Matwanga Kilonzo v District Commissioner, Kitui & another [2021] KEELC 4475 (KLR) | Land Adjudication | Esheria

Matwanga Kilonzo v District Commissioner, Kitui & another [2021] KEELC 4475 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT

AT MACHAKOS

ELC. MISC. CASE NO. 4 OF 2020

(Formerly Nairobi Misc. Civil Cause No. 759 of 1991)

IN THE MATTER OF AN APPLICATION BY MATWANGA KILONZO FOR

LEAVE TO APPLY FOR ORDERS OF CERTIORARI AND MANDAMUS IN

RESPECT OF THE ORDER BY THE DISTRICT COMMISSIONER AT KITUI

DELIVERED ON 20TH AUGUST, 1991 IN THE MINISTER’S LAND APPEAL

NO. 142OF 1987 PURSUANT TO THE PROVISIONS OF SECTION 29 (1) OF

THE LAND ADJUDICATION ACT. CAP. 284, LAWS OF KENYA

BETWEEN

MATWANGA KILONZO....................................................................................APPLICANT

VERSUS

THE DISTRICT COMMISSIONER, KITUI........................................1ST RESPONDENT

KAILU MBUTA........................................................................................2ND RESPONDENT

JUDGMENT

Introduction:

1.  In the Notice of Motion dated 28th November, 1991, the Applicant has prayed for the following orders of Judicial Review:

(a) An order for certiorari to issue to remove into this Honourable Court and to quash an order made by the District Commissioner at Kitui on 20th day of August, 1991 in the Minister’s Land Appeal No. 142 of 1987 between Matwanga Kilonzo and Kailu Mbuta pursuant to the provisions of Section 29 (1) of the Land Adjudication Act, Cap. 284, Laws of Kenya as conferred by Legal Notice No. 191 of 26th August, 1985.

(b)   An order of Mandamus commanding the said Kitui District Commissioner to hear and determine the said proceedings according to law the issue whether the Applicant herein, namely Matwanga Kilonzo is entitled to be recorded and/or registered the proprietor of land parcel No. 815 of Nzalae Mutonguni Adjudication Section of Kitui District now registered in the name of Kailu Mbuta.

(c)  That costs of and occasioned by this Application be provided for.

2.  The Application is supported by the Affidavit and the Statement of Facts of the Applicant who has deponed that from the decision of the 1st Respondent, it would appear that the 1st Respondent did not read the decisions of the Arbitration Board and the Land Adjudication Officer in respect to the dispute that was before him.

3.  The Applicant deponed that he was awarded the suit property by the Land Arbitration Board; that the Land Adjudication Officer reversed the decision of the Board because Nzalae area was a “no man’s land” that could be claimed by anyone and that the Minister did not hear the appeal in accordance with the law. The Application was not opposed by the Respondents.

Submissions:

4.  In his submissions, the Applicant submitted that the land adjudication dispute resolution process is in four tiers, the Adjudication Committee being the lowest, then going up to the Adjudication Board, the objection and the highest being the Minister. It was submitted that the case at hand went through all the stages.

5.  It was submitted that at the Adjudication Committee stage, the dispute was never decided; that proceedings were taken but before the Adjudication Committee could give its decisions, it was ostensibly disbanded and a new Committee constituted and that on 23rd October, 1981, the new Committee forwarded the dispute to the Land Adjudication Board.

6.  Counsel cited the provision of Section 21(1) of the Land Adjudication Act, Cap 284 which provides as follows:

“If a committee is unable to reach a decision on a matter before it, it shall refer the matter to the arbitration board for decision.”

7.  It was submitted that the Adjudication Committee was within the law to refer the case to the Arbitration Board; that after the case was referred to the Arbitration Board, it was registered as land case number 132 of 1981; that the Arbitration Board adopted the evidence of the parties given before the Adjudication Committee and also proceeded to take its own evidence and that the Arbitration Board went further and viewed the land in dispute to verify the evidence given.

8.  Counsel submitted that on 15th January, 1983, the Arbitration Board found that what the Ex parte Applicant had stated in his evidence was the truth; that the evidence on the ground was found to be at variance with the oral evidence of the Respondent and that what the 2nd Respondent had claimed to be boundary marks between him and the Ex parte Applicant were boundary marks between the Ex parte Applicant’s land and that of one Kimele Maingi.

9.  The Applicant’s counsel submitted that what the 2nd Respondent had claimed to have been his destroyed house was not his, but the deserted home of Musyimi Mulumbi on eviction as per the court decree given in favour of the Ex parte Applicant against the Respondent herein and three others by the court of law at Migwani and that having satisfied itself that the land in dispute belonged to the Ex parte Applicant, the Arbitration Board awarded the parcel of land in dispute to the Applicant vide its decision dated 17th January, 1983.

10. Counsel submitted that the 2nd Respondent lodged an objection to the Land Adjudication Officer vide Objection Number 368 of 1984 and that under the law, the objection to the adjudication officer is limited to only two aspects: the adjudication register being incorrect, and/or the adjudication register being incomplete.

11. It was submitted that Section 26 of the Act does not grant the Adjudication Officer power, authority or jurisdiction to make a substantive finding contrary to the decision of the adjudication board, whose decision is final on the issue of ownership.

12. Counsel submitted that from the record of the proceedings before the Land Adjudication Officer, there was no formal objection as envisaged by Section 26(1) of the Act and that the Land Adjudication Officer proceeded to hear the case as one of claim for land and not of incorrectness or incompleteness of the adjudication register.

13. It was submitted that based on the evidence of ownership of land, the Land Adjudication Officer gave his Judgment on 14th March, 1985 in which he set aside the decision of the Arbitration Board and curved out a portion of the Ex parte Applicant’s parcel number 78 Nzalae/Mutonguni which he awarded to Kailu Mbuta, the 2nd Respondent. This, it was submitted, is the portion that was given parcel number 815 Nzalae/Mutonguni adjudication section.

14. Counsel submitted that the objection lodged before the adjudication official offended the law and therefore was null and void ab initio; that the same ought not to have been entertained; that there was no competent objection capable of being determined on merit and that since there was no valid objection as envisaged by Section 26 of the Act, the decision of the Arbitration Board remained unchallenged, and that the Minister ought to have arrived at the proper decision, which was to uphold the decision of the Arbitration Board.

15. It was submitted that the adjudication officer heard objection number 368 of 1984 and made a determination which was contrary to law as he had no jurisdiction to make the determination that he made; that the Ex parte Applicant was within the law to lodge his appeal to the Minister and that Kailu Mbuta in his testimony in the appeal did not controvert the Ex parte Applicant’s evidence that the parcel of land that had become parcel number 815 had been the subject matter in dispute at Migwani Law Courts.

16. It was submitted that both the adjudication officer and the Minister acted with bias against the Ex parte Applicant when they failed to consider the decision by the court at Migwani in Civil Case Number 24 of 1975. Counsel submitted that the failure by the 1st Respondent to visit the disputed land, even after taking evidence from the parties, amount to a fundamental error on the record that ought to be corrected by an order of certiorari.

Analysis and findings:

17. The evidence before this court shows that the Applicant was awarded the suit property by the Land Arbitration Board. According to the findings of the Arbitration Board, the evidence on the ground was found to be at variance with the oral evidence of the 2nd Respondent. The Arbitration Board found that what the 2nd Respondent had claimed to be boundary marks between him and the Ex parte Applicant were boundary marks between the Ex parte Applicant’s land and that of one Kimele Maingi.

18. The Arbitration Board further found that although the 2nd Respondent had claimed that his house had been destroyed, what was destroyed was not his house, but the deserted home of Musyimi Mulumbi on eviction as per the court decree given in favour of the Ex parte Applicant against the Respondent in Migwani Civil Case Number 24 of 1975. The decision of the Board was made on 17th January, 1983.

19. The Land Adjudication Officer reversed the decision of the Board. According to the Land Adjudication Officer, the decision by the Board was full of discrepancies and that it was hard to follow how the Board connected the previous court case number 24 of 1975 involving different people who had no blood connection with the Plaintiff to the claim.

20. The proceedings show that the Land Adjudication Officer did visit the land in dispute and found Nzalae area was a “no man’s land” and was common communal grazing land vested in the authority of the Kitui County Council on behalf of all the residents of Kitui.

21. Counsel for the Applicant submitted that the 2nd Respondent lodged an objection to the land Adjudication Officer vide objection number 368 of 1984 and that under the law, the objection to the adjudication officer is limited to only two aspects: the adjudication register being incorrect, and/or the adjudication register being incomplete. It was submitted that Section 26 of the Act does not grant the Adjudication Officer power, authority or jurisdiction to make a substantive finding contrary to the decision of the Adjudication Board, whose decision is final on the issue of ownership of land.

22. According to the Applicant, there was no formal objection as envisaged by Section 26(1) of the Act; that the Land Adjudication Officer proceeded to hear the case as one of claim for land and not of incorrectness or incompleteness of the adjudication register and that on that ground alone, his decision was a nullity.

23. The preamble to the Land Adjudication Act provides that it is an Act of Parliament to provide for the ascertainment and recording of rights and interests in community land, and for purposes connected therewith and purposes incidental thereto.The Act has an elaborate procedure that ought to be followed in resolving disputes during the ascertainment and recording of rights and interests in community land.

24. The process of ascertaining of rights under the Act usually commences with the gazettement of an area as an adjudication section, whereafter every person who considers that he has an interest in land within that section makes a claim to the recording officer, and point out his boundaries to the demarcation officer in the manner required and within the period fixed by the notice published under Section 5 of the Act.

25. Section 19(1) of the Act provides that the recording officer shall consider all the claims made in pursuance of the notice published under Section 5 of the Act, and, after such investigation as he considers proper, shall prepare in duplicate, in accordance with Section 23 of the Act, a form in respect of every parcel shown on the demarcation map.

26. Section 19 (2) provides that if there are two or more conflicting claims to an interest in land and the recording officer is unable to resolve the conflict, he shall submit the dispute to the committee to decide. Section 19 (3) of the Act provides that the recording officer shall rectify the forms in accordance with any decision which the adjudication officer, the committee or the boardmay make in accordance with this Act.

27. The Act provides at Section 20 that the committee appointed for an adjudication section shall adjudicate upon and decide a dispute in accordance with recognized customary law any question referred to it by the demarcation officer or the recording officer. If the Committee is unable to reach a decision on a matter before it, it shall refer the matter to the Arbitration Board for a decision. The Board shall then hear and determine any matter referred to it or complaint made to it under Section 21 of the Act.

28. According to the provision of Section 21, the forms prepared by the recording officer under Section 19 of the Act shall together comprise the adjudication record. Section 23 provides the manner in which the adjudication record should be prepared. Section 23(6) of the Act provides that after the form (the Adjudication Record) has been signed, no alteration shall be made in it except as provided by Section 27(1) or Section 29(3) of the Act. The Adjudication Record as prepared by the recording officer can therefore be altered in certain circumstances.

29. Section 24 of the Act provides that the demarcation map and the adjudication record are collectively known as the adjudication register. Section 26(1) of the Act, which is the gravamen of the Applicant’s submissions provides as follows:

“Objection to adjudication register

(1) Any person named in or affected by the adjudication register who considers it to be incorrect or incomplete in any respect may, within sixty days of the date upon which the notice of completion of the adjudication register is published, object to the adjudication officer in writing, saying in what respect he considers the adjudication register to be incorrect or incomplete.

(2) The adjudication officer shall consider any objection made to him under subsection (1) of this section, and after such further consultation and inquiries as he thinks fit he shall determine the objection.”

30. Section 27(1) provides that the adjudication officer shall from time to time alter the adjudication register to conform with any determinations of objections under Section 26 of the Act. Section 29(1) of the Act provides as follows:

“Any person who is aggrieved by the determination of an objection under Section 26 of this Act may, within sixty days after the date of the determination, appeal against the determination to the Minister by—

(a)  delivering to the Minister an appeal in writing specifying the grounds of appeal; and

(b)  sending a copy of the appeal to the Director of Land Adjudication,and the Minister shall determine the appeal and make such order thereon as he thinks just and the order shall be final.”

31. Section 26 of the Act allows any person affected by the register, which in this case could be the demarcation map or the adjudication record, or both, to lodge an objection with the adjudication officer for determination, and whoever is not satisfied with the decision to appeal to the Minister within 60 days.

32. Indeed, in my view, Section 26(1) of the Act gives the Land Adjudication Officer unfettered powers to make inquiries on any objection in respect to a register raised by an affected person. I say so because the Act does not define what an incorrect or incomplete register entails. An incorrect record or demarcation map could mean that the objector does not agree with the determination of the Arbitration Board on the issue of ownership of the land, which issue must be determined by the Land Adjudication Officer.

33. Indeed, Section 19 of the Act provides that the recording officer shall rectify the forms in accordance with any decision which the adjudication officer, the committee or the board may make in accordance with the Act, meaning that the Adjudication Officer can overrule the decision of the board on the issue of ownership of land.

34. If, as argued by the Applicant, the decision of the Arbitration Board on the issue of ownership of land was final, nothing would have been difficult than for Parliament to state so. Instead, the Act has granted to the Land Adjudication Officer the mandate of dealing with any incorrect record, and after making inquiries, render a decision, which decision is appealable to the Minister, whose decision is final.

35. It therefore follows that the incorrect information that the Land Adjudication Officer is mandated to correct under Section 26 of the Act, upon inquiry, includes the decision of the Arbitration Board, whose decision is not final. It is therefore erroneous for the Applicant to argue that on the issue of ownership of land, the decision of the Arbitration Board is final.

36. The manner in which proceedings should be conducted by the Minister was captured in the case of Republic vs. Special District Commissioner & another [2006] eKLR as follows:

“It is expected therefore that the District Commissioner receives the lower tribunal records which will include the written grounds of appeal of the aggrieved party, and these are the documents which form the lower…court record that will assist him to,“…determine the appeal and make such order thereon as he thinks just ….” It is fashionable in this kind of applications, for Interested Parties to argue that the District Commissioner has a free hand to conduct the appeal in any manner he wishes. That the Act has not specified a procedure for him to follow in determining the appeal so long as he finally makes such orders thereon as he thinks just. That might be so but only to a point, in my view. With great respect, it might be time to reexamine Section 29 (1) aforesaid more closely. If the provision requires that the aggrieved party who wishes to appeal to the minister, will file a statement of written grounds of appeal, then the method of appeal is in that way, defined. It is also provided that the Minister shall determine the appeal and make such order on the appeal as he thinks just. My understanding of the method of determining the appeal then, is receiving the written grounds of appeal and perusing them before determining it by making such an order on it as he thinks just. This means to me that the District Commissioner (Minister) has to examine the written grounds of appeal along with the Land Adjudication Officer’s proceedings, judgment, ruling or award, and from it, he will, make a just order or judgment. Can the District Commissioner refuse to read the substance of the evidence and the decision of the Land Adjudication Officer from whom the appeal came” Should he on the other hand have totally disregarded the grounds of appeal of the aggrieved party." In my view, he should not have ignored the Land Adjudication Officer’s lower tribunal’s record of evidence and decision. He could however have considered the Land Adjudication Officer’s decision and have accepted it or rejected it. But it was improper to have ignored the written grounds of appeal since without them there was seriously no appeal before him as envisaged by Section 29(1) (a) of the Land Adjudication Act. Nor can it be seriously argued that the appellant’s appeal was effectively put before that tribunal or argued before it, contrary to the cardinal rule of fairness that an appellant like any party before the court, has a right to put his case before the court, squarely. In conclusion on this issue, this court sees a clear procedure laid down by Section 29(1) aforesaid to be followed when a District Commissioner is conducting and determining an appeal under the Section. That is to say, that the District Commissioner will receive a written appeal containing grounds of appeal together with the Land Adjudication Officer’s record and will then determine the appeal upon those grounds of appeal. It would be unreasonable to think that the Legislature intended that the aggrieved party would file the grounds of appeal to the Minister without those grounds being intended to serve any purpose in helping the District Commissioner arrive at a fair and just decision. In that regard I am aware of the prevailing popular procedure under which the District Commissioner, before he makes his decision, records fresh evidence from the parties and their witnesses. Such procedure has all along been tolerated on the basis that Section 29 (1) aforementioned gives the District Commissioner freedom to use any lawful method to arrive at his decision. While I am not presently prepared to state that the recording of fresh evidence is not authorized by the Act, I am on the other hand clear in my mind that the District Commissioner will not choose to rely on such freshly recorded evidence alone without regard to the grounds of appeal filed by the appellant. That is to say, that the evidence he records should be considered along with the evidence in the District Land Adjudication Officer’s records of proceedings and ruling that is appealed from, and on which the grounds of appeal arise. On the other hand, my understanding of Section 29 (1) aforesaid, is that there is no part of that section that authorizes the taking of fresh evidence by the District Commissioner before he arrives at the decision. This means that he has open room to do so and is in fact expected to rely on those records to come to his decision except where he needs particular additional evidence for clarification.” (Emphasis mine)

37. I am in agreement with the above decision. The Minister’s mandate under Section 29 of the Act is to consider the grounds of appeal raised by any person appealing against the decision of the Land Adjudication Officer, and upon considering the record of the Land Adjudication Officer, arrive at an independent decision.

38. Indeed, just like what happens in an appellate court, the Minister need not take fresh evidence while dealing with the appeal, although he may do so to seek clarification on certain issues. However, he must consider the grounds of appeal and the evidence that was adduced before the Land Adjudication Officer before making his decision. The said decision must give reasons as to why he agrees or disagrees with the decision of the Land Adjudication Officer.

39. Although the decision of the Minister is final, it is trite that the said decision is subject to the supervisory jurisdiction of this court. As was held in the case of Re Marles’ Application, (1958) 153 at 155, the jurisdiction of this court to exercise its power of supervision over inferior courts and tribunals cannot be taken away unless there are express words clearly defining the intention of the legislature to do so.

40. The expressions that decisions of tribunals shall be final and without appeal or final and conclusive, have effect only so far as an appeal on the facts are concerned, but do not preclude the issuance of certiorari for excess of jurisdiction or for an error of law by this court.

41. Indeed, after the enactment of Article 47 of the Constitution and the Fair Administrative Act, this court, in its supervisory role, can review the facts of a case to be able to determine if the decision of the Tribunal or Minister was reasonable and or proportional. The applicability of the Fair Administrative Act in matters that were filed before its enactment were considered by the Court of Appeal in the case of Suchan Investment vs. The Ministry of National Heritage and Culture (2016) eKLR as follows:

“The provisions of the Fair Administrative Action Actare retroactive and apply to all proceedings pending in court.Section 14 (1)of the Act provides:

“14. (1) In all proceedings pending whether preparatory or incidental to, or consequential upon any proceedings in court at the time of the coming into force of this Act, the provisions of this Act shall apply, but without prejudice to the validity of anything previously done.”

Pursuant to Section 12 of the Fair Administrative Action Act, the general principles of common law and rules of natural justice continue to apply in review of administrative actions. The Section provides that the Act is in addition to and not in derogation from the general principles of common law and the rules of natural justice. This means that the common law principles on judicial review of administrative action under the heads of illegality, irrationality, procedural impropriety and proportionality are relevant and applicable in Kenya. (See the common law principles as expounded by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374).See also the principle of reasonableness as stated in the case of Associated Provincial Picture Houses Ltd vs. Wednesbury Corp. [1948] 1 KB 223).”

42. The Court of Appeal in the Suchan (supra) case further held as follows:

“55. An issue that was strenuously urged by the respondents is that the appellant’s appeal is bad in law to the extent that it seeks to review the merits of the Minister’s decision while judicial review is not concerned with merits but propriety of the process and procedure in arriving at the decision. Traditionally, judicial review is not concerned with the merits of the case. However, Section 7 (2) (l) of the Fair Administrative Action Act provides proportionality as a ground for statutory judicial review. Proportionality was first adopted in England as an independent ground of judicial review in R vs. Home Secretary; Ex parte Daly [2001] 2 AC 532. The test of proportionality leads to a “greater intensity of review” than the traditional grounds. What this means in practice is that consideration of the substantive merits of a decision play a much greater role. Proportionality invites the court to evaluate the merits of the decision; first, proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions; secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations; thirdly, the intensity of the review is guaranteed by the twin requirements in Article 24(1) (b) and (e) of theConstitution to witthat the limitation of the right is necessary in an open and democratic society, in the sense of meeting a pressing social need and whether interference vide administrative action is proportionate to the legitimate aim being pursued. In our view, consideration of proportionality is an indication of the shift towards merit consideration in statutory judicial review applications…

56. Analysis of Article 47 of the Constitution as read with the Fair Administrative Action Actreveals the implicit shift of judicial review to include aspects of merit review of administrative action. Section 7 (2) (f) of the Act identifies one of the grounds for review to be a determination if relevant considerations were not taken into account in making the administrative decision; Section 7 (2) (j) identifies abuse of discretion as a ground for review while Section 7 (2) (k) stipulates that an administrative action can be reviewed if the impugned decision is unreasonable. Section 7 (2) (k) subsumes the dicta and principles in the case of Associated Provincial Picture Houses Ltd vs. Wednesbury Corp. [1948] 1 KB 223on reasonableness as a ground for judicial review. Section 7 (2) (i) (i) and (iv) deals with rationality of the decision as a ground for review. In our view, whether relevant considerations were taken into account in making the impugned decision invites aspects of merit review. The grounds for review in Section 7 (2) (i) that require consideration if the administrative action was authorized by the empowering provision or not connected with the purpose for which it was take and the evaluation of the reasons given for the decision implicitly require assessment of facts and to that extent merits of the decision. It must be noted that the even if the merits of the decision is undertaken pursuant to the grounds in Section 7 (2)of the Act, the reviewing court has no mandate to substitute its own decision for that of the administrator. The court can only remit the matter to the administrator and or make orders stipulated in Section 11 of the Act. On a case by case basis, future judicial decisions shall delineate the extent of merit review under the provisions of the Fair Administrative Action Act.”

43. The provisions of Article 47 of the Constitution and Section 7(2) (1) of the Fair Administrative Action Act have given the Judicial Review Court the mandate of reviewing the decision of an inferior body by looking at not only the traditional common law perimeters, but also at the proportionality and reasonableness of the impugned decision, which entails consideration of the merits of the challenged decision.

44. I have perused the decision of the 1st Respondent which the Applicant is seeking to quash. According to the Applicant, both the adjudication officer and the Minister acted with bias against the Ex parte Applicant when they failed to consider the decision by the court at Migwani in Civil Case Number 24 of 1975.

45. It was submitted that the failure by the 1st Respondent to visit the disputed land, even after taking evidence from the parties, amount to a fundamental error on the record that ought to be corrected by an order of certiorari.

46. The Judgment of the Land Adjudication Officer shows that he considered the decision of the Migwani Court in Civil Case Number 24 of 1975. In his decision, the Land Adjudication Officer stated that the decision of the Board was full of discrepancies and that it was hard to follow how the Board connected the previous court case number 24 of 1975 involving different people who had no blood connection with the Plaintiff’s claim.

47. It is therefore clear from the Judgment of the Land Adjudication Officer that he considered the court case and found the same to be irrelevant. In his decision, the Minister concurred with the decision of the Land Adjudication Officer. Considering that the Judgment in Migwani Civil Case Number 24 of 1975 is not before this court, the court cannot hold that the said decision was relevant, and that had been considered by the Minister, he would have arrived at a different decision.

48. On the issue of whether the Minister should have visited the locus quo, the proceedings show that the Land Adjudication Officer did visit the land in dispute and found Nzalae area was a “no man’s land” and was common communal grazing land vested in the authority of the Kitui County Council on behalf of all the residents of Kitui.

49. That being the case, the 1st Respondent was not under any obligation to visit the land. All he had to do was to rely on the findings of the Land Adjudication Officer on what he observed when he visited, and arrived at an independent decision. That is what happened in this case.

50. The Land Adjudication Officer made a finding that there was already an existing boundary between the Applicant and the 2nd Respondent’s land. While dismissing the Appellant’s Appeal, the Minister (1st Respondent) stated as follows:

“It is established that there existed a boundary between the portion registered in the area of the respondent and that of the appellant. It is also noted that the appellant has the lion’s share of the original land that was in dispute.”

51. The 1st Respondent made the above finding after hearing the parties herein, and after considering the decision of the Land Adjudication Officer. Considering that the 1st Respondent heard both parties and considered the proceedings of the Land Adjudication Officer, I am not convinced that the 1st Respondent was biased while arriving at his decision.

52. For those reasons, I find the Notice of Motion dated 28th November, 1991 to be unmeritorious. The same is dismissed with no order as to costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 29TH DAY OF JANUARY, 2021.

O.A. ANGOTE

JUDGE