Chesang v Kurui [2024] KEELRC 2374 (KLR)

Chesang v Kurui (Enviromental and Land Originating Summons 2 of 2022) [2024] KEELRC 2374 (KLR) (25 September 2024) (Interim Judgment)

Neutral citation: [2024] KEELRC 2374 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Eldoret

Enviromental and Land Originating Summons 2 of 2022

JM Onyango, J

September 25, 2024

Between

Magdaline Jepkoech Chesang

Applicant

and

John Kiprop Kurui

Respondent

Interim Judgment

1. In this case, I am called upon to traverse the well-trodden but often elusive terrain of customary trusts, a concept rooted in tradition, yet tempered by the firm hand of statute.

2. The Applicant seeks to invoke the doctrine of trust, claiming an interest in the parcel of land known as L.R. NO. Koitoror/Tuiyoluk Block 1 (Koitoror)297 (the suit property) now registered in the name of the Respondent. But in matters of trust, the law does not lightly infer obligations; they must be drawn out through clear and cogent evidence, not by the mere whisper of familial ties.

3. The Applicant/Plaintiff moved this court vide an Originating Summons dated 17th February 2022 seeking the following Orders:1. That a declaration do issue to the effect that the Respondent herein John Kiprop Kurui is holding L.R. NO. Koitoror/Tuiyoluk Block1 (Koitoror)297 also known as Soin Farm as a trustee for and/on behalf of the Applicant.2. That a declaration do issue to the effect that L.R. NO. Koitoror/Tuiyoluk Block 1 (Koitoror)297 also known as Soin Farm is subject to a generational trust: the same constituting ancestral land.3. That declarations do issue that the registration of one John Kiprop Kurui, the Respondent herein over the parcel of land known as L.R. NO. Koitoror/Tuiyoluk Block 1 (Koitoror)297 also known as Soin Farm is purely as a trustee for the Applicant, she being the beneficiary of the estate of the late Kibor Kabarak.4. That upon the grant of prayers 1, 2 and 3 above, the Respondent’s aforesaid trust over the suit portion of land be accordingly terminated with respect to the Applicant being the daughter of the late Kibor Kabarak (Deceased).5. That the title deed in the name of the Respondent John Kiprop Kurui be accordingly cancelled and, in its place, titles do issue in respect of the beneficiaries particularly the Applicant herein.6. That the Respondent be condemned to pay the costs of the Originating Summons.

4. The suit is grounded on the supporting affidavit of Magdaline Jepkoech Chesang, the Applicant herein sworn on even date.

5. By way of defence, the Respondent John Kurui filed a Replying affidavit sworn on 10th June 2022.

6. The Applicant thereafter refuted the respondent’s averments set out in the Replying affidavit sworn on 10th June 2022 vide a Further Affidavit sworn on 8th July 2022.

Applicant’s Case 7. The Applicant avers that both she and the Respondent are siblings, children of the late Kibor Kabarak (deceased). The Applicant's case is that the parcel of land known as L.R. NO. Koitoror/Tuiyoluk Block 1 (Koitoror)297, also referred to as Soin Farm , belonged to their late father, Kibor Kabarak.

8. The Applicant further asserts that the Respondent was born out of wedlock and claims that prior to his demise in 2011, their father, Kibor Kabarak, bequeathed portions of the Soin Farm , measuring approximately 20 acres, to his children, including both parties to this suit.

9. According to the Applicant, the late Kibor Kabarak distributed the property by way of a will dated 19th April 2010, which was prepared by his Advocate Hillary Chemitei, now Justice Chemitei.

10. The Applicant further contends that she had been in continuous use of her designated portion of the land, measuring 5 acres where she had been planting maize from 2003 until February 2022. However, in February 2022, the Respondent, either personally or through his proxies, allegedly stopped a tractor driver sent by the Applicant to plough her portion of the land.

11. To substantiate her claim of land use, the Applicant has attached a letter from the area chief, dated 16th February 2022, to her affidavit in support of the Originating Summons

12. She avers that her attempts to plough the suit portion on 7th and 14th February 2022 were thwarted by the Respondent and/or proxies prompting her to seek the intervention of the area chief.

13. The Applicant contends that due to their late father’s ill health and old age, the Respondent was registered over the suit property as the trustee with the intention of effecting the transfer of the other portions to his siblings including the Applicant.

14. She avers that instead of fulfilling their father’s wish, the Respondent has threatened to transfer the suit property to third parties with the sole intention of disinheriting her thus prompting the instant suit.

15. The Applicant asserts that her apprehension was further exacerbated by the fact that the Respondent is the registered proprietor of the suit property and he could therefore make good his threat by disposing of the suit property thus necessitating the instant suit to protect her claim.

16. During the hearing, the Applicant testified as PW1 and asserted that the suit property was bequeathed to her by her late father who died on 5th September 2011.

17. It was the Applicant’s testimony that she started using the suit property for cultivation in 2003 and continued to do so until she was stopped by the Respondent in February 2022 when the dispute between the parties crystalized.

18. The Applicant confirmed to the court that she does not stay on the suit property but simply utilizes it by cultivating the same and planting crops thereon.

19. She testified that in July of 2011, during a meeting convened by her father Kibor Kabarak (deceased) the Respondent was asked to surrender the title to the suit property. It was at this point that the Applicant realized that the suit property was registered in the name of the Respondent.

20. She testified that the Respondent alleged that he had lost the title to the suit property.

21. It was the Applicant’s testimony that the Respondent presented various documents to their father to verify the loss of the title including a Police Abstract (PEX4) dated 17th August 2011, a Declaration of Gazettement of a lost title (PEX5), an affidavit (PEX6) sworn on 1st August 2011, a Gazette Notice dated 9th March 2012 (PEX7).

22. In cross-examination, the Applicant admitted that the family had never had their father’s will (PEX3) which Kibor Kabarak (deceased) used to bequeath the parcel to her validated or confirmed and further that the family had not instituted succession proceedings. She stated that by the time her late father’s will was written, the suit property was already registered in the name of the Respondent.

23. In re-examination, the Applicant testified that Kibor Kabarak (deceased) had his land surveyed, beacons placed thereon and he distributed the various parcels to his children in 2003 after which she took possession of her 5 acres in the suit property.

24. The Applicant stated that the chief of their location made unsuccessful attempts to resolve the dispute between her and the Respondent before she instituted legal proceedings in court.

25. The Applicant called Simon Kipkering Kipkorir, the chief of Koitoror to testify as PW2. He testified that the Applicant and the Respondent are both children of the late Kibor Kabarak. He further testified that Kibor Kabarak (deceased) bequeathed 5 acres of the suit land to the Applicant and that she had been in possession of the suit land for 20 years.

26. PW2 corroborated the Applicant’s assertion that the dispute between the parties herein over the suit property arose in February 2022.

27. In cross examination, PW2 acknowledged that he is not sure when the land was registered in the name of the Respondent.

28. He also testified that Kibor Kabarak(deceased) passed away in 2011 and that the deceased’s children were cultivating his land (including the suit property) with his express permission.

29. In re-examination, PW2 confirmed that the suit property was registered in the name of the Respondent and the title (measuring 10 acres which includes the Applicant’s portion) was duly issued on 21st November 2003.

30. PW2 further stated that the Applicant does not have a house on the suit property and the Applicant only utilizes it for farming. He further testified that the Respondent has a house on his portion of the suit property.

Respondent’s Case 31. The Respondent averred that his late father, Kibor Kabarak, registered the suit property, Koitoror/Tuiyoluk Block 1 (Koitoror)/297, in his name. He contended that the entire property, measuring 20 acres, was divided by their father between him and his brother, Wilson Kibor, with Koitoror/Tuiyoluk Block 1 (Koitoror)/296 subsequently being registered in Wilson’s name.

32. The Respondent further asserted that the title to the suit property was issued to him on 21st November 2003 and that at no time did his father instruct him to share the property with the Applicant. He maintained that, by the time their father wrote his will, the property had already been registered in his name.

33. According to the Respondent, he allowed the Applicant to use the suit property to help cover their father’s medical expenses. He further asserted that his father never revoked the title to the suit property and never informed him of any intention to give a portion of his share of the land to his sister.

34. The Respondent also asserted that he has never attended any family meeting where the subdivision of the suit property with the Applicant was discussed.

35. In his testimony, the Respondent admitted that his late father, Kibor Kabarak, was the original owner of the suit property. He further testified that his father gave him the 10 acres parcel of land.

36. He denied ever seeing his father’s alleged will (PEX3) and asserts that in any case the suit property is not mentioned in the said will.

37. It was the Respondent’s testimony that by the time Kibor Kabarak(deceased) passed away, the suit property was registered in his name.

38. The Respondent testified that the late Kibor Kabarak held land within Koitoror Farm, a parcel measuring 30 acres, where he was laid to rest.

39. The Respondent stated that the Applicant is not entitled to 5 acres of the suit property and further that the will upon which the Applicant is basing her claim is yet to be validated.

40. In cross-examination, the Respondent admitted that he never saw his late father’s medical bill and he could not ascertain how much the Applicant was meant to recover in terms of the medical expenses.

41. The Respondent further testified that Kibor Kabarak purchased 20 acres at Soin and divided it into two portions measuring 10 acres each with the suit property being registered in his name.

42. During cross-examination, the Respondent stated that his step mother, Pauline Kibor (deceased) was buried in the Koitoror farm next to his father.

43. The Respondent stated that he is the one who has been paying rates for the suit property but failed to produce documentary evidence corroborating his averments.

44. He further admitted that the Applicant has been cultivating 5 acres of the suit land since 2011.

45. In cross-examination the Respondent denied having ever lost the title to the property and in re-examination denied ever having applied for a replacement of the title.

Issues for Determination 46. Having considered the Originating Summons, the Replying Affidavit in opposition thereto, the evidence adduced by the parties, the submissions filed in support of the parties’ cases, the following issues emerge for determination:i.Whether the Applicant has the locus standi to institute the suitii.Whether this Court has jurisdiction to adjudicate matters arising from a williii.Whether the Applicant has established the existence of customary trust over Koitoror/Tuiyoluk Block 1 (Koitoror)/297 and entitled to the reliefs sought in the suitiv.Who should bear the costs of the suit

Analysis and Determination 47. The burden lies with the Applicant to substantiate the existence of a customary trust, it must not be assumed, for equity demands clarity, and a trust must be anchored in fact before it can set sail on the sea of law.

48. The court is thus tasked with discerning whether the Applicant has met the rigorous threshold required to establish such a trust, or whether the claim is one built on shifting sand, incapable of sustaining the weight of legal scrutiny.

Whether the Applicant has the locus standi to institute this suit 49. The Respondent argues that the Applicant lacks the locus standi to institute these proceedings on behalf of the estate of the late Kibor Kabarak.

50. The Respondent asserts that during the hearing, the Applicant admitted that she had not obtained a Grant of Letters of Administration for the estate of the late Kibor Kabarak. As a result, the Respondent contends that, because the Applicant is not the administrator of the deceased’s estate, she lacks the locus standi to initiate proceedings on its behalf, making the suit incompetent.

51. To buttress this argument, the Respondent urges the court to be guided by the case of Hawo Shanko v Mohamed Uta Shanko [2018] eKLR. He placed further reliance on the case in Rajesh Pranjivan Chudasama vs Sailesh Pranjivan Chudasama [2014] eKLR.

52. On the other hand, in her Further Affidavit sworn on 8th July 2022, the Applicant argued that the issue of locus standi is a non-starter for two reasons.

53. Firstly, she argues that she has utilized the suit parcel of land for more than twenty years with the full knowledge of the Respondent and other family members. Secondly, the Applicant asserts that the suit property is registered in the name of the Respondent in trust and consequently there is absolutely no reason for her to seek a grant with respect to their late father’s estate.

54. In Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased) [2016] eKLR the court addressed the issue of locus standi in the following terms:“…the issue of locus standi is so cardinal in a civil matter since it runs through to the heart of the case. Simply put, a party without locus standi in a civil suit lacks the right to institute and/or maintain that suit even where a valid cause of action subsists. Locus standi relates mainly to the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a court acting without jurisdiction since it all amounts to null and void proceedings. It is also worth noting that the issue of locus standi becomes such a serious one where the matter involves the estate of a deceased person since in most cases the estate involves several other beneficiaries or interested parties.”

55. In this case, the issue of locus standi as it relates to the estate of Kibor Kabarak (deceased) does not arise. Both parties have acknowledged that the suit property is registered in the name of the Respondent although they both acknowledge that it initially belonged to their father Kibor Kabarak (deceased).

56. Moreover, a perusal of the Originating Summons together with the Applicant’s accompanying documents indicates that the Applicant filed the suit in her own capacity and not on behalf of the estate of Kibor Kabarak (deceased). In cross-examination, the Applicant testified that she is not an administrator of their late father’s estate.

57. Accordingly, the question of locus standi vis-à-vis the estate of the late Kibor Kabarak is rendered moot, as the Applicant stands before the Court not as a representative of the estate, but as an individual asserting her own rights in relation to the suit property.

58. The Applicant is not seeking to sail under the flag of the estate but rather charts her own course. Consequently, the question of locus standi is not at play in the present matter.

Whether this Court has jurisdiction to adjudicate matters arising from a will 59. The Respondent contends that the instant suit is a succession matter and therefore this court lacks jurisdiction to hear and determine the issues at hand.

60. In order to challenge the jurisdiction of the court, the Respondent placed reliance in the case of Beatrice Wambui Kiarie & v Beatrice Wambui Kiarie & 9 others [2018] eKLR where the court opined thus:“…48. There having been a will in place, I do find that that although it is clear from the provisions of Article 162 (2) (b) of the Constitution and sections 4 and 26 of the Environment and Land Court Act that this court has unlimited and original jurisdiction to deal with disputes relating to the environment and the use and occupation of, and title to land in the whole country. However in the present case and looking at the plaint filed by the Plaintiff, and the annexures thereto, I find that the issue raised herein is a succession dispute that ought to have been filed either in the High Court or the Chief Magistrates’ Court.

49. I find that this court has no jurisdiction to try matters pertaining to succession disputes. Jurisdiction is everything. Without it, a court has no power to make one step. Where a court has no jurisdiction there will be no basis for a continuation of proceedings pending other evidence. A court of law downs its tools in respect of the matter before it the moment it holds that it is without jurisdiction.”

61. In the instant case, an analysis of the Originating Summons dated 17th February 2022 indicates that the prayers sought relate to the issue of trust rather than succession.

62. The Environment and Land Court, a specialized court, established under Article 162(2)(b) of the Constitution, has jurisdiction over disputes concerning environmental matters, land use, occupation, and title. However, matters relating to the ownership and inheritance of a deceased person's property, including land, are governed by the Law of Succession Act and fall within the exclusive purview of the High Court (Family Division).

63. Jurisdiction is the lifeblood of any judicial proceedings; without it, the court's hands are tied. Consequently, this Court is precluded from delving into or making any pronouncement regarding the will of the late Kibor Kabarak, as it lacks the requisite authority, however this court has jurisdiction to determine whether or not the suit property is the subject of a customary trust.

Whether the Applicant has established the existence of customary trust over land parcel number Koitoror/Tuiyoluk Block 1 (Koitoror)/297 64. The Applicant’s claim rests upon the assertion of a generational trust, passed down through their lineage, over the suit property. She contends that the property, although registered in the Respondent’s name, was so held in trust for the family, entitling her to a rightful share.

65. It is trite law that with any claim of trust, it is incumbent upon the Applicant to walk the delicate path of evidence, for a trust cannot be presumed; it must be proven. The burden is heavy, and mere assertions, no matter how fervent, cannot be a substitute for tangible proof.

66. It is this court’s task to examine whether the Applicant has successfully discharged this burden and thereby made good her claim to the reliefs sought.

67. Both of the Applicant’s witnesses together with the Respondent testified that L.R. NO. Koitoror/Tuiyoluk Block 1 (Koitoror)297 belonged to the late Kibor Kabarak who passed away on 5th September 2011 as evidenced by the death certificate produced as PEX1 by the Applicant.

68. The Applicant urges the court to declare that the suit property is held in trust for the Applicant by the Respondent and urges the court to consider the concept of a customary trust. To this end the Applicant cited the following authorities: Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR, Peter Gitonga V. Francis Maingi M’ Kiara H.C.C. No. 146 of 2000, Susan Mumbi Waititu & 2 others v Mukuru Ndata & 4 others [2008] e KLR and M’Ikiugu M’Mwirichia & Another vs Esther Nthiira M’Ikiugu & others (2009) eKLR.

69. Counsel for the Applicant contends that the absence of the word 'trust' on the title deed does not absolve the registered proprietor from the equitable obligations of a trustee.

70. The parties are in agreement that the property was duly registered in the Respondent’s name on 21st November 2003, and a copy of the title, marked as DEX 1, was produced by the Respondent to that effect. The suit property was registered under the now-repealed Registered Land Act, CAP 300, and the Respondent’s proprietary rights were anchored in section 27 of that statute. These rights, which are mirrored in section 24 of the Land Registration Act, 2012, are expressed in the following terms:“24. Subject to this Act(a)The registration of a person as proprietor of land shall vest in that person the absolute ownership of that land together with all rights and privileges belonging or appurtenant thereto.”

71. Section 25(1), which echoes the provisions of the now-repealed Section 28 of Cap 300, establishes that the rights of a registered owner are indefeasible and free from any other interests or claims. These rights can only be defeated as prescribed under the Act. However, the rights of a registered owner remain subject to overriding interests under Section 28 of the Land Registration Act, which do not require registration or notation in the land register.

72. Section 28 provides inter alia that:“Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register—(a)………(b)Qtrusts including customary trusts;”

73. Consequently, registered land is not immune from the operation of customary trusts, which may subsist without formal recognition in the land register.

74. The Supreme Court of Kenya extensively addressed the issue of customary trusts in Kiebia v M’lintari & another (Civil Case 10 of 2015) [2018] KESC 22 (KLR) in the following terms:“…a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act.”

75. The Supreme Court proceeds to establish the essential ingredients of determining the existence customary trust as follows:“…what is essential is the nature of the holding of the land and intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1. The land in question was before registration, family, clan or group land2. The claimant belongs to such family, clan, or group3. The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous.4. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances.5. The claim is directed against the registered proprietor who is a member of the family, clan or group.”

76. With these principles in mind, it is now necessary to examine whether the circumstances of this case align with the essential elements of a customary trust.

77. The Applicant asserts the existence of a customary trust, a contention that the Respondent vehemently denies. Consequently, the Applicant bears the burden of establishing this trust.

78. It is a cardinal principle of law that he who asserts must prove. Section 107 of the Evidence Act CAP 80 firmly anchors this principle by providing that:"“(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”

79. The testimonies of PW1, PW2, and DW1 are consistent and unanimous in confirming that the suit property was originally owned by Kibor Kabarak (deceased) prior to its subsequent registration in the name of the Respondent.

80. The Applicant has asserted that the Respondent holds the suit property in trust for her. It is her uncontroverted evidence that she has been tilling the land since 2003, a period spanning more than 20 years and long before their father died. This fact of possession has not been disputed by the Respondent although he has tried to explain it by stating that the Applicant was allowed to use the land in order to pay their father’s medical bills. Asked about the said bills, he stated that he did not know how much the hospital bills were.

81. The principles enunciated by the Supreme Court in Kiebia v M’lintari & another (supra) demand that, to qualify as a trustee, the land must have been family, clan, or group land prior to registration.

82. It is uncontroverted fact that the suit property belonged to the father of the Applicant and Respondent. This means that the suit property was family land which was to be enjoyed by children of Kibor Kabarak.

83. It is also an undisputed fact that the Applicant is a daughter of the late Kibor Kabarak and a ste8p sister to the Respondent thus her claim is not farfetched.

84. Additionally, the Respondent has confirmed that the Applicant started cultivating the suit property before their father died even though it was registered in the Respondent’s name.

85. Although the Respondent denied having told their late father that he had lost the title deed to the suit property, the Applicants produced PEX-4, PEX-5, PEX-6 and PEX7 which are a clear indication that the title deed was lost. The Respondent is therefore not a truthful witness.

86. In the final analysis I am persuaded that the Applicant has proved the existence of a customary trust in her favour.

Who should bear the costs of this suit? 87. The general rule is that costs follow the event — the successful party is ordinarily entitled to recover their costs unless there are compelling reasons to depart from this general rule.

88. This principle is anchored in Section 27 of the Civil Procedure Act which provides as follows:-27 (1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers;provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.

89. The Supreme Court addressed the issue of costs in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] eKLR in the following terms:“It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice….…Although there is eminent good sense in the basic rule of costs – that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the applicant.”

90. In essence, while the general rule that costs follow the event is well-founded in law, it is by no means a rigid or immutable principle. The court retains the discretion to decide the issue of costs on a case-by-case basis.

91. In this case, the parties have admitted to being members of one family, and while the law has brought them before this court as adversaries, the bonds of kinship must not be forgotten. Justice here is not served by adding to the bitterness of family division with an award of costs.

92. It is, therefore, in the interest of preserving familial harmony that I exercise my discretion and direct that each party shall bears their own costs.

93. Accordingly, I enter judgment in favour of the Applicant and make the following final orders:a.A declaration is hereby issued that the Respondent is holding land title no. Koitoror/Tuiyoluk1( Koitoror)/297 also known as Soin Farm as a trustee for and on behalf of the Applicant.b.A declaration is hereby issued that land title no. Koitoror/Tuiyoluk 1( Koitoror)/297 also known as Soin Farm is subject to a generational trust, the same constituting ancestral land.c.A declaration is hereby issue that the registration of one John Kiprop Kurui, the Respondent herein, over the suit parcel of land known as Koitoror/Tuiyoluk Block 1(Koitoror)/297 also known as Soin Farm is purely as a trustee for the Applicant, she being the daughter and beneficiary of Kibor Kabarak.d.A declaration is hereby issued terminating the trust over the suit property.e.The title in respect of the suit property is hereby cancelled and the Land Registrar Uasin Gishu County is hereby directed sub-divide the suit property and issue a title in respect of the Applicant in respect of apportion measuring 5 acres while the Respondent shall remain with a title in his name measuring 5 acres.f.Each party shall bear their own costs.

DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET THIS 25TH DAY OF SEPTEMBER, 2024. ……………………..J. M. ONYANGOJUDGEIn the presence of;1. Ms. Isiaho for the Plaintiff2. Mr. Tororei for the DefendantCourt Assistant: Brian