid claim over the Afiant’s properties. q. The process of compensation was not a one-ofi procedure but involved surveying of property, enumeration of trees and crops, valuation of houses, structures, and graveyards. r. Upon completion of this exercise, the 3rd Respondent conducted a public inquiry wherein persons afiected by the project produced title documents, succession matters were addressed, and awards issued upon satisfaction of valid documentation. s. The above process took over three years, and it was malicious and late in the day for the Applicant to allege proprietary rights without having challenged the process at the appropriate time. t. The dispute between the Applicant and himself arose from land adjudication process determined over 15 years ago, with title deeds issued more than 10 years ago. u. The Applicant would not sufier prejudice since he had already been compensated together with his family for their land. v. On the contrary, he was an elderly person and patriarch of his family who stood to sufier irreparable loss since their compensation had been unlawfully stopped. w. A cursory glance at the Applicant’s application and suit revealed that it did not disclose any cause of action, as the Applicant had not filed annexures to support proprietary rights. x. There was no valid reason to withhold a party’s rightful compensation, noting that an initial order superseded the present order, which was issued without material disclosure. y. The Applicant had approached the Honourable Court with unclean hands, having failed to secure favourable orders in the first application. z. The present application amounted to abuse of court process and urged the Court to vacate the orders issued herein forthwith. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 4

page 4 of 10

aa. Once an award had been issued, the National Land Commission’s mandate was concluded and the awardee was entitled to payment of compensation. ab. The Plaintifis had all benefited from their awards and their only intention was to deny him and his family the benefit of their awards. ac. He swore the afidavit in opposition to the application dated 17th December, 2025, which he prayed should be dismissed. IV. Submissions 6. On 26th February, 2026 while all the parties were present in Court, they were directed to have the Notice of Motion application dated 17th December, 2025 be disposed of by way of written submissions and all the parties complied. Unfortunately, by the time of penning down this Ruling, the Honourable Court could not access the submissions from neither the Judiciary CTS nor the ELC Registry. Nonetheless, the Court proceeded to deliver the Ruling on its own merit whatsoever on 24th April, 2026. V. Analysis and Determination 7. I have carefully read and considered the pleadings herein and the relevant provisions made by the by the parties. In order to arrive at an informed decision, the Honorable Court has framed the following three (3) issues for determination. a. Whether the Notice of Motion dated 17th December, 2025 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010. b. Whether the parties were entitled to the reliefs sought. c. Who will bear the Costs of Notice of Motion application 17th December, 2025. ISSUE a). Whether the Notice of Motion dated 17th December, 2025 meets threshold required of a temporary injunction under Order 40 Rules 1 of the Civil Procedures Rules, 2010. 8. Under this sub – title, the main issue here is whether the Plaintifi is entitled to be granted the relief of an interlocutory injunction. The application herein is premised under the provision of Order 40 Rule 1 of the Civil Procedure Rules 2010 amongst the provisions of the law. Which provides as follows: Order 40, Rule 1 Where in any suit it is proved by afidavit or otherwise— a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b) that the Defendant threatens or intends to remove or dispose of his property in circumstances afiording reasonable probability that the Plaintifi will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 5

page 5 of 10

9. Fundamentally, the principles applicable in an application for an injunction were laid out in the celebrated case of “Giella – Versus - Cassman Brown & Co Limited (1973) EA 358”, where it was stated: “ First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise sufier irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 10. The three conditions set out in “Giella (supra)”, need all to be present in an application for court to be persuaded to exercise its discretion to grant an order of interlocutory injunction. This was set out by the Court of Appeal in the case of “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 others [2014] eKLR”: -, “ These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. See Kenya Commercial Finance Co. Limited - Versus - Afraha Education Society [2001] Vol. 1 EA 86. If the applicant establishes a prima facie case that alone is not suficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will sufier, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between”. 11. In dealing with the first condition of prima facie case, the Honorable Court guided by the definition melted down in the famous case “Mrao Limited – Versus - First American Bank of Kenya Limited & 2 others (2003) KLR 125” of: -, “ So, what is a prima facie case, I would say that in civil cases it is a case in which on the material presented to the court a tribunal properly directing itself would conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter” ISSUE No. b). Whether the parties were entitled to the reliefs sought. 12. As the Court previously observed in this ruling, the Applicant deponed ownership of all parcels of land known as Land Reference Numbers Kwale/Chigato/705, 797–808, 811, 813–816, and 818, alleging that compensation was being wrongly directed to the 1st and 2nd Respondents. However, the Respondents exhibited title deeds and adjudication committee verdicts dating back to 2010 confirming their ownership. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 6

page 6 of 10

13. In the case of “Mbuthia – Versus - Jimba credit Corporation Limited 988 KLR 1”, the court held that:“ In an application for interlocutory injunctions, the court is not required to make final findings of contested facts and law and the court should only weigh the relative strength of the party’s cases.” 14. Similarly, in the case of “Edwin Kamau Muniu – Versus - Barclays Bank of Kenya Ltd” the court held that; “ In an interlocutory application to determine the very issues which will be canvassed at the trial with finality All the court is entitled at this stage is whether the applicant is entitled to an injunction sought on the usual criteria.” 15. In the present case, regarding this first condition though, the Plaintifi/ Applicant has demonstrated a prima facie case with a probability of successat the trial as enunciated in the case of “Giella -Versus Cassman Brown & Co. Ltd (Supra)”. 16. The court has further considered the annextures on record against the second principle for the grant of an injunction, that is, whether the Plaintifi/ Applicant might sufier irreparable injury which cannot be adequately compensated by an award of monetary damages. With regards to the second limb of the Court of Appeal in “Nguruman Limited (supra)”, held that, “ On the second factor, that the applicant must establish that he “might otherwise” sufier irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 17. On the issue whether the Applicants will sufier irreparable harm which cannot be adequately compensated by an award of damages, the Applicants must demonstrate that it is a harm that cannot be quantified in monetary terms or cannot be cured. The Plaintifi/ Applicant has to demonstrate that irreparable injury will be occasioned to them if an order of temporary injunction is not granted. The judicial decision of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (2018) eKLR” provides an explanation for what is meant by irreparable injury and it states; “ 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. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 18. The Applicant averred that he would be rendered homeless and landless if compensation was paid to the Respondents. Yet, the Respondents contended that the Applicant had already been compensated in Kwale ELCPCC No. E004 of 2025. Quite clearly, the Applicant has not demonstrated irreparable https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 7

page 7 of 10

harm beyond monetary compensation. The Applicants have therefore satisfied the second condition as laid down in “Giella’s case”. 19. Thirdly, the Applicant has to demonstrate that the balance of convenience tilts in their favour. In the case of “Pius Kipchirchir Kogo – Versus - Frank Kimeli Tenai (Supra)” which defined the concept of balance of convenience as: “ The meaning of balance of convenience will favour of the Plaintifi' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintifis, the inconvenience caused to the Plaintifi would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintifis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plaintifi who will sufier. In other words, the Plaintifi has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting”. 20. In the case of “Paul Gitonga Wanjau – Versus - Gathuthis Tea Factor Company Ltd & 2 others (2016) eKLR”, the court dealing with the issue of balance of convenience expressed itself thus:“ Where any doubt exists as to the Applicants’ right, or if the right is not disputed, but its violation is denied, the court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the injury which the Respondent on the other hand, would sufier if the injunction was granted and he should ultimately turn out to be right and that which the Applicant, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right... Thus, the court makes a determination as to which party will sufier the greater harm with the outcome of the motion. If Applicant has a strong case on the merits or there is significant irreparable harm, it may infiuence the balance in favour of granting an injunction. The court will seek to maintain the status quo in determining where the balance of convenience lies.” 21. The Respondents are elderly and stand to sufier prejudice if their compensation is withheld. The Applicant’s claim is weakened by lack of documentary proof of ownership. Here, the balance tilts in favour of the Respondents, but preservation of the substratum of the suit remains necessary to avoid rendering the proceedings nugatory. The decision of “Amir Suleiman – Versus - Amboseli Resort Limited [2004] eKLR” where the learned judge ofiered further elaboration on what is meant by “balance of convenience” and stated; “ The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 22. The balance of convenience lies with the Respondents in this case but the preservation of the substratum of the suit remains necessary. Bearing this in mind, I am convinced that there is a lower risk in safeguarding the subject matter of the suit and avoiding rendering the proceedings nugatory, the Court finds its just to preserve status quo. This is especially so because I have not had opportunity to interrogate all the documents that might be relevant in providing a history and/or chronology of events leading to the claim of the Applicants and it will be in the interest of both the Applicants and the Respondents that the suit property is preserved until the hearing and determination of the suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 8

page 8 of 10

23. In the case of:- “Robert Mugo wa Karanja – Versus - Ecobank (Kenya) Limited & Another [2019) eKLR” where the court in deciding on an injunction application stated; “ circumstances for consideration before granting a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party of the suit or wrongfully sold in execution of a decree or that the Defendant threatens or intends to remove or dispose the property; the court is in such situation enjoined to a grant a temporary injunction to restrain such acts...” 24. In the long run, therefore, I am convinced that if orders of status quo are not granted in this suit, the property in dispute might be in danger of being dealt in the manner set out in the application and apprehended by the Parties. ISSUE c). Who will bear the Costs of Notice of Motion application 17th December, 2025. 25. It is now well established that the issue of Costs is at the discretion of the Court. Costs meant the award that is granted to a party at the conclusion of the legal action, and proceedings in any litigation. The Proviso of Section 27 (1) of the Civil Procedure Rules Cap. 21 Laws of Kenya holds that Costs follow the events. By the event, it means outcome or result of any legal action. This principle encourages responsible litigation and motivates parties to pursue valid claims. See the cases of “Harun Mutwiri – Versus - Nairobi City County Government [2018] eKLR and “Kenya Union of Commercial, Food and Allied Workers – Versus - Bidco Africa Limited & Another [2015] eKLR, the court reafirmed that the successful party is typically entitled to costs, unless there are compelling reasons for the court to decide otherwise. 26. I have well stated in previous precedence and most especially in “Sagalla Lodge Limited – Versus Samwuel Mazera Mwamunga & another (Suing as the Executors of Eliud Timothy Mwamunga – Deceased) [2022] eKLR”, that: “ 58. The Black Law Dictionary defines “Cost” to means, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”. The provisions of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow events. The issue of Costs is the discretion of Courts. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. The events in this case is that the Notice of Motion application dated 7th December, 2021 by the Plaintifi has succeeded and hence they are entitled to costs of the application and that of the Defendants dated 21st December, 2021.” 27. The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of “Hussein Muhumed Sirat – Versus - Attorney General & Another [2017] eKLR, the court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances. In line with the Court’s reasoning, the Notice of Motion application dated 17th December, 2025 was found not to meet the threshold for grant of a temporary injunction under the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 9

page 9 of 10

28. However, the Court directed that the status quo be maintained pending the hearing and determination of the main suit so that the substratum of the case is preserved.In the given circumstances, it will be fair and reasonable that the Costs of the application shall be in the cause. VI. Conclusion and Disposition 29. Ultimately, the Honorable Court has carefully considered and weighed the confiicting parties’ interest as regards to balance of convenience. Clearly, the Plaintifi/Applicant has raised issues touching on proprietary rights and compensation, but the Defendants/ Respondents have exhibited title deeds and adjudication committee verdicts which cast doubt on the Applicant’s claim.. 30. Having said that much, there will be need to preserve the suit properties in the meantime so as not to render the main suit nugatory. In a nutshell, I proceed to order the following: – a. That the Notice of Motion application dated 17th December, 2025 be and is hereby dismissed for failing to meet the threshold for grant of a temporary injunction under the provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010. b. That notwithstanding dismissal, an order be and is hereby issued directing that the status quo prevailing as at the date of this ruling shall be maintained pending the hearing and determination of the main suit. For avoidance of doubt, no compensation shall be released and no dealings (sale, lease, transfer, or construction) shall be undertaken in respect of the suit properties until the suit is heard and determined. c. That for expediency sake, there be a Pre – Trial Conference conducted on 17th June, 2026 in accordance with the provision of the Civil Procedure Rules, 2016. There shall be a hearing on 17th July, 2026, preferably through Physical means. d. That the costs of the Notice of Motion application dated 17th December, 2025 shall be in the cause. It is so ordered accordingly. RULING DELIVERED THROUGH MICROSOFT TEAM VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 24TH DAY OF APRIL 2026. ……………………………………. HON. MR. JUSTICE L. L. NAIKUNI ENVIRONMENT AND LAND COURT KWALE Ruling delivered in the presence of: a. M/s. Daniel Disii, the Court Assistant. b. Mr. Chaka Advocate for the Plaintifi/Applicant. c. Mr. Waziri Advocate for the 1st & 2nd Defendants/Respondents. d. No appearance for the 3rd Defendant/Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2783/eng@2026-04-24 10

page 10 of 10