[2025] KEELC 4050 (KLR)

Rick v Chebet & another (Environment & Land Case E232 of 2023) [2025] KEELC 4050 (KLR) (28 May 2025) (Ruling)

Neutral citation: [2025] KEELC 4050 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment & Land Case E232 of 2023

JO Mboya, J

May 28, 2025

Between

Bryan Michael Rick

Plaintiff

and

James Chepkoiywa Chebet

1st Defendant

Arnold Maswa

2nd Defendant

Ruling

1. The Defendants/Applicants [hereinafter referred to as the Applicants] have approached the court vide the application dated the 22nd May 2025, and wherein the Applicants have sought the following reliefs[verbatim]:a.That the Honourable court be pleased to certify the application urgent and to hear it Ex-parte in the first instance.b.That Honourable Court be pleased to stay further proceedings of the suit pending hearing and determination of the Application.c.That the Hon Mr. Justice Oguttu Mboya, Judge of the Environment and Land Court do recuse himself from the matter forthwith and the same be placed before the Principal Judge for Directions.d.That the costs of the Application be provided for.

2. The instant application is premised on a plethora of grounds which have been enumerated in the body thereof. Furthermore, the application is supported by the affidavit of James Chepkoiyua Chebet [the 1st Defendant/Applicant] sworn on even date. Though the affidavit is indicated to sworn by the named deponent, the affidavit under reference deploys the plural word “we” albeit without indicating the persons that constitute [sic] “we”.

3. The Respondent filed a replying affidavit sworn on the 26th May 2025 and which replying affidavit is sworn by the Respondent’s counsel on record. In particular, the deponent of the replying affidavit has averred that same is neither related to nor has any personal association with the judge.

4. Furthermore, it has been averred that even though the deponent of the Supporting affidavit has adverted to a close connection and association between learned counsel Mr. Ojiambo and the Judge, the said allegations have neither been substantiated, particularized nor verified.

5. Moreover, the deponent of the replying affidavit has posited that the Defendants/Applicants herein have hatched a plot and/or scheme to obstruct, delay and defeat the just and expeditious hearing and determination of the entire suit. To this end, it has been averred that the current application is yet another pre-conceived endeavor to frustrate the conclusion of the matter.

6. The instant application came up for hearing for direction on the 26th May 2025, whereupon it transpired that same had not been served upon the Respondent. In this regard, the court proceeded and issued directions pertaining to service of the application and the filing of responses thereto. Moreover, the court also directed that the subject application shall be heard vide oral submissions on the 27th May 2025, taking into account that the Judge herein had already been transferred to serve in Meru; and hence same [Judge] was in Nairobi for designated matter[s] including the one beforehand.

7. Suffice it to underscore that the application indeed came up for hearing on the 27th may 2025, whereupon same was canvassed/ventilated vide oral submissions. The submissions ventilated by and on behalf of the respective parties are on record.

8. Learned counsel for the Applicants adopted the grounds at the foot of the application and thereafter reiterated the contents of the supporting affidavit. In addition, learned counsel for the Applicants highlighted and canvassed one issue, namely; whether a reasonable by-stander would form the opinion that the judge is biased and lacking impartiality.

9. It was the further submissions by learned counsel for the Applicants that the judge has made various orders and rulings in the subject matter, whose net effect demonstrates that the judge is biased against the Applicants. In particular, learned counsel contended that on the 5th November 2024, the judge proceeded with the scheduled hearing of the Plaintiff’s case even though the Applicant’s previous advocates had filed an application to cease acting and which application was pending before the court.

10. Moreover, it was submitted that the matter proceeded without the Applicants herein being heard because same had not been duly notified by their previous counsel of his intention to cease acting.

11. Flowing from the foregoing, learned counsel for the Applicants therefore contended that there exist reasonable grounds and/or basis to warrant recusal by the judge in respect of the instant matter. Furthermore, it was posited that an impartial judge is a fundamental prerequisite for a fair trial.

12. On being examined by the judge as to the nature of the alleged close association and connection between learned counsel Mr. Ojiambo and the judge, learned counsel Mr. Sinjiri Kipkurui Esquire contended that same had no knowledge of such close connection and/or association between Mr. Ojiambo learned counsel for the Respondent and the judge. Moreover, learned counsel Mr. Sinjiri Kipkurui added that same only canvassed the application on the basis of the contents of the affidavit.

13. The learned counsel for the Respondent adopted and reiterated the contents of the replying affidavit sworn on the 26th May 2025 and thereafter highlighted two [2] salient issues, namely; that the application herein constitutes a thinly veiled attack on the court in an endeavor to delay the suit; and that the Applicants have neither met nor established the basis to warrant recusal.

14. Regarding the first issue, learned counsel for the Respondent submitted that the Applicants herein have made the unsubstantiated and scurillious allegations in a bid to antagonize the court and thereafter to procure a recusal. Instructively, it has been submitted that the instant application is a device to procure the file to be moved to a more sympathetic court [if any] and thus same constitutes forum shopping.

15. As pertains to the second issue, learned counsel for the Respondent has submitted that the decisions and ruling complained of by the Applicants have been made on the basis of plausible reasoning and the mere fact that the previous applications have been dismissed does not create any reasonable apprehension in the mind of a reasonable and fair- minded person that the judge is biased.

16. Furthermore, learned counsel submitted that the test to be deployed in determining whether a judge or judicial officer ought to recuse himself or herself from a particular matter is an objective test and not otherwise. To this end, learned counsel for the Respondent submitted that the test is that of a reasonable and fair minded person knowing the facts of the case forming an apprehension that justice may not be done or seen to be done.

17. Having reviewed the application beforehand; having taken into account the response thereto and upon consideration of the submissions canvassed on behalf of the respective parties, I come to the conclusion that the determination of the subject application turns on two [2] key issues, namely; whether the rulings complained of creates a reasonable basis for recusal; and whether the Applicants have met the threshold for recusal or otherwise.

18. Before venturing to address the twin issues, which have been highlighted at the foot of paragraph 16 hereof, it is imperative to recall and reiterate the words of the Supreme Court of Kenya [the apex court] in the case of Shollei & another v Judicial Service Commission & another (Petition 34 of 2014) [2018] KESC 42 (KLR) (3 July 2018) (Ruling) [per M.K Ibrahim SCJ], where the court stated as hereunder;25. Tied to the constitutional argument above, is the doctrine of the duty of a judge to sit. Though not profound in our jurisdiction, every judge has a duty to sit, in a matter which he duly should sit. So that recusal should not be used to cripple a judge from sitting to hear a matter. This duty to sit is buttressed by the fact that every judge takes an oath of office: “to serve impartially; and to protect, administer and defend the Constitution.” It is a doctrine that recognizes that having taken the oath of office, a judge is capable of rising above any prejudices, save for those rare cases when he has to recuse himself. The doctrine also safeguards the parties’ right to have their cases heard and determined before a court of law.26. In respect of this doctrine of a judge’s duty to sit, Justice Rolston F. Nelson; of the Caribbean Court of Justice in his treatise – “Judicial Continuing Education Workshop: Recusal, Contempt of Court and Judicial Ethics; May 4, 2012; observed:A judge who has to decide an issue of self-recusal has to do a balancing exercise. On the one hand, the judge must consider that self-recusal aims at maintaining the appearance of impartiality and instilling public confidence in the administration of justice. On the other hand, a judge has a duty to sit in the cases assigned to him or her and may only refuse to hear a case for an extremely good reason” (emphasis mine)27. In the case of Simonson –v- General Motors Corporation U.S.D.C. p.425 R. Supp, 574, 578 [1978], the United States District Court, Eastern District of Pennsylvania, had this to say:-“Recusal and reassignment is not a matter to be lightly undertaken by a district judge, While, in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligation not to recuse ourselves; absent valid reasons for recusal, there remains what has been termed a “duty to sit” . . .”28. It is useful to refer to the case from the New Zealand Court of Appeal Muir -v- Commissioner of Inland Revenue PARA 2007] 3 NZLR 495 in which the Court stated as follows:-“the requirement of independence and impartiality of a judge is counter balanced by the judge’s duty to sit, at least where grounds for disqualification do not exist in fact or in law the duty in itself helps protect judicial independence against maneuvering by parties hoping to improve their chances of having a given matter determined by a particular judge or to gain forensic or strategic advantages through delay or interruption to the proceedings. As Mason J emphasized in JRL ex CJL (1986) 161 CLR 342 “it is equally important the judicial officers discharge their duty to sit and do not by acceding too readily to suggestion of appearance of bias encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.”[Emphasis added].

19. Well said. It is instructive to note that a judge or judicial officer is obligated to hear and determine matters before him or her without any bias, ill will, favor or inducement. For good measure, an independent and impartial judge or judicial officer is a critical ingredient in the realization and enjoyment of the right to fair hearing and fair trial. Indeed, independence and impartiality constitute[s] the fundamental tenets of the rule of law.

20. Nevertheless, it is also important to state and highlight that a judge or judicial officer takes oath of office to administer justice without fear or favor. To this end, where an application for recusal of a judge or judicial officer is mounted, such an application must be duly interrogated and investigated in an endeavor to ascertain the reasonableness of the allegations. The ascertainment of the reasonableness of the accusation and allegation sits pretty- well and accords with the obligation [duty] of the judge to sit and hear matters assigned and/or allocated to such judge.

21. This is what I discern to be the duty to sit. It must not be lightly taken away.

22. Having made the foregoing observations, it is now apposite to revert to the two issues which were highlighted elsewhere in the body of this ruling. I beg to start with the first issue, namely; whether the rulings and orders complained of can by any stretch of imagination found a basis for recusal.

23. To start with, it is imperative to recall that the Applicants herein have engaged in a plethora of applications. Furthermore, it is also common ground that the Applicants herein have made frantic efforts to obstruct and or delay the hearing of the matter. For coherence, the Applicants resorted to filing applications mainly on the eve of the schedule hearings and thereafter withdrawing the applications shortly after achieving the desired purpose.

24. Suffice it to state that the instant matter was scheduled for hearing on the 16th September 2024 but the scheduled hearing could not proceed because of an application which had been mounted on behalf of the Applicants. Nevertheless, the parties and their advocates proceeded to and took two [2] dates for hearing namely, the 5th November 2024 and the 7th November 2024, both dates inclusive.

25. Be that as it may, on the 5th of November 2024, learned counsel for the Applicants appeared before the court and sought for an adjournment on various reasons, whose details were captured at the foot of the proceedings. The said application was vehemently opposed by learned counsel Mr Ojiambo Esquire for the Respondent herein.

26. Arising from the foregoing, this court was called upon to render a ruling and indeed the court proceeded to and rendered a ruling whereby the court declined the adjournment sought. Indeed, the court found and held that various applications for adjournment[s] had been made by and on behalf of the Applicants. To this end, the court held that it was not in the interest of justice to grant any further adjournment[s]. In short, the adjournment was declined. Thereafter, the hearing of the matter proceeded and the Respondent who was present testified and closed his case.

27. Based on the foregoing background, the question that does arise is whether the decisions that have been made in this particular matter can found a basis for recusal. I beg to state that a judge and/or judicial officer is called upon to render a decision based on the facts and the law and that is exactly what transpired on the 5th November 2024; and subsequently thereafter. For good measure, the decisions of the court under reference are well reasoned and same speak for themselves.

28. Moreover, I beg to state that the mere fact that a particular party has lost a particular application or matter does not by and of itself found a basis for recusal. In any event, it is not lost on me that courts of law do not exists to please the parties, the Applicants not excepted. On the contrary, courts of law exist[s] to administer justice in accordance with the law and the Constitution. Period.

29. Before concluding on this issue, I beg to cite and referenced the holding of the Court of Appeal in the case of Galaxy Paints Company Limitedv Falcon Guards Limited[1999] KECA 136 (KLR), where the court stated thus;As a result of the failure on the part of counsel to observe the Rules, many like Mrs Dias, have turned to scurrilous abuse and unfounded allegations against the learned Judges and applications to disqualify them, which were formerly very rare, are now a common feature. As we have said elsewhere this practice is nothing but an attempt to shop around for Judges favourable to their cause. It is strongly deprecated.Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. See Raybos Australia Pr operty Limited & another v. Tectram Cooperation Property Ltd. & Others 6 NSWLR 272.

30. My answer to issue number one [1] is to the effect that the mere fact that a particular party, in this case the Applicants have lost the previous application, does not by and of itself found a basis for recusal of a conscientious minded judge or judicial officer, knowledgeable of the provisions of the Bangalore Principles on the Independence of the Judiciary.

31. Regarding the second issue, namely; whether the Applicants have met the threshold for recusal, it is important to posit that where a particular Applicant is desirous to procure the recusal of a judge or judicial officer, such Applicant is called upon to plead the allegation of biasness and lack of impartiality with necessary particularity. For good measure, the allegations and or accusations need to be pleaded with the requisite precision and specificity. The allegations must not be omnibus and/or generalized in nature.

32. Additionally, once the Applicant has pleaded the accusations touching on bias and lack of impartiality with the requisite particularity, same [Applicant] is thereafter called upon to demonstrate and/or prove the accusation. Suffice it to state that the burden of proof rests with the Applicant. Moreover, the standard of proof is on a balance of probability or balance of preponderance.

33. Be that as it may, it is imperative to underscore that an Applicant cannot merely capture and throw on the face of the Court omnibus and generalized allegation[s] and thereafter imagine that a court of law shall take such allegations and deploy same as a basis for recusal.

34. I must say that if that were the standard, then every disgruntled or mischevious litigant [read, Party] who loses a matter before a particular judge or judicial officer would have a basis to run around and seek recusal. Such an endeavour would foster forum-shopping.

35. However, I thank God that the law on recusal is such that the Applicant is obligated to substantiate the averments and/or allegations. In this case, the Applicant[s] have neither pleaded the purported close association and relationship between learned counsel Mr. Ojiambo and the judge and neither has same substantiated the allegations.

36. Moreover, when learned counsel for the Applicants was interrogated by the court as to the nature of the close association and personal relationship between learned counsel Mr. Ojiambo and the judge, learned Mr. Sinjiri Kipkurui retorted that same had no evidence at all. In addition, learned counsel averred that he was unable to substantiate the averments.

37. It is not lost on the court that learned counsel Mr. Simjiri Kipkurui further retorted that same argued the application on the basis of [sic] what had been averred [deponed] by his client at the foot of the affidavit.

38. What I hear learned counsel Mr. Sinjiri Kipkurui to be stating is that same did not interrogate the veracity or otherwise of the averment[s]. Similarly, what I hear learned counsel Mr. Sinjiri Kipkurui to be saying is that because his client[s] swore the affidavit, same [learned counsel] chose to be the mouth- piece of the Applicant[s] without more.

39. Be that as it may, I beg to remind myself and by extension Learned Counsel for the Applicants that where a claimant raises the plea of bias and lack of impartiality; then same must be proven and established. In any event, the mere raising of the plea of bias does not amount to and/or in any event constitute [sic] proof.

40. What constitutes bias was elaborated upon in the case of Standard Chartered Financial Services Limited & 2 others v Manchester Outfitters (Suiting Division) Limited (Now Known As King Woollen Mills Limited & 2 others [2016] KECA 671 (KLR), where the court of appeal stated as hereunder;(60)What then amounts to bias?The Oxford English Dictionary defines bias “as an inclination or prejudice for or against one thing or person” while Black’s Law Dictionary defines the word bias as follows:“Inclination, bent, prepossession, a preconceived opinion, a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. To incline to one side. Condition of mind, which sways judgment and renders a judge unable to exercise his functions impartially in particular case. As used in law regarding disqualification of judge, refers to mental attitude or disposition of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.”(61)From the above definition, it is clear that the issue of bias negates the twin virtues of impartiality and independence of the Court of the Judge hearing and determining a matter. These two principles are the hallmark of a fair trial as espoused in section 77 of the retired Constitution of Kenya and Article 50 of the current

41. As concerns the test to be deployed before recusal can be procured on the basis of bias and/or lack of impartiality, it is instructive to reference the decision of the Court of Appeal in the case of Gachagua & 5 others v Maingi & 80 others (Civil Appeal E829 of 2024 & E022 of 2025 (Consolidated)) [2025] KECA 790 (KLR) (9 May 2025) (Judgment), where the court the court held thus;175. The decisions above, in our view, underscore that recusal is a fundamental safeguard in the administration of justice, essential for preserving the integrity and impartiality of the judicial process. With this in mind, we now turn our attention to the test to be applied in recusal applications. 176. The test has been considered by various courts before. In R. v Gough [1993] AC 646, the House of Lords adopted the 'real danger' test, which focused on whether there was a real risk that a fair trial would be compromised. However, this test did not gain acceptance across the Commonwealth. In Magill v Porter [2002] 2 AC 357, the House of Lords rened the test, introducing the standard of whetherafair-minded and informed observer, considering all thefacts, would concludethat there was a real possibility of bias. The House of Lords held thus: “The question iswhetherthefairminded and informed observer, having considered thefacts, would conclude that there was a real possibility that the tribunal was biased.”177. In CommitteeforJusticeand Liberty etal. v National Energy Board etal[1978] 1 SCR 369, 1976 Can L112 (SCC),the SupremeCourt ofCanada(perLaskinC.J.andRitchie, Spence,Pigeon andDickson, JJ) considered an objection to Mr. Crowe’s involvement in the National Energy Board, which was reviewing applications under section 44 of the National Energy Board Act. The objection stemmed fromMr.Crowe’s prior participation in a StudyGroup in arepresentativerole.Given the quasi-judicial nature of the Board and its duty to uphold the principles of natural justice, the Court ruled as follows: “…the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude.” 178. In another decision by the Supreme Court of Canada to wit, Ontario Labour Relations Board, (InternationalBrotherhood of ElectricalWorkers,Local 894 v Ellis – donLimited [1990] 1 SCR 282), the Court held thus: “In the case of bias, the state of mind of the decision- maker, evidence of bias is often dicult to apprehend directly. Therefore, the test adopted had to be usually limited to the demonstration of a reasonable apprehension that the mind of the adjudicator might be biased. If a requirement to establish actual bias had been adopted as a general principle, judicial review for bias would be a rare event indeed.”179. Closer home, the Constitutional Court of South Africain The President of the Republic & 2 Others v South African Rugby Football Union & 3 Others, (Case CCT 16/98) held, inter alia, that: “The test of bias established by the Supreme Court of Appeal is substantially the same as the test adopted in Canada. For the past two decades that approach is the one contained in the dissenting judgment by de Grandpre, J. in Committee for Justice and Liberty et al v National Energy Board: “...the apprehension of bias must be a reasonable one, held by reasonable and rightminded persons, applying themselves to the question and obtaining thereon the required information..[The]test is 'what would an informed person, viewing the matter realistically and practically- and having thought the matter through- conclude.'” ...the test contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case... An unfounded or unreasonable apprehension concerning a judicial oceris notajustiable basis for [a recusal] application.” [Emphasis added]180. In Kenya, the Supreme Court in Jasbir Singh (supra) cited with approval the American case of Perry v Schwarzenegger, 671 F. 3d 1052 (9th Cir. February 7, 2012), wherein it was held that: “…the test for establishing a Judge’s impartiality is the perception of a reasonable person, this being a “well-informed, thoughtful observer who understands all the facts,” and who has “examined the record and the law”; and thus, “unsubstantiated suspicion of personal bias or prejudice” will not suce.”181. In Kibisu v Republic (supra), the Supreme Court, referencing the Tanzanian decision in Tumaini v Republic [1972] EA LR 441, stated thus: “ 61. From the onset, it is worth noting that when interrogating a case of bias, the test is that of a reasonable person and not the mindset of the judge. That is why in Tumaini v. Republic [1972] EA LR 441 Mwakasendo, J. held that “ in considering the possibility of bias, it is not the mind of the Judge which is considered but the impression given to reasonable people.” [Emphasis added]182. In Republic v Mwalulu & 8 Others [2005] KECA 344 (KLR), this Court set the principles on which a judge would disqualify himself from a matter and stated as follows: “1. When the courts are faced with such proceedings for the disqualication of a judge, it is necessary to consider whether the reisareasonable ground for assuming the possibility ofa bias and whether it is likely to producein the minds of the public at large a reasonable doubt about the fairness of the administration of justice. The test is objective and the facts constituting bias must be specically alleged and established.2. In such cases the Court must carefully scrutinize the affdavits on either side, remembering that when some litigants lose their case, they are unable or unwilling to see the correctness of the verdict and are apt to attribute that verdict to a bias in the mind of the Judge, Magistrate or Tribunal.3. The Court dealing with the issue of disqualication is not, indeed it cannot, go into the question of whether the ocer is or will be actually biased. All the Court can do is to carefully examine the facts which are alleged to show bias and from those facts draw an interference, as any reasonable and fair-minded person would do, that the judge is biased or is likely to be biased.4. The single fact that a judge has on many cases involving one party cannot be sucient reason for that judge to disqualify himself.’’ [Emphasis added]

42. Moreover, the court ventured forward and captured the test to be deployed in matters pertaining to recusal in the following manner;185. We are in full agreement with the established jurisprudence on the applicable test in recusal applications. The test is objective: whether a fair-minded and informed observer, having considered all the circumstances would conclude that there exists a real possibility of bias. This standard is concerned, not with the judge’s actual state of mind, but with the appearance of partiality as perceived by a reasonable observer. Since the law is settled on this issue, we do not intend to re-invent the wheel.

43. There is no gainsaying that the test to be applied and deployed is the objective test. The test in question envisages the perception of a reasonable and fair minded person knowledgeable of the facts of the matter. Pertinently, the test is not a subjective one. Furthermore, the test is not of a person whose mind is inflicted/ coloured with malice and a pre-meditated scheme to defeat, delay and/or otherwise obstruct the course of justice.

44. I am afraid that the Applicants herein have neither met nor satisfied the threshold for recusal. I beg to repeat that it is not enough for an Applicant to resort to witch- hunting and fanciful allegations, [which same cannot prove/substantiate] in an endeavor to accrue recusal.

45. Before concluding on this matter, it is worthy to outline that the subject matter had indeed been referred by the judge who took over my docket unto myself for purposes of crafting the judgment. For good measure, the orders of the court referring the file unto me for crafting the judgment was made in the presence of advocates for the respective parties.

46. Notably, the orders made on the 26th March 2025, remains in-situ and have not been set aside. In this regard, this court is obligated by the constitution [Article 159[1], to proceed and craft the judgment until and unless the orders of 26th March 2025 are varied, set aside and/or impeached.

47. Finally, it is also imperative to remind ourselves and more particularly, the advocates for the parties that by dint of the provisions of Sections 55 and 56 of the Advocates Act, Chapter 16 Laws of Kenya, same are officers of the court. To this end, the advocates must not constitute themselves as mere mouthpieces for their clients for purposes of propagating scurillous allegation[s] and accusation[s] for the sake of it.

48. For the umpteenth time, I beg to state and reiterate that Advocates must continue to embrace their duties as officers of the court.

Final Disposition: 49. Having appraised the two [2] thematic issues, [whose details were highlighted at the foot of paragraph 16 of this ruling], it must have become crystal clear that the subject application is not only premature and misconceived, but same constitute[s] a gross abuse of the due process of the court.

50. Instructively, the application is premised on witch-hunting and a desire to propagate forum- shopping.

51. Consequently, and in the premises, the final orders of the court are as hereunder;i.The Application dated the May 22, 2025, be and is hereby dismissed.ii.Costs of the application be and are hereby awarded to the Respondent.iii.Costs in terms of clause [ii] shall be agreed upon and in default be taxed in the conventional manner.

52. It is so ordered.

DATED SIGNED AND DELIVERED AT NAIROBI ON THE 28TH DAY OF MAY, 2025. OGUTTU MBOYA, FCIArb, CPM [MTI].JUDGE.In the presence of:Brandy – court assistantMr. Sinjiri Kipkurui for the Defendants/Applicants.Mr. Ojiambo for the Plaintiff/Respondent.