Wycliffe Indalu, Jairo Willis, George Magani, Camp Toyoyo Stadium Management Committee v George Aladwa Omwera & Paul Odello Langi [2021] KEHC 13404 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL CASE NO.86 OF 2020

WYCLIFFE INDALU.......................................................................1ST PLAINTIFF/APPLICANT

JAIRO WILLIS...............................................................................2ND PLAINTIFF/APPLICANT

GEORGE MAGANI........................................................................3RD PLAINTIFF/APPLICANT

CAMP TOYOYO STADIUM

MANAGEMENT COMMITTEE..................................................4TH PLAINTIFF/APPLICANT

VERSUS

GEORGE ALADWA OMWERA ..........................................1ST DEFENDANT /RESPONDENT

PAUL ODELLO LANGI.........................................................2ND DEFENDANT/RESPONDENT

RULING

1. This is the notice of motion dated 22nd June 2020 brought under Article 159 (2)(d) of the Constitution of Kenya,2010, sections 1A, 2A,3A of the Civil Procedure Act, CAP 21 Laws of Kenya. It seeks the following orders:

i.   i, ii and iii spent

iv)That this Honourable court be pleased to issue orders restraining the respondents, their workers, agents or anyone acting on their behalf or with their authority from interfering with the plaintiff’s management of the stadium pending hearing and determination of the suit filled herewith.

v)That this Honourable court be pleased to issue orders restraining the respondents, their workers, agents or anyone acting on their behalf or with their authority from interfering with the operations of the 4th plaintiff pending hearing and determination of the suit.

vi)An order do issue that the OCS Makadara Police station do ensure compliance with the orders of the honourable court herein.

vii)That the costs for this application be provided for.

2. The application is supported by the grounds on its face plus the sworn affidavit of Wycliffe Indalu the 1st plaintiff/applicant. He avers that him and the 2nd applicant are members of the society community based organization which is charged with management and maintenance of Camp Toyoyo stadium. He annexed the society’s certificate of registration (W1-1). He has deponed that the society was registered for the management and maintenance of Camp Toyoyo stadium which is a community based sports complex in Makadara Constituency. That there exists a constitution and the management committee that has been appointed in accordance with the constitution. (WI-2).

3. He has averred that the 1st and 2nd applicants are members of the committee while the 3rd applicant is the stadium manager appointed pursuant to the society’s constitution. That the power to appoint or fire the manager has been vested on the committee as dictated by the society’s committee.

4. Its his averment that on 17th June 2020 a group of rowdy youths associated with the 1st respondent stormed the stadium and threatened to close it on orders from the 1st respondent. They later proceeded to barricade and lock some doors/offices inside the facility. He further averred that on 18th June 2020 the 1st respondent arrived at the facility accompanied by rowdy youths and they closed it down. He also effected a change in management of the stadium by appointing a new manager as seen in the document WI-3.

5.  He has deponed that the purported appointment of the new manager is in contravention of Camp Toyoyo project management committee rules which stipulate that the power to hire and fire vests with the said committee. That the 1st respondent acted ultra vires in appointing the 2nd respondent as the manager and the same ought to be declared null and void ab initio. He further depones that there is an imminent risk and unless the court intervenes the 2nd respondent will interfere with the funds of Camp Toyoyo.

6. He averred that there have been various political players who have an interest in taking over the management of the sports ground for their own ulterior motives and this will lead to the wastage of CDF funds channeled towards maintenance of the sports ground. There is fear of the plaintiffs/applicants and other committee members being forcefully and illegally removed from management of the grounds as indicated in the 1st respondent’s letter and messages conveyed by the rowdy youths that accompanied the respondents to the facility on 18th June 2020.

7. George Aladwa Omwera (1st respondent filed a replying affidavit sworn on 22nd July 2020 which is in response to the application and the further affidavit. He averred that he is the duly elected member of parliament for Makadara constituency where the 4th plaintiff/applicant is domiciled and that sometime back in June 2016 the social development officer was receiving complaints of wrangles amongst members of the 4th plaintiff/applicant. As the expiry of their term in office was imminent the national government constituency development fund called for elections.

8. Annexture GAO-1 is the copy of the minutes of the meeting of 20th February 2017 that was convened by the 4th applicant. The meeting resolved that the ex officio member was to be removed as signatory of the bank and the stakeholders were to forward nomination letters for appointment of new members.  In a meeting held on 6th April 2018 three (3) members resigned and the stakeholders forwarded the names of new nominees to the social development officer by 11th April 2018. Neither the 1st nor 3rd applicant were nominated (GAO-2).

9. He has averred that following the appointment of new members the 1st and 2nd applicants and others filed Judicial Review Application No.176 of 2018 where they sought the following orders;

a)Certiorari to quash the decision of 27th April 2018 to remove the applicants as committee members of the PMC

b)An order of prohibition to stop the respondents from implementing the decision of 27th April 2018 whereas new members replaced the applicants therein

c)An order of mandamus to compel the respondents therein to reinstate the applicants as the committee members of the PMC

10. Annexture GAO-4 is the Judgment of Mativo J delivered on 17th January 2018 dismissing the Judicial Review application on grounds that the applicants had not produced enough evidence to demonstrate that the appointment/election of members was tainted with illegality and that the social development officer acted illegally or in excess of power. He avers that the Judgment essentially sanctioned the removal of the applicants herein from office and upheld the appointment of the new members.

11. He averred that the allegations at paragraph 7 of the supporting affidavit were misleading. That following the government directives of suspending social gatherings as a result of Covid -19 members of the 4th applicant could not organize sports activities. He swore that his closing of the facility was well grounded in law and was for the good of public health.

12. He deponed that the 2nd defendant/respondent is the CDF manager Makadara constituency thus the stadium manager of the 4th applicant. Further that the 4th applicant’s constitution provides that the Fund manager is an automatic ex-officio member of the PMC. That position is distinct from that of the chairperson and the occupant is appointed by the member of parliament of the constituency. Consequently, his decision to appoint the 2nd defendant/respondent as the new fund manager of the plaintiff was not in contravention of their constitution.

13. He averred that the members of the 4th plaintiff/applicant only have powers to hire and fire its staff and so cannot fire the 2nd respondent who is only an ex officio member. He denied any claims of interference with the 4th plaintiff/applicants funds by the 2nd respondent.  He further averred that the allegations that the 1st and 3rd plaintiff/applicants’ socio- economic rights are being infringed is misplaced as they are no longer members of the 4th plaintiff/applicant. Further they have not established the grounds for granting of a temporary injunction.

14. With leave of the court the plaintiff/applicant through Wycliffe Indalu filed a further affidavit. He averred that on 5th July 2020 the 1st and 2nd respondents in the company of rowdy youths stormed the stadium and caused massive damage to the property. The matter was reported at Jogoo Road Police Station under OB number OB49/6/7/2020. He further deponed that he received threats pertaining this matter, security and his life via his phone through Mobile number 0790403463 which is owned by Tobias Ogutu one of the rowdy youths associated with the defendants/respondents.

15. The application was disposed of by written submissions. Mr. Okatch for the applicant in his submissions dated 13th August 2020 gave a brief background of the matter and identified the issues for determination to be follows:

i.Whether the 1st and 2nd respondents have power to cause the appointment of a stadium manager.

ii.Whether the 1st and 2nd respondents have power to interfere with the 1st and 2nd plaintiffs’ management of the 4th plaintiff.

iii.Whether the suit herein is sub judice to Judicial Review Application Number 176 of 2018 Moses Kanyoro & 8 Others v Social Development Officer, Makadara Constituency & 2 Others (2020) eKLR.

16. Counsel submitted that the affairs of the 4th applicant are solely vested in the Societies Act and as such, the involvement of the first respondent is premature and in contravention of the said Act. On this counsel relied on the case of Githunguri Farmers’ Cooperative Society Limited v County Council of Kiambu & Kenya Dairy Board (2015) eKLRwhere it was held that a decision made ultra vires is likely to be set aside.

17. He contends that the 1st respondent’s office is not registered under the Societies Act and so is not a society or an association within the meaning of the said Act. He argues that the respondents have no mandate to regulate, control or monitor the activities of registered associations.

18. On whether or not to grant an injunction, counsel submitted that the overriding principle is that the court will look into the circumstances of the case including the conduct of the parties. In arguing this he relied on the case of Nairobi HCC 1044 OF 2001 Moses Ngenye Kahindo v Agricultural Finance Corporation where Ringera J (as he was then) stated thus:

“And of course it requires no stressing that as an injunction is a discretionary equitable remedy, if the applicant's conduct in relation to the subject matter of the suit is shown not to meet the approval of a court of equity, the relief may not be granted however meritorious the case may otherwise have been”

19. On the issue of res judicata counsel cited section 7 of the Civil Procedure Act which defines the doctrine of res judicata as applying to a suit or issue in which the matter in issue was directly and substantially in issue in a former suit between the same parties.

20. He further cited the case of Lotta v Tanaki (2003)2 EA 556 where the High Court laid out the parameters which have to be clearly brought out where a claim of res- judicata is made. These are: -

i.The matter directly and substantially in issue in the subsequent suit must have been directly and substantially in issue in the former suit.

ii.The former suit must have been between the same parties or privies claiming under them

iii.The parties must have litigated under the same title in the former suit

iv.The matter in issue must have been heard and finally determined in the former suit.

21. Counsel submitted that the subject matter in the two matters is not similar as the Judicial Review Application sought the court’s examination of whether due process was followed in the purported effecting of changes in the management of the 4th plaintiff/applicant. He further submitted that the court’s decision was to the effect that the issues raised before it were of a civil nature and that the same cannot be canvassed in a judicial review court as it does not involve itself with the merits of a case but the process itself.

22. On whether irreparable damage shall be suffered if a temporary injunction is not granted, counsel submitted that the 3rd applicant earns a living as a manager and in the event the injunction is not granted he shall suffer loss that cannot be adequately compensated by way of damages. He further submitted that the 4th applicant in the course of management of the stadium affairs has contracted with other third parties in the management affairs and in the event the orders are not granted the same will be compounded by fear of a floodgate of litigation against the applicants by several sub-contractors.

23. On the issue of balance of convenience, counsel submitted that the same ought only to be considered if the court is in doubt which is not case here. He relied on the case of American Cynanid v Ethicon Ltd (1975)1 ALL ER 510-511where the court held that:

“As to that the governing principle is that the Court first should consider whether if the plaintiff were to succeed at the trial in establishing his right to a permanent injunction he would be adequately compensated by an award of damages for the loss he would have sustained as a result of the defendant’s continuing to do what was sought to be enjoined between the time of the application and the time of the trial.....

It is where there is doubt as to the adequacy of the respective remedies in damages available to either party or to both, that the question of balance of convenience arises”

24. Submissions by Mr.  Khaemba learned counsel for the respondent are dated 7th August 2021. He too gave a brief summary of the facts of the case. On principles to be relied on in grant of an injunction he relied on: (i) Giella v Cassman Brown 1973 ltd [2003] eKLR. He submitted that an applicant in an application for injunction must disclose full facts before the court to enjoy the prayers sought. In arguing this counsel relied on the case of Kenleb Cons Ltd v New Gatitu Service Station Ltd Another (1990) eKLR

“To succeed in an application for injunction an applicant must not only make a full and frank disclosure of all relevant facts to the just determination of the application, but must also show he has a right, legal or equitable, which requires protection by injunction. ”

25. He submitted that the applicant failed to disclose the already heard and determined judicial review application and only sought to persuade this court through its submissions which are not pleadings. On this counsel relied on the case of FMS v MAS (2020)eKLR

“It is trite law that submissions are not pleadings and that new issues cannot be raised in submissions. In Republic v Chairman Public Procurement Administrative Review Board & Another Ex parte Zapkass Consulting and Training Limited & Another (2014) eKLR Korir, J stated:

“The applicant, the respondents and the interested party all introduced new issues in their submissions. Submissions are not pleadings. There is no evidence by way of affidavits to support the submissions. New issues raised by way of submissions are best ignored”

26. On the issue of irreparable harm, counsel relied on the case of Pius Kipchirchir Kogo v Frank Kimeli Tenai (2018) eKLR,where the court stated:

“Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.”

27. He further relied on the case of Amos Kabogo Kuria v Stephen K Kangethe t/a Dalali Auctioneers & Another (2020) eKLRwhich cited with approval the case of Mbuthia v Jimba Credit Corporation Ltd (1988) KLR 1wherein it was stated that in order to show irreparable harm, the moving party must demonstrate that it is a harm that cannot be quantified in monetary terms or which cannot be cured.

28. Counsel contends that an order for injunction can only be issued to an applicant who has a legal or equitable right which requires protection. He argues that in this case the applicants lost any legal rights warranting protection when they ceased being members of the 4th plaintiff/applicant. He submitted that the 3rd applicant cannot claim rights needing protection as he is no longer an employee of the 4th applicant and in any event he may be compensated by way of damages for any unfair termination.

29. On the issue of balance of convenience, counsel submitted that where the court is in doubt, then it must consider whether the balance tilts in favour of the applicant. On this he relied on the case of Pius Kipchichir Kogo (supra) where the court stated:

“The meaning of balance of convenience in favor of the plaintiff is that if an injunction is not granted and the suit is ultimately decided in favor of the plaintiffs, the inconvenience caused to the plaintiff would be greater than that which would be caused to the defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the defendants. Should the inconvenience be equal, it is the plaintiffs who suffer. In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting”

Analysis and Determination

30. I have very carefully considered the application, affidavits for and against plus the written submissions made and cases cited by both counsel in support of their opposing positions.  The issue arising thereto for consideration is as follows:-

a)Whether this matter is res-judicata

b)Whether on the evidence and material placed before court, the plaintiff has satisfied the conditions upon which a temporary injunction can be granted.

Issue (a)Whether this matter is res-judicata

31. There is no dispute that the plaintiffs/applicants filed Judicial Review application no 176 of 2018 which was heard and determined by Justice Mativo on 17th January 2020. This present suit was filed on 24th June 2020.

32. The parties in the Judicial Review application were:

MOSES KANYORO...................................................1ST APPLICANT

MARY WANJIKU MWANGI...................................2ND APPLICANT

SHARON ACHIENG.....................................................3rd APPLICANT

JOB MULEE...............................................................4TH APPLICANT

ROSE AGOLA............................................................5TH APPLICANT

BUXTON ABWASI...................................................6TH APPLICANT

KENNEDY BUNYASI................................................7TH APPLICANT

WYCLIFFEE INDALU...............................................8TH APPLICANT

JAIRO WILLIS............................................................9TH APPLICANT

VERSUS

SOCIAL DEVELOPMENT OFFICER,

MAKADARA CONSTITUENCY..........................1ST RESPONDENT

CAMP TOYOYO PROJECT

MANAGEMENT COMMITTEE………………….2ND RESPONDENT

THE ATTORNEY GENERAL...............................3RD RESPONDENT

33. In the present suit the parties are:

WYCLIFFEE INDALU................................................1ST PLAINTIFF

JAIRO WILLIS............................................................ 2ND PLAINTIFF

GEORGE MAGANI..................................................... 3RD PLAINTIFF

CAMP TOYOYO PROJECT

MANAGEMENT COMMITTEE……………………..4TH PLAINTIFF

VERSUS

GEORGE ALADWA OMWERA..................................1ST DEFENDANT

PAUL ODELLO LANGI...............................................2ND DEFENDANT

34. The following were the prayers sought in the Judicial Review application

a) An order of Certiorari to quash the first Respondent’s decision made on the 27th day of April 2018 removing them as committee members of the second Respondent and replacing them with new members.

b) An order of Prohibition to stop the Respondents, their agents and servants from implementing and/or proceeding with the said decision made on 27th day of April removing and or replace them as committee members of the second Respondent.

c)  That this honourable court be pleased to give further orders and directions as it may deem fit and just to grant.

d) That the costs of this application be provided for.

35. The prayers sought in the plaint herein are as follows:

a) THAT this honourable court be pleased to issue orders permanently restraining the defendants, their workers, agents or anyone acting on their behalf or with their authority from interfering with the plaintiffs’ possession and management of the Camp Toyoyo Stadium.

b) THAT a declaration is hereby issued that the 1st defendant’s letter dated 18th June, 2020 purporting to appoint a new stadium manager is hereby declared to be null and void.

c)An order to issue that the OCS Makadara police station do ensure compliance with the Orders of the honourable court herein.

d)General damages

e)Interest on (d) above

f)Costs of this suit.

36. The prayers sought in this application are set out at paragraph 1 of this Ruling.

37. I have had a chance to read through the Judicial Review Judgment (annexture GAO-4) and the plaint herein. The subject matter of the Judicial Review was a meeting held on 27th April 2018 which ousted the replaced committee members. The subject matter in the present suit involves alleged actions by the rowdy group of youths linked to both defendants/respondents. The said actions are said to have been committed on 17th and 18th June 2020. Further on 19th June 2020 the plaintiffs/applicants reported on duty but were barred from accessing their offices on the defendants’ orders/directions.

38. The names of the parties in the two matters as stated at paragraph 32 and 33 of this Ruling are not the same save for the 1st and 2nd plaintiff/applicants who appeared as the 8th and 9th applicants in the Judicial Review. The 4th plaintiff/applicant herein appeared as the 2nd respondent in the Judicial Review. The rest of the parties are totally new.

39. The case of Lotta v Tanaki (supra) among others clearly sets out what must be established before a matter is considered to be res-Judicata. Upon considering the said parameters and what I have pointed out in the above paragraphs I do find that the present suit cannot be said to be res-Judicata. There is totally no similarity in the parties concerned and even the subject matter. The claims refer to different dates and unrelated actions. The Judicial Review cannot therefore be said to have determined the issues raised in the plaint herein.

Issue No. (b)

Whether on the evidence and material placed before court, the plaintiff has satisfied the conditions upon which a temporary injunction can be granted.

40. The law on granting of interlocutory injunction is set out under Order 40(1) (a) and (b) of the civil procedure rules 2010 which provides: -

"Where in any suit it is proved by affidavit or otherwise—

(a) That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or [Rev. 2012] Civil Procedure CAP. 21 [Subsidiary] C17 – 165;

(b) That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit,  the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further."

41. The conditions for consideration in granting an injunction are now well settled in the case of Giella vs Cassman Brown & Company Limited (1973) E A 358, where the court expressed as follows: -

"First, an applicant must show a prima facie case with a probability of success.  Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages.  Thirdly, if the Court is in doubt, it will decide an application on the balance of convenience."

42. The test for granting of an interlocutory injunction was considered in the American Cyanamid Co. vs Ethicom Limited (supra) where three elements were noted to be of great importance namely:

i.There must be a serious/fair issue to be tried,

ii. Damages are not an adequate remedy,

iii.The balance of convenience lies in favour of granting or refusing the application.

43. The circumstances for consideration before granting a temporary injunction under order 40 Rule 1 of the Civil Procedure Rules requires a proof that any property in dispute in a suit is in a danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree or that the defendant threatens or intends to remove or dispose of the property. The court in such situation is enjoined to grant a temporary injunction to restrain such acts.

44. In the instant case, the bone of contention is the stadium in which the 1st and 2nd applicants who are members of the committee were removed from the facility and new members appointed by the 1st respondent who is Member of Parliament for the area. They allege that they were appointed according to the society’s constitution and are rightfully in office. Further that the 1st respondent cannot purport to have appointed the 2nd respondent as the manager since he is not a member of the committee and his office does not fall under the Societies Act.

45. On the other hand the respondents claim that the three (3) members of the 4th applicant resigned and names of the new nominees were forwarded to the Social development officer. That following the appointment of the new members the 1st and 2nd applicants filed a Judicial Review Application Nairobi No. 176 of 2018 challenging the appointment of the new members.

46. In Mrao Ltd vs Ltd vs First American Bank of Kenya and 2 others, (2003) KLR 125  which was cited with approval in Moses C. Muhia Njoroge & 2 others vs Jane W Lesaloi and 5 others, (2014) eKLR, the Court of Appeal defined a prima facie case as:

"A Prima facie case in a civil application includes but not confined to a genuine and arguable case.  It is a case which on the material presented to the court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”.

47. In Paul Gitonga Wanjau vs Gathuthi Tea Factory Company Ltd & 2 others [2016] eKLR, the court cited with approval the following passage by Steven Mason & McCathy Tetraut in an article entitled "Interlocutory Injunctions: Practical Considerations"

"With some exceptions, the first branch of the injunction test is a low threshold. As stated by the Supreme Court in R. J. R. Macdonald Vs. Canada (Attorney General). Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at the trial. Justice Henegham of the Federal Court explained the review as being "on the basis of common sense and a limited review of the case on the merits."[11] It is usually a brief examination of the facts and law."

48. The incident complained of in the plaint allegedly occurred between 17th – 19th June 2020, where the plaintiff/applicants were locked out of the stadium. The question then is, who is running the affairs of the said stadium? The 4th plaintiff/applicant was a respondent in the Judicial Review and is now a plaintiff in the current suit. What is it that changed? Just as the court found in the Judicial Review that the applicants had failed to supply the court with sufficient evidence to prove any wrong doing this court finds itself in a similar scenario.

49. For over one year the plaintiff claims not to be managing the affairs of the stadium. It has not been explained to this court how the affairs of the stadium are being conducted and who is conducting them. Is it the defendants/respondents running it and if so what is it that they are doing? What would be the impact of issuing a temporary injunction in terms of prayers nos (iv) and (v) of the notice of motion dated 22nd June 2020?

50. The plaintiff/applicants want an injunction to be issued against the defendant/respondents, their unnamed workers, agents and anyone acting on their behalf. It is not clear what the status of the stadium, financial accounts and workers is as it is over a year since the takeover. Issuance of a temporary injunction at this point would mean reinstating the plaintiff/applicants to their previous position without the court knowing what the current status of things on the ground is. It would also amount to a declaration that the applicants were unlawfully removed yet the matter is yet to be heard. This would be more chaotic than what is currently there.

51. This is a matter that was filed under a certificate of urgency and ought to have been heard within the shortest time in order for the proper position to be captured by the court in good time. The reason being that if it were to be found that the 2nd respondent and others are illegally in office then they would have to account for what they have earned during that period, and what has been spent etc.

52. In other words before the court issues the Orders sought there must be proof that the defendant/respondents are unlawfully in office. This is not an issue that can be determined now without the production of evidence concerning the averments in the affidavits filed herein. Witnesses would have to be called and cross examined. This will have to await the full hearing.

53. I have also noted that despite this matter having been filed in June 2020 and the defendant/respondents served there is no defence filed by them up to now. My assessment of all the material before this court leads me to the conclusion that the plaintiff/applicants have not even on a balance of probabilities satisfied the conditions for grant of a temporary injunction.

54. That aside, I find it prudent to issue directions on how this matter should proceed without any further delay as follows:

i) The defendant/respondents to file and serve their defence/defences within ten (10) days of today’s Ruling.

ii) The plaintiff/applicants granted leave to file and serve a reply to the defence/defences within seven (7) days of service of the defence/defences if need be.

iii) Mention on 28th October 2021 before the Deputy Registrar for pre- trial directions and conference.

iv) In the event of non-compliance either party is at liberty to apply.

The upshot is that the application dated 22nd June 2020 lacks merit and is dismissed. Costs shall be in the cause.

Orders accordingly.

DELIVERED ONLINE, SIGNED AND DATED THIS 6TH DAY OF OCTOBER, 2021 IN OPEN COURT AT MILIMANI NAIROBI.

H. I. ONG’UDI

JUDGE