Joan Atieno Abila v George Amos Odhiambo Oballa

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MILIMANI** **FAMILY DIVISION** **MATRIMONIAL CAUSE NO. 62 OF 2015 (O/S)** ***IN THE MATTER OF SECTION 2, 6, 7 12 AND 17 OF THE MATRIMONIAL PROPERTY ACT, 2013*** **AND** ***IN THE MATTER OF AN APPLICATION FOR THE DIVISION OF MATRIMONIAL PROPERTY*** **BETWEEN** **JOAN ATIENO ABILA …...…………… PLAINTIFF/APPLICANT** **VERSUS** **GEORGE AMOS ODHIAMBO OBALLA ...... DEFENDANT/RESPONDENT** **JUDGEMENT** 1. By Originating Summons dated 5 November 2015, the Plaintiff seeks the following reliefs: 2. That the Plaintiff be declared the sole legal owners of all that parcel of land known as Land Reference Number 13867/2 including the building and improvement erected thereon; 3. That any sums found to be have been contributed the Defendant be ascertained and refunded to him; 4. That a temporary injunction restraining the Defendant by himself, his agents, servants, employees and/or any person claiming any right whatsoever under him from entering upon, remaining thereon, removing from, wasting, digging on, excavating, fencing, erecting any building, development and/or structure whatsoever or otherwise dealing with all that parcel of land known as Land Reference Number 13867/2 in any manner interfering with the Plaintiff’s quiet possession, use and enjoyment of the same until the hearing and determination of this suit and/or further orders of this Honourable Court; 5. That a permanent injunction restraining the Defendant by himself, his agents, servants, employees and/or any person claiming any right whatsoever under him from entering upon, remaining thereon, removing from, wasting, digging on, excavating, fencing, erecting any building, development and/or structure whatsoever or otherwise dealing with all that parcel of land known as Land Reference Number 13867/2 in any manner interfering with the Plaintiff’s quiet possession, use and enjoyment of the same. 6. That a mandatory injunction compelling the Defendant by himself, his agents, servants, employees and/or any person claiming any right whatsoever on his behalf to vacate forthwith all that parcel of land known as Land Reference Number 13867/2 pending the hearing and determination of this suit and/or further orders of this Honourable Court; 7. That a mandatory permanent injunction compelling the Defendant by himself, his agents, servants, employees and/or any person claiming any right whatsoever on his behalf to vacate forthwith all that parcel of land known as Land Reference Number 13867/2. 8. That the Officer Commanding Karen Police Station do provide adequate security and protection for the Plaintiff in effecting the above orders of the Court; 9. That the costs of the Summons be borne by the Defendant. 10. The Defendant/Respondent defended the suit through detailed Replying Affidavits, asserting that the Karen Property was procured during the subsistence of their marriage as a matrimonial home through mutual financial endeavour, pooled resources, direct cash injections, and indirect contributions. Denying that the Plaintiff/Applicant is the sole beneficial owner, the Defendant/Respondent cross-prays for an equitable distribution of the asset, asserting a 50% beneficial entitlement under the statutory presumption of resulting trust codified in Section 14 of the Matrimonial Property Act. 11. The procedural history of this dispute reveals an acrimonious marital breakdown litigated across multiple judicial forums. The parties celebrated a statutory marriage on 24 November 1996, which was blessed with three children. Serious matrimonial disharmony led to an initial separation between 2000 and 2002, followed by a reconciliation that endured until 2014, when the marriage disintegrated irretrievably. The discord spawned parallel litigation, including Children’s Cause No. 1033 of 2014 before the Chief Magistrate's Court at Nairobi, where *ex parte* orders for the Respondent's eviction and execution by auctioneers were issued and later stayed by the High Court. A divorce petition previously lodged at the Kajiado Law Courts was dismissed for want of territorial jurisdiction. Ultimately, the marital knot was formally severed on 1 December 2016 pursuant to a decree absolute issued in Milimani Chief Magistrate’s Divorce Cause No. 248 of 2015. 12. Following the formal dissolution of the marriage, the hearing of the Originating Summons commenced *viva voce* before Musyoka J., where the Plaintiff/Applicant testified as PW1 alongside her mother, Sylvia Zilpah Arende Abila, as PW2. The matter was subsequently concluded before this Court on 12 November 2025, where the Defendant/Respondent testified as DW1 and called his sister, Eunice Achieng Obala, as DW2. Upon closure of the evidence, the parties filed written submissions and supplementary submissions, which have been considered. **The Plaintiff’s Case** 1. The Plaintiff/Applicant testified that during the subsistence of the marriage, she was stably employed, serving in executive roles with international agricultural organizations including the Alliance for a Green Revolution in Africa (AGRA) and ABI Trust. She asserted that the Karen Property was purchased in 2005–2006 for an agreed consideration of Kshs 17 million, which escalated to Kshs 18,200,000/= due to completion delays and contractual interest penalties. 2. The Plaintiff/Applicant maintained that she shouldered the entire financial burden of this acquisition through three principal avenues: first, an initial deposit raised from the sale of a residential house in KMA Estate, Langata, which she asserted was a personal parental gift from her parents, the late Dr. Peter Abila Ochola and Mrs. Sylvia Zilpah Arende Abila; second, substantial direct cash advancements amounting to Kshs 10,335,000/= gifted exclusively to her by her mother; and third, independent borrowing comprising a commercial mortgage of Kshs 6,165,000/= from CFC Stanbic Bank, a loan of Kshs 1,500,000/= from Utafiti Sacco, and a corporate facility of Kshs 3,000,000/= from Kimisitu Sacco, all serviced through payroll check-off deductions from her salary. 3. The Plaintiff/Applicant stated that the Defendant/Respondent diverted his income into expensive, unsuccessful political campaigns for the Rarieda parliamentary constituency, leaving her to provide for the domestic upkeep and shelter of the family. 4. The testimony of PW2, Mrs. Sylvia Zilpah Arende Abila, supported the Plaintiff/Applicant’s case. PW2 affirmed that following the death of her husband Dr. Abila in early 2002, the family transferred the Langata property to the Plaintiff/Applicant as an advancement to secure her future during an acute period of marital separation. When the Plaintiff/Applicant resolved to acquire the Karen Property, PW2 consented to the sale of the Langata residence to the Applicant’s sister, Florence Abila Siage, for Kshs 5,200,000/= so that the proceeds could fund the Karen deposit. PW2 further deponed that she advanced financial assistance exceeding Kshs 10,330,000/= directly from her personal accounts to safeguard her daughter and grandchildren, stressing that these funds were never intended as a gift or advancement to the Defendant/Respondent. **The Defendant’s Case** 1. The Defendant/Respondent presented a contrary narrative. He testified that between 1991 and 2021, he held senior corporate positions across multinational corporations and financial bodies, including Trade Bank, Caltex Oil Kenya, Agip Oil, Shell & BP, Oryx Energies, Fore Finance, and Scope Insight. He claimed that between 2003 and 2012, while stationed in Dar es Salaam, Tanzania, as a regional executive, he remitted funds to the Plaintiff/Applicant's accounts to service debts, maintain the household, and invest in real estate. 2. Regarding the Langata property, the Defendant/Respondent contended that Dr. Abila had only paid Kshs 1,800,000/= before his demise, after which the Respondent personally financed the remaining Kshs 3,500,000/= balance through cash and personal cheques, exhibiting receipts issued in his name. He asserted that the subsequent disposal of the Langata house to the Plaintiff/Applicant’s sister for Kshs 5.2 million represented an undervaluation of an asset worth Kshs 12 million, causing him a direct capital loss. 3. Regarding the Karen acquisition, the Respondent maintained that on 13 March 2006, he deposited Kshs 1.5 million in cash into the Plaintiff/Applicant's account at Commercial Bank of Africa (CBA), Village Market Branch, to avert the dishonour of an acquisition cheque. He further asserted contributing Kshs 2,535,000/= from joint savings, remitting USD foreign currency converted at ILRI equivalent to Kshs 732,350/=, providing Kshs 1,200,000/= from the insurance salvage of a motor vehicle, and paying mortgage installments, including a specific deposit of Kshs 415,000/= on 18 November 2012. 4. DW2, Eunice Achieng Obala, confirmed visiting the family at Karen, but admitted under cross-examination that she possessed no direct knowledge of the financial transactions or conveyancing mechanics surrounding the acquisition of the land. **Analysis & Determination** 1. Having evaluated the pleadings, the affidavits, the documentary exhibits, viva voce evidence, and rival written submissions, the Court identifies the following issues for determination: 2. Whether Land Reference Number 13867/2 (the Karen Property) constitutes matrimonial property within the meaning of Sections 2 and 6 of the Matrimonial Property Act, 2013. 3. What legal standard governs the division of matrimonial property under Article 45(3) of the Constitution and Section 7 of the Matrimonial Property Act, 2013, and whether Section 14 creates an irrebuttable presumption of equal beneficial ownership. 4. What was the nature, veracity, and quantum of each party's proven monetary and non-monetary contribution toward the acquisition and preservation of the Karen Property? 5. What is the legal effect of parental financial assistance and proceeds from pre-existing family assets in determining spousal beneficial entitlement? 6. How should the beneficial interest in the suit property and ancillary assets (household goods and motor vehicles) be apportioned? 7. Whether the Applicant is entitled to injunctive reliefs and an order for the eviction and exclusive possession of the matrimonial home pursuant to Section 12 of the Matrimonial Property Act, 2013, and who shall bear the costs of the suit. The Matrimonial Character of L.R. No. 13867/2 1. The threshold inquiry is whether the suit property falls within the statutory definition of matrimonial property. Section 6(1) of the Matrimonial Property Act, defines matrimonial property as the matrimonial home or homes, household goods and effects in the matrimonial home, and any other immovable or movable property jointly acquired and owned during the subsistence of the marriage. Complementing this, Section 2 of the Act defines a matrimonial home as any property that is owned or leased by one or both spouses and occupied or utilized by them as their family home. 2. The Plaintiff/Applicant argued that because the title is registered in her sole name and the funds were largely derived from her borrowings and parental gifts, the Karen Property represents her exclusive separate investment. This contention cannot stand. The evidence on record demonstrates that the Agreement for Sale was negotiated in 2005 and concluded in 2006, while the parties were cohabiting as husband and wife. 3. Upon completion, both spouses moved into the residence alongside their three children, using it continuously as their primary family domicile from 2006 until their final domestic separation in 2014. The characterization of a property as a matrimonial home depends on its continuous utilization and shared domestic purpose, rather than the registration of legal title. 4. As observed in ***TMV v FMC* [2018] eKLR,** real property acquired during the subsistence of a marriage that serves as the dwelling place of the family constitutes matrimonial property by operation of law, unless an express marital agreement executed under Section 6(3) of the Act stipulates otherwise. In the absence of any prenuptial or postnuptial contract, Land Reference Number 13867/2 is a matrimonial home and constitutes matrimonial property under Sections 2 and 6(1) of the Act. Constitutional Equality, Contribution, and Trusts 1. The characterization of an asset as matrimonial property does not entitle a non-registered spouse to an automatic 50% beneficial share upon divorce. The legal principles governing apportionment must be examined through the lens of Article 45(3) of the Constitution and Section 7 of the Matrimonial Property Act. 2. Article 45(3) provides that parties to a marriage are entitled to equal rights at the time of the marriage, during the marriage, and at its dissolution. In ***Joseph Ombogi Ogentoto v Martha Bosibori Ogentoto* [2023] KESC 1 (KLR),** the Supreme Court held that Article 45(3) guarantees equality of legal capacity, human dignity, and non-discrimination; it does not decree an automatic equal division of assets or an arbitrary transfer of proprietary rights. The Supreme Court ruled that ownership upon dissolution vests strictly according to the proven contribution of each spouse, warning that an automatic 50:50 sharing ratio would undermine equity by allowing a spouse to reap where they did not sow. 3. The holding in ***Ogentoto* (supra)** affirmed the earlier decisions of the Court of Appeal in ***PNN v ZWN* [2017] eKLR** and ***EGM v BMM* [2020] eKLR**. In ***PNN v ZWN*,** the Court of Appeal observed that equal rights in marriage do not equate to equal division of property without regard to contribution, holding that equality ensures both monetary and non-monetary inputs are fairly evaluated without gender bias. 4. In ***EGM v BMM***, the appellate court held that Article 45(3) does not authorize the redistribution of one spouse’s property rights to the other absent proven contribution. This principle is codified in Section 7 of the Matrimonial Property Act, which provides that ownership of matrimonial property vests in the spouses according to the contribution of either spouse towards its acquisition and shall be divided between them upon divorce or dissolution. 5. The Defendant/Respondent argued that registration in the Plaintiff/Applicant’s sole name triggers an irrebuttable presumption of equal ownership in his favor pursuant to Section 14(a) of the Act. Section 14(a) provides that where matrimonial property is acquired during marriage in the name of one spouse, there shall be a rebuttable presumption that the property is held in trust for the other spouse. 6. However, this statutory presumption is explicitly rebuttable. It shifts the evidentiary burden to the registered spouse to demonstrate that the property was acquired through separate means, parental advancement, or independent liability, or that the non-registered spouse's contribution was less than claimed. 7. In ***Peter Mburu Echaria v Priscilla Njeri Echaria* [2007] eKLR**, a full bench of the Court of Appeal affirmed that a spouse claiming a beneficial share in property registered in the name of the other must adduce evidence demonstrating contribution, direct or indirect. 8. Furthermore, as held in ***PWK v JKG* [2015] eKLR**, bare assertions of having contributed to an asset without supporting primary documentary evidence or financial tracing cannot substantiate a beneficial claim against registered title. Under Sections 107, 108, and 109 of the Evidence Act, the burden rested upon the Plaintiff/Applicant to rebut the statutory presumption of trust, and upon the Defendant/Respondent to prove the factual basis and extent of his alleged contribution. Evidential Audit of Contributions Toward L.R. No. 13867/2 1. The Court conducted an evidential audit of the funds deployed to meet the total purchase price and financing costs of the Karen Property, which rose from Kshs 17 million to Kshs 18.2 million. 2. The financial transactions, competing assertions, and verified evidential findings are discussed hereunder. 3. The evidentiary analysis reveals clear contrasts in documentation. The Plaintiff/Applicant supported her case with financial source documents. Her employment with AGRA was demonstrated through official salary deduction schedules and monthly check-offs of Kshs 82,000/= to Kimisitu Sacco. 4. The commercial mortgage facility from CFC Stanbic Bank was secured solely on her personal covenant, with primary liability for default resting entirely on her shoulders. Her account records reflect the deployment of Utafiti Sacco borrowing to meet initial transaction costs. 5. The Defendant/Respondent presented an extensive professional profile across regional organizations, but high earning capacity does not constitute evidence of property acquisition. As the Court of Appeal established in ***Echaria v Echaria*,** a spouse's earning potential cannot substitute for proof of actual investment into the property in dispute. The Defendant/Respondent failed to produce primary bank statements from his accounts in Kenya or Tanzania demonstrating recurring transfers into the vendor's or chargee's accounts. 6. Nevertheless, the Defendant/Respondent’s claims were not entirely unsupported. His exhibit GOO8—an original cash deposit slip dated 13 March 2006 for Kshs 1,500,000/= at CBA Village Market bearing his signature—confirms a direct cash injection into the transaction account during the completion period. The Plaintiff/Applicant’s contention that this entry represented loan proceeds does not overcome the primary banking document identifying the Defendant/Respondent as the depositor. 7. The Defendant/Respondent also established that on 18 November 2012, he paid Kshs 415,000/= directly toward mortgage clearance, and showed that proceeds from the salvage sale of a BMW vehicle (Kshs 1,200,000/=), which he had purchased, were remitted to the Plaintiff/Applicant and partially applied to domestic finances. Beyond these verifiable sums, the Respondent’s assertions regarding Kshs 2,535,000/= in joint savings and USD foreign currency conversions were unsupported by banking records, failing to meet the standard of proof required in civil cases. 8. A central issue between the parties was the legal treatment of the Kshs 10,335,000/= parental assistance provided by Mrs. Sylvia Zilpah Arende Abila and the sale proceeds of the Langata residence. 9. The Defendant/Respondent asserted that the Langata house was a joint matrimonial investment. However, the evidence showed that the property was allocated through the Kenya Medical Association to the late Dr. Peter Abila Ochola, who paid the initial Kshs 1.8 million. Following Dr. Abila’s death in early 2002, the family preserved the house for the Applicant and her young child during her period of marital separation. The subsequent transfer of the house into the Plaintiff/Applicant’s name was an advancement by a surviving parent to her daughter. 10. The Defendant/Respondent relied on receipts, such as receipt number 072 for Kshs 66,000/=, to argue that he purchased the house. This Court finds that isolated payments of utility arrears or minor administrative fees do not convert a property allocated to a father-in-law into an asset purchased by the son-in-law. The subsequent sale of the Langata residence to the Plaintiff/Applicant’s sister, Florence Abila Siage, for Kshs 5.2 million was a disposition of the Plaintiff/Applicant’s property. Applying those proceeds toward the deposit for the Karen Property was a direct capital contribution by the Plaintiff/Applicant. 11. Regarding the parental financial assistance of Kshs 10,335,000/=, the Court of Appeal in ***PNN v ZWN* [2017] eKLR** established that where parents provide funds to assist their married child in acquiring property, there is a legal presumption that the contribution is a gift or advancement solely to their child, rather than an intention to confer a proprietary interest on the son-in-law or daughter-in-law, unless clear evidence demonstrates otherwise. 12. Mrs. Zilpah Abila's testimony confirmed that her financial interventions were motivated by parental concern to ensure shelter and security for her daughter and grandchildren following marital distress. No evidence was presented showing that Mrs. Abila intended to create a beneficial interest for the Defendant/Respondent. As a result, the financial contributions from the Langata property and parental assistance belong to the Plaintiff/ Applicant. Apportionment of Beneficial Interests and Ancillary Claims 1. Under Section 2 of the Act contribution encompasses both monetary and non-monetary elements. Non-monetary contribution includes domestic work, management of the matrimonial home, child care, companionship, and property preservation. 2. The Court recognizes that during the sixteen-year cohabitation, both parties contributed non-monetarily to the family. The Plaintiff/Applicant managed the primary household, raised three children, attended to their educational and medical needs, and handled conveyancing and mortgage administration while the Defendant/Respondent was based in Tanzania. 3. The Defendant/Respondent was not an absent provider; when in Kenya, he paid family food bills, settled school fees, and met various household maintenance costs, which relieved the family budget and allowed the Plaintiff/Applicant to channel salary deductions toward mortgage obligations. Applying the principles from ***Kivuitu v Kivuitu* [1991] eKLR,** such indirect support constitutes valid non-monetary and indirect contribution. 4. The monetary inputs must also be weighed against the overall acquisition cost. The total capital cost of the Karen Property, accounting for accrued completion interest and registration fees, was approximately Kshs 18.2 million. The Plaintiff/ Applicant established direct monetary contributions through: 5. Langata sale proceeds: Kshs 4.5 million to 5.2 million. 6. Direct parental gifts from PW2: over Kshs 7.5 million applied to the vendor and debt settlement. 7. Direct loan obligations serviced via salary: Kshs 4.5 million (Kimisitu and Utafiti Saccos). 8. Principal mortgage servicing through CFC Stanbic Bank. 9. The Defendant/Respondent’s verified direct monetary contributions include: 10. Cash deposit at CBA Village Market: Kshs 1.5 million. 11. Documented mortgage relief remittance: Kshs 415,000/=. 12. Vehicle salvage injection: Kshs 1.2 million applied to family stabilization. 13. The Defendant/Respondent's verified monetary inputs total approximately Kshs 3,115,000/=, representing roughly 17% of the acquisition capital. When coupled with his indirect non-monetary contributions over sixteen years of marriage, his overall contribution is assessed at 25% of the Karen Property. The Applicant established a 75% beneficial entitlement through substantial direct capital injections, full legal mortgage liability, parental advancements, and continuous domestic care. 14. Regarding the ancillary assets, the evidence established that during the eviction and removal executed under Children’s Court orders, diverse household items were inventoried and transferred. The Defendant/Respondent's estimate that these goods were worth Kshs 25 million to Kshs 75 million was unsupported by professional valuation reports. In line with Section 6(1)(b) of the Act, each party shall retain absolute ownership of the household items currently in their respective possession. 15. The parties led evidence with respect to other assets, including motor vehicles and the rural residential home in Rarieda Constituency. These assets, however, are not subject of the prayers sought in the Originating Summons before me, and for that reason, I will not address the issue. Injunctive Relief, Exclusive Possession, and Eviction. 1. The Plaintiff/Applicant sought an order evicting the Defendant/Respondent from the Karen Property and granting her exclusive possession. The Defendant/Respondent resisted this prayer, invoking Section 12 of the Act, which protects a spouse’s right to occupy the matrimonial home. 2. Section 12(1) and (4) provides: *(1) An estate or interest in any matrimonial property shall not, during the subsistence of a monogamous marriage and without the consent of both spouses, be alienated, mortgaged or leased...* *(4) A spouse shall not be evicted from the matrimonial home by or on behalf of the other spouse except by an order of a court.* 1. The protection under Section 12 safeguards spouses from summary eviction or unilateral disposition of the family residence during the subsistence of the marriage. 2. However, in the present case, the marriage between the Plaintiff/Applicant and the Defendant/Respondent was dissolved by a Decree Absolute on 1 December 2016 in Milimani CMCDC No. 248 of 2015. Upon dissolution, the protective stay under Section 12 shifts to the statutory division mechanisms of Sections 7 and 17 of the Act. Former spouses whose union has broken down cannot be compelled to share physical occupation of a single residential unit. 3. In ***JMK v DKM* [2022] eKLR** the Court confirmed that where a marriage has been dissolved and the beneficial shares of the parties determined, the Court retains equitable jurisdiction to order one spouse to vacate the property upon the settlement of their beneficial share. Because the Plaintiff/Applicant holds a 75% majority beneficial interest, she is entitled to exclusive possession of the property, subject to buying out the Respondent's 25% beneficial interest. 4. To protect the Defendant/Respondent's property rights under Article 40 of The Constitution, his eviction cannot occur without financial compensation for his recognized beneficial share. The Court, therefore, directs that the Respondent's 25% interest be valued and bought out, or the property sold on the open market and the proceeds distributed accordingly. **Disposition** 1. This Court enters judgment on the Originating Summons dated 5 November 2015 and issues the following orders: 2. Land Reference Number 13867/2 situated in Karen, Nairobi, is hereby declared to be matrimonial property within the meaning of Sections 2 and 6(1) of the Matrimonial Property Act, 2013. 3. The beneficial interest in Land Reference Number 13867/2 is hereby determined and apportioned between the parties as follows: 4. Plaintiff/Applicant: Seventy-Five Percent (75%). 5. Defendant/Respondent: Twenty-five Percent (25%). 6. The parties shall, within sixty (60) days of the date hereof, appoint a mutually agreed registered valuer from the panel of the Institution of Surveyors of Kenya (ISK) to determine the current open market value of Land Reference Number 13867/2. In default of agreement, the Deputy Registrar shall appoint a practicing valuer whose valuation shall be final and binding on both parties. The cost of valuation shall be borne by the parties in proportion to their beneficial shares (Plaintiff/Applicant 75%, Defendant/Respondent 25%). 7. The Plaintiff/Applicant is hereby granted the first option to purchase the Defendant/Respondent's 25% beneficial interest by paying the cash equivalent within ninety (90) days of the release of the valuation report. Upon full payment of the Defendant/Respondent's 25% share, the Defendant/Respondent shall deliver vacant possession of Land Reference Number 13867/2 to the Plaintiff/Applicant within thirty (30) days. 8. In the event that the Plaintiff/Applicant fails to exercise her option to purchase within ninety (90) days, the property shall be placed on the open market for sale by private treaty or public auction within one hundred and twenty (120) days thereafter. The net proceeds of sale, after deducting transactional costs, advertising expenses, and taxes, shall be distributed directly to the parties at the ratio of 75% to the Plaintiff/Applicant and 25% to the Defendant/Respondent. Both parties shall execute the requisite conveyancing instruments, and in default by either party, the Deputy Registrar of this Court is authorized to execute all transfer documents on their behalf. 9. An order of permanent injunction is hereby granted restraining the Defendant/Respondent from mortgaging, leasing, encumbering, or disposing of Land Reference Number 13867/2. Upon payment of the 25% share or upon completion of the sale, the Defendant/Respondent shall vacate the property. In default of voluntary surrender of possession within thirty (30) days of settlement, a formal warrant of eviction shall issue against the Defendant/Respondent. 10. Each party shall retain absolute possession and ownership of the household furniture, equipment, and personal effects currently in their physical custody. 11. Each party shall bear their own costs of these proceedings. **DATED AND DELIVERED AT NAIROBI THIS 9 DAY OF SEPTEMBER 2026** **HELENE R. NAMISI** **JUDGE OF THE HIGH COURT** Delivered on virtual platform in the presence of: For the Plaintiff: Mr Wasunna For the Defendant: Ms Khamiri h/b Mr. Swaka Court Assistant: Lucy Mwangi