https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3812

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAIROBI** **ELC APPEAL NO. E036 OF 2025** **TITUS MULANDI KITONGA 1ST APPELLANT** **NASIMU MULANDI KITONGA 2ND APPELLANT** **SHEM ONYANGO 3RD APPELLANT** **VERSUS** **HASHTAG BIZ HUB COMPANY LIMITED RESPONDENT** ***(Being an appeal from the Ruling of Hon. S.K. Onjoro (SPM) in the Chief Magistrates' Court at Milimani, Nairobi, delivered on 7th February 2025 in Nairobi Civil Suit No. 4665 of 2019)*** **J U D G M E N T** 1. This is a first appeal to the Environment and Land Court from the ruling of **Hon. S.K. Onjoro, Senior Principal Magistrate (SPM), delivered on 7th February 2025 in Nairobi Civil Suit No. 4665 of 2019 at the Chief Magistrates' Court, Milimani**. The ruling dismissed an interlocutory application dated 20th July 2024 filed by the Appellants (the Defendants in the court below) and directed the suit to proceed to full hearing on its merits. The Appellants now challenge that ruling in its entirety. 2. The dispute in the court below concerns the property known as NAIROBI/BLOCK TASSIA-II-97/0794/088 (the "suit property"). The Respondent, as plaintiff, seeks specific performance of a sale agreement dated 15th November 2015, together with injunctive relief, mesne profits, and general damages. The Appellants, as defendants, deny the enforceability of the agreement and the jurisdiction of the trial court to entertain the suit. **Background** 3. The factual and procedural history of this matter is somewhat layered and must be set out with care, as the correct characterisation of what the High Court decided in the earlier proceedings is at the centre of the present appeal. 4. The originating suit was filed by the Respondent in the Chief Magistrates' Court in 2019. The Respondent claimed that it had entered into a sale agreement with the Appellants on 15th November 2015 for the purchase of the suit property. It alleged that despite paying a deposit and taking possession of the property, the Appellants frustrated the completion of the sale. The Respondent sought specific performance, an injunction, mesne profits, and general damages. On 11th September 2019, the trial court granted an interlocutory injunction in the Respondent's favour. 5. The Appellants appealed against that order to the ELC Appeal No. 67 of 2019. The ELC through Angote J. delivered judgment on 14th March 2024, setting aside the injunction. In the course of its judgment, the ELC made the following material findings: (a) that the sale agreement did not comply with the attestation requirement in Section 3(3) of the Law of Contract Act, Cap. 23; (b) that on a prima facie basis, the Respondent did not have a probability of success at trial, having failed to comply with the terms of the agreement and having failed to explain that failure; and (c) that the trial court lacked the requisite jurisdiction to have made the orders it made, given the non-compliance with Section 3(3). 6. Following the ELC judgment, the Appellants filed a Notice of Motion in the trial court on 20th July 2024, supported by an affidavit sworn by Titus Kitonga, seeking: (a) dismissal of the suit on the ground that it is premised on an unenforceable contract; (b) dismissal of the suit on the ground that it is contra-statute and the court lacks jurisdiction; (c) an eviction order against the Respondent from the suit property, its occupation having been premised on the now-nullified injunction of 11th September 2019; (d) directions to the OCPD, Embakasi Police Station, to facilitate enforcement; and (e) in the alternative, an order requiring the Respondent to deposit in court the outstanding balance of the purchase price together with interest thereon as security for damages. 7. The Respondent filed a replying affidavit on 26th August 2024. Its principal response was that it had filed a review application against the ELC judgment in ELC Appeal No. 67 of 2019, and that the ELC had issued a status quo order on the suit property pending that review. The main ground of the review application was that the Appellants had allegedly misled the ELC by failing to disclose the existence of an active Court of Appeal matter in Cause No. E327 of 2021, a matter which the Respondent maintained would heavily jeopardize the Court's findings in ELC 67 of 2019. 8. Both parties filed written submissions before the trial court. The Appellants filed their submissions on 12th September 2024 and the Respondent filed its submissions on 25th September 2024. On receiving the Respondent's submissions, the Appellants noted that the Respondent had introduced new pleading points not contained in its replying affidavit, and filed supplementary submissions on 29th September 2024 in response. The learned Magistrate delivered the impugned ruling on 7th February 2025. 9. He dismissed all the prayers in the Appellants' application. On the jurisdiction and striking-out question, he held that the ELC findings had been made on a prima facie interlocutory basis and that the substantive suit which included claims for specific performance, mesne profits, and damages was not so hopeless as to be struck out without a trial. He drew guidance from **D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina & Another [1980] eKLR** and noted the pendency of the Respondent's review application as bearing on the finality of the High Court's findings. On the eviction prayer, he held it was premature and would amount to determining the suit before trial. On the security prayer, he appears to have treated it as a prayer for security for costs and dismissed it on that basis. 10. The Appellants filed the present appeal on 13th February 2025, raising eleven grounds. **Parties' submissions** **Appellants' Submissions** 11. The Appellants filed written submissions on 5th June 2026 through Onindo Onindo & Associates Advocates. The submissions run to sixteen pages and are structured under four main issues corresponding to the principal prayers in their Notice of Motion. I summarise them as follows. 12. On jurisdiction, the Appellants submitted that Section 3(3) of the Law of Contract Act is couched in mandatory terms "no suit shall be brought" and that the sale agreement of 15th November 2015 bore no witness attestation whatsoever on its face. They urged the Court to examine the last page of the agreement at pages 11-15 of the record of appeal to confirm this. They submitted that non-compliance with Section 3(3) does not merely affect the merits of a claim but ousts the court's jurisdiction entirely, such that no suit may be brought on any relief whether specific performance, damages, mesne profits, or injunction if that relief is founded on a non-compliant contract. In support, they relied on **Patrick Tarzan Matu & Another v Nassim Shariff Abdulla & 2 Others [2009] eKLR, in which Azangalala J (as he then was)** struck out a plaintiff's claim for damages for breach of contract founded on a non-attested agreement, finding that "the very foundation of their claim is untenable"; **Silverbird Kenya Limited v Junction Ltd & 3 Others [2013] eKLR,** in which Mutungi J struck out a suit on the same grounds and stated that Section 3(3) "does in fact divest the court of jurisdiction in instances where there is no compliance"; and **Giro Commercial Bank Ltd v Eccon Construction** **& Engineering Ltd & Another, Civil Appeal No. 93 of 2004,** in which the Court of Appeal reiterated the attestation requirement. 13. On the absence of any cure for a jurisdictional defect, the Appellants relied on **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1** for the proposition that jurisdiction is everything and a court downs its tools the moment it is without jurisdiction. They further relied on **Phoenix of EA Company Limited v Thiga TA Newspaper Service, Civil Appeal No. 244 of 2010 [2019] KECA 767 (KLR),** for the propositions that: proceedings before a court bereft of jurisdiction are a nullity ab initio amenable to being set aside ex debito justitiae; not even Article 159 of the Constitution, the overriding objective, or any other remedial principle can cure such a defect; and a court must not, through judicial craftsmanship, sanctify an otherwise incompetent suit. They also cited **Joseph Muthee Kamau & Another v David Mwangi Gichure & Another [2013] eKLR and Esther Gachambi Mwangi v Samuel Ngiri [2013] eKLR** to reinforce that jurisdiction must exist at the time of filing or commencement of hearing and cannot be conferred retrospectively. 14. On the Magistrate's reliance on **D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina & Another [1980] eKLR,** the Appellants submitted that D.T. Dobie case operates under Order 6 Rule 13 of the Civil Procedure Rules, which Madan JA himself described as a rule of clarity of pleadings, not a rule of jurisdiction. They submitted that the remedy of amendment which D.T. Dobie case contemplates cannot inject life into a suit that is fundamentally tainted by the absence of jurisdictional basis. They further challenged the Magistrate's finding that the ELC was "not privy to all the material facts and reliefs" in the suit when it decided ELC 67 of 2019, submitting that this was both factually wrong the ELC had the full record of appeal, including the amended plaint and disrespectful of the Superior Court. They noted pointedly that the ELC had since dismissed the Respondent's review application, vindicating this position. 15. On the restorative/eviction orders, the Appellants submitted that the Respondent's forcible entry onto and occupation of the suit property was enabled entirely by the injunction of 11th September 2019, which the ELC nullified for want of jurisdiction. They relied on **Macfoy v United Africa Co Ltd [1961] 3 All ER 1169** as adopted in **Phoenix of EA case (Supra)** for the principle that everything founded on a void act is itself void and incurably bad. They further invoked **Section 91 of the Civil Procedure Act**, which empowers the court, where a decree is varied or reversed, to make such orders as are necessary to restore parties to the position they would have occupied but for the varied or reversed decree. They characterised the eviction orders sought not as interlocutory reliefs requiring a full trial but as consequential restorative orders properly grantable upon the dismissal of the suit for want of jurisdiction. They cited **Ali Bin Khamis v Salim Bin Khamis Kirobe & Others [1956] 1 EA 195** for the principle that in cases of nullity, procedure is unimportant since the court has inherent jurisdiction to set aside its own order ex debito justitiae. 16. On the security for damages prayer, the Appellants submitted that the Magistrate mischaracterised prayer 6 as a prayer for security for costs and then dismissed it on the wrong legal basis. The prayer was framed under **Order 40 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act** as a prayer for security for damages. They submitted that the Respondent had occupied the suit property for over eleven years, collected rent from tenants installed therein, paid none of the purchase price balance, failed to explain that failure as found by the ELC, and had already failed to pay the costs awarded in ELC Appeal No. 67 of 2019. They submitted that permitting the Respondent to continue in possession without any security amounted to unconscionable enrichment, contrary to the trite principle of equity that a buyer cannot have both the land and the purchase money. **Respondent's Submissions** 17. The Respondent filed written submissions on 11th June 2026 through Joseph Kiarie & Company Advocates, in support of the lower court ruling of 7th February 2025. I summarise them as follows. 18. On the threshold question of appellate interference, the Respondent relied on **Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR and the more recent Otiende & 5 Others v Dache & 4 Others [2025] KECA 2275 (KLR)** to submit that an appellate court will not disturb the exercise of judicial discretion unless the lower court misdirected itself in law, took into account irrelevant factors, failed to consider relevant factors, or arrived at a plainly wrong decision. The Respondent submitted that the Appellants had not demonstrated any such misdirection. 19. On the striking-out question, the Respondent relied on **D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina & Another [1980] eKLR,** submitting that striking out is a draconian remedy to be exercised sparingly and only in the clearest of cases. It submitted that the Magistrate correctly appreciated that the ELC findings in ELC Appeal No. 67 of 2019 were made on a prima facie interlocutory basis and that the substantive suit, raising claims for specific performance, mesne profits, and damages, was not plainly beyond redemption. The Respondent further submitted that striking out the suit would deprive it of the constitutional right to a fair hearing guaranteed by **Article 50 of the Constitution.** 20. On jurisdiction, the Respondent relied on **Samuel Kamau Macharia & Another v Kenya Commercial Bank Ltd & 2 Others, Application No. 2 of 2011 [2012] eKLR**, for the proposition that jurisdiction flows from the Constitution or statute and that a court cannot arrogate to itself jurisdiction exceeding what is so conferred. It submitted that the Chief Magistrates' Court has statutory jurisdiction over land-related contractual claims including specific performance, mesne profits, and damages, and that the ELC observations on the enforceability of the agreement do not amount to a finding that the trial court lacks that statutory jurisdiction. It noted that the ELC issued no order striking out the suit or directing the trial court to discontinue proceedings. 21. On the eviction prayer, the Respondent submitted that such an order at the interlocutory stage would conclusively determine the question of possession before evidence is heard, which the Magistrate correctly declined, relying on **John Kuria Mahia v Paul Odhiambo Omollo [2021] eKLR.** It further submitted that the Magistrate correctly considered the pendency of the Respondent’s review application before the ELC and the existence of a status quo order on the suit property at the time, noting that granting eviction would have rendered those review proceedings nugatory. On security for costs, the Respondent submitted that inability to pay costs must be proved and cannot be presumed, relying on **Keystone Bank Limited & 4 Others v I & M Holdings Limited & Another [2017] eKLR,** and that the Magistrate correctly found the Appellants had failed to discharge their evidential burden on that prayer. 22. The Respondent prayed that the appeal be dismissed in its entirety with costs, the ruling of 7th February 2025 be upheld, and costs of the appeal be awarded to the Respondent. **Analysis and determination** 23. As a first appellate court, this Court must re-evaluate the evidence and the law afresh and arrive at its own conclusions, while recognising that it did not have the advantage of seeing and hearing witnesses. **See Selle v Associated Motor Boat Co. [1968] EA 123.** 24. Having considered the memorandum of appeal, the record of appeal, and the written submissions of both parties, I identify the following 6 issues for determination: **(i) Whether the sale agreement of 15th November 2015 is rendered unenforceable by Section 3(3) of the Law of Contract Act, and if so, what is the legal consequence for the jurisdiction of the trial court.** **(ii) Whether the trial court's refusal to strike out the suit was correct in law.** **(iii) Whether the Magistrate correctly declined to grant the restorative/eviction orders.** **(iv) Whether the Magistrate correctly declined the security-for-damages prayer, and whether the prayer was correctly characterised.** **(v) What orders should follow?** **Issue (i): Section 3(3) of the law of Contract Act enforceability and jurisdictional consequence** 25. **Section 3(3) of the Law of Contract Act, Cap. 23,** provides in material part as follows: ***"No suit shall be brought upon a contract for the disposition of an interest in land unless*** ***(a) the contract upon which the suit is founded*** ***(i) is in writing;*** ***(ii) is signed by all parties thereto; and*** ***(b) the signature of each party signing has been attested by a witness who is present when the contract was signed by such party."*** 26. The language of the section is unambiguous. The word "no" is absolute and the word "shall" is imperative. It lays down a condition precedent that must be satisfied before a suit may be brought: the contract must be in writing, signed by all parties, and each signature must be attested by a witness present at the time of signing. These are conjunctive requirements; the absence of any one of them renders the contract incapable of founding a suit. 27. The Appellants urge this Court to examine the last page of the sale agreement at pages 11-15 of the record of appeal and note that none of the parties' signatures were attested by any witness. That the agreement bears no witness attestation is not disputed in these proceedings; the Respondent does not challenge this factual foundation. 28. The Appellants submit, and I agree, that the wording of Section 3(3) — "no suit shall be brought" is not a rule that merely affects the merits of a claim once brought. It goes to the admissibility of the contract as the foundation of any suit at all. A court cannot adjudicate on, enforce, or grant any relief arising from a contract that does not satisfy the section's requirements, whether that relief takes the form of specific performance, damages, mesne profits, or injunction. In **Patrick Tarzan Matu & Another v Nassim Shariff Abdulla & 2 Others [2009] eKLR, Azangalala J. (as he then was)** struck out a plaintiff's suit not only as to specific performance but specifically declined to entertain even a claim for damages for breach of contract founded on an agreement contravening Section 3(3), reasoning that "the very foundation of their claim is untenable." **In Silverbird Kenya Limited v Junction Ltd & 3 Others [2013] eKLR, Mutungi J**. was equally explicit that Section 3(3) "does in fact divest the court of jurisdiction in instances where there is no compliance." 29. The Respondent's principal counter-argument on jurisdiction relies on the Samuel Kamau Macharia proposition that jurisdiction flows from the Constitution and statute. That principle is, of course, correct and foundational. However, it does not assist the Respondent in the present context. The Appellants do not contend that the Magistrates' Court lacks general subject-matter jurisdiction over land disputes. Their contention is the more specific and more powerful one: that Section 3(3) itself, being a statute, expressly prohibits the filing and prosecution of a suit founded on an unattested land contract. The restriction flows from statute precisely the same source as jurisdiction itself. The Samuel Kamau Macharia principle, properly understood, confirms rather than defeats the Appellants' position. 30. The further question is whether the non-compliance with Section 3(3) can be cured at any stage of proceedings, whether by amendment, by the overriding objective, by Article 159 of the Constitution, or by any other remedial device. The answer, on authority, is an emphatic no. In **Phoenix of EA Company Limited v Thiga TA Newspaper Service [2019] KECA 767 (KLR),** the Court of Appeal stated in terms that where a suit is filed before a court bereft of jurisdiction, the result is a nullity ab initio, amenable to being set aside ex debito justitiae, and that parties cannot, even by consent, confer jurisdiction on a court where none exists, nor can refuge be taken in the overriding objective under the Civil Procedure Act or even Article 159 of the Constitution to remedy the same. The decision in **Equity Bank Limited v Bruce Mutie Mutuku t/a Diani Tour Travel [2016] eKLR** reinforces that a court should not, through judicial craftsmanship, sanctify an otherwise incompetent suit. 31. I am therefore satisfied that Section 3(3) of the Law of Contract Act operates as an absolute prohibition on the bringing of a suit founded on a land contract that lacks the mandatory attestation. Non-compliance does not merely give rise to a defence which may or may not succeed at trial; it strips the court of competence to entertain the suit at all. I so hold. **Issue (ii): Whether the refusal to strike out the suit was correct in law.** 32. Having reached the conclusion above on Issue (i), the question is whether the Magistrate correctly refused to strike out or dismiss the suit. In my judgment, the refusal was erroneous on two independently sufficient grounds. 33. First, the Magistrate conflated the test applicable to a jurisdictional challenge with the test applicable to striking out on grounds of pleadings-clarity under **Order 6 Rule 13 of the Civil Procedure Rules**. **D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina & Another [1980] eKLR** is a case about the court's discretion under Order 6 Rule 13, which Madan JA himself described as "a rule of clarity." The ratio of that case that a plaint should be allowed to go forward if it can be injected with real life by amendment is applicable to defects in the framing of pleadings, not to a court's lack of jurisdictional competence to hear a matter at all. The Appellants are entirely correct to draw this distinction. 34. A jurisdictional challenge is categorically different. Once a court is without jurisdiction, no amendment, no further evidence, and no equitable remedy can cure the defect. Jurisdiction must exist at the time of filing or at the commencement of hearing; it cannot be acquired retrospectively. As was held in **Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1:** ***"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 downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction..."*** 35. Second, the Magistrate erred in treating the ELC judgment in ELC Appeal No. 67 of 2019 as merely a prima facie observation that was not binding on the trial court on the jurisdiction question. The Magistrate stated that the ELC was "not privy to all the material facts and reliefs sought in the main suit at this trial court." With respect, this reasoning is not tenable. The ELC in ELC Appeal No. 67 of 2019 was deciding an appeal from the Magistrates' Court in the very same proceedings. It had before it the full record of appeal, which by definition included the amended plaint with all its reliefs. The ELC finding on the unenforceability of the agreement was not a peripheral observation but the central reason for setting aside the injunction. To suggest that the ELC was proceeding in ignorance of the pleadings is an error on the Magistrate's part that is also, as the Appellants correctly submit, disrespectful of the Superior Court's decision. This assessment is further borne out by the subsequent dismissal of the Respondent's review application by the ELC, which vindicates the correctness of the ELC original findings. 36. The Respondent's submission that the ELC's finding was merely a prima facie interlocutory one is unpersuasive on the jurisdictional point. It is correct that the standard of proof at an injunction hearing is the prima facie threshold. But the ELC conclusion on Section 3(3) was legal, not factual. Whether the agreement bears the mandatory witness attestation is a question determinable on the face of the document. No trial is needed to establish a fact of that kind and no amount of evidence at trial can supply what is missing from the instrument. 37. I accordingly hold that the learned Magistrate erred in refusing to dismiss the suit. The suit is contra-statute, founded on a contract that does not comply with the mandatory requirements of Section 3(3) of the Law of Contract Act, and the trial court lacked competence to proceed with it. This issue is decided in favour of the Appellants. **Issue (iii): Restorative/eviction orders** 38. Given the conclusion on Issue (ii), the suit must be struck out. The question that then arises is what consequential orders should follow to address the Respondent's continuing occupation of the suit property. 39. The Appellants have placed before this Court detailed factual averments —sworn in affidavits before the trial court that immediately following the Magistrate's injunction of 11th September 2019, the Respondent forcibly entered the suit property, demolished part of it, and installed tenants who have since been paying rent to the Respondent. These facts were before the trial court in the Appellants' application and were not meaningfully contested by the Respondent in its replying affidavit, which concentrated instead on the pendency of the review application in the ELC 40. The legal framework is clear. When a decree is set aside, Section 91 of the Civil Procedure Act empowers the court to make such orders as will, so far as may be, place the parties in the position they would have occupied but for the varied or reversed decree. This is a restitutive jurisdiction properly exercised following the nullification of the order that enabled the Respondent's occupation. 41. Beyond Section 91, the principle in **Macfoy v United Africa Co Ltd [1961] 3 All ER 1169,** as adopted by the Court of Appeal in Phoenix of EA, is that if an act is void, it is in law a nullity, incurably bad, and every proceeding founded on it is equally bad. The Respondent's entry into and continued occupation of the suit property was enabled entirely by the injunction of 11th September 2019, which was itself issued without the requisite jurisdiction, as the High Court found. The Respondent's occupation is therefore founded on a nullity and is itself a nullity. 42. I note the Magistrate's reliance on **John Kuria Mahia v Paul Odhiambo Omollo [2021] eKLR** for the proposition that eviction orders are substantive and can only issue at the conclusion of a case. The Appellants correctly challenge the applicability of that authority here. In that case, the court was addressing whether final reliefs could be granted at an interlocutory stage while jurisdiction was otherwise intact. That is not the situation here. Where a court is terminating proceedings for want of jurisdiction, the suit's termination is itself the final determination, and orders made consequentially at that point are properly restorative in character, not interlocutory. The principle that eviction cannot issue before trial applies where a trial is to proceed; it cannot insulate from restoration a party whose very presence on a property is founded on a null order. 43. I am satisfied that this Court, and indeed the trial court in the first instance, had jurisdiction to make restorative orders following the striking out of the suit and the setting aside of the null injunction. The Respondent's continued occupation of the suit property without any legal foundation and in circumstances where it has been collecting rental income for over a decade is a state of affairs that equity and justice require to be corrected. **Issue (iv): The security for damages prayer** 44. The Appellants correctly point out that the Magistrate mischaracterised their prayer 6 as a prayer for security for costs under the rules governing that remedy, and dismissed it on that wrong legal basis. The prayer was expressly framed as security for damages under Order 40 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, grounded in the Respondent's occupation of the suit property, its collection of rental income therefrom, its decade-long failure to pay the purchase price balance, and the risk that it would be unable or unwilling to satisfy any judgment for damages or mesne profits. 45. Given my conclusion that the suit is to be struck out, the question of security pending trial is rendered academic and I decline to make any order on this prayer. **Final orders** 46. In the result and for the reasons set out above, this appeal succeeds. I make the following orders: 1. **The appeal is allowed.** 2. **The ruling of Hon. S.K. Onjoro (SPM) delivered on 7th February 2025 in Nairobi Chief Magistrate Civil Suit No. 4665 of 2019 is hereby set aside.** 3. **Nairobi Chief Magistrate Civil Suit No. 4665 of 2019 is hereby struck out for want of jurisdiction.** 4. **The Respondent and all persons claiming through or under it are hereby ordered to vacate and give up vacant possession of the suit property known as NAIROBI/BLOCK TASSIA-II-97/0794/088 to the Appellants within sixty (60) days of the date of this judgment, failing which the Appellants are at liberty to take all lawful steps to enforce this order including seeking the assistance of the Officer Commanding Police Division of Embakasi Police Station.** 5. **The costs of the suit in the court below and the costs of this appeal are awarded to the Appellants.** **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.** **E.K. WABWOTO** **JUDGE** **In the presence of:** **Mr. Onindo for the Appellants** **Mr. Gichuki h/b for Mr. Kiarie for the Respondent.** **Court Assistants; Mary Ngoira and David Ngoosa.**