[2019] KEELC 3188 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT CHUKA

CHUKA ELC CASE NO. 306 OF 2017

GINSON KIRAGU MBERIA Alias GINSON KIRAGU NJAGI......PLAINTIFF

VERSUS

STANLEY BUNDI RIMBERIA..................................................1ST DEFENDANT

KARAN JOHN RIMBERIA sued as the legal representatives of the estate of

Rimberia Kanyi alias Rimberia Kanya (deceased)...................2ND DEFENDANT

JUDGMENT

1. The plaintiff filed this suit by way of Originating Summons dated 18th December, 2017. The amended summons reads as follows:-

AMENDED ORIGINATING SUMMONS

(Under Order 37 of Civil Procedure Rules 2010 section 5 of Cap 21, Section 38 Cap 22 limitations of Actions Act Laws of Kenya, and any other enabling provisions of the Laws of Kenya)

LET STANLEY BUNDI RIMBERIA the registered proprietor of parcel of land No. Mwimbi/Murugi/180 within Meru South District enter appearance within 15 days of service of these summons issued upon the application of Ginson Kiragu Mberia who claim (sic) to have acquired title under the limitations of actions Act by adverse possession since 1973 being the whole of land parcel No. Mwimbi/Murugi/180 measuring 3 acres an (sic) thereabout which land is registered in the names of Stanley Bundi Rimberia.

FOR THE DETERMINATION OF THE FOLLOWING QUESTINS

1. Is the said land Mwimbi/Murugi/180 measuring 3 acres or thereabout?

2. Whether the plaintiff is in possession of Mwimbi/Murugi/180 measuring 3 acres for over 12 years.

3. Whether the plaintiff has continued to occupy the said land, openly and continuously and without interruption and with the knowledge of the defendant for over 12 years.

4. Whether the plaintiff thereby has acquired title to the said land under limitations of actions act under doctrine of adverse possession.

5. Whether the ownership of the parcel of land Mwimbi/Murugi/180 measuring 3 acres or thereabout can be determined.

6. Whether the plaintiff can be awarded cost of the suit.

This summons is supported by an affidavit of Ginson Kiragu alias Ginson Kiragu Mberia the plaintiff and other grounds to be adduced at the hearing thereof.

AMENDED at Meru this……………..day of…………………….2018

FOR: CHARLES KARIUKI & KIOME ASSOCIATES

ADVOCATES FOR THE PLAINTIFF

2. Through his defence dated 4th April, 2018, the defendant opposed the suit. He prayed for dismissal of the suit with costs to be awarded to him.

3. On 19th April, 2018, this court issued inhibitory orders against Land Parcel No. Mwimbi/Murugi/180.

4. The suit was heard orally.

5. The plaintiff told the court that in lieu of a witness statement he would rely on his supporting affidavit sworn on 18th December, 2018 which states as follows:

I, GINSON KIRAGU MBERIA C/O P. O. Box 2387-60200 Meru do hereby make oath and state as follows;-

1. That I am the plaintiff herein very well conversant with the fact (sic) herein thus competent to make and swear this affidavit.

2. That the suit land Mwimbi/Murugi/180 was registered initially in the names of one Rimberia Kanyi my grandfather (sic) annexed is copy of the green card marked “GK1”

3. That the initial registered proprietor Rimberia Kauji (sic) was my father’s brother (annexed is copy of judgment and decree marked “GK2 a and b”).

4. That vide Meru HCCC No. 30 of 1978 the court determined that he was holding the property in trust for family (annexed is copy of judgment and decree marked “GK2 a, b and c”).

5. That vide that suit, the court made orders accordingly that my father, plaintiff in the afore captioned matter be registered as the proprietor of land parcel No. Mwimbi/Murugi/180 measuring 3 acres thereabout as per the decree annexed above.

6. That I have been (sic) exclusive possession and caused substantial development therein for over 12 years in occupation and possession of the parcel of land LR Mwimbi/Murugi/180 (sic) annexed is copies of photographs of developments marked “GK3”.

7. That the parcel of land LR Mwimbi/Murugi/180 was registered in favour of my grandfather holding in trust of the other family members as was determined.

8. That the defendant filed succession cause vide Meru HCCC No. 536 of 2009 in the matter of the estate of his father Rimberia Kanyi alias Rimberia Kanyi (sic) annexed is a copy of succession cause No. Meru HCCC Succ No. 6 of 2009 marked “GK 4a, b, c & d”).

9. That upon confirmation of the grant, the defendant who was the petitioner and administrator to the estate he was registered (sic) copy of official search annexed and marked “GK5”.

10. That I filed application summons for revocations which has been pending for hearing and determination in the Meru HCC Succ No. 536 of 2009 (annexed is copy marked “GK6”).

11. That my counsel on record advised me which counsel I verily believe to be true that I could not be entitled as I had no letter of administration to claim on behalf of my father in the brother’s estate.

12. That further I was further advised by my advocate which counsel I verily believe to be true that I could not success as I was not a beneficiary within section 29 of Cap 160 of Laws of Kenya.

13. That it is not in dispute that the defendant who became registered as the owner of the suit land upon his father’s demise, he has refused to transfer my portion.

14. That I was born in 1948 in the subject land Mwimbi/Murugi/180 and my entire family stays therein with tea bushes 4,000 bushes, coffee 100 trees mango trees and avocado trees and other indigenous trees.

15. That my claim is for adverse possession whereas I have acquired title to land my (sic) virtue of continued occupation of parcel of land.

16. That what is deponed herein is true to the best of my knowledge believe (sic) and information.

17. That all what is deponed to above is true to the best of my knowledge information and belief.

6. The witness statement of the plaintiff’s witness Julius Njeru Muthamia dated 18th December, 2017 reads as follows:

I, JULIUS NJERU MUTHAMIA C/O P. O. Box 2387 – 60200 Meru do wish to state as follows:

That I am the brother to the applicant and the son of the deceased Njagi Mathiu Kaugi my father had brother called Rimberia Kanyi.

My father filed a case against his brother in respect of parcel of land Mwimbi/Murugi/180, vide HCC Meru No. 30 of 1987 and the court declared (sic) as proprietor, as his brother was holding in trust.

That my brother the plaintiff since he was his (sic) actual possession and had carried substantial development therein did not proceed to execute the decree issued therein as the judgment was delivered on 10th October, 1998.

That the son to my father’s brother my cousin Stanley Bundi Rimberia filed succession Meru HCCC No. 536 of 2009 in Meru secretly and he listed the parcel of land in dispute as farming (sic) part of estate of (sic) father Rimberia Kanyi.

That my brother filed objection to the (sic) 11th March, 2009 and the matter proceeded and the court advised that he gets letters of administration in respect of the estate of his father Njagi Mathiu Kanyi, thus I had obtained the said letters of administration (sic).

That since my brother had been in occupation of the parcel of land in dispute for over 12 years without description (sic) and with the knowledge of defendant without agreeing to give him title to land therefore it is for that reason that I filed the instant matter before the court (sic) we pray that he be declared that he has obtained title to land by virtue of adverse possession.

That is all I wish to state.

JULIUS NJERU MUTHAMIA

DATED AT MERU 18TH THIS DAY OF DECEMBER, 2017

7. PW1, Ginson Kiragu Mberia told the court that in lieu of a witness statement, he would rely on his affidavit sworn on 18th December, 2017 as his evidence-in-chief in this suit. He also asked the court to adopt the documents enumerated in his list of documents dated 18th December, 2017. These documents were marked as exhibits numbers 1 to 6.

8. PW1 told the court that he had lived on the suit land since he was born. He told the court that the acreage of the original land was 10. 23 acres but he was using only 3 acres. He told the court that the 3 acres had been given to his father by a court at Meru.

9. PW1 went on to testify that his father had 3 wives and that each of the wives had been given land by his father. He said that he and his mother were left on that land. He proffered that his mother was called Agnes Mbeta and that he buried her on the suit land in 1978. He told the court that his siblings were Anne Muthoni, Caroline Urindi and Janice Umotho who did not live on the suit land. He added that he had 5 children who lived on the suit land and had houses thereon. He was categorical that Stanley Bundi Rimberia, the 1st defendant, did not live on the suit land but lived at a place called Kithanka. He went on to say that Karani John Rimberia, the 2nd defendant, lived at Meru. He also said that some family members of Rimberia Kanya, the father of the 2nd defendant, live on the suit land and he said that they were (a) Fidelis Karimi and her family (b) Kiragu Mberia and his family (c) Kainda Mberia and his family and (d) Muriuki the son of Stanley Bundi (1st defendant).

10. PW1, asked the court to determine the questions he had raised in his Originating summons.

11. PW1 gave a convoluted explanation regarding why he had two names. He told the court that the reason he got the name Mberia, the father of the 1st defendant, was because where he was employed he obtained a letter to enable him to get an identification card but added that he did not know what was written in the letter.

12. PW1 told the court that his name was not contained in the chief’s letter for purposes of identifying apposite beneficiaries because he was not living in the area where the suit land was situated. He, however, owned up to that Mberia was not his father and that he was the son of Njagi. He added that his Identification Card was issued in error. To confuse the issue further, he told the court that all people thought that he was Mberia’s son. He denied that the 1st defendant lived on the suit land but said that the 1st defendant’s son lived on the suit land.

13. Miss Kiome, his advocate, told the court that she did not wish to re-examine PW1. At this juncture, Stanley Bundi Rimberia, told the court that he also represented Karani John Rimberia, the 2nd defendant, who he said was his half-brother through his father’s 3rd wife. He proffered that his father had 5 wives.

14. PW2, Julius Njeru Muthamia told the court that she was the plaintiff’s brother and he was also a pastor. He asked the court to adopt his witness statement (op.cit) dated 18th December, 2017 as his evidence in this suit.

15. During cross examination by the 1st defendant he told the court that his mother was older than the plaintiff’s mother. [By saying this, ipso facto, it means that he was the plaintiff’s half brother]. He told the court that his father, Njagi Mathew Kanyi buried his grandfather on the suit land.

16. PW1 admitted that he filed a succession case concerning his father’s land. He told the court that he did not consider including the plaintiff as a beneficiary of his father’s land because he considered him to belong to the 1st defendant’s side. He told the court that his father was buried at Mbeu, Tigania, because he wanted to be buried where his first wife was buried.

17. Miss Kiome, the plaintiff’s advocate, opted not to re-examine PW2.

18. DW1, Stanley Bundi Rimberia, the 1st defendant asked the court to adopt his statement dated 12th April, 2018 as his evidence in this suit.

19. DW1’s statement is reproduced in full herebelow. Any spelling or other mistakes may only be ascribed to the 1st defendant. The witness statement states as follows:-

STATEMENT OF STANLEY BUNDI RIMBERIA

I am the above named person, an adult married with children.

I know Ginson Kiragu Mberia, the plaintiff herein.

He is a cousin.

LR Mwimbi/Murugi/180 the suit land herein is in the name of one Rimberia Kanyi – deceased.

There is pending in high court at Meru High Court Succ No. 536 of 2009 which is yet to be concluded.

It is not true that the suit land is registered in my name as alleged by the plaintiff.

I am not aware of HCCC 30 of 1987 upon whose proceedings the plaintiff seeks to base his claim herein.

It would appear that the case was concluded during the lifetime of both the plaintiff’s father and my father.

I cannot understand why the plaintiff’s father could not implement the decree during the lifetime of our father.

I also believe that this judgment cannot be implemented in view of the lapse of many years.

It is not true that the plaintiff was born and raised on the suit land.

He only forcefully entered the land upon the demise of our father.

This case should be dismissed as the same is based on lies.

That is all.

Signed………………………….

STANLEY BUNDI RIMBERIA

20. DW1 testified that the plaintiff, whom he described as a very violent man moved in to the suit land forcefully. He told the court that his father shared out his land to the families of his 5 wives. He told the court that when the daughter of his father’s youngest wife died, she was buried on the suit land. He told the court that that burial occasioned his detention in jail for 90 days at the behest of the plaintiff. He told the court that contrary to what the plaintiff says that he uses 3 acres of the suit land, he uses more than 7 acres and had even constructed a church thereon.

21. DW1 told the court that the succession cause concerning his father’s land remained unconcluded. He asked the court to dismiss this suit.

22. DW1 was unequivocal that the plaintiff’s father never lived on the suit land. He also told the court that he did not know where the plaintiff’s mother lived. He, however, said that he knew the mother of PW2. He was unequivocal that he had never seen the plaintiff, even in school.

23. DW1, told the court that his evidence subsumed that one of the 2nd defendant and that they would file joint submissions.

24. I opine that the evidence proffered by DW1 was not challenged in any substantial manner. The evidence of the 2nd defendant was contained in his witness statement which DW1 asked the court to adopt as his evidence. This evidence was not challenged at all.

25. The parties filed written submissions. The plaintiff’s written submissions are reproduced in full herebelow. Any spelling or other mistakes, if they exist, may only be solely ascribed to the plaintiff’s advocates. The submissions state as follows:

PLAINTIFF’S WRITTEN SUBMISSIONS

Your lordship we wish to submit on behalf of the plaintiff as follows, the plaintiff filed originating summons dated 18th December, 2018 seeking that the land suit property parcel No. Mwimbi/Murugu/180 measuring about 3 acres be declared that he had obtained ownership rights through adverse possession. The plaintiff further filed the application dated 12th June, 2018, which amended the original summons. We rely on all the documents filed by the plaintiff in support of his case.

BRIEF BACKGROUND

The plaintiff in his testimony told the court that he had been born on the land over so many years ago and he had been living in there up to date. He testified that even his sons live and have built houses on the land and that they have been in open uninterrupted, complete user and possession of the land with the knowledge of the defendants.

He told court during the hearing that since 1970’s he and his family have been in complete user, occupation and possession of land parcel No. Mwimbi/Murugi/180 measuring 3 acres the rest of the land is occupied by other members of the defendants’ family. That he has lived therein with his family and have extensively developed this land for so many years. That his father had moved out of the land and left the plaintiff and his mother on the land, his father had moved to his other land in Tigania alongside PW2 Julius Njeru, similarly he was buried in Tigania.

Your Lordship, this honourable court had the opportunity to hear the testimony of one of the defendants, who told court and confirmed that indeed the plaintiff was utilizing seven acres of land (as per his testimony), however the plaintiff testified and has only claimed 3 acres out of the entire parcel of land which he claimed to have had exclusive, possession, user and occupation of the land for more than thirty years considering they entered into the land so many years ago.

Your Lordship according to his testimony filed in court, there has indeed been a long standing dispute with the defendants and the land was trust land as rightfully determined by court in HCC No. 30 of 1987. Nevertheless, the plaintiff claims that his family has grown up in this land and they know no other land as they have lived here in all their lives.

According to the evidence and the testimony of the plaintiff and his witness there was no doubt that indeed the plaintiff is in actual possession and occupation of the land. According to the testimony of the defendant Stanley Bundi he told court that the plaintiff entered in to the land after the death of his father in 1989, which is about 29 years ago. He further told the court that the plaintiff has been utilizing about 7 acres of the land.

The truth of the matter however is that the plaintiff was born and grew up on the suit property, he married, sired children who have grown up on this land and even his children have developed the parcel of land. That even after the death of the defendants father the plaintiff and his family continued to live on the land up to date.

Therefore my lord we pray the court to find that the plaintiff has proved his case on a balance of probability and proceed to grant the plaintiff the orders as prayed.

LAW APPLICABLE

Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya, is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force or stealth or under the licence of the owner. It must be adequate in continuity, in publicity and in extent to show that possession is adverse to the title owner. This doctrine in Kenya is embodied in section 7 of the Limitation of Actions Act, which is in these terms:-

“An action may not be brought by any person to recover land after he end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person though whom he claims, to that person.”

The Limitation of Action Act makes further provisions for adverse possession at section 13 that:

“(1) A right of action to recover land does not accrue unless the land is in the possession of some person in whose favour the period of limitation can run (which possession is in this act referred to as adverse possession), and, where under sections 9, 10, 11 and 12 a right of action to recover land accrues on a certain date and no person is in adverse possession on that date, a right of action does not accrue unless and until some person takes adverse possession of the land.

(2) Where a right of action to recover and has accrued and thereafter, before the right is barred, the land ceases to be in adverse possession, the right of action is no longer taken to have accrued, and afresh right of action does not accrue unless and until some person again takes adverse possession of the land.

(3) For the purposes of this section, receipt of rent under a lease by a person wrongfully claiming, in accordance with section 12(3), the land in reversion is taken to be adverse possession of the land.”

Sections 37 and 38 of the Limitation of Actions Act stipulate that if the land is registered under one of the registration acts then the title is not extinguished, but held in trust for the person in adverse possession until he shall have obtained and registered a High Court Order vesting the land in him.

Section 37 provides that:-

“(1) where a person claims to have become entitled by adverse possession to land registered under any of the Acts cited in section 37, to land or easement or land comprised in a lease registered under any of those Acts, may apply the High Court for an order that he be registered as the proprietor of the land or lease in place of the person then registered as proprietor of the land.

The question that begs is, has the plaintiff proved on a balance of probabilities and that he indeed complied with the above stated law? The plaintiff in this case has indeed proved his case on a balance of probability. We therefore urge this court to grant the orders as prayed.

DATED AT MERU 29TH THIS DAY OF OCTOBER, 2018

………………………………….

FOR: CHARLES KARIUKI & KIOME ASSOCIATES

ADVOCATES FOR THE PLAINTIFF

26. The defendants’ written submissions are reproduced in full herebelow. Any spelling or other mistakes may only be ascribed to the defendants’ advocates. The submissions state as follows:

SUBMISSIONS ON BEHALF OF THE DEFENDANTS.

Your Honour, the plaintiff has sued the defendants herein in their capacity as the legal representatives of the estate of RIMBERIA KANYE alias RIMBERIA KANYA – Deceased seeking among other reliefs that he be registered as proprietor of LR MWIMBI/MURUGI/180 by virtue of Adverse possession.

Your Lordship in response to the plaintiff’s claim the defendant filed a statement of defence where they denied the plaintiff’s claim and intimated that they would wish to raise a preliminary objection on points of law.

Your Lordship at the outset we wish to submit that the suit as filed is Misconceived, without Merit and utterly without merit. The suit equally raises no reasonable cause of action.

WHETHER THE PLAINTIFF HAS THE LOCUS STANDI TO INSTITUTE THESE PROCEEDINGS.

The gist of the plaintiff’s case is an alleged judgment in Meru HCCC 30/1978 in a suit pitting the plaintiff’s father NJAGI MATHIU KANYI (Deceased and the defendants’ father). Your Honour the basis of the plaintiff’s entry if at all into the suit land was the Judgment, the plaintiff has not shown whether he has taken out legal representation of the estate of the said NJAGI MATHIU KANYI. To this extent we submit that the plaintiff lacks the capacity to institute these proceedings.

WHETHER THE DEFENDANTS ARE PROPERLY SUED HEREIN.

Your Lordship the registered proprietor of the suit land MWIMBI/MURUGI/180 RIMBERIA KANYA is deceased. There is pending in the High Court at Meru H.C SUCC 536/2009 where the defendants are the petitioners. This cause is partly heard and coming up for Hearing on 29/10/2018.

Your Honour the defendants have never been issued with the grant be it temporary or confirmed. The plaintiff has lied on oath (See paragraph 9 of the supporting affidavit).

Actually soon after the defendants filed the cause in Chuka as Chula PM SUCC 6/2009 the plaintiff filed an objection to the making of grant which objection is yet to be determined. The defendants are wrongly sued.

WHETHER THE CLAIM FOR ADVERSE POSSESSION HEREIN IS TENABLE.

Your Lordship the plaintiff can not seek to be declared to be entitled by way of adverse possession of title to land of a deceased person. Contrary to the averment that in paragraph 9 of the supporting affidavit, the defendant have never been registered as owners of the suit land. A copy of the Official search certificate dated 29/5/2017 filed herein by the plaintiff is self explanatory.

Your Lordship the suit as filed herein is fraught with falsehoods and lies. In the face of the pending Meru H.C SUCC 536/2009 that is yet to be determined, the suit herein is premature and lacks merit. We further submit that the suit is an abuse of the court process and meant to embarrass the defendant, in the upshot we pray that the same be dismissed with costs to the defendants.

DATED at Meru this……………26TH ……day of………OCTOBER….….2018

……………………………………..

FOR: MOKUA OBIRIA & ASS.

ADVOCATES FOR THE DEFENDANT

27. I find that the only issue to be determined in this suit is if or if not the plaintiff has proved his entitlement to a declaration that he owns 3 acres out of the suit land by way of adverse possession.

28. I have considered the pleadings, the oral evidence and the submissions proffered by the parties to buttress their diametrically divergent assertions. The plaintiff did not cite any case as an authority in his submissions. He, however, threw in or in more polite language, annexed, to his submissions the case of Daniel Kimani Ruchire & Others versus Swift, Rutherford Co Ltd & Another, Nairobi High Court Civil Case No. 1401 of 1971 [KLR] 2016. In this case, the claim for adverse possession was dismissed for the reason that adverse possession was not proved.

29. In their submissions, the defendants did not proffer any case as an authority in support of their assertions.

30. As I have already pointed out the plaintiff’s oral evidence was garbled. He could not satisfactorily explain why he had attempted to use the name of the 1st defendant’s father, Mberia, instead of that of his father Njagi. His explanation was convoluted and he owned up that during the time he obtained his identity card, he was not living around the area where the suit land is situated.

31. The 1st defendant’s evidence was that the plaintiff was a very violent man who forcefully moved into the suit land after the demise of the defendants’ father. He also sought to depict the plaintiff as an untruthful litigant and asserted that contrary to the plaintiff’s claim that he was using only 3 acres of the suit land, he was indeed using 7 acres. He proffered that the plaintiff had even constructed a church on the suit land. This testimony was not controverted by the plaintiff’s advocate in cross-examination. Indeed, the advocate opted not to re-examine him to clear grey areas.

32. The evidence of PW2, the plaintiff’s witness, who is his half-brother did not have much probative value. He agreed that their father had land and that he, PW2, had filed a succession case in respect thereof but could not explain why he had excluded the plaintiff from the list of beneficiaries for their father’s land. His belaboured explanation was that he considered him to belong to the defendants’ side. Again, the plaintiff’s advocate opted not to re-examine him to clear grey areas in his oral evidence.

33. The 1st defendant, DW1, in his oral evidence, told the court that he was not the registered owner of the suit land which remains registered in the name of his deceased father. His evidence that there is a pending succession case at Meru, to wit, High Court Succession No. 536 of 2009 was not controverted. I opine that the plaintiff cannot claim, through the doctrine of adverse possession, land ownership of which has not been determined.

34. There is also the claim that in Meru High Court Civil Case No. 30 of 1981, the plaintiff’s father Njagi Mathiu Kanyi obtained a judgment that gave him 3 acres out of the suit land. This judgment whose existence the 1st defendant denies knowledge of was ostensibly delivered on 10th October, 1988. This judgment cannot be implemented due to effluxion of time and by virtue of the provisions of the Limitation of Actions Act. The plaintiff and his deceased father did not take any steps to enforce the apposite decree. The plaintiff is estopped from staking any claim over the suit land on the basis of that decree. In accordance with the decision of the Court of Appeal in the case of M’Ikiara M’Rinkenya and Another versus Gilbert Kabeere M’Mbijiwe, Nyeri CA Civil Appeal No. 124 of 2003 [2007] eKLR, such a judgment or decree is barred by dint of expiry of 12 years. The Court opined as follows:

“The construction given to the corresponding section 4(4) of the Act by the courts in this country is much wider. All post judgment proceedings, including originating proceedings for execution of judgment are statute barred after 12 years”.

35. Adverse possession must be proved through cogent evidence. I find that the plaintiff has not proved that he is entitled to three (3) acres out of Land Parcel No. MWIMBI/MURUGI/180 by way of adverse possession.

36. I issue judgment for the defendants against the plaintiff in the following terms:

a) This suit is hereby dismissed.

b) Any inhibition or restraining orders by way of injunction or any restriction that may have been placed against Land Parcel No. Mwimbi/Murugi/180 should be removed by the registrar who is in charge of records appertaining to Land Parcel No. MWIMBI/MURUGI/180 forthwith.

c) The plaintiff and any persons acting at his behest or remaining on the suit land at his behest should vacate the suit land within three (3) months after delivery of this judgment AND should he not do so, he will be evicted from the suit land AND the Commanding Officer (O.C.S.) Chogoria Police Station is directed and empowered to ensure compliance with this order.

d) Costs shall follow the event and are awarded to both defendants.

Delivered in open Court at Chuka this29th day of May, 2019in the presence of:

CA: Ndegwa

Rimita h/b M/s Kiome for the Plaintiff

M/s Kithaka h/b Mokua for the Defendant

P. M. NJOROGE

JUDGE