Selina Mecca Wekesa v Kennedy Ellam Wekesa & 7 others [2014] KEHC 4635 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

CIVIL CASE NO. 54 OF 2006

SELINA MECCA WEKESA ….............................................................. PLAINTIFF

VERSUS

KENNEDY ELLAM WEKESA [Sued as personal rep.

of the estate of GEORGE E. WEKESA – Deceased]  …..… 1ST DEFENDANT

SARAH CHAHAYO                   …..................................2ND DEFENDANT

PROTUS MAKENZI               ......................................... 3RD DEFENDANT

JARED WANJALA MMASABA            …......................... 4TH DEFENDANT

RICHARD OCHIENG [sued as chairman and/or official

of the Church  of Christ in Africa]                .............. 5TH DEFENDANT

SHIKANGA BENJAMIN WAMBUYA              …............. 6TH DEFENDANT

LAND REGISTRAR BUNGOMA DISTRICT         …........ 7TH DEFENDANT

ATTORNEY GENERAL sued on behalf of the

LAND REGISTRAR BUNGOMA DISTRICT        ............8TH DEFENDANT

JUDGMENT

1.   The Plaintiff SELINA MECCA WEKESA commenced this suit by     way of plaint dated 18th September 2006 and filed in court     on  the same  date. Before the case proceeded, the Plaintiff  amended her plaint twice.  First amendment was done on 13th October 2006 and the further amendment on 13th July 2007.  In the further amended plaint, the Plaintiff sought for judgment against the Defendants jointly and severally for;-

(i).       A declaration that the subdivision for L.R. No.                                                  Ndivisi.Muchi/1086 into L.R.  Nos. Ndivisi/Muchi/6454, 6455, 6456, 6457, 6458, 6459, 6460, 6461, 6462, 6463 plus their subsequent transfers to the Defendants is null and void.

(ii).      Nullification or cancellation of the subdivision of L.R.  No.    Ndivisi/Muchi/1086 into Ndivisi/Muchi/6454, 6455, 6456, 6457, 6458, 6459, 6460, 6461, 6462, 6463 and  the subsequent   transfers plus title deeds thereto and restoration of the original L.R. Ndivisi/Muchi/1086.

(iii).    Eviction orders to remove the 4th Defendant's structure from  land parcel No. Ndivisi/Muchi/6457, 6458 and 6459

2.         The      Plaintiff sued seven (7) Defendants although they are listed   as eight (8). The seventh and the eighth Defendant are one and the same. The Defendants filed     their    defences in opposing the     claim.  The 2nd Defendant entered into a consent between her   and the Plaintiff on 16th July 2007.  That consent was      adopted    as an order of the court.  The 2nd Defendant admitted   the  Plaintiff's claim as against her.       Subsequently, a second       consent was  entered into between the Plaintiff and the 5th Defendant. In that consent dated 6th June 2012, the 5th    Defendant also conceded       the Plaintiff's claim.  The 2nd   defendant was registered as owner of L.R. No.  Ndivisi/Muchi/6455 while the 5th Defendant was registered    as  owner of Ndivisi/Muchi/6456. I will therefore in this   judgment  not refer to the case as against the 2nd and 5th Defendants.

3.         The first Defendant is sued as the administrator of the estate of GEORGE ELLAN WEKESA- deceased (herein after referred to as the deceased).  He filed his defence to the claim on 7th       November 2006 in which he denied the plaintiff’s claim in            entirety and prayed the suit as against him be dismissed. The deceased was the registered owner of L.R. No.  Ndivisi/Muchi/1086 (hereinafter referred to as the suit title)      which   upon subdivision created the new numbers from 6454 –   6463   all inclusive.  The deceased sold 8 of these numbers to            the 2nd – 6th Defendants.  The 7th Defendant is the Land    Registrar Bungoma sued in his official capacity as the custodian of the  documents for the suit title in question.

4.  The record does not reveal if the 1st Defendant although filed a     defence testified to oppose             the Plaintiff's suit.  It shows that the          suit proceeded to full hearing between the Plaintiff and the           3rd,      4th, 6th and 7th Defendants. The Plaintiff in her further amended          plaint pleaded in paragraph 11 and 11 (a) the particulars of   fraud   that     was committed jointly and severally by the Defendants    in   regard to the subdivision of the suit title and the   subsequent    transfers.   The particulars of fraud as listed are;

Removing the inhibitory prohibitory court order from the register of L.R. No. Ndivisi/Muchi/1086 before determination of Mombasa HCCC NO. 454 of 2002.

Making entries in the register of L.R No Ndivisi/Muchi/1086 when the same had encumbrances.

Subdividing L.R. Ndivisi/Muchi/1086 into 10 parcels and transferring them to the 2nd – 6th Defendants while the charge had not been discharged.

5.         The 3rd Defendant in his defence filed in court on 5th December   2006 denied the Plaintiff's claim, denied the existence of a    prohibitory order, denied the existence of Mombasa HCCC no.         454 of 2002 (O.S) and put the Plaintiff to strict proof.  In    paragraph 8 of          his       defence, he said the orders sought by the   Plaintiff are not        available to her.  The 4th defendant did file         a    defence to the    further amended plaint on 22nd August 2007. In his defence, he             denied the Plaintiff is the widow of George  Ellan   Wekesa-deceased, denied knowledge of HCCC No. 454 of     2002   and that he fraudulently and  corruptly caused the   inhibitory   orders to be removed. He    pleaded that he acquired     L.R.     Ndivisi/Muchi/6456, 6457 and 6458 legally having     purchased      them from  deceased.

6.         The 6th Defendant also filed a defence to the claim on 8th        November      2006.  He denied all the allegations of facts put forth          in the plaint.  He did not deny the subdivision of the suit title             but denied the      particulars of fraud pleaded. He said he is          innocent of the acts of fraud alleged against him and put the  Plaintiff to strict proof.   Finally    the 7th Defendant also filed            his       defence on 9th October 2007. In paragraph 6 of the defence, the   particulars of fraud in the plaint are denied.  In        paragraph 14 (a),      the 7th Defendant pleaded   that the Plaintiff is   not entitled to the     orders sought and     concluded by saying the suit is bad in law    for  failing to comply with the Government             Proceedings Act.

7.         When the hearing commenced, the Plaintiff gave evidence      through   her representative whom she had donated to a power   of attorney. The  Plaintiff's evidence and that of her witness was     taken by F.N. Muchemi J. on 1st December 2010. PW1   Catherine      Namali Wekesa   (Donee) told court that she is the daughter          of the Plaintiff.  She produced a registered general power of   attorney as     Pex. 1 donating to her authority to testify           in this matter. She  continued that L.R. no. Ndivisi/Muchi/1086 was registered     in         name of George Ellam Wekesa – deceased who is her father.     In         2002, the   Plaintiff filed a suit in Mombasa   HCCC   no.       454/02    to  protect all the properties acquired during their marriage.  In the Mombasa suit, she obtained injunctive orders      restricting the  transactions of titles mentioned therein.   The     suit title L.R. no Ndivisi/Muchi/ 1086 was one of those titles and a restriction was registered   on 8th January 2003.  This  order was       produced as Pex. 2.  She     said there was also a charge     to Transnational bank for a loan borrowed by her parents. She  produced the search dated 18th March 2005 as Pex. 3. She also    produced as Pex4a search dated 7th August 2006 which showed     the suit title was closed on subdivision and there was no         restriction on it.

8.         She continued that on 25th Nov 2005, the land was subdivided  into ten (10) plots from 6454 – 6463.  She had certificates of         official           searches which she produced as Pex. 5 that  revealed   the new     numbers and names contained therein.  She also    showed copy of        the register (MFI-P6) dated 4th October 2006 which showed     there   was no inhibition on            the title as at that date.  She also produced a  copy of the notice to 7th Defendant and response thereto as Pex.       7          & 8.  She asked the court to grant the prayers sought in     the       plaint.

9.         Cross-examined by Mr. Wanyama for the 3rd Defendant, PW1 said     she is 2nd born while 1st Defendant is 1st born of the     deceased.  That the Mombasa case is still pending.  She did not             know whether her father had been substituted in that case.      She      had no further documents in regard to the Mombasa    case.  PW1     did not know whether her father repaid the loan   to   Transnational bank.  She denied collusion between the family    members in bringing this case.  In cross-examination by Kakoi      for the 6th  Defendant, she said her parents were not separated   at the time the subdivision was done. She did not know how the   prohibitory order was removed.  She did not know whether the   1st        Defendant obtained the grant.  In 2005, the land was free     from    any encumbrance when the 6th Defendant bought his land. The     same applied to the 4th Defendant.  She denied this case is  based on        the outcome of the Mombasa case.

10.      PW2 George Obondo Onguto is the District Land Registrar   Bungoma.  He said from their records, the land was subdivided     on 25th November 2005.     He       was shown a green   card for  the suit title prepared on 2nd October 1970.          He confirmed      PMFI-6 as true copy of the register but did not produce it  as  Pex. 6 due to objections from the defence counsel and             therefore it  remained marked for     identification.  PW2 continued      that the      application for subdivision was lodged   with them.  He    said the    subdivision should not  have been allowed     where   there   is an existing prohibitory order in the register. He said it is     their  office which is suspected of fraud because of the    existence       of  two   green cards.

11.      In cross examination by Wanyama advocate for the 3rd  defendant,     he said Mr. Bosire was the Land Registrar when     subdivision   was done and he is   still a registrar within the    Republic of   Kenya.  The witness did not know why there were    two      parallel           green cards.  He doubted the searches and   consents    of  land    Control Board obtained by the Defendants.        He said the    transactions relating  to the 10 parcels were fraudulent. On       cross   examination by Mr. Kakoi for the 4th defendant, PW2 said     the       green card is the ultimate record of a  parcel of land.  That    the       official searches obtained by the defendants were extracted     from a   forged green card.  He admitted     that members of the    public cannot access green cards without    help of land registry  staff.  He was working in   Bungoma lands office at         the time    but      could not tell exactly   what happened.  Lastly on cross    examination by Mr. Gumber   for the 7th defendant, he said George Ellan  Wekesa-deceased subdivided his land and the Defendants may   have obtained   searches from the wrong records. On re- examination, PW2    said the mess came as a result of the parallel green cards.  The     collusion must have been   between the   transferor and    transferees. He doubted entries in the register.

12.      On 15th October 2012 when parties appeared before Muchelule         J., There was no indication given by the 1st Defendant whether he  intended to present his evidence. What is recorded in the  proceedings of that day is Mr. Wanyama for 3rd Defendant     submitting that the 3rd Defendant shall rely on his pleadings filed. It   would appear therefore that the 1st Defendant did not testify in  court. The 4th Defendant     therefore began his testimony as the        first witness on the defence side. The 4th Defendant is Jafred Wanjala Mmasaba. He said he did not know the Plaintiff but knew the        deceased        George E.       Wekesa. While he was looking for    a plot to buy,   he        found a sign post with the words “plots   for sale.” He went and talked to    George Omurando and Dr.   Alfred   Manyonje who   were staying on a plot near this    post.  The two    persons named  accompanied him to the  home of the  deceased   who confirmed      he was selling the plots.

13.      The 4th Defendant continued that he asked for particulars of that   parcel of land   which no. 1086 he took to lands office Bungoma   and      did carry an official search. The search revealed the land        was free of any encumbrances and confirmed the deceased as       the owner.  On  10th February 2006 the three (Omurando, Dr   Alfred and Jafred) of them went back to the       deceased and paid    Kshs. 300,000/= out of the agreed purchase price of Kshs. 345,000/= for three plots    Ndivisi/Muchi/6457, 6458 and  6459. The balance was paid on 25th February 2006 in presence of  two witnesses and the deceased wife referred to as Bibian N.   Wekesa.  He produced the sale agreement as Dex. 1

14.      Later he took the seller and the Professor to the District officer  Webuye     for Land Control Board consent.  He paid Kshs.       750/= on        3th March 2006 and got consents for each of the plots on 16th March 2006.  He  produced as exhibits receipts,   application    for consent and letter of consent as Dex. 2 & 3(a–e)    respectively. The deceased thereafter executed transfer     forms which original he said got lost at the lands office.         He       got title   deeds for his three parcels on 6th June 2006 and     produced copies  thereof as Dex. 4 a, b & c. The deceased allowed him to build    after he  got approval from the local authority which letter     of   approval he produced as Dex. 5.  George E. Wekesa died later    and 4th defendant went to his home and informed his eldest       son about his plots. He did not know about the Mombasa   case or    the inhibitions. The     deceased had told him of purchasing    this      land in 1974 while   the deceased ancestral land was at  Muserwa.

15.      He was cross-examined by Mrs. Mumalasi advocate for the    plaintiff. He admitted   he did not produce the search he carried        out before buying the land.  The plots      came from the suit title.      He was served with an order of injunction after part of      the  house he was building was complete. At paragraph 10 of his replying    affidavit, he deponed that the deceased had asked    him for money to pay a bank loan. He was unaware George    died    on 26th July 2006.    The deceased   did not give him the name   of his first wife and did not know if he was married          to the Plaintiff by 1974. He concluded by saying his transactions   were    done above board. He was building rental   houses on the     plot.    Under cross examination by Mr.  Wanyama  and      Mr.Ngumbi, he        said the title was clean when he did the search   although  that   search was lost at the lands office.  He has    built    on plot no.     6457 but not yet on plot no’s 6458 and 6459.

16.      The file then reached me to complete the hearing.  Mr. Ngumbi  chose to  adopt evidence of PW2 for his defence in respect of   7th and 8th       Defendants.  The 6Th Defendant took the witness    stand   on 16th September 2014. He is known as Shikanga       Benjamin      Wambuya, he was unrepresented. The summary of    his case is,     in 2006 he bought two plots in Webuye town L.R no   Ndivisi/Muchi/6462 and 6463.      He       comes from   Malaba and   is a teacher. They had a sale agreement between him and the   deceased drawn by Omukunda      & co. Advocates and he      produced it as Dex. 6.  He   followed        the other   procedures of   land    like appearing  before the  Land Control Board and produced    the    documents as MFI D7     (a), (b), (c).

He also produced the copies of his two title deeds as Dex. 8 (a) &     (b).      He      said his title deeds came from the lands office and he     purchased the land from the registered owner.

17.      On cross-examination, he admitted not producing searches for the two plots. He said he had copies of Land Control Board    consent while the original is held at the lands office.  He also             did not produce    receipts evidencing payment. He said he     appeared before the Land Control Board and documents   presented to the land registrar were satisfactory hence his      being    issued with the title deeds. He also did not encounter any   problem while processing his titles. There was no restriction on  the register.  The Defendants cases were therefore at this point    marked as  closed.

18.      The parties filed written submissions which I have had occasion       to read and consider.  I have also considered the evidence         adduced alongside the pleadings as filed. I find the following             questions as arising for determination by this court:

(a).      Was there fraud committed in the register of title Ndivisi/Muchi/1086 and by who?

(b).      If there is fraud alleged, was it proved and who is to be held accountable?

(c).      Are the remedies sought by the Plaintiff available to    her?

19.      To begin with, I will define the word fraud. Black’s Law  Dictionary 7th edition defines it as;

“A knowing misrepresentation of the truth or concealment of material    fact to induce another to act to  his detriment.  Unconscionable dealing; especially   in         contract law, the unconsciousness use of the power  arising out of the parties’ relative position and    resulting in an unconscionable bargain- fraudulent.”

The Plaintiff in her   pleadings gave out particulars of fraudulent acts of the          Defendants jointly and severally as;

Removing the inhibition being the order from Mombasa HCCC 454 of 2002.

Making entries in the register of L.R. Ndivisi/Muchi/1086 when the same had encumbrances.

Sub-dividing land into 10 parcels.

20.      In answering my first question visa vi the definition and the   particulars of fraud pleaded, I will consider if the first item on   the particulars of fraud has been proved. According to this     pleading, all the Defendants undertook these activities     jointly   and severally. The 3rd, 4th & 6th Defendants evidence and    pleadings demonstrate they bought portions of the suit title   from the deceased in the year 2006. The Plaintiff produced a   Pex3a search showing the restriction was   lodged on 8th March   2003.  It is not in dispute that the deceased did cause the        subdivision   of the suit title into ten (10) plots in November 2005   (Pex5a-j).      The     7th Defendant has confirmed this vide their    documents filed in   their list of documents which included a mutation form    duly registered on 25th Nov 2005. The list also included a letter of consent dated 13th November 2005 and application for consent  dated 14th November 2005 seeking permission to   subdivide       the    plot into 10 parcels. PW2 said the consent was not        properly   obtained as the application was dated later than the      letter of    Consent. The green card in respect of the   suit title L.R. no. 1086 was marked but was not produced. Until this stage, there    is nothing tangible to show the inhibition was fraudulently  removed either by the deceased or the 3rd, 4th and   6th Defendants.

21.        The Plaintiff produced two searches, one dated   18. 3.05 (Pex.     3) which showed the inhibition is registered and  one dated 7th August 2006 without an inhibition.  They were all signed by       the 7th   Defendant. PW2 the current District Land  Registrar   said     the  entries in the searches even if entered by a clerk , the   search   must be signed by a  land registrar before being released to a  member of the public.  PW2 also admitted they were the     custodian of all documents relating to land. If the inhibition was       removed, then it was done with collusion of their staff.   According to     him, there must have been in existence two parallel green cards. Although PW2 talked of the possibility of two green cards, upon   perusal of the file, I have only seen one (which was not     produced)      and which did not disclose that the prohibitory order was     registered.      Neither PWI nor PW2 evidence was able to establish the  existence of the two green cards where one had the prohibitory  order and the other without. Searches are extracted from green cards and it is my view that it was incumbent upon the Plaintiff  to have demonstrated that there was an order entered in the register of the suit title. He has failed to discharge that   burden.

22.      In the alternative, if the entry of the prohibitory order was made  in the register of the suit title as alleged by the plaintiff, it must  have been removed before the land was subdivided. The subdivision was undertaken by the   deceased who then  presented documents for registration to the representatives of     the 7th Defendant. The evidence does not reveal however what role the 3rd , 4th and 6th defendants played in removing this  inhibition. I say so because

(i).       Prohibitory order if registered on 8th January 2003, nothing   shows when it was removed but obviously before     the   subdivision was registered on 25th November 2005.

(ii).      Sale between the 4th Defendant and the deceased was                                                 entered into on 10th February 2006.

(iii).     Sale agreement between 6th Defendant and deceased was  entered into on 3. 4.06 (Dex. 7).  Consent and   transfer in favour of the 6th Defendant are dated          13. 4.06 and 27. 4.01 respectively (see 7th defendants documents).

23.      The 6th Defendant also produced copies of certificate of official  searches dated 30th March 2006 which showed L.R. NDIVISI/MUCHI/6462 and 6463 as at 25. 11. 2005was registered in the name of George Ellam Wekesa- deceased.   There was      no    entry on the encumbrance section in the searches.  The     title     deeds in respect of the 3rd, 4th and 6th Defendants titles were    all  issued in 2006 (see pex5a, b, c, e, f & g). According to  the   rules   of evidence, he who asserts must prove.  Order 18 (2) (i) of   the       Civil   Procedure Rules states;

“On the day fixed for hearing of the suit or on any other    day to which the hearing is adjourned, the party having   the  right to begin shall state his case and produce his        evidence  in support of the issues he is bound to prove.”

24.      In the case of Koinange and 13 others vs. Koinange [1968] KLR 23 or [2008] KLR (Gender & family] 649, Amin J. held   that;

“(i).     It is a well established rule of evidence that   whosoever asserts a fact is under an obligation to  prove it in order to    succeed. The party alleging fraud in this case the Plaintiffs had  the burden of proving      it and they had to discharge that burden.”

Similarly in the case of R.G. Patel vs Lalji Makanji (1957) E.A       314 at 317, the court of appeal stated thus; “Allegations of   fraud must be strictly proved; although the standard of  proof             may not be so heavy as to require proof beyond   reasonable    doubt, something more than a mere balance of     probabilities is required..”

In our instance, the Plaintiff was under an obligation to prove that    all or specifically the 3rd, 4th, 6th and 7th the Defendants were     involved in the alleged fraudulent transaction of  removing the   prohibitory order by itemizing the specific role played by each. The   Plaintiff was further obligated to prove that the 3rd, 4th and     6th        Defendants had prior notice of the registration of the      inhibitory       order on the suit title before they purchased the titles.

25.      PW2 said the official search (pex 4) did not reflect the    prohibitory    order and according to him, the explanation was a possible         existence of two green cards in their office. He could also not tell      which of the two searches was the genuine. He could  not    conclusively state who carried out the act of fraud.  He concluded    his testimony by saying   two titles  were not  transferred     because the fraud was discovered. He failed to disclose   who had    committed the fraud        and when the fraud was discovered. There was nothing difficult   stating which of the defendants between      Defendant 3, 4 and 6  colluded with his staff to commit the fraud.  This witness also failed to show the two green cards that were  in existence as per his evidence.  Except for blaming his staff for  colluding with the Defendants, he failed to isolate the     specifics of fraudulent activities done by the deceased 3rd, 4th and/or 6th Defendants in acquiring their titles. Yet the Plaintiff relied on   his evidence to establish these Defendants had committed an act of      fraud.

26.        I am not satisfied the Plaintiff discharged the burden of proof   on fraud committed by the 3rd 4th and 6th Defendants.  The     standard of proof required for fraud is also enunciated in the             Koinange case supra, in holding no. 2,

“Allegations of fraud must be strictly proved and although   the       standard of proof may not be as to require proof beyond reasonable doubt, it ought to be more than on a   balance of probabilities.”

27.      Much of the evidence adduced by the Plaintiff was based on probabilities, circumstantial and not conclusive. For example,    probably any of the Defendants colluded with land officers or             circumstantial that by virtue of having bought of a portion of the      suit title, either of the Defendants participated in having the  caution removed.    There   is nothing that directly    links the 3rd, 4th and 6th Defendants   to any of the allegations of fraud as  leveled   against them.   Other than saying transfer of the   land ought  not to have been done, the authenticity of their   documents to wit sale agreement, copies  of letter of     consent and   executed transfer forms have not been    put to question.  They acquired their titles      in 2006 after the prohibition had  been removed.

28.      It is my finding that if at all there was any fraud, the same   was     committed by George Ellam Wekesa – deceased and the lands   office (7th Defendant).  In which event the estate of the             deceased        and the 7th Defendant are the ones to bear any   liability if any.  Subsequently, such liability on part of the    deceased is to be borne  by the administrator of his estate (1st             Defendant) and the 7th   Defendant. I have dealt with the act of fraud as relates to the removal of the inhibitory order only. This is because I hold the view   that as regards the charge registered in favour of Transnational      bank, the contract was between the deceased and the bank. The Plaintiff is not a representative of this bank to lodge a complaint on   their behalf. If the charge was irregularly discharged, that would be   a matter to be dealt with in a scenario where the bank is made a         party. Without prejudice to this view, the Plaintiff did also not    adduce any evidence to the manner in which this property was discharged and she did not know whether the loan was settled or      not.

29.      The Plaintiff in her plaint sought for nullification of the sub-division and canceling of the new numbers as well as    the  title deeds.     The 3rd,    4th and 6th Defendants were purchasers for             value   without notice   having their rights protected under Section 24   and 25 of the Land Registration Act.  These rights are limited           only by the provisions of section 26 and 28 of the    said Act.  The  Plaintiff’s claim is not covered under the provisions of section 28    but falls under the provisions of   Section 26 (a) which allows  the Defendants titles to be canceled on ground of fraud or misrepresentation to which the person is proved to be a      party to.  In the body of this judgment, I have found that the  Plaintiff has   failed to prove   that the 3rd, 4th and 6th Defendants were      party   to  or participated   in the fraudulent removal of the    prohibition   registered on the suit title L.R. 1086.  The   orders prayed for  in the plaint if   issued will only affect the 3rd, 4th and 6th    Defendants whom I have found as not guilty of any fraud.  Consequently, the Plaintiff's claim as against 3rd, 4th and 6th    must    fail and I so find.

30.      The   Plaintiff did not seek any alternative remedies in the event  the  orders seeking cancellation of the titles were not granted.  The law provides that parties are bound by their             pleadings  and     the court cannot grant what is not prayed for (see Ole Nganai vs.     Arap Bor [1983]  233) at holding no. 2when the court said  it was  wrong for the judge  to grant  an order to the   Defendant      which had  not been asked for by that party. Although the   Plaintiff’s claim as against the 7th Defendant succeeded (PW2’s  evidence that the mess could have been from their office), there   was no specific prayer to be made as against the 7th Defendant. The result is I have dismissed the claim as   against the 3rd, 4th and    6th Defendants with costs to them. I can only find as against   the 7th   Defendant issue on liability to pay the Plaintiff the cost of the suit. I so find that the 7th Defendant shall  meet the Plaintiff’s costs.

DATED, SIGNED and DELIVERED in Bungoma this 6th day of June 2014

A. OMOLLO

JUDGE.