[2022] KEHC 17073 (KLR)

Stone Crest Limited v Standard Chartered Bank Limited (Civil Case 38 of 2007) [2022] KEHC 17073 (KLR) (13 May 2022) (Ruling)

Neutral citation: [2022] KEHC 17073 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Case 38 of 2007

MN Mwangi, J

May 13, 2022

Between

Stone Crest Limited

Plaintiff

and

Standard Chartered Bank Limited

Defendant

Ruling

1. The application before me is a notice of motion dated February 5, 2021 brought under the provisions of sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya, Order XXV (sic) Rules 1 and 6, of the Civil Procedure Rules and all other enabling provisions of law. The defendant seeks the following orders -i.That this honourable court be pleased to make an order that pending the hearing or any further proceedings in this suit, the plaintiff does deposit Kshs 2,400,000/= either in court or into a bank account in the joint names of the Advocates for the parties herein, as security for the defendant’s costs in this matter;ii.That in the event the plaintiff fails to furnish security and within the period as ordered by this honourable court, this suit be dismissed with costs to the defendant; andiii.That the costs of this application be provided for.

2. The application is supported by an affidavit sworn on February 5, 2021 and a supplementary affidavit sworn on June 23, 2021 by Randolph M Tindika, an Advocate of the High Court of Kenya who has the conduct of this matter on behalf of the defendant.

3. In opposition to the application herein, the respondent filed a replying affidavit sworn on April 17, 2021 by Mohamed Nagib Shamsan, who holds a Power of Attorney given by Faraji Okiko, a director of the plaintiff company.

4. The application was canvassed by way of written submissions. The defendant’s submissions were filed on September 13, 2021 by the law firm of Tindika & Company Advocates while the plaintiff’s submissions were filed on September 27, 2021 by the law firm of Jengo Associates Advocate.

5. Mr Tindika, learned counsel for the defendant relied on the provisions of Order 26 Rules 1 and 5 of the Civil Procedure Rules and submitted that this court is clothed with the discretion to grant the orders sought herein, but several factors need to be taken into consideration in addressing the same. He referred to the case of Ocean View Beach Hotel Ltd v Salim Sultan Moloo & 5 others [2012] eKLR, where the court held that the purpose of an order for security of costs is to protect a party from incurring expenses in a litigation which it may never recover from the losing side and it is not to deter the plaintiff from pursuing its claim.

6. He also relied on the case of Messina & another vs Stallion Insurance Co Ltd[2005] I EA 264 (CAK) which embraced the principles laid down in Keary Development vs Tarmac Construction [1995] 3 ALL EK 534.

7. It was submitted by Mr Tindika that the plaintiff company’s status is unknown since the application for the CR12 has over a period of time been under review and on the basis of the Information Office of the Registrar of Companies, the plaintiff company’s file cannot be traced and its status is unknown, which means the company is either deregistered or non-existent. He further submitted that the plaintiff failed to bring evidence to the fact that the company is indeed in existence. He stated that the defendant’s apprehension that the plaintiff will not be able to pay costs incurred by the defendant in defending the suit herein is not only justified but is also well grounded.

8. He contended that the plaintiff has no known attachable properties within the jurisdiction of this court or anywhere else that can be attached to recover costs, in the event that the defendant is successful in defending the suit herein. Mr Tindika indicated that although the plaintiff allegedly owns the suit property, the said allegation has been demonstrated to be utterly false, misleading and utterly deceptive.

9. He relied on the case of Tanganyika Investments Oil & Transport Company Limited v Mobil Oil Kenya Limited & 6 others[2008] eKLR, where the court in allowing a similar application held that the plaintiff being resident out of jurisdiction and having no known substantial fixed or permanent or certain assets or property within the jurisdiction of the court made a prima facie case for requiring it to give security for costs.

10. Mr Tindika argued that the fact that the plaintiff has no known registered office and/or place of business in Kenya or at all and that the deponent to the plaintiff’s replying affidavit, Mohamed Nagib Shamsan is alleged to be an attorney appointed by Faraj Okiko and not the plaintiff company gives credence to the defendant’s apprehension for the need to have security provided.

11. Mr Tindika submitted that the plaintiff alleges that it owns Land Reference Number: MN/III/1884 which has an estimated value of Kshs 70,000,000/=. He opined that the sum of Kshs 2,400,000/= on account of costs will not only be reasonable but also appropriate as costs in defending the matter herein. He urged that in line with the provisions of Order 26 Rule 5 of the Civil Procedure Rules, if the plaintiff fails to furnish security within the time ordered by this court, the suit herein be dismissed with costs to the defendant.

12. Mr Jengo, learned counsel for the plaintiff submitted on the capacity of the deponent to swear the replying affidavit by stating that any witness with knowledge over a fact can testify on behalf of a company with no Power of Attorney or a resolution of a company to swear an affidavit, and introduce facts that are within his knowledge to court. He further submitted that the only time a Power of Attorney or a resolution of a company is needed, is when the party is purporting to file a suit on behalf of the company.

13. In citing the case ofFrancis Kimutai Bii vs Kaisugu (Kenya) Limited[2017] eKLR, Mr Jengo submitted that the supporting affidavit sworn by the defendant’s advocate, is on an application that is supposed to decide the rights of the parties. He contended that this amounts to hearsay evidence since the Advocate who deposed to the same did not state the source of his information. He contended that the affidavit is of zero probative value and cannot sustain the application herein and it should be struck out. He referred to the case of Barrack Ofulo Otieno vs Instarect Limited [2015] eKLR, where the court observed that under Rule 9 of the Advocates Practice Rules, Advocates are not permitted to swear affidavits in contentious matters. He expressed the view that the issue of whether security for costs should be paid is a contentious matter hence it was improper for the defendant’s counsel to have sworn the supporting affidavit.

14. Mr Jengo relied on the case of Mama Ngina Kenyatta & another v Mahira Housing Company[2005] eKLR, where the court of Appeal in deciding an application for security for costs held that the fact that a company is insolvent and unable to pay costs or is even in liquidation is not decisive, as the court has still a complete discretion whether or not to order security for costs. He stated that in the said case, in consideration of all the relevant circumstances of the case, the grounds of appeal and the lateness in bringing the application for security for costs, the court was satisfied that there were no valid grounds for interfering with the exercise of discretion by the learned single Judge.

15. He also relied on the case of Moses Wachira vs Niels Bruel & 2 others [2015] eKLRwhere the court cited the case of Bamburi Cement Co Ltd v Lawi Duda & 21 others, Civil Application No Nai 6 of 2013, where it was held that the reasoning appears to be that a litigant however poor, should be permitted to bring his proceedings without hindrance and have his case decided as the letter and spirit of our Constitution appears to support the said position under Articles 48 and 50 (1) and a litigant is not to be shut out because of his/her impecunious position, as this may lead to discrimination based on the size of one’s pocket.

16. He contended that the application herein was filed 14 years after the filing of the case hence it was brought too late in the day. He argued that the conduct of the defendant is of a party solely intent at ensuring that the matter does not proceed for hearing on merit. It was submitted by Mr Jengo that the defendant bears the evidential burden of proving that the plaintiff’s file cannot be traced at the Companies Registry so its legal status is unknown. He contended that a letter from the Registrar of Companies would have served to prove the same and that the duty of ensuring that files are well kept at the Companies Registry is not placed on the respondent thus it cannot be punished simply because a government entity is said not to have kept its records well.

17. Mr. Jengo submitted that no evidence had been annexed to the defendant’s affidavit to prove that the plaintiff has no known assets and in any event, the defendant did not deny that the plaintiff’s suit is bonafide as the defendant sold the plaintiff’s property wrongly. He contended that the cases relied on by the defendant were decided prior to theConstitutionof Kenya, 2010 and they did not take into account Articles 48, 50 and 159 of the Constitutionas well as Sections 1A and 1B of the Civil Procedure Act which were not in place then. He stated that the decision of the Court of Appeal he had cited in Moses Wachira vs Niels Bruel & 2 others (supra) would provide a better guide on the subsisting jurisprudence on the issue.

18. In making reference to the case ofWestmont Holdings SDN. BHD vs Central Bank of Kenya [2017] eKLR, he stated that it can be distinguished from the instant case because therein it was proved that the party against whom security was sought had been wound up whereas in the instant case, the defendant bases its application on the legal status of the plaintiff being unknown. He indicated that in the said case, there was also no replying affidavit opposing the application unlike in the instant case.

Analysis And Determination. 19. This court has considered the application filed herein, the affidavits filed in support thereof, the replying affidavit as well as the written submissions by counsel for the parties. The issues that arise for determination are-i.Whether the affidavit in support of the application herein is competent; andii.Whether the application herein is merited.

20. The defendant in its supporting affidavit deposed that its Advocate on record applied for a copy of CR12 from the Registrar of Companies so as to establish the current legal status of the plaintiff but whenever he checked, the said application indicated that the matter was under review. It averred that as a result of the above findings, its Advocates on record enquired from the Office of the Registrar of Companies and they were informed that the plaintiff’s file could not be traced thus its status was unknown and most likely, the plaintiff might have been deregistered.

21. It was stated by the defendant that it believes that the plaintiff has no assets or properties which can be attached to recover the costs which may be awarded in the event the defendant is successful in this matter. He further stated that the plaintiff will be unable to pay the defendant’s costs in view of the fact that it has no known office or business or property in Kenya.

22. The plaintiff in its replying affidavit deposed that it was not true that its status was unknown or that it had been deregistered or was non-existent as no evidence had been attached to prove the same. It stated that even if the company was non-existent, the records would have indicated the same. The plaintiff averred that it was not true that it had no assets or properties which could be attached to recover the costs which may be awarded in the event that the defendant is successful since the hotel which forms the subject matter of the suit herein and the land it sits on, belong to the plaintiff.

23. It was stated by the plaintiff that the defendant had not demonstrated how it would suffer irreparable loss and damage to require security for costs. It further stated that the application is drawn in bad faith and is intended at defeating the plaintiff’s claim against the defendant hence prejudicial and should be disallowed.

24. The plaintiff contended that the defendant filed a notice of preliminary objection to the suit after 9 years, which was dismissed, it then filed an application for review on April 17, 2019 which was also dismissed. That 14 years after the suit herein was filed, the defendant has now filed the present application just after it filed a notice of appeal against the court’s ruling of December 9, 2019 and has never filed the appeal. The plaintiff stated that these were indicators of a party who is intent at obstructing the conclusion of the matter. The plaintiff further contended that all the above only arise when the matter has been fixed for the hearing of the main suit.

25. The defendant in its supplementary affidavit deposed that it is not true that the property herein, to wit, Land Reference Number MN/III/1884 belongs to the plaintiff as can be seen from a copy of the Certificate of Title/Grant Number CR 22197. It further deposed that the plaintiff alleges that it has properties and/or it is in a financial position to pay the defendant’s fees but no document had been attached to support the said allegation.Whether the affidavit in support of the application herein is competent.

26. No law expressly bars an Advocate from swearing an affidavit in a client’s cause on matters which he/she as an Advocate has personal knowledge of, whether informed by his client or arising from the proceedings in the cause. However, Rule 9 of the Advocates Practice Rules prohibits Advocates from appearing as such, in cases wherein they might be required to give evidence either by affidavit or even orally.

27. It has also been held in a many cases that Advocates should not enter into the arena of the dispute by swearing affidavits in contentious matters of fact since by swearing affidavits on contentious issues, they make themselves viable witnesses for cross-examination in the cases which they are handling merely as agents, which practice is irregular. See Kisya Investments Limited & Others vs Kenya Finance Corporation Limited, Nairobi HCCCNo5304 of 1993.

28. In the case of Regina Waithira Mwangi Gitau v Boniface Nthenge [2015]eKLR the court when dealing with a similar issue held as hereunder-“However, where an affidavit by an advocate raises issues of law and fact which are within his knowledge having been an advocate handling the suit on behalf of the party on whose behalf the affidavit is sworn there is absolutely no mistake or error in the affidavit that can render it defective.”

29. Section 107 of the Evidence Act, provides that he who alleges bears the burden of proving the fact alleged. I have looked at the plaintiff’s replying affidavit as well as its submissions and I note that the plaintiff has not specifically pointed out which of the 10 paragraphs in the supporting affidavit and/or 7 paragraphs in the supplementary affidavit offends the law and/or rules of procedure. It is not enough just to allege that an affidavit is unsustainable, it is important to substantiate allegations made.

30. It is evident from the defendant’s supporting affidavit that Mr Randolph M Tindika deposed to the fact that having been instructed, he applied for a copy of the CR12 from the Registrar of Companies so as to establish the current legal status of the plaintiff, which application indicated that the matter was under review. Thereafter, he made inquiries from the Office of the said Registrar of Companies where he was informed that the plaintiff’s file could not be traced, which means that the status was unknown and most likely, the plaintiff might have been deregistered. The defendant’s counsel averred that the defendant believes that the plaintiff has no assets or properties which can be attached to recover the costs which may be awarded in the likely event that the defendant is successful. Mr Randolph M Tindika averred that what is deponed in the said affidavit is true to the best of his knowledge save as to matters deposed to on information, sources whereof have been disclosed and matters deponed to on belief, grounds whereupon have been given.

31. It is this court’s finding that the plaintiff has failed to show which of the issues highlighted hereinabove would require Mr Randolph M Tindika to be cross-examined upon, under the provisions of Order 19 Rule 2 of the Civil Procedure Rules, for offending the provisions of Rule 9 of the Advocates Practice Rules and that call for the affidavits sworn by him to be struck out under Order 19 Rule 6 of the Civil Procedure Rules.

32. It is evident from the plaintiff’s replying affidavit, that there was no contention that the facts deposed to by Mr Randolph M Tindika, Counsel for the defendant were within his knowledge, being the Advocate having the personal conduct of the suit on behalf of the defendant since its institution in 2007. Order 19 Rule 3 (1) of the Civil Procedure Rules, 2010 provides that affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove provided that in interlocutory proceedings, or by leave of the court, an affidavit may contain statements of information and belief showing the sources and grounds thereof.

33. This court holds that the mere fact that an affidavit was sworn by an Advocate does not render it incurably defective. In any event, none of the matters of fact that were deposed to by Mr Randolph M Tindika were seriously contested by the plaintiff. If anything, the plaintiff’s replying affidavit to a large extent contains denials. Be that as it may, this court is called upon to do substantive justice to the parties by giving effect the overriding objective of Sections 1A and 1B of the Civil Procedure Act in the interpretation of its provisions and Rules which include; the just determination of proceedings; efficient disposal of the dispute; efficient use of available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable to the respective parties. This was the position held by the court inStephen Boro Gitiha v Family Finance Building Society & 3 othersCA 363/2009, where the Court of Appeal held inter alia-“The overriding objective overshadows all technicalities precedents, rules and actions which are in conflict with it and whatever is in conflict with it must give way. If the often talked of backlog of cases is littered with similar matters, the challenge to the courts is to use the new “broom” of overriding objective to bring cases to finality, by declining to hear unnecessary interlocutory applications and instead to adjudicate on the principal issues in a full hearing if possible.”

34. Since the issue raised about the competency of the affidavits by Mr R Tindika is one of procedural technicality, pursuant to the provisions of Article 159(2)(d) of the Constitutionof Kenya, 2010 , this court’s finding is that the supporting and supplementary affidavits sworn by Mr R Randolph M Tindika are competent and properly on record.

Whether the application herein is merited. 35. Order 26 Rule 1 of the Civil Procedure Rules, 2010provides as hereunder:“In any suit the court may order that security for the whole or any part of the costs of any defendant or third or subsequent party be given by any other party.”

36. Mr. Jengo submitted that the principles on provision of security have changed with the introduction of Articles 48 and 50(1) of the Constitution of Kenya, 2010, the respondent should not be stopped from pursuing its claim because it is said to be poor whereas the defendant is a rich international bank. In the case of Anitha Karuturi & another v CFC Stanbic Bank Limited & 4 others [2020]eKLR the court held that-“Although the right of access to justice in Article 48 is couched in mandatory terms, it does not mean that the right cannot be limited in certain cases. The provisions regarding security of costs are still subject to Article 24 of the Constitution which permits limitation of certain fundamental rights provided those limitations are justified under theConstitution. Whether or not the provisions for security for costs are justified under theConstitution was considered by the Court of Appeal in Gatirau Peter Munya v Dickson Mwenda Githinji & 2 Others (Supra) where it was argued that an order for security for costs would impede the right of access to justice. The court stated as follows:“The rationale for security for costs is to ensure firstly, that a party is not left without recompense for costs that might be awarded to him in the event that the unsuccessful party is unable to pay the same due to poverty; secondly, it ensures that a litigant who by reason of his financial ability is unable to pay costs of the litigation if he loses, is disabled from carrying on litigation indefinitely except on conditions that offer protection to the other party. In Noormohamed Abdulla v Ranchhodbhal J Patel & Another [1962] EA 448, it was held: -The order for security for costs in such a case is not directed towards enforcing payment of the costs as such, but is designed to ensure that a litigant who by reason of near insolvency is unable to pay the costs of the litigation when he loses, is disabled from carrying on the litigation indefinitely except upon terms and conditions which afford some measure of protection to the other parties.It is therefore imperative in consideration of an application for security of costs, for the court to balance the competing rights of the parties, that is the right to access to justice and the right to security for costs. Article 24 (1) (d) of the Constitution, provides: -24 (1) A right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors including-……………………..(d)the need to ensure that the enjoyment of rights and fundamental freedoms by any individual does not prejudice the rights and fundamental freedoms of others;”

37. In considering an application for security for costs, courts are called upon to exercise their discretion judiciously so as to maintain a balance between the plaintiff, who wishes to prosecute his or her suit without any impediment and the defendant, who must be protected from incurring costs which may never be recovered if the suit fails. The need for security for costs arises when a party is reasonably apprehensive that if one succeeds one’s legal costs and/or fruits of the resultant Judgment will not be paid by the losing party.

38. In determining the present application, this court is guided by the English case of Keary Developments Limited v Tarmac Construction Limited & another[1995] 3 ALL ER 534 where the principles to be considered on the issue of security for costs were laid down as hereunder-1. The court has a complete discretion whether to order security, and accordingly it will act in the light of all the relevant circumstances.2. The possibility or probability that the plaintiff company will be deterred from pursuing its claim by an order for security is not without a more sufficient reason for not ordering security. It is implicit that a company may have difficulty meeting an order.3. The court must balance the injustice to the plaintiff prevented from pursuing a proper claim against the injustice to the defendant if no security is ordered and at the trial the plaintiff’s claim fails and the defendant finds himself unable to recover his costs. The power must neither be used for oppression by stifling a claim particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff’s impecuniosity, nor as a weapon for the impecunious company to put pressure on a more prosperous company.4. The court will look to the prospects of success, but not go into the merits in detail.5. In setting the amount it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount; it is not bound to make an order of a substantial amount.6. Before refusing security the court must be satisfied that, in all the circumstances, the claim would be stifled. This might be inferred without direct evidence, but the court should also allow that external resources might be available.7. The lateness of the application can properly be taken into account.”

39. In addressing the issue of security for costs, the court inBarrack Ofulo Otieno v Instarect Limited[2015] eKLR held that -“The discretion to order for security for costs is to be exercised reasonably and judicially by taking into consideration to (sic) the circumstances of each case. Such matters as; absence of known assets within the jurisdiction of court; absence of an office within the jurisdiction of court; inability to pay costs; the general financial standing or wellness of a party; the bona fides of the party's claim; or any other relevant circumstance or conduct of the party. Such conduct will include activities which may hinder recovery of costs, for instance recent closer (sic) or transfer of bank accounts, and disposal of assets. The conduct of the adverse party or rather the applicant includes, filing of application for security for costs as a way of oppressing or obstructing the other parties claim.”

40. In the present case, the defendant submitted that the status of the plaintiff company is unknown since the defendant’s application for a copy of the CR12 from the Registrar of Companies indicates that it is under review, that the plaintiff company has no known office and/or business in Kenya and that the plaintiff has no assets or properties which can be attached to recover the costs which may be awarded in the event the defendant is successful in this matter.

41. The plaintiff on the other hand averred that the hotel, the subject matter of this suit and the land it sits on, belong to the plaintiff thus it is in a financial position to refund the money in the event the defendant succeeds. It further averred that the defendant filed a notice of preliminary objection to the suit after 9 years, which was dismissed, it then filed an application for review on April 17, 2019 which was also dismissed. That 14 years after the suit herein was filed, the defendant has now filed the present application just after it filed a notice of appeal against the court’s ruling of December 9, 2019 and has never filed the appeal. It was averred that those were indicators of a party who is intent at obstructing the conclusion of the matter. The defendant on the other hand averred that the property in issue namely, Land Reference Number MN/III/1884 does not belong to the plaintiff as can be seen from a copy of the Certificate of Title/Grant Number CR22197.

42. The defendant attached to its supporting affidavit a receipt confirming payment for an official search in the Companies’ Registry and a copy of the application history which shows the status of the application to be under review. It is this court’s considered opinion that the defendant exhausted all the avenues available to it when it came to the confirmation of the status of the plaintiff company.

43. The fact that the defendant alleged that the plaintiff company does not exist and went ahead to carry out its due diligence with the Registrar of Companies but was unable to confirm the status of the plaintiff company, shifted the burden of proof the plaintiff. The plaintiff ought to have annexed documentation to its replying affidavit such as a certificate of incorporation, its most recent annual returns or it latest CR12 or any other relevant document to confirm its existence.

44. The plaintiff company is also better placed to inform the court and the defendant of the location of its offices and/or its physical place of business which it failed to do so in its replying affidavit. As to whether the plaintiff company has any known properties in Kenya, the defendant averred that it has none. It is this court’s finding that this is information within the knowledge of the plaintiff and only the plaintiff can confirm whether or not it has properties and/or assets that can be attached to recover costs in the event the defendant is successful.

45. In a bid to demonstrate that it has properties, the plaintiff averred that the suit property herein belongs to it, the averment was however not accompanied by any documentation. The defendant on the other hand annexed a copy of a Certificate of Title/Grant Number CR 22197 which shows that Land Reference Number MN/III/1884, the suit property herein belongs to Island Group of Hotels Limited. There is no evidence by the plaintiff that the plaintiff company and Island Group of Hotels Limited are one and the same. Therefore, the plaintiff failed to demonstrate that it actually has properties and/or assets at its disposal.

46. On the issue of the bonafides of the party’s claim, the plaintiff submitted that it is not in dispute that the defendant sold its property albeit wrongly as pleaded by the defendant. A perusal of the plaint and the statement of defence reveals that inasmuch as the defendant exercised its statutory power of sale and sold the suit property, it does not concede that it did it wrongly and/or by mistake. It can therefore be concluded that the defendant has an arguable defence to the plaintiff’s suit.

47. It is not in dispute that this application has been filed over ten years since the institution of the suit herein, However, Order 26 of the Civil Procedure Rules does not provide for limitation within which such an application should be filed. Therefore, in furtherance of the overriding objectives found under Sections 1A, 1B & 3A of theCivil Procedure Rules, 2010 as well as the provisions of Article 159(2)(d) of the Constitution of Kenya, 2010 , the plaintiff’s argument that the application herein ought to be dismissed on grounds that it was filed late in the day cannot be sustained.

48. Taking all the aforesaid factors into consideration, I am satisfied that this is a case where the plaintiff company should provide security for costs. It is trite that in setting the amount, the court can order any amount up to the full amount claimed by way of security, provided that it is more than a simple nominal amount, but it is not bound to make an order of a substantial amount. The defendant contended that the suit property being Land Reference Number: MN/III/1884, has an estimated value of Kshs 70,000,000/=, in this court’s view the sum of Kshs 2,400,000/= on account of costs will not only be reasonable but also appropriate in defending the matter herein.

49. The upshot is that the application herein is merited and the same is allowed in the following terms -i.That pending the hearing or any further proceedings in this suit, the plaintiff will deposit Kshs 2,400,000/= in an interest bearing bank account in the joint names of the advocates for the parties herein within 30 days from today, as security for the defendant’s costs in this matter.ii.In default of compliance with the provisions of the deposit of such security, the plaintiff’s suit shall be struck out with costs to the defendant; andiii.The costs of the application dated February 5, 2021 are awarded to the plaintiff.

It is so ordered.

DATED, SIGNED AND DELIVERED AT MOMBASA ON THIS 13TH DAY OF MAY, 2022. RULING DELIVERED THROUGH TEAMS ONLINE PLATFORM.NJOKI MWANGIJUDGEIn the presence of:Ms Julu for the plaintiffMr. Tindika for the defendantMr. Oliver Musundi – Court Assistant.