Margaret Malu William & another v Rachel Anyango Ogweno & another [2017] KEELC 307 (KLR)

The court applied the first limb of Giella v Cassman Brown. Although letters of allotment are not documents of title, the Plaintiffs produced Certificates of Official Search confirming ownership as at December 2016 and rate payment receipts. The 1st Defendant filed only grounds of opposition, no replying affidavit, and produced no documentation proving her claim of ownership from a Mr. Nzioki. The evidential imbalance established a prima facie case with probability of success.

The court noted the 1st Defendant did not deny encroaching on the suit land, had interfered with the mabati caretaker structure, and was erecting a fence despite the Plaintiffs' complaints to the police and the National Land Commission. The Plaintiffs' continued payment of land rates evidenced possession and enjoyment of the properties. The court found harm that could not adequately be compensated by an award of damages if the injunction was denied.

On the third Giella limb, the court observed that the Plaintiffs had exhibited documentary proof of ownership while the Defendants had produced nothing to substantiate their competing claim. Preservation of the status quo pending trial would therefore favour the party in documented possession, and the balance of convenience was held to tilt towards the Plaintiffs.

The 1st Defendant relied only on grounds of opposition without a replying affidavit or documentary evidence. The Plaintiffs' account of the 1st Defendant constructing a fence, ripping open the caretaker's mabati structure, and claiming ownership through a purchase from a Mr. Nzioki stood uncontroverted, supported by photographs and reports to the police and the National Land Commission.