John Abong v Isadora Oluoch, Joachim Ochieng & Daniel Odhiambo

2) that OCS Mamboleo police station be directed to enforce compliance with the court’s orders over KISUMU/MAMBOLEO/13-SG. 3) The cost of the application be provided for. The application was supported by the contents of the Supporting Affidavit sworn by the plaintiff on 24th April, 2026 and the Further Affidavit sworn on 19th May, 2026. The application was opposed vide the averments in the Replying Affidavit of Esadora Aluoch Ondigo and the annexures thereto. The substantive prayer is for an order of temporary injunction pending hearing and determination of the suit. The grounds for grant of an order of temporary injunction are provided for in Order 40 Rule 1 of the Civil Procedure Rules, namely that where it is proved by affidavit or otherwise 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, the court may, by order, grant a temporary injunction to restrain such act. These grounds were amplified in the case of Giella vs Cassman Brown Co. Ltd (1973) 358, that the Applicant must establish a prima facie case with a probability of success; secondly, that an ELCLC E024/2026 RULING 2

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interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience. The grounds upon which the present application is brought are that the Plaintiff is the lawful owner and/or occupier of the suit property, that the 1st Defendant has unlawfully engaged the 2nd and 3rd Defendants to forcefully evict the Plaintiff from the suit land without any court orders, that the Defendants had already demolished the Plaintiff’s fence and gate and were threatening to remove the Plaintiff from the suit property, that the actions of the Defendants amount to trespass and that unless the Defendants are restrained, the Plaintiff stands to suffer irreparable loss and damage. The case of the 1st Respondent is that land parcel number KISUMU/MAMBOLEO/13-SG is unknown in law and non-existent in any land registry in the Republic of Kenya. That apparently the Applicant was conned and he ought to redirect his complaint to the person who took his money and misled him to the 1 st Respondent’s property. That the order of injunction sought should not be issued before the hearing of the case in full. ELCLC E024/2026 RULING 3

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The application was heard orally on 20th May, 2026. It was submitted on behalf of the applicant that the suit land was allotted to Caleb Ingolo, who sold it to the Plaintiff vide a sale agreement dated 12th October, 2021. That the Plaintiff has demonstrated a prima facie case with a probability of success. That the Applicant will suffer irreparable injury since he has been using the land since the year 2011. That the balance of convenience tilts in favour of the Plaintiff. On behalf of the Respondents, it was submitted that no prima facie case had been established. That there is no document to show ownership. That there is no land known as 13-SG Mamboleo, Kisumu Municipality. That there is no document known as an Offer Letter that can give title to land. That the letter from the Municipal Council of Kisumu dated 19th October, 2010 is not reliable, as there was no Municipal Council in place as at that date, as devolution had taken place. That the National Land Commission found that the allocations of land by the Municipal Council of Kisumu were illegal. That the 1st Respondent has a certificate of title which is proof of ownership by the 1st Respondent. ELCLC E024/2026 RULING 4

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That both the Applicant and the 1st Respondent claim to be in possession of the land. That the Applicant has not demonstrated that he is the occupant of the land. That no irreparable injury has been demonstrated. That the balance of convenience favours the 1 st Respondent, who holds title to the land and is in occupation. I have considered the application, the response thereto and the submissions. The documents exhibited by the Applicant to demonstrate the existence of land parcel No.13-SG and the fact that it belongs to the Applicant were a land sale agreement dated 12th October, 2011 vide which the Applicant claims to have bought land parcel No.13 – SG MAMBOLEO KISUMU MUNICIPALITY from one Caleb Ingolo Ngong’a, an Offer Letter dated 19th November, 2010 by the Municipal Council of Kisumu in favour of Caleb Ingolo Ngong’a and a Demand Notice for payment of rates. The Offer Letter had conditions to be fulfilled within timelines for compliance. There is no evidence that the conditions were fulfilled within the timelines to crystallize the offer. There is no evidence of any steps taken by the applicant after the offer letter to acquire documents of ownership. ELCLC E024/2026 RULING 5

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On the other hand, the Respondent exhibited a certificate of title for land which, according to the 1st Respondent, is the same land as the land claimed by the Applicant. The burden to demonstrate on a prima facie basis that his land was separate and distinct from the 1st Respondent’s land rested with the Applicant. A prima facie case was defined by the Court of Appeal in Mrao Ltd vs First American Bank Kenya Ltd & 2 Others [2003] eKLR as follows: “ a prima facie case in a civil Application includes but is not confined to a genuine and arguable case. It is a case which, on the material presented to the court, a tribunal properly directing itself will 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.” On the material so far placed before it, this court is unable to conclude that there exists a right held by the Applicant over the suit land which right is being infringed or threatened with infringement by the Respondents as sued. ELCLC E024/2026 RULING 6

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Regarding whether or not the Applicant shall suffer irreparable injury if the order sought is not granted, the Applicant has not demonstrated occupation of the suit land. The photographs exhibited show undeveloped land, and having found that no prima facie case has been demonstrated, the court finds that the application is not merited. The application is dismissed. Each party shall bear its own costs of the application. Orders accordingly. Ruling dated and signed at Kisumu and delivered this 24 th day of September, 2026, virtually through Microsoft Teams Online Application. E. ASATI, JUDGE. In the presence of: Timothy/Zeddy: Court Assistant. Ominah for the Plaintiff/Applicant Akinyi for the Defendants/Respondents. ELCLC E024/2026 RULING 7

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