[2018] KEHC 3406 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL SUIT NO. 129 OF 2007

MATHIAS N. OGAMA......................................PLAINTIFF

VS

REBMAN MALALA......................................DEFENDANT

JUDGEMENT

1. When on 19th May 2005, Mathias Nasubo Ogama (Ogama) retired from the Business Partnership known as Ujenzi Consultants (Ujenzi) it was expected that it marked a happy separation with his Partner Rebman Ambalo Malala (Malala). But that was not to be as Ogama claims the sum of Khs.78,157,630. 50 and interest thereon at 15% per annum from 1st February 2007 from Malala. That Claim is presented in the Amended Plaint dated 4th February 2010.

2. Ogama and Malala worked together as Partners since 5th June 1989. So as to formalize that Partnership, Ujenzi was formed in 1992. As part of the formalization, the two entered into a Partnership Agreement on 28th May 1992. The terms of the Agreement contemplated that one Partner could retire from the Partnership or the Partnership determined.

3. It is common ground that an express term of the Agreement was that either Partner could retire from the Partnership upon giving the other Partner a three (3) months’ Notice in writing of his intention to do so. Desirous of retiring from the firm and pursuant to the Retirement Provisions, Ogama retired from the Partnership with effect from 30th June 2004.

4 Clause 21 of the Partnership Agreement provided:-

“The Partners covenant with each other to pay to an outgoing Partner the value of this share in partnership property and profits by four equal yearly instalments payable:-

(a) In the case of a Partner who ceased to be a Partner before (1st October) in any year (31st December) in that year; or

(b) In the case of a Partner who ceased to be a Partner after (31th September) but before (1st January) in any year, on (31st December) in each succeeding year together with interest on the amount outstanding at a rate as determined in accordance with Clause 15 thereof”.

5. The amounts payable to Ogama as his share in the Partnership property and profits were calculated and agreed at Kshs.11,228,369/= net of tax. The ascertainment of Malala’s share culminated into a Retirement Agreement dated 19th May 2005. That Agreement which shall be discussed in this Decision from time to time set out, inter alia, how Malala (the remaining partner) would pay Ogama the agreed share. Ogama complains that Malala breached the terms of payment and as at the date of the Amended Claim a sum of Kshs.11,940,993. 00 together with interest at 15% per annum is due and owing.

6. Yet that is the smaller of the Claim by Ogama. It is his further case that the Retirement Agreement did not include a sum of Khs.113,508,962/= (hereinafter the NHIF payment) which was professional fees payable to the Partnership and which, at the time of the Agreement, was the subject of a Dispute. The Dispute, it is averred by Ogama, was resolved in an Award dated 18th May 2007 in favour of Ujenzi. The Award was Kskh.133,509,962/= and Ogama lays a Claim of Khs.66,754,650. 00 being ½ 50% thereof.

7. The aggregate claim by Ogama against Malala is for Khs.78,157,630. 50 plus interest at 15% per annum from 1st February 2007 until payment in full. Of course costs of the suit are also sought.

8. Malala’s Defence is that pursuant to the Retirement Agreement, the value of Ogama’s share of the Partnership profits and property upon retirement was Khs.11,228,369/= and a further sum of Khs.1,174,021/= making a total of Khs.12,462,390/=. At the date of the Defence to the Amended Plaint, Malala asserts that he had paid Ogama some Khs.5,291,524. 50/=.

9. Malala further avers that clause 5 of the Retirement Agreement provided for a 50-50 sharing of any liability of the Partnership before the retirement date. Ogama had, by the terms of the Agreement, agreed to indemnify Malala of such liability. It was Malala’s case that a liability of Khs.391,675/= had accrued and this ought to be shared equally and would therefore reduce Ogama’s entitlement.

10. The Defence also set out a sum of Khs.6,297,444. 50 which had been included in the Retirement Agreement but which had been disputed by the Client. Malala also avers that Ogama’s claim included fees which had not been received but he was willing to pay to Ogama on the basis of a computation set out in the Defence and which takes into account liability for payment. This will be discussed in detail, if necessary.

11. In respect to the claim of Kshs.66,754,650. 00, Malala takes the position that the sum of Ksh.133,509,962/= accrued to the firm long after Ogama retired from the Partnership and that Ogama made no contribution to the service rendered in connection with the said sum. In addition that if Ogama’s claim was bona fide, then Ogama would not have forgotten to include it in the Retirement Agreement. Malala takes the claim to be speculative and an afterthought.

12. On interest, Malala takes the following position,

“The interest due under the Retirement Agreement was not to be applied against the total principal sum and that the interest applicable was simple interest. Further no liability for interest accrues on money not yet received by the Defendant”.

13. Since the filing of the suit and following an Order of Judgement on an admitted sum, Malala paid Ogama Khs.1,279,175. 20. Malala sees this as full and final settlement of the Plaintiff’s claim.

14. Only Ogama and Malala gave testimony in respect to their case. Their testimony in so far as they relate to issues crucial for the determination of this matter shall be discussed in this Decision. To be considered as well is the written submissions and arguments of Counsel.

15. Parties have proposed different sets of issues. I have considered them and it seems to me that the issues that emerge for determination are as follows:-

a) Which between the Partnership Agreement and the Retirement Agreement governs the entitlement of Ogama in the property and profits of the Partnership?

b) Is Malala in breach of the relevant Agreement?

c) Is the claim arising from the payment of Khs.133,509,962/= due to Ogama under the said Agreement?

d) Is Ogama entitled to the Prayers sought?

e) What is the appropriate Order on costs?

16. There is consensus by the warring parties that, during the life of the Partnership their relationship was governed by the Partnership Agreement of 28th May 1992. That agreement contemplated that the Partnership could be determined or that one of the two Partners could resign. To the credit of both Ogama and Malala they provided exist clauses that would govern the retirement of a Partner.

17. One would begin with clause 18 which reads as follows:-

“Where any of the parties hereto wishes to retire from the Partnership, he may do so by giving to the other Partner not less than three (3) months’ notice in writing of this intention to do so at the expiry of the notice”.

In the nature of the Dispute before Court nothing arises in regard to the Notice clause.

18. Malala elected to continue with the firm and the retirement of Ogama would have to follow the Provisions of Clauses 20 and 21 which are reproduced below:-

“20. (1) Where a Partner:-

(a) Gives notice of intention to retire in accordance with the Provisions of clause 18;

(b) Dies or is presumed to have died;

(c) Becomes mentally or physically permanently incapacitated; or

(d) Becomes bankrupt;

the other Partner together with any persons admitted into Partnership after the execution of this Agreement, may, subject to the next succeeding sub-clause, terminate or continue the partnership.

(2) Unless the continuing Partner:

(a) Elects to continue the Partnership within two (2) months from:

(i) the giving of notice in pursuance of the provisions of clause 18;

(ii) the date of death of a Partner or in the case of a person who in presumed to have died from the date of the Order of presumption of death;

(iii) the date when a Partner becomes mentally or physically permanently incapacitated; or

(iv) the date when a Partner becomes bankrupt; and

(b) gives notice of their intention to continue the partnership to:-

(i) the person who gave notice in pursuance of the provisions of that clause;

(ii) the personal representatives of the Partner who has died or is presumed to have died;

(iii) the manager in lunacy or the physically incapacitated Partner; or

(iv) the trustee in bankruptcy of the bankrupt Partner, as the case requires;the Partnership is deemed to have been dissolved on the expiry of two (2) months.

(3) The Partners covenant with each other that, in the event of the Partnership not being dissolved under the provisions of this clause, the Partners who are continuing Partners will buy the share of the other Partner in the Partnership property and profits.

(4) Unless otherwise agreed the Partners as continuing Partners covenant with each other to buy the share of the retiring or mentally or physically permanently incapacitated or deceased Partner in proportion to the value of the shares of the continuing Partners determined immediately before the decision to continue the Partnership made in pursuance of the provisions of sub-clause (1) of this clause.

20. (1) The Partners covenant with each other that, unless otherwise agreed, the share of a Partner is to be ascertained by valuing the Partnership assets (less debts and providing for liabilities) and reducing the value in proportion to the fractional share of the outgoing Partner in a partnership property and profits.

(2) For the Purposes of determining the value of Partnership property regard is to be had to the value of goodwill (if any) but the value of goodwill:-

(a) during the first give (5) years is not subject to the next succeeding sub-clause to exceed (3) three times the net annual average of profits for those years or part of those years.

(b) during the next five (5) years is not to exceed the net annual average of profits for the preceding five (5) years, and after fifteen (15) years is not to be taken into account.

21. The Partners covenant with each other to pay to an outgoing Partner the value of his share in partnership property and profits by four equally yearly installments payable:-

(a) in the case of a Partner who ceased to be a Partner before (1st October) in any year (31st December) in that year; or

(b) in the case of a partner who ceased to be Partner after (31th September) but before (1st January) in any year, on (31st December) of the next succeeding year, and on (31st December) in each succeeding year together with interest on the amount outstanding at a rate as determined in accordance with Clause 15 thereof’

19. A financial Report was prepared by Messers Kimani & Associates a firm of Certified Public Accountants appointed by both Partners to ascertain the value of Ogama’s share in the Partnership property and profits. This Report culminated in the Agreement of 19th May 2005 which both sides are happy to call the Retirement Agreement.

20. That Agreement is central to finding an answer to the controversy herein and is reproduced in its entirety:-

AGREEMENT

THIS AGREEMENT is made this 19th day of May 2005 between Mr. Mathias Nasubo Ogama, Indentity Card Number ………….of Post Office Box Number 50972 Nairobi (hereafter referred to as “The Retiring Partner” which expression shall where the context so admit include his personal representatives and assignees) of the one part and Mr. Rebman Ambalo Malala, Indentity Card Number………of Post Office Box Number 50972 Nairobi (hereinafter referred to as “The Continuing Partner” which expression shall where the context so admit include his personal representatives and assignees) of the other part.

WHEREARS:

(A) By a partnership agreement entered into on the …………day of ……………1992 between the Retiring Partner and the Continuing Partner (both hereinafter referred to as the Partners). The Partners established a business styled as UJENZI CONSULTANTS for the Provisions of the services of Quantity Surveying and Building Economics and

(B) It is the intention of The Retiring Partner to retire from the Partnership having given the Continuing partner three (3) Months’ Notice as stipulated by clause 18 of the Partnership Agreement and

(C) It is the intention of the Partners to abide by Clause 21 of the Partnership Agreement in the payment to the Retiring Partner of the value of this share in the Partnership property and profits and

(D) It is agreed between the Partners that the financial report presented by the Partnership’s duly appointed auditors mandated with the duty of overseeing the financial end of the aforesaid transaction MESSRS, KIMANI & ASSOCIATES CERTIFIED PUBLIC ACCOUNTS is a true and fair account of the financial position of the Partnership as at 30th June 2004 which is the effective date of the retirement

NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:

1. The value of Retiring Partner’s share in the Partnership property and profits as at the 30th Day of June, 2004, the effective date is truly and fairly presented by Messrs Kimani & Associates, the Partnership’s Accountants as follows:-

Total agreed value of Partnership property - Ksh.21,652,390

Less Amount of Tax Liability (VAT0 ½ of 16,500,000/-

Ksh.8,250,000/=.

Less Amount paid vide cheque No.001099 of 18/1004 –

Kshs.1,000,000/-.

Net Balance ……..Kshs.12,402,390/=.

2. The Net Balance in Clause 1 above of Khs.12,402,390/- due and payable to the Retiring Partner by the Continuing Partner shall be paid to the Retiring Partner as follows:-

a) The value of the Retiring Partner’s first share in the Partnership profits and property as at 31st December, 2004 is truly fairly presented by the Partnership’s Accountants M/S KIMANI & ASSOCIATES as Ksh.11,228,369/= Net of Tax which entire sum shall be paid to the Retiring Partner by the Continuing Partner as follows;

(i) The first installment of Kenya Shillings Five Million Six Hundred and Fourteen Thousand One Hundred and Eighty Four and Fifty Cents (Kshs.5,614,184. 50) on or before 31st December, 2005.

(ii) The second installment of Kenya Shillings Five Million Six Hundred and Fourteen Thousand One Hundred and Eighty Four and Fifty cents (Kshs.5,614,184. 50) on /or before 30th September, 2006.

The sum attracts interest at the rate of 15% per annum form 1st May, 2005 until payment in full.

(a) The Continuing Partner shall also pay to. and the Retiring Partner shall receive the residue of The Net Balance of his Share in the Partnership’s property, truly and fairly presented by The Partnership’s Accountants M/S. Kimani & Associates as at the date of execution of this Agreement as Kshs.1,174,021 in four (4) Equal Annual or yearly instalments together with interest chargeable thereon at 15% Per Annum beginning 1st January 2005 and without any Tax deductions beginning the 1st January, 2005 and thereafter on the 31st Day of December, of each succeeding year worked out and payable to the Retiring Partner by the Continuing Partner as follows:-

(i) Ksh.293,505. 25 on or before 31st December, 2004

(ii) Khs.293,505. 25/- on or before 31st December, 2005

(iii) Khs. 293,505. 25 on or before 31st December, 2006

(iv) Khs. 293,505. 25 on or before 31st December, 2007

3. The interest chargeable on payments due under clause 2(b) above and as stipulated and provided for under clause 16 of the Partnership Agreement shall be 15% Per Annum from 1st January, 2005. Interest for purposes of clarity on sum payable under clause 2 above shall be calculated based on the entire principal under 2(a) and (b) above and incorporated in each installment payable on a reducing balance principle.

4. The Professional Charges incurred in the process leading to the Termination of The Partnership shall in equal measure be borne by the Partners.

5. Any Liability of the Partnership before the effective date of retirement of the Retiring Partner shall be borne equally by the Partners and the Retiring Partner will indemnify the continuing Partner for any act and/or omission done by the Retiring Partner without knowledge and/or consent of the continuing Partner which makes the partnership liable.

6. The Continuing Partner shall continue using upto and shall surrender the use of the Post Office Box 50972 Nairobi by the Partnership to the Private use of the Retiring Partner on 31. 12. 05.

7. Any dispute arising between the Partners and or between one Partner and the Assignee(s) or Personal representative(s) of the other Partner over this Agreement shall unless resolved amicably by the Partners and their personal Representative(s) and Assignee(s) shall be arbitrated in the Ordinary Civil Courts subject to the Procedural Laws of this Country.

IN WITNESS WHEREOF the parties have set their Hands the day and year first hereinabove written.

Signed by Mathias Nasubo Ogama

Signed by Rebman Ambalo Malala

21. Important is that in the Retirement Agreement, both sides express acknowledgement that they intend to abide by clause 21 of the Partnership Agreement (see recital c) and it must be easy to conclude that the Retirement Agreement was indeed entered in furtherance of clause 21.

22. One limb of the case by Ogama is that the NHIF payment is outside the Retirement Agreement and must be dealt with in accordance with the Partnership Agreement which provides for equal share of the net profits of the Partnership (clause 4 thereof).

23. Malala on the other hand presses the position that upon the parties consensual execution of the Retirement agreement, the Plaintiff’s entitlement under the Partnership Deed were notivated or otherwise varied or discharged under the terms of the Retirement Agreement.

24. Avowed expressly in the Retirement Agreement was the desire of the parties to be bound by the Provisions of Clause 21 of the Partnership Agreement. Clause 21 was a covenant on the manner in which an outgoing Partner would be paid by the remaining partner and reads:-

“21. The Partners covenant with each other to pay to an outgoing Partner the value of his share in partnership property and profits by four equally yearly installments payable:-

(a) in the case of a Partner who ceased to be a Partner before (1st October) in any year (31st December) in that year; or

(b) in the case of a partner who ceased to be Partner after (31th September) but before (1st January) in any year, on (31st December) of the next succeeding year, and on (31st December) in each succeeding year together with interest on the amount outstanding at a rate as determined in accordance with Clause 15 thereof’

25. The Retirement Agreement in recital (c) states as follows in deference to clause 21 above:-

“(c) It is the intention of the Partners to abide by Clause 21 of the Partnership Agreement in the payment to the Retiring Partner of the value of his share in the Partnership property and profits”.

The intention of the Partners was to effectuate the Provisions of clause 21.

26. However, the Provisions of clause 2 of the Retirement Agreement which was on the mode of payment of the substantial part of the Retiring Partners share set out a timeline of payment that was more advantageous to Ogama than provided under clause 21. Clause 2 reads:-

“2. a) The value of the Retiring Partner’s first share in the Partnership profits and property as at 31st December, 2004 is truly fairly presented by the Partnership’s Accountants M/S KIMANI & ASSOCIATES as KSHS. 11,228,369/=. Net of Tax which entire sum shall be paid to the Retiring Partner by the Continuing Partner as follows:

(i) The first installment of Kenya Shillings Five Million Six Hundred and Fourteen Thousand One Hundred and Eighty Four and Fifty Cents (Kshs.5,614,184. 50) on or before 31st December, 2005.

(ii) The second installment of Kenya Shillings Five Million Six Hundred and Fourteen Thousand One Hundred and Eighty four and Fifty cents Khs.5,614,184. 50 on/or before 30th September, 2006.

The sum attracts interest at the rate of 15% per annum from 1st May, 2005 until payment in full.

b) The Continuing Partner shall also pay to and the Retiring Partner shall receive the residue of The Net Balance of his Share in the Partnership’s property, truly and fairly presented by The Partnership’s Accountants M/S Kimani & Associates as at the date of execution of this Agreement as KSHS.1,174,021 in four (4) Equal Annual or yearly instalments together with interest chargeable thereon at 15% per annum beginning 1st January, 2005 and without any Tax deductions beginning the 1st January, 2005 and thereafter on the 31st Day of December, of each succeeding year worked out an payable to the Retiring Partner by the Continuing Partner as follows:-

(i) Kshs. 293,505. 25/- on or before 31st December, 2004

(ii) Kshs. 293,505. 25/- on or before 31st December 2005

(iii) Kshs.293,505. 25/- on or before 31st December, 2006

(iv) Kshs.293,505. 25/- on or before 31st December, 2007

27. Important as well is that the Retirement Agreement included the value of the Retiring Partner’s share in the Partnership property and profits as arrived through a Financial Exercise carried out by Ms. Kimani & Associates commissioned jointly by the Partners. What was unclear from the evidence was whether this ascertainment of value paid heed to clause 20 of the Partnership Deed for ascertainment of value and to some extent the manner of determining value. What is important however is that in the latter Agreement, the value of the Retiring Partners share is explicitly agreed by the Partners.

28. So in respect to the manner of payment of the share of the Retiring Partner, the terms of the Partnership Deed were varied by the Retirement Agreement. Further in respect of the value of the Retiring Partners share, the Retirement Agreement provided concurrence to the ascertainment undertaken and the value expressly agreed and provided.

29. To the extent that certain terms of the Partnership Agreement were altered by the Retirement Agreement there was variation of the first Agreement, if only, in respect to the value of Ogama’s share at the time of the Agreement and how he would be paid out by Malala.

30. The irresistible conclusion to be drawn is that, in respect to the questions involving the value of the shares due to Ogama and the manner he was to be paid, the governing Document is the Retirement Agreement and not the Partnership Deed. The former supersedes the latter.

31. Now, Ogama sets up another argument. In his oral evidence he states as follows:-

“The Auditors did not capture the NHIF Resource Centre. I raised the issue to the Arbitrator who gave the Award but he did not take it on Board”.

He further testified,

“I am claiming the Award on NHIF project that was not disclosed in the Audit whereas we worked on the project together”.

32. Malala’s defence is that Ogama was not entitled to the monies due under the NHIF Resource Centre and was at any rate well aware that some money would be due in that respect at the time of negotiating and entering the Retirement Agreement.

33. The law, as correctly submitted by Malala’s Counsel, is that parties can only escape the binding nature of the Retirement Agreement if it is shown to have been obtained by fraud, coercion, undue influence, mistake or misrepresentation.

34. These vitiating elements can only be established in our Civil Process by being expressly stated and particularized in pleadings and then proved. The requirement for particulars is codified in Order 2 Rule 10(i) of The Civil Procedure Rules as follows:-

“(1) Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—

(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.

Unfortunately for Ogama, his Pleadings fail this test and the matter of the NHIF payment may well end there!

35. If however I were to assume that the question of fraud, mistake or misrepresentation was, though unpleaded, placed before this Court by the parties as issue for determination (Odd Jobs vs. Mubia [1970] EA 476), then I would still find the claim unproven.

36. Ogama is the Author of a Document headed ‘Outstanding Bills’ (D Exhibit 2 page 4). The relevant part of that Document reads,

Outstanding Bills

1. Nzoia Sugar Co. Ltd = 3,959,000. 00

2. Busuri & Partners = 1,500,000. 00

3. Karen Resource Centre = 30,000,000. 00 ?

35,459,000. 00

Less 20% management and professional Services 7,091,800. 00

Net earnings = 28,367,200. 00

Share of earnings ÷2 = 14,183,600. 00/=

He says that he used those Notes during the negotiations of the valuation of his share.

37. Crucially Ogama testified,

“I put the handwriting there, next page 4. 15 my handwriting. It shows outgoing Bills”.

Ogama was well aware that some monies could be forthcoming from the Karen Resource Centre project (the NHIF payment). It must be presumed that he had it in mind when negotiating the value of his share. He can only blame himself for negotiating a bad bargain.

38. Having concluded that the NHIF payment was not part of Ogama’s bargain, this Court now turns to see whether the Retirement Agreement has been fully performed. It is common ground, and evident from the terms of the Retirement Agreement, that the sums due to Ogama were as follows:-

a) Ksh.11,228,369/= Net Tax as value of his profits and property.

b) Kshs.1,174,021 described as the residue of the Net Balance of his share in the Partnership property.

The Agreement then sets out the timetable for payment of these amounts.

39. An important aspect of the Agreement is that the above sums would attract interest at 15% per annum from 1st May 2005 for the first sum and from 1st January 2005 for the second.

40. Confronted with the accusation that there was breach of repayment, Malala conceded to owing Khs.1,279,175. 16 and payment was tendered for that sum. He now raises two issues. First, that on the basis of clause 5, Ogama was to share (on a 50-50 basis) any liabilities that accrued before the effective Retirement date. Those liabilities are said to aggregate Kshs.391,675/-. Second, this Court understood Malala as asserting that the amount due to Ogama included some fees that had not been paid.

41. From the evidence of the two, there is no Agreement as to how much has been paid so far. Gathering from Ogama’s evidence he puts it at Kshs.5,070,199/= while Malala tabulates his at Khs.6,570,699. 70 and gives documents in support of some payments. Even if this Court was to accept the version of Malala there would still be a shortfall from Khs.12,402,390/= due to be paid to Ogama under the terms of the Retirement Agreement. Is Malala justified in holding back the difference?

42. Clause 5 on liabilities that were due before Ogama retired provides:-

“Any Liability of the Partnership before the effective date of retirement of the Retiring Partner shall be borne equally by the Partners and the Retiring Partner will indemnify the continuing Partner for any act and/or omission done by the Retiring Partner without knowledge and/or consent of the continuing Partner which makes the partnership liable”.

No doubt Malala would be entitled to deduct those liabilities if proven. He asserts that liabilities of Khs.391,675/= were due before the effective date. Yet he did not provide an iota of proof to support the assertion. I hold that the Defence is unproved.

43. Malala also proposes to hold back further payment because it is in respect to fees that has not been collected. This again is not tenable because what was agreed as due to Ogama under the Retirement Agreement was not subject to collection of unpaid fees.

44. The decision I reach is that Malala is in breach of the Terms of the Retirement Agreement and is liable to make some payment to Ogama. As to the exact amount due, this is a mathematical issue which this Court urges the parties to work and agree on. In the event of disagreement then the same shall be submitted to an Accountant to be appointed and paid jointly by the parties or in the absence of consensus to be appointed by the Chairperson of the Institute of Chartered Public Accountants (k) (ICPAK). Fees of the Accountant to be shared equally by the parties.

45. The Accounts will be done on the basis that a sum of Khs.12,402,390/= was due to Ogama from Malala and will establish;-

(i) Whether the amount paid so far is Khs.5,070,199/= by Ogamas’ version or Khs.6,570,699. 10 as asserted by Malala.

(ii) The interest that the unpaid sum has attracted by giving effect to clauses 2(a)(ii), 2(b) and 3 of the Retirement Agreement of 19th May 2005.

46. The Court shall thereafter make its final Orders.

47. In respect of costs, the Plaintiff has succeeded in part of the Claim but has lost a substantial part. I therefore propose that each side shall bear its own costs. That is my Order on costs.

Dated, delivered and signed in open Court at Nairobi this 5th day of October 2018.

F. TUIYOTT

JUDGE

In the presence of;

Naliaka for Gachuru for Plaintiff

Lubullelah for Defendant

Nixon-Court Assistant