[2022] KEHC 17066 (KLR)

Doshi & another v Central Bank of Kenya (CBK) & another (Commercial Case 36 of 2016) [2022] KEHC 17066 (KLR) (6 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17066 (KLR)

Republic of Kenya

In the High Court at Mombasa

Commercial Case 36 of 2016

MN Mwangi, J

May 6, 2022

Between

Ashok L Doshi

1st Plaintiff

Amit A Doshi

2nd Plaintiff

and

Central Bank Of Kenya (CBK)

1st Defendant

Imperial Bank Limited

2nd Defendant

Ruling

1. This ruling relates to two notices of preliminary objection filed pursuant to an application dated December 20, 2021 by the plaintiff herein. The said application is premised on the provisions of sections 54 and 56 of the Kenya Deposit Insurance Act, 2012, sections 1A and 3A of the Civil Procedure Act and order 40 rule 1 of the Civil Procedure Rules 2010. The plaintiffs seek the following orders –i.Spent;ii.That pending the hearing and determination of this application there be and is hereby issued an order staying the 1st defendant’s decision to appoint the Kenya Deposit Insurance Corporation as liquidator of Imperial Bank Limited (in receivership);iii.That pending the hearing and determination of this application there be and is hereby issued an order to restrain the defendants either through any of the defendants’ appointees, agents, employees, assigns, officers or any person acting for the defendants’ appointees, agents employees, assigns, officers or any person acting for the defendants from paying out deposits in execution and implementation of the 1st defendant’s decision to appoint Kenya Deposit Insurance Corporation as liquidator of Imperial Bank Limited (in receivership);iv.That the honourable court be pleased to grant leave for the orders sought herein;v.The defendants herein be and are hereby ordered to deposit USD 7,277,314. 91 in a joint interest earning account in the names of the Advocates on record within 30 days of this order as security for any decree that may ultimately be passed by the court;vi.In the alternative to order (iv) above (sic), the defendants be and are hereby ordered to jointly and severally give a binding undertaking to pay any sums adjudged due and payable to the plaintiffs after full adjudication and determination of this suit; andvii.That the costs of this application be borne by the defendants jointly and severally.

2. The application dated December 20, 2021 is supported by the affidavit of Ashok L Doshi, the 1st plaintiff, sworn on the same day. In opposition to the said application, on December 30, 2021, the 1st defendant filed a replying affidavit sworn on December 29, 2021 by Kennedy Kaunda Abuga, the General Counsel for the 1st defendant. It also filed grounds of opposition to the said application and a notice of preliminary objection. The said notice of preliminary objection raises the following grounds –i.No injunction may be brought or any other action or civil proceedings may be commenced or continued against the 2nd defendant or in respect of its assets without the sanction of the court;ii.Section 56(2) of the Kenya Deposit Insurance Act, 2012;iii.Section 61 of the Kenya Deposit Act, 2012;iv.No leave has been sought by the plaintiffs to continue with this suit as against the 2nd defendant in liquidation;v.The 1st defendant has complied with the provisions of section 53(2) of the Kenya Deposit Insurance Act;vi.The 1st defendant has acted in good faith as mandated by the statute and section 33(m) of the Central Bank of Kenya Act, cap 491 applies;vii.Once the 2nd defendant was placed under liquidation this honourable court has no jurisdiction/powers to revive the receivership as sought by the plaintiffs; andviii.Kenyan Deposit Insurance Corporation v Richardson & David Limited & another [2017] eKLR.

3. On its part, the 2nd defendant on January 5, 2022 filed a replying affidavit sworn by Andrew Rutto, the 1st defendant’s liquidation agent sworn on January 4, 2022. It also filed a notice of preliminary objection dated January 4, 2022 raising the following grounds –i.That the application is incompetent, defective and a non-starter having been filed against the 2nd defendant, which is now in liquidation, without sanction of the court as required under section 56(2) of the Kenya Deposit Insurance Act No 10 of 2012; andii.That the court lacks the jurisdiction to reverse and/or revoke the appointment of the Kenya Deposit Insurance Corporation as the liquidator of the 2nd defendant.

4. This court gave directions for the preliminary objections to be heard first and for written submissions to be filed. The 1st defendant’s submissions were filed on January 18, 2022 by the law firm of Amolo & Gacoka Advocates.

5. Mr Chege, learned Counsel for the 1st defendant stated that no orders including those sought by the plaintiff may be granted without first seeking the court’s sanction. He further stated that the plaintiff cannot continue with the suit/ application dated December 20, 2021 without the court’s approval but such leave had not been obtained and cannot be sought exparte. He relied on section 56(2) of the Kenya Deposit Insurance Act, 2012to support his submission on the said point.

6. He relied on the definition of the word “sanction” in theBlack’s Law Dictionary, 7th edition, which means to approve authorize, or support. He submitted that no leave was sought and obtained by the plaintiffs prior to the continuance of the suit and/or filing of the application dated December 20, 2021.

7. The 1st defendant’s Counsel relied on decisions in Ashok L Doshi & another v Central Bank of Kenya & another[2016] eKLR and Thomas & Piron Grands Lacs Limited v Lighthouse property Company Limited; Chasebank Kenya Limited (In Receivership) & another (Interested parties) [2019] eKLR, where courts outlined the situations in which sanction of the court must be sought under the Kenya Deposit Insurance Act.

8. It was submitted by Mr Chege that once the 2nd defendant was put in liquidation on December 8, 2021, it divested the court of the jurisdiction/powers to revive the receivership, a position which was extensively dealt with in Kenya Deposit Insurance Corporation v Richardson & David Limited & another(supra).

9. He stated that it is impossible and/or impractical for the defendants to comply with the exparte orders as they were overtaken by events as the actions sought to be restrained by the said orders had already taken place and had been completed, and the receivership of the 2nd defendant could not be re-instituted as no such provisions of the law exist under the Kenya Deposit Insurance Act. He further stated that the banking licence of the 2nd defendant was revoked upon being put in liquidation. Mr Chege concluded by stating that the application dated December 20, 2021 is incurably defective, incompetent and an abuse of the court process and ought to be struck out. He prayed for the 1st defendant’s preliminary objective to be allowed with costs to the 1st defendant.

10. The 2nd defendant’s written submissions were filed on January 17, 2022. They addressed the notice of preliminary objection dated December 29, 2021 filed by the 1st defendant and the one filed on January 4, 2022 by the 2nd defendant. Mr Issa, learned Counsel for the 2nd defendant stated that their client was put in liquidation on December 8, 2021 vide Kenya’s Gazette Notice No 13994, and that the said decision by the regulator of banking in Kenya prompted the plaintiffs to file the notice of motion application on December 20, 2021. He submitted that grant of sanction under section 56(2) of the Kenya Deposit Insurance Act (KDI Act) was a condition precedent to the filing of the notice of motion application by the plaintiffs, but it was not sought.

11. He similarly relied on the decisions cited by the 1st defendant’s Counsel in Ashok L Doshi & another v Central Bank of Kenya & another (supra) and Thomas & Piron Grands Lacs Limited v Lighthouse Property Company Limited; Chase Bank Kenya Limited (In Receivership) & another (supra), in submitting that it is a mandatory requirement for the plaintiffs to seek sanction of the court before the filing of the application dated December 20, 2021. Mr Issa submitted that the provisions of section 56(2) of the Kenya Deposit Insurance Act are akin to those of the repealed Companies Act, cap 486 in section 228, which provides for sanction of the court to be sought for companies in liquidation, before institution of suits or continuance of suits.

12. He cited cases that were decided under section 35 of the Banking Act (now repealed) and section 228 of the Companies Act, cap 486 (now repealed), such as, Kirtish Premchand Shah vs Trust Bank Limited [2007] eKLR. The 2nd defendant’s Counsel submitted that the rationale for sanction of the court is to ensure that during the period of liquidation, there is no preferential treatment of creditors.

13. Mr Issa invited this court to make a similar finding as in the above case to the effect that leave or sanction of the court must be sought before a party can proceed against the 2nd defendant. He also cited decisions in Bisai & another v Kenya Commercial Bank Limited & others [ 2002] 2 EA 346 and Ruth Wanjiku Kagiri v Reliance Bank Limited [2012] eKLR. He stated that in view of the glaring omission by the plaintiffs to seek sanction of the court, the notice of motion application dated December 20, 2021 was incompetent, defective and ought to be struck out with costs.

14. Mr Issa contended that that the court had no jurisdiction to issue the exparte orders made on December 22, 2021 since sanction of the court had not been granted. He relied on the decision of Kirtesh Premchand Shah v Trust Bank Limited(supra) in praying for the exparte orders issued on December 22, 2021 to be discharged and set aside. It was also submitted that this court does not have the jurisdiction to grant the orders sought in the application dated December 20, 2021, even at the hearing of the application (interpartes) as the decision to place the 2nd defendant in liquidation lay with the 1st defendant.

15. He relied on the Court of Appeal decision in Kenya Deposit Insurance Corporation v Richardson & David Limited & another (supra), to the effect that under section 5(1) of the KDI Act, the power to receive, liquidate and wind up an institution is vested in the Kenya Deposit Insurance Corporation (KDIC) only. It was contended by the 2nd defendant’s Counsel that the exparte orders given were injunctive in nature and contrary to the provisions of section 56(2) of the KDIActwhich requires sanction of the court before a party can apply for an injunction in the present suit. In addition, he stated that issuance of the injunctive orders had far reaching consequences to the general public and the depositors. He further stated that the effect of the exparte orders was to stay or reverse the appointment of the Kenya Deposit Insurance Corporation as liquidator over the 2nd defendant herein. He prayed for the the said orders made on December 22, 2021 to be vacated and discharged, and for the notice of motion application dated December 20, 2021 to be struck out and dismissed with costs to the 2nd defendant.

16. The plaintiffs’ submissions were filed on January 21, 2022 by the law firm of Oluga & Company Advocates. Mr Oluga, learned Counsel for the plaintiffs in objecting to the two notices of preliminary objection stated that the plaintiffs had on January 7, 2022, filed a replying affidavit by Ashok L Doshi.

17. He submitted that the preliminary objections by the defendants had been improperly raised as it is well settled that a preliminary objection can only be raised in instances where the same can dispense with the entire case. He pointed out that it is only the 2nd defendant which is in liquidation and the issues raised in the two notices of preliminary objection touch on the 2nd defendant and as such, the case against the 1st defendant is not challenged and cannot be struck out. It was further submitted that the preliminary objections had been improperly taken as they cannot lead to the striking out of the entire suit since the case against the 1st defendant is not affected by the 2nd defendant’s liquidation.

18. He also submitted that the alleged failure to obtain leave (which was not admitted) cannot lead to the striking out of the suit which was filed way back before the 2nd defendant’s liquidation. He stated that section 56(2) of the KDI Actwould only prohibit the continuation of the case without sanction of the court, but the said Act does not provide for the existing suit to become invalid simply because the 2nd defendant has been placed in liquidation. He stated that even if the court was to uphold the preliminary objections by the defendants, the end result would be the striking out of the plaintiffs’ application dated December 20, 2021 but not the entire suit.

19. Mr Oluga submitted that the appointment of the KDIC as the 2nd defendant’s liquidator was illegal and cannot be cited as a basis to challenge this suit. To elaborate on the said argument, he indicated that the 2nd defendant was placed under receivership on October 13, 2015 and at that date, section 53(1) of theKDIAct provided that the appointment of the Corporation (KDIC) as receiver shall be for such a period not exceeding twelve months and may be extended by the appointing authority for a further period not exceeding six months, if such extension appeared to the appointing authority to be justified. He stated that section 53(2) of the said Act provided that in the course of receivership, the Corporation may recommend to the Central Bank that the institution be liquidated in which case, the Central Bank shall appoint the KDIC as the Liquidator.

20. He contended that section 53 of the KDI Act allowed the appointment of the KDIC as the 2nd defendant’s receiver for only 12 months up to October 13, 2016, and that any extension of appointment of the receiver could only be extended for a further period of up to 6 months, that is up to April 13, 2017 and the law as it was, did not allow for further extension. He pointed out that section 53 of the KDIAct was amended with effect from January 1, 2018 vide Act No 15 of 2017 to introduce subsection (3) which permitted, the Cabinet Secretary to extend the receivership for a further period not exceeding 12 months under exceptional circumstances. Mr Oluga argued that the law as at October 13, 2015 up to April 13, 2017 provided for a maximum period of 18 months and prohibited the 2nd defendant’s receivership beyond April 13, 2017, but the 1st defendant purported to extend the receivership of the 1st defendant beyond the stated period.

21. He asserted that it was illegal to appoint KDIC as the 2nd defendant’s liquidator on December 8, 2021 as it was not done in the course of the 2nd defendant’s receivership which had long passed on April 13, 2017 and could not be legally extended, and if there was any extension, then it was done against the provisions of 53 of the KDIAct.

22. It was submitted that an act that is illegal, null and void could not be cited as the basis of preliminary objections in a court of law and also to challenge the plaintiff’s application dated December 20, 2021 and the entire suit.

23. On the issue of whether leave/sanction of the court has been sought to continue with present suit, Mr Oluga contended that section 56(2) of the KDIAct does not provide for “leave” but only talks of the word “sanction” which cannot be equated with leave of the court as alleged by the defendants.

24. He indicated that the 1st defendant, Central Bank of Kenya is not in liquidation and as such, section 56(2) of theKDIActdoes not apply to it and that the suit and application dated December 20, 2021 cannot be struck out for the said reason as it does not protect the 1st defendant which cannot challenge the propriety of the suit and application under the said provisions as it has no locus standi to challenge the suit.

25. It was stated that it was not true as alleged by the defendants that the plaintiffs did not seek “sanction” of the court before the orders of December 22, 2021 were granted. The plaintiff’s Counsel indicated that the plaintiffs filed two applications; a chamber summons dated December 20, 2021 and a notice of motion dated December 20, 2021. He also indicated that the first prayer in the chamber summons sought an order for the court to admit the notice of motion application for hearing during the court recess. He stated that the 2nd prayer was for the court to grant (sanction) the interim exparte orders sought in prayers 2 and 3 of the notice of motion dated December 20, 2021. He further stated that prayers in the chamber summons were not sought just because the court was in recess but it was also filed as a way of seeking the court’s “sanction” for the interim orders sought in prayers 2 and 3 of the notice of motion. he indicated that the foregoing is the reason why prayer 2 of the chamber summons asked the court to grant prayers 2 and 3 of the notice of motion.

26. The plaintiff’s Counsel submitted out that there is no format or formula for seeking the court’s sanction. He urged this court to find and hold that the plaintiff sought the court’s sanction through prayer 2 of the chamber summons which was effectively granted by the interim exparte orders as required under section 56(2) of the KDIAct, 2012.

27. It was submitted that the court at first considered the chamber summons application and upon being satisfied that the orders sought therein were merited, granted the exparte orders in terms of prayers 2 and 3 thereof. He submitted that since prayer 2 of the chamber summons only asked the court to be pleased to grant (sanction) orders 2 and 3 of the notice of motion, it was not necessary for the court to expressly pronounce itself on order 2 of the chamber summons as it was clear that what the said order sought to achieve was actually achieved when prayers 2 and 3 of the notice of motion application were granted.

28. Mr Oluga submitted that section 56(2) of the KDIAct does not specify the time when the sanction of the Court ought to be sought and that the said Section does not specify that sanction must precede the application and that it cannot be sought simultaneously or contemporaneously with a substantive prayer. He relied on the case of Johnson Mbugua Mugo & 2 others v Dominic Kinuthia Mugo & another [2004] eKLR, where Judge Kasango held that combining a prayer for sanction with other prayers in the same application is not fatal. The plaintiff’s Counsel stated that a prayer for “leave” can be combined with the rest of the prayers and that was what the plaintiff’s had done in prayer 4 of the notice of motion. It was stated that whether leave will ultimately be granted or not is for the court to determine on merits and not through preliminary objections or summary procedure. Mr Oluga was of the view that the defendants’ objections touching on leave is premature and intended to pre-empt the court’s determination of prayer 4 of the plaintiff’s notice of motion and if the court agrees with the defendants at this stage that no leave has been sought by the plaintiffs, it will have denied the plaintiffs an opportunity to urge and canvass prayer 4 of their application.

29. The plaintiffs’ Counsel submitted that prayers 2 and 3 of the notice of motion requiring stay of the 1st defendant’s decision to appoint KDIC as Liquidator of Imperial Bank Limited (In Receivership) did not require the courts’ sanction under section 56(2) of the KDIAct because the 1st defendant is not the institution in liquidation. He stated that the said orders cannot be impugned due to want of the courts’ sanction.

30. Mr Oluga contended that section 56(2) of theKDIAct, 2012uses the word “may” and not “shall”, which means that the said provisions are not mandatory but are permissive. He asserted that it is not mandatory to seek the court’s sanction and the failure to seek sanction is not fatal to the case or the plaintiffs’ application. To buttress the said submissions, he relied on the case of Kenya Wildlife Service v Joseph Musyoki Kalonzo [2017] eKLR, where the Court of Appeal stated that the use of the word “may” is permissive and not mandatory and does not oust the jurisdiction of the court.

31. In regard to the preliminary objection to the effect that this court lacks jurisdiction to revoke the appointment of liquidator and to revive receivership, Mr Oluga stated that the plaintiffs’ application does not have a prayer seeking to revoke the appointment of the KDIC as a liquidator of the 2nd defendant, as the substantive prayer sought is for deposit of USD 7,277,314. 91 as security of any decree that may ultimately be passed by the court and with an alternative order for the defendants to be ordered to jointly and severally give an undertaking to pay any sums adjudged due and payable to the plaintiffs after full adjudication and determination of this suit.

32. It was contended by Mr Oluga that the interim orders granted exparte are not for determination interpartes and that the only substantive prayer pending is prayer 5 with an alternative prayer 6, and that none of the 2 prayers seeks to revoke the appointment of the Liquidator and revive receivership.

33. Mr Oluga added that for the avoidance of doubt, this court has a constitutional, statutory and inherent jurisdiction to stay any action done or said to be done under the law and the appointment ofKDIC as liquidator of the 2nd defendant is not an exception. He stressed that the interim exparte orders were therefore well founded because they did not set aside the liquidation but only stayed the same in the interim. He stated that the court has never set aside the appointment of the Liquidator and there is no such prayer before court. He stated that the decision in Kenya Deposit Insurance Corporation v Richardson & David Limited & another (supra) is distinguishable from the present case as KDIC is not a party to this suit and the plaintiffs’ suit herein does not challenge or seek to revoke the appointment of KDIC as a liquidator of the 2nd defendant. Mr Oluga prayed for the court to dismiss the two notices for preliminary objection.

Analysis and Determination The issue for determination is if preliminary objections raised by the defendants are merited. 34. The 1st defendant in its notice of preliminary objection raised several grounds but in its written submissions, its Counsel on record only addressed the issues raised in paragraphs 1 and 2 which is basically the same thing, that no injunction may be brought or any other action or civil proceedings may be commenced or continued against the 2nd defendant or in respect of its assets without the sanction of the court. Paragraph 4 of the said grounds seems to be addressing the same issue by referring to “sanction of the court” to “leave” of the court” by stating that no leave has been sought by the plaintiffs to continue with the suit herein as against the 2nd defendant.

35. In regard to the 1st defendant having complied with section 53(2) of the Kenya Deposit Insurance Act, 2012, the plaintiff’s Counsel challenged the same and submitted that the 2nd defendant was under receivership for a period of 12 months from October 13, 2015 to October 13, 2016 and that the extension of appointment of a receiver could only be for a period of 6 months up to April 13, 2017. The contention by the plaintiffs that the 2nd defendant was not under receivership at the time it was being placed in liquidation as the extended time of 6 months had elapsed, is a matter that calls for rebuttal by factual evidence by way of Gazette Notice(s) to demonstrate if the contention holds any water or not. Such facts that call for verification through evidence do not qualify as preliminary objections but can only be addressed by way of a replying affidavit. The issue raised by the 1st defendant’s Counsel that the plaintiffs are trying to revive receivership of the 2nd defendant which was placed in liquidation was addressed in the submissions of the plaintiffs who stated that was not one of the prayers sought by them. In order to address the issue fully on merits, it calls for the hearing of the plaintiffs’ application dated December 20, 2021, which will ultimately determine if what is being sought by the plaintiffs is the revival of the 2nd defendant being put under receivership.

36. The 2nd defendant’s first ground of preliminary objection is based on the provisions of section 56(2) of the Kenya Deposit Insurance Act No 10 of 2012. As already stated, the plaintiffs contend that the sanction of the court was not required as the period under which the 2nd defendant had been put under receivership had elapsed as at the time it was put in liquidation. As stated it calls for evidence to rebut the said contention. This court is of the view that the 2nd ground of preliminary objection raised by the 2nd defendant is closely intertwined to the 1st ground in its notice of preliminary objection. It is only after the court has heard the plaintiffs’ application on merits that it will be in a position to determine if granting the orders being sought by the plaintiffs will lead to reversal and/or revocation of the appointment of Kenya Deposit Insurance Corporation as the liquidator of the 2nd defendant.

37. In the plaintiffs’ written submissions, its Counsel was of the view that the orders granted exparte do not call for further litigation. To reiterate the full purport and extent of the exparte orders given by Judge Onyiego on December 22, 2021, the Judge did as follows-i.Certified the application as urgent and directed it to be heard during vacation;ii.Granted an order staying the 1st defendant’s decision to appoint the Kenya Deposit Insurance Corporation as Liquidator of Imperial Bank Limited (In Receivership) pending the hearing of the application interpartes;iii.An order was granted restraining the defendants either through the Kenya Deposit Insurance Corporation or through any of the defendants’ appointees, agents, employees, officers, or any person acting for defendants from paying out deposits in execution and implementation of the 1st defendant’s decision to appoint Kenya Deposit Insurance Corporation as Liquidator of Imperial Bank Limited (In receivership) pending the hearing and determination of the application;iv.The application was slated for hearing on January 10, 2022 before the duty Judge.

38. This court is of the view that the plaintiff’s notice of motion application dated December 20, 2021 should be heard on merits. At the hearing of the said application, it will then come to light if the sanction of the court was necessary or not in the circumstances of this case and if paragraph 4 of the said application can be regarded as being a prayer for sanction of the court.

39. A reading of the grounds in support of the notice of motion application dated December 20, 2021and the supporting affidavit bring to bear the fact that there was a consent entered between the 2nd defendant and the plaintiffs on 15th of July, 2016. This court is of the view that issue of the said consent cannot just be wished away by the defendants by raising preliminary objections to the application dated December 20, 2021.

40. The case of Mukisa Biscuit v West End Distributors Ltd [1969] EA 696 set out what constitutes a preliminary objection in the following words –“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.”

41. In the said case, Sir Charles Newbold P, stated as follows-“…… the first matter related to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of preliminary objection. A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasion confuse issues. This improper practice should stop.” (emphasis added).

42. This is one of the instances wherein the defendants should have let the application dated December 20, 2021 proceed on for hearing on merits instead of raising preliminary objections.

43. Having found that there are factual issues that need to be ascertained, I hold that the preliminary objections raised by the defendants are not entirely based on pure points of law. I hereby dismiss the notice of preliminary objection by the 1st defendant dated December 27, 2021 and the one by the 2nd defendant dated January 4, 2022. The costs of the two notices of preliminary objection are awarded to the plaintiffs.

44. It is noted that some of the authorities filed by the plaintiffs’ and the ones filed by the defendants’ Counsel will come in handy at the hearing of the notice of motion application dated December 20, 2021. As such, the court will not comment on said authorities at this point in time. it is also noted that some of the defendants’ submissions address the said application and the relevant parts will still be applicable at the hearing of the application.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 6TH DAY OF MAY, 2022. In view of the declaration of measures restricting Court operations due to the Covid-19 pandemic and in light of the directions issued by his Lordship, the then Chief Justice on the 17th April, 2020 and subsequent directions, the ruling herein has been delivered through Teams Online Platform.NJOKI MWANGIJUDGEIn the presence of:Mr. Oluga for the plaintiffsMr. Chege for the 1st defendantMr. Issa for the 2nd defendantMr. Oliver Musundi – Court Assistant.