[2024] KEELRC 2636 (KLR)

Atswenje v Butali Sugar Mills Ltd (Employment and Labour Relations Cause E004 of 2024) [2024] KEELRC 2636 (KLR) (24 October 2024) (Judgment)

Neutral citation: [2024] KEELRC 2636 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Kakamega

Employment and Labour Relations Cause E004 of 2024

JW Keli, J

October 24, 2024

Between

Fred Mukoyani Atswenje

Claimant

and

Butali Sugar Mills Ltd

Respondent

Judgment

1. The Claimant on the 18th March 2024 filed the Statement of Claim dated on an even date and supported by his Verifying affidavit sworn on even date.

2. The suit asks the Court to adopt as judgment the award of the Directorate of Occupational Health and Safety. Vide the Statement of Claim, the Claimant has prayed for the following reliefs: -a.An order that the Award of the Directorate of Occupational Health and Safety issued in favour of the Claimant in the sum of Kshs. 442,633. 35/- be adopted as a judgement of this Court against the Respondent .b.Costs of this suit.c.Interest on both (a)-(b) herein.d.Any other relief(s) this Honourable Court may deem just and fit to grant.

3. Also filed together with the claim is the Claimant’s List of Witnesses dated 18th March 2024, his witness statement dated on even date, his list of Documents dated on an even date, and his Documents.

4. The Respondent entered appearance on 9th April 2024 and on 14th May 2024 filed its Response to Memorandum of Claim dated on an even date. The statement of response was accompanied with the list of witnesses dated 14th May 2024, the witness statement of Esther Bosibori dated on even date, the list of documents dated 14th May 2024, and its bundle of documents.

5. Subsequently, on 18th May 2024, the Respondent filed an amended Response to the memorandum of claim dated an even date, accompanied by a supplementary list of documents dated an even date and documents.

Hearing The Claimant’s case 6. The Claimant’s case was heard on 4th July 2024, when the Claimant testified on oath, adopted his written witness statement dated 18th March 2024 as his evidence in chief, and produced the documents under his list of documents of an even date as the Claimant’s Exhibits C-Exh-1 to 3.

The Respondent’s case 7. The Respondent’s case was heard on 29th July 2024, when Cosmas Mutoro, officer from the Director of Occupational Safety and Health Services and in charge of Kakamega County, testified as RW1 and Esther Bosibori testified as RW2 and produced the Respondent’s documents as Exhibits Rexh-1 to Rexh-18, to support the Respondent’s case.

The Claimant’s Case 8. It was the claimant’s case that he was a driver employed by the Respondent and on 21st May 2020 while in the course of his duties, he sustained injuries as a result of a road traffic accident.

9. The Claimant notified the Respondent of his injuries and the Respondent informed the Directorate of Occupational Health and Safety (DOSH) through the Kakamega office on 10th June 2020.

10. DOSH made an award of Kshs. 442,633. 85/- as compensation to the claimant, which the Claimant states that the Respondent never appealed against and that even after several demands the Respondent had refused to settle the award.

The Respondent’s Case. 11. The Respondent admitted that the Claimant was involved in a road traffic accident on 21st May 2020 while assigned tractor registration number KTCB 528X/ZF 3457 and it notified the DOSH through the Kakamega Office on 10th June 2020 of the said accident.

12. The Respondent contended that it had catered for all the Claimant’s medical expenses and continued to pay the Claimant periodically for the entire 450 days the Claimant had lost his wage-earning capacity while he was still employed by the Respondent.

13. The Respondent stated that, vide a letter of 31 August 2021, the DOSH informed it that the Claimant had been examined and the primary findings were that the Claimant was to be paid Kshs. 442,633. 85/- as compensation.

14. That DOSH vide the letter of 31st August 2021 informed the Respondent that if the Respondent was agreeable to the assessment to proceed and sign FORM/WIBA 5A, to signify acceptance of the assessed award.

15. That the Respondent referred the claim to its insurer vide the letter dated 17th September 2021.

16. Vide a letter of 2nd November 2021, the Respondent’s insurer requested the Claimant to undergo a second medical examination to ascertain the injuries sustained.

17. The Claimant was re-examined on 18th November 2021 by the Respondent’s doctor and the medical examination report thereof dated 18th November 2021 was prepared which concluded that the Claimant did not suffer a disability at 30% as earlier assessed by DOSH.

18. That the Respondent vide its letter of 29th January 2024 informed the County Occupational and Health Officer of its medical findings disputing the proposed compensation and outlined its frustrations to trace the Claimant who had left it employ, for the reconciliation and amendment of the DOSH/WIBA Form 4 and to settle the appropriate compensation.

19. That vide letter of 26th February 2021, the County Director of Occupational Safety and Health informed the Respondent that the Claimant had disagreed with the second medical examination report and that he had been booked for an appearance before the Medical panel at the Work Injury Evaluation Clinic -DOSH Nakuru on Tuesday 12th March 2024 at 8 am.

20. That the County Occupational Safety and Health officer Kakamega vide its letter dated 12th April 2024 informed the Respondent that the Claimant failed to attend its assessment on 12th March 2024 as requested, and thus the matter remains unresolved.

21. The Respondent states that the claimant’s failure to subject himself to the procedural requirements as provided for under the Work Injury Benefits Act to enable the determination of compensation, if any, payable to him, means that no cause of action exists against the Respondent.

22. That the Claimant is statutorily barred by section 28(4) of the Work Injury Benefits Act, which provides that an employee is not entitled to receive a periodical payment during any period in which the employee is/was receiving full pay, and in any case, the present claim amounts to a claim to double compensation, which is against the basic principles of insurance.

23. The Respondent stated that the Court has no jurisdiction to entertain the claim herein, as the Claimant has not exhausted the avenues for resolving the dispute, and stated it would raise a preliminary objection to have the Claimant’s claim struck out.

Written Submissions 24. The Court directed parties to file their written submissions after the closure of the Respondent’s case. The Claimant’s written submissions dated 5th August 2024 were filed by MC Advocates on the 12th August 2024. The Respondent's written submissions dated 28th August 2024 were filed by Mbeka & Associates Advocates on the 29th August 2024.

Determination Issues for determination 25. The Claimant identified the following issues for determination in the claim: -a.Whether the Court has authority to enforce a decision of director DOSH, which has not been objected to nor appealed against for payment of compensation for work injury.b.Whether the Claimant is entitled to the prayers sought.

26. The Respondent identified the following issues for determination in the claim: -a.Whether the matter has been concluded by the Director of Occupational Safety and Health Servicesb.Whether the Court has jurisdiction to grant the orders sought.c.Whether the Claimant is entitled to the reliefs sought.d.Which party should bear costs of the suit.

27. The Court having considered the parties' pleadings, having heard the parties, and having considered their respective written submissions discerned the issues placed before it for determination were: -a.Whether the Court has jurisdiction to grant reliefs soughtb.Whether there was a valid assessment of the Director of Occupational Safety and Health Services for enforcementc.Whether the Claimant is entitled to reliefs sought

Whether the Court has jurisdiction to grant reliefs sought 28. It is settled law that whenever the jurisdiction of the Court is challenged, the Court must ascertain whether or not it is has jurisdiction right away. This was the position of law as pronounced by Justice Nyarangi JA in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] e KLR to wit:- ‘I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law down tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.’’

29. The Respondent took the position that the Court lacked jurisdiction as there was no final award made by the DOSH to warrant the Court to sit on appeal against such award. The jurisdiction of the Court under section 51 of WIBA grants the Court jurisdiction of appeal over the award of Director of Occupational Safety and Health (DOSH).

30. 1n response to this issue the Claimant submitted that during the hearing RW2 testified vide her witness statement at paragraph 4 that they were informed vide letter dated 31st August 2021 that the Claimant was examined and an award of Kshs. 443,633 made. During cross-examination, RW2 admitted being aware of the award of 31st August 2021. The Claimant submitted that RW2 testified that the Claimant was re-examined by the Respondent’s doctor on 18th November 2021 who concluded the Claimant did not suffer 30% disability as earlier assessed. The 2nd medical report by Dr. Oketch was produced as Rexb 10. RW2 confirmed during cross-examination that they were in possession of the medical report by Dr. Oketch on 18th November 2021. The Claimant submits that pursuant to the timelines under section 51 and 52 of the WIBA the award was made on 31st August 2021 and the Respondent did not lodge an objection within 60 days of the decision which ended around 30th November 2021. This was despite having the contrary report as of 18th November 2021. The Claimant submits that RW2 confirmed being aware that objection to the award ought to be made within 60 days of the award.

31. The Claimant further submits that RW1 (Cosmas Mutoro , In charge, DOSH Kakamega County) confirmed to the Court that the award of 31st August 2021 had no written objection done within 60 days. He confirmed that the only communication from the Respondent was of January 2024 in response to his office letter of 27th November 2023.

Decision 32. It is settled law that the jurisdiction of the Court flows from the constitution or law or both. This issue was settled by the Supreme Court in Samuel Kamau Macharia & another v Kenya Commercial Bank Limited & 2 Others [2012] eKLR where in paragraph 68 it held that jurisdiction flows from either the Constitution or legislation or both. The Court further held that the issue of whether the Court had jurisdiction to entertain a matter before it is not a matter of procedural technicality but goes to the very heart of the matter and without jurisdiction the Court cannot entertain the proceedings.’’ This decision is consistent with the Court of Appeal decision in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR (supra).

33. The Respondent produced the letter of 27th November 2023 (Rexb 7). The Court noted the letter referred to the claim lodged by the Director of 31st August 2021 for the Claimant for Kshs. 442,633. 85 as not having been settled and stated that there was no objection in writing. The respondent replied vide letter dated 29th January 2024 and stated that procedurally WIBA matter is marked as settled when parties agree on the medical assessment. It further informed DOSH of the 2nd assessment at 0% as opposed to first assessment of 30%. The Court noted that the response was almost 2 year and 4 months post the award.

34. RW1 during cross-examination confirmed to the Court there was an award for compensation in respect to the accident sustained by the Claimant at work with the respondent. He further confirmed that there was no correspondence of objection from the Respondent on the award from 2021 to 2023 when the complainant wrote to DOSH following up on the award.

35. RW1 during re-exam by counsel for the Respondent when asked to confirm whether the award of 31st August 2021 was final responded:- ‘yes. It was final award on computation of the accident and only one we have in office.’’ He further stated that the matter was unresolved as payment had not been dome for closure of the file.

36. It was not in dispute from the facts before the Court that a valid award by the Director in respect to the accident at work dated 31st August 2021 was communicated to the employer/ Respondent on even date(Rexb 2).

37. It was also not in dispute that there was no written objection within 60 days as per section 51 of the WIBA and the award of 31st August 2021 remains unpaid. The relevant provisions of WIBA are:-“51. Objections and appeals against decisions of the Director(1)Any person aggrieved by a decision of the Director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision.(2)The objection shall be in writing in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims, or the question which he desires to have determined.’’

52. Director’s reply(1)The Director shall within fourteen days after the receipt of an objection in the prescribed form, give a written answer to the objection, varying or upholding his decision and giving reasons for the decision objected to, and shall within the same period send a copy of the statement to any other person affected by the decision.(2)An objector may, within thirty days of the Director’s reply being received by him, appeal to the Industrial Court against such decision.’’’

38. The Court returns that the existence of a contrary medical assessment does not amount to the objection under section 51 of the WIBA and as stated by RW1 the award of 31st August 2021 is the only award on the accident compensation to the Claimant. The Court returns that the award having not been objected to under section 51 of WIBA it is the final award.

39. The Respondent relied on several decisions of the Court wherein the judges declined to adopt as Order of the Court the decisions of the Director. In Adika v Supra Textiles Limited (Misc. Appl. No. E096 of 2022 where Justice Ndolo stated that WIBA only gave the Court jurisdiction on appeals against the awards of DOSH and that there was no provision on enforcement or interlocutory intervention by the Court upholding the decision with same finding in Lameck Nyakundi Ayona v WJJ Kenya Construction Company Limited (2022)e KLR . In Seme v Sino Hydro Corporation Engineering Bureau 15 Co. Ltd (K) (Miscellaneous Application E009 of 2023) [2024] KEELRC 517 (KLR) (7 March 2024) (Ruling) Justice Wasilwa declining to adopt the award as judgment of Court observed:“There is no other provision in this Act which may guide the execution of the award of the Director under WIBA. However, my purposeful interpretation of the execution of the award of the Director would point to the fact that this Court cannot adopt the Director’s award thus confirming it as the order of ELRC and thereafter change tact and sit as an appeal Court where appeals are raised against the award adopted.’’

40. The decisions cited by the Respondent where the Court declined to adopt the decision of DOSH for enforcement are not binding on this Court. This Court has in many instances adopted the awards of DOSH as Orders of the Court for enforcement purpose where there was no appeal or valid objection before the Director. This was informed by fact that the Court has appellate jurisdiction over WIBA matters. It is the opinion of the Court that adoption of decision of the Director is within the purview of the jurisdiction of the Court seeing it is the only superior Court with employer-employee disputes jurisdiction. The Claimant was an employee of the Respondent and is aggrieved for lack of compensation given under the alternative dispute resolution procedure under WIBA. In Felix Makori Omosa v Manji Food Industries Limited [2021] eKLR Justice O. Makau adopted decision of Director for enforcement purpose of enforcement as follows:-“17. In view of the fact the Respondent did not challenge the said award of damages by the Director, there is no reason why the award should not be adopted as a judgment of this Court and enforced against the Respondent . Consequently, I allow the application by adopting the assessment of damages by the Principal Occupational Health and Safety Officer on 3. 9.2018 being Kshs. 2,173,344 as judgment of this Court. I further award interest on the said award at Court interest from the date of filing the application herein since that is when the applicant commenced the process of enforcing the award. The applicant will also have costs of the application.’’ Justice Ocharo in Mutegi v Teachers Service Commission & another (Cause E140 of 2023) [2023] KEELRC 2720 (KLR) (26 October 2023) (Ruling) while adopting the decision of DOSH for enforcement purpose observed:-“In my view, this Court has jurisdiction to hear and determine disputes arising out of work injury matters. The fact that section 52 gives the Court special jurisdiction to hear appeals from the decision of the Director of Occupational Safety and Health does not mean that the Court is stripped of its inherent jurisdiction to facilitate the enforcement of the Director’s award in the face of the silence of the Act about the enforcement.’’ In an appeal from the lower Court to this Court Justice Nderitu agreed with Justice Radido that the adoption of award DOSH by the Court was vide a suit. In Omutiti v Orpower 4 Inc (Employment and Labour Relations Appeal 12 of 2021) [2023] KEELRC 1974 (KLR) (31 July 2023) (Judgment) Justice Nderitu stated: -‘’In the considered view of this Court the trial Court was right in refusing and declining to handle the suit before it for lack of jurisdiction. The learned magistrate was extremely polite and helpful to the Appellant advising that he did not dismiss the matter but rather directed the Appellant to file the matter in the proper forum or Court. The trial Court opted to be polite and avoided use of the proper term of the action it took which amounted to striking out the civil suit. The good magistrate repeated the same words in declining an application for review of the orders terminating the suit alluded to above.

33. This Court is unable to disagree with the learned magistrate that the Court had no jurisdiction to handle the matter. The same ought to have been filed before this Court (ELRC).

34. Although Section 52(2) of WIBA does not provide for the procedure to be followed in bringing an action to this Court for adoption and enforcement of the award by the Director the Court should be more concerned with the substance rather than the form. In Ruth Wambui Mwangi & Another V Alfarah Wholesalers Limited (2017) eKLR Radido J made a finding that such an action should be brought by way of an ordinary claim filed in this Court. But whether filed by way of a miscellaneous application or a cause this Court should be more concerned with the substance rather than the form and the procedural technicalities that may come into play.

35. What is as clear as sunlight is that an action for adoption and enforcement of an award by the Director should be filed in the ELRC and not before any other Court. The learned magistrate was clearly without jurisdiction and he correctly declined to hear and determine the civil suit.’’ The Court upholds the foregoing decisions by my Brother Judges to find the Court may adopt as Orders of the Court awards by DOSH.

41. While it is apparent from the foregoing the Court is not settled on whether it has jurisdiction to enforce the awards of DOSH under WIBA I am persuaded that the Court has the jurisdiction. The position is supported by case law (supra) is recognised under Article 159 of the Constitution which governs the exercise of judicial authority by Courts. The Article states:-“159. Judicial authority(1)Judicial authority is derived from the people and vests in, and shall be exercised by, the Courts and tribunals established by or under this Constitution.(2)In exercising judicial authority, the Courts and tribunals shall be guided by the following principles—(a)justice shall be done to all, irrespective of status;(b)justice shall not be delayed;(c)alternative forms of dispute resolution including reconciliation,mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause (3);(d)justice shall be administered without undue regard to procedural technicalities; and(e)the purpose and principles of this Constitution shall be protected and promoted.’’ The court is then obliged to pursue substantive justice which in this case would be to enforce the decision by DOSH under WIBA.

42. The jurisdiction to assess claims for work injury given to the DOSH under WIBA falls under the alternative justice mechanism. The party must obtain a decision from DOSH before coming to Court as espoused in the Court of Appeal decision of Speaker of the National Assembly v James Njenga Karume [1992] eKLR when the Court observed:- ‘’In our view, there is considerable merit in the submission that where there is a clear procedure for the redress of any particular grievance prescribed by the Constitution or an Act of Parliament, that procedure should be strictly followed’’. In the instant case the process under WIBA was complied with to finality when the assessment was done and there was no written objection by the Respondent within 60 days under section 51 of WIBA.

43. The Claimant then approached this Court to enforce the final award by DOSH on his accident. The law is silent on the process of enforcement of the decision of DOSH by adoption as an Order of the Court. This Court has primary jurisdiction on all employment disputes. The work injury claims emanate from employment and the reason why appeals from the Director are to the Court. It follows that this Court can only be the Court with jurisdiction to enforce such decisions. Article 159 (2) (d) of the Constitution obliges the Court to administer substantive justice. I find it would be injustice to leave such workers with awards they cannot execute simply because the law is silent on adoption by Court of the awards by DOSH. Such workers are very vulnerable and in some cases it is the dependants following up the awards where the worker died as a consequence of the accident or is maimed. In some cases like the instant one, the worker was dismissed from service due to incapacity to work as a consequence of the accident. Invoking technicalities to lock out such workers from the justice system is injustice. The Court finds that it has a role in enforcing such decisions in respecting and promoting the WIBA justice mechanism consistent with the spirit and letter of Article 159 of the Constitution (supra).

44. The Court calls on Parliament to amend the WIBA Act to provide for a mechanism of enforcement by the Court of the DOSH awards through the adoption of the awards as Orders of the Court without delay to facilitate these vulnerable workers and their dependants to enjoy the fruits of the awards. The continued litigation on the subject due to the lacuna on enforcement by the Court of the decisions by DOSH in the law has caused unnecessary suffering / further trauma to the workers and their families contrary to the objectives of the WIBA.

45. The Court Rules 2024, under rule 69 states:- ‘’69. (1) Where parties have entered into a conciliation, negotiation or mediation agreement, or, are bound by an arbitral award or a lawful decision reached in Alternative Justice Systems, a party may file the award, decision or agreement for adoption and enforcement as an order of the Court. (2) An application under sub-rule (1) shall be by way of a miscellaneous application instituted through a notice of motion supported by an affidavit exhibiting the award, decision or agreement together with all relevant documents.’’ The WIBA Jurisdiction is a procedure outside Court for resolution of disputes. It therefore falls under rule 69 of ELRC Rules 2024. The rules were effective 16th August 2024. Rule 69 could offer reprieve to the litigants though the Court may not agree on its application to WIBA hence the call to Parliament to amend the Act to address the question of jurisdiction of the Court to enforce the awards with finality.

46. The Court in arriving at its decision did not rely on the Court Rules but on its general jurisdiction under Article 162(2)(a) of the Constitution matters of employer-employee disputes and guided by Article 159 of the Constitution(supra). The rules have now regularized the position of this Court. The decisions of DOSH under WIBA are enforceable by Court vide adoption of the award as an Order of the Court.

47. In the upshot the Court holds that it has jurisdiction to adopt for enforcement purposes the awards by the Director of Occupational Health and Safety as Orders of the Court.

Whether there was a valid assessment of the Director of Occupational Safety and Health Services for enforcement 48. The Court having held there was no objection to the assessment by DOSH of 31st August 2021 under section 51 of WIBA, the Respondent having obtained a contrary assessment of the injuries within the 60 days and having failed to make a written objection to the award, the award then became final after expiry of the 60 days window period for objection. Section 51 of WIBA,“51(1)Any person aggrieved by a decision of the Director on any matter under this Act, may within sixty days of such decision, lodge an objection with the Director against such decision.

(2)The objection shall be in writing in the prescribed form accompanied by particulars containing a concise statement of the circumstances in which the objection is made and the relief or order which the objector claims, or the question which he desires to have determined.’’

49. The Court returns that on the failure to make an objection in writing as per section 51 WIBA , the Respondent forfeited their right to dispute the award. The Court as stated by the Supreme Court gets its jurisdiction from the Constitution and the law. The law in the instant dispute is WIBA.

50. The Court must uphold the law being section 51 of WIBA to return that there was no objection made by the Respondent /employer within 60 days of the lodging of the claim by DOSH on the 31st of August 2021. The said award is final and valid assessment of the injuries to the Claimant.

Whether the Claimant is entitled to reliefs sought 51. The Claimant sought the following reliefs under the claim:-a.An order that the Award of the Directorate of Occupational Health and Safety issued in favour of the Claimant in the sum of Kshs. 442,633. 35/- be adopted as a judgment of this Court against the Respondent .b.Costs of this suit.c.Interest on both (a)-(b) herein.d.Any other relief(s) this Honourable Court may deem just and fit to grant.

52. The Respondent in opposition to the claim contended the medical assessment being not agreed on there was no final decision for enforcement. The Court held that the award of 31st August 2021 was final under section 51 of WIBA. There was no objection to the award as stated under section 51 of the WIBA hence the decision was final.

53. The Respondent further contended that the Claimant is statutorily barred by section 28(4) of the Work Injury Benefits Act, which provides that an employee is not entitled to receive a periodical payment during any period in which the employee is/was receiving full pay, and in any case, the present claim amounts to a claim to double compensation, which is against the basic principles of insurance. It reads:-“28. (1)An employee who suffers temporary total disablement due to an accident that incapacitates the employee for three days or longer is entitled to receive a periodical payment equivalent to the employees earnings, subject to the minimum and maximum amounts fixed by the Minister from time to time, after consultation with the Council.

(2)Compensation for temporary partial disablement shall consist of a proportionate amount of the periodical payment calculated as specified in subsection (1).(3)Periodical payments shall be made for as long as the temporary disablement continues, but not for a period that exceeds twelve months.(4)An employee is not entitled to receive a periodical payment during any period in which the employee is receiving full pay, as provided for in the Employment Act, or any other law or contract of service.(5)The periodical payment of an employee who is receiving part payment of remuneration shall be reduced so that the employee does not receive more than the employee would otherwise have earned.’’ The Court returns that it has not been moved on appeal on the award to delve into these issues raised by the Respondent. These are issues the Respondent should have raised under section 51 of WIBA within 60 days of being notified of the award. It is too late in the day to raise such issue hence an afterthought.

54. In the upshot the Court finds no reason why the decision of 31st August 2021 by the Kakamega County Director of Occupational Safety and Health compensating the Claimant should not be enforced by the Court.

Conclusion and Disposition 55. The Court allows the claim as follows: -a.The Award of the Director of Occupational Safety and Health issued in favour of the Claimant in the sum of Kshs. 442,633. 35/- on 31st August 2021 is hereby adopted as an Order of this Court against the Respondent.b.The Award amount (a)to attract interest at Court rates if not settled in full within 30 days of the judgment.c.Costs of this suit to the Claimant

56. It so Ordered.

DATED, SIGNED & DELIVERED VIRTUALLY AT NAIROBI THIS 24TH OCTOBER 2024. JEMIMAH KELI,JUDGEin the presence of: -Court Assistant: MachesoFor Claimant: Masika h/b OtienoFor Respondent: - Mbeka