Gituanja v Gituanja (Environment and Land Case 688 of 2017) [2026] KEELC 5153 (KLR)

(deceased) in compliance with the final court order of the Honourable court given on 25th September 1984. e. The court finds that the Plaintiff herein is in contempt of court for having both parcels of land known as Kabete/Nathuna/1115 and Kabete/ Nyathuna/1116 (Subdivisions of Kabete/ Nyathuna/53) registered in her name while the decree herein and subsequent orders clearly state she is entitled to only LRKabete/Nathuna/1115. 2. The Application is based on grounds on its face of the application and the supporting Affidavit sworn by Michael Mungai Kimani on 1.10.2024. 3. The Applicant describes himself as the legally authorized administrator Pursuant to letters ad litem in the estate of the late Kimani Gituanja's which were granted by the Nairobi High Court on 21.8. 2024, in Succession Cause No. E670 of 2024, exclusively to initiate this lawsuit, a copy of this Grant has been attached to the application as exhibit 'MMK-1'." 4. The Applicant deposes that the Defendant who allegedly left his residence in Nyathuna in 1996, has remained entirely ELC CASE NO. 688 OF 2017 2 of 26 Ruling Page

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untraceable since, following which, the Applicant and other beneficiaries petitioned the High Court (under HC Miscellaneous Application No. 23 of 2012) to legally declare him deceased, based on presumption of death whereafter an order was issued on 27.7. 2018 as per a copy attached to the Applicant's affidavit and designated as exhibit "MMK-2." 5. Following the court's presumption of death order, the Applicant deposes that he thereafter obtained a death certificate for the Defendant in 2024, annexed as Exhibit “MMK-3 6. The Applicant deposes that the Defendant went missing after the court's judgment, in this suit but before the subdivision of parcel Kabete/Nyathuna/53 was finalized. 7. The Applicant deposes that on 12.6.1982, the High Court in HCCC No. 1995 of 1980 ordered land parcel Kabete/Nyathuna/53 to be divided into two equal parts as per a copy of the decree issued from this judgment is attached as Exhibit "MMK-4. ELC CASE NO. 688 OF 2017 3 of 26 Ruling Page

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8. The Applicant further states that the Defendant being aggrieved by the decree appealed the High Court’s decision in Civil Appeal No. 25 of 1982. On 10.5.1983, which the Court of Appeal dismissed the appeal and upheld the High Court’s ruling as per a copy of the Court of Appeal's judgment is attached and labeled "MMK-5” 9. The Applicant deposes that a subsequent disagreement arose between the parties regarding the use and occupation of the subdivided parcels, of land; the Honourable Court issued directives for the Plaintiff to be as the registered proprietor of L.R. No. Kabete/Nyathuna/1115 and the Defendant as the registered proprietor of L.R. No. Kabete/Nyathuna/1116, remain in their respective occupations. A copy of this court directive is attached and designated as 'MMK-6'." 10. The Applicant further states that on 31.7. 2018, the County Surveyor formally notified both parties that the survey was complete, designating parcel No. Kabete/Nyathuna/1115 for the Plaintiff's occupation and Kabete/Nyathuna/1116 for the ELC CASE NO. 688 OF 2017 4 of 26 Ruling Page

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Defendant as per a copy of this letter is attached and labeled "MMK-7." 11. The Applicant further deposes that in February 2022, the Deputy Registrar of the High Court duly executed transfer instruments in respect of L.R. No. Kabete/Nyathuna/1115 in favour of the Plaintiff, in compliance with the court order issued on 20.6.1983. A copy of the executed transfer is annexed hereto and marked "MMK-9." 12. The Applicant states that unfortunately the Plaintiff violated the existing court orders by illegally and fraudulently registering both L.R. No. Kabete/Nyathuna/1115 and L.R. No. Kabete/Nyathuna/1116 under her name. 13. The Applicant further states that he first discovered the Plaintiff's questionable actions after reviewing the National Land Commission Gazette Notice No. 6742 (issued on 25.3.2024), a copy of this Gazette Notice is attached to this document. 14. The Applicant additionally states that he later on retrieved a copy of the green card for L.R. No. Kabete/Nyathuna/53, ELC CASE NO. 688 OF 2017 5 of 26 Ruling Page

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confirming that the original land register was closed on 10.3.2022, after the suit property was subdivided into L.R. Nos. Kabete/Nyathuna/1115 and Kabete/Nyathuna/1116. A copy of this green card is attached and marked "MMK-11." 15. The Applicant beneficiaries further are deposes currently that the occupying Defendant's L.R. No. Kabete/Nyathuna/1115, while the Plaintiff occupies L.R. No. Kabete/Nyathuna/1116, directly in violation of the existing court orders, which require the Plaintiff to occupy L.R. No. Kabete/Nyathuna/1115 and the Defendant to occupy L.R. No. Kabete/Nyathuna/1116. 16. The Applicant deposes that though parts of these two suit properties were compulsorily acquired to build the Nairobi Western Bypass, but the government has not yet paid out the compensation. Consequently, the Applicant, in the circumstances, prays to be joined as a party to this suit to protect his rightful share of the pending compensation funds. ELC CASE NO. 688 OF 2017 6 of 26 Ruling Page

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17. The application is opposed through a replying affidavit sworn on 15.11.2024 by Jane Njoki Gatuanja. 18. The respondent deposes that the allegations that she fraudulently acquired and/or caused the registration of the properties in her name are wholly false and without any factual basis. 19. The respondent deposes that pursuant to the order issued on 1.11.1984 following the subdivision of the suit property, the dispute between the parties was conclusively determined. 20. The respondent further deposes that following the dismissal of the defendant's appeal, the defendant declined and/or failed to execute the requisite documents necessary to facilitate registration of the subdivided parcels of land. 21. The respondent avers that under the orders issued on 1.11.1984, the survey fees were to be borne equally by the parties. She further deposes that the defendant refused to contribute his share of the survey costs, thereby frustrating the implementation of the subdivision. Consequently, the respondent deposes ELC CASE NO. 688 OF 2017 7 of 26 that she approached Ruling the District Page

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Commissioner, who, upon consulting with the Chief Land Registrar, advised her to settle the entire survey fees to facilitate registration of both parcels in her name pending implementation of the court's orders. She avers that she complied with that advice and was paid the full amount. 22. The respondent deposes that she was subsequently advised by the Land Registrar to execute an undertaking to transfer Land Parcel No. 1116 to the defendant's estate. She states that she duly executed the said undertaking through her advocate, and a copy thereof is annexed to her affidavit. 23. The Respondent deposes that she remains willing and committed to transferring Land Parcel No. Kabete/Nyathuna/1116 to the Defendant's estate, subject to reimbursement of the costs she had incurred, in accordance with the undertaking dated 23.5.2022. 24. The issue for determination is whether the applicant deserves the reliefs sought in the application. The principles for granting an injunction were set out in Giella -vs- Cassman Brown & Company Limited (1973) EA 358, that: ELC CASE NO. 688 OF 2017 8 of 26 Ruling Page

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“First, an applicant must show a prima facie case with a probability interlocutory of injunction success. Secondly, an will normally be not granted unless the applicant might otherwise suffer irreparable harm which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on a balance of convenience.” 25. In Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 others [2003] eKLR, the court defined a prima facie case as one in which on the material presented to a court or a tribunal, properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party, as to call for an explanation or rebuttal from the latter. 26. Irreparable loss or damage refer to damage as that which is not capable of quantification in monetary terms. It must be real, actual, imminent, and apparent. Speculative fear or apprehension is not enough, as held in Nguruman Ltd -vsJan Bonde Neilsen & 2 Others [2014] eKL. ELC CASE NO. 688 OF 2017 9 of 26 Ruling Page

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27. In Films Rover International Ltd & Others v Cannon Film Sales Ltd [1987] 1 WLR 670 (Ch D); [1986] 3 All ER 772 Hoffmann J. stated thus: “The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong’ decision... A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’” 28. In Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] KEELC 2424 (KLR) (Environment and Land Court at Eldoret, Environment & Land Case No. 221 of 2017, Ruling delivered on 29 June 2018, Ombwayo J, 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 ELC CASE NO. 688 OF 2017 10 of 26 to the defendants Ruling if an Page

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injunction is granted but the suit is ultimately dismissed. Although convenience it is it is really called balance of 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 it.” 29. In this application, the applicant seeks injunctive relief not only long after a judgment was rendered, but also after the dismissal of an appeal. it is alleged that there has been substantial execution of the decree by the Plaintiff which the Applicant terms illegal or irregular. 30. The court record shows that after finalization of the dispute, execution was done by subdividing the suit property into parcels namely LR No. Kabete/ Nyathuna/1115 and Kabete/ ELC CASE NO. 688 OF 2017 11 of 26 Ruling Page

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Nyathuna/1116. The subsequent appeal was rejected, making the court's judgment permanent and fully enforceable. 31. An injunction is generally an remedy intended to preserve the subject matter pending determination of a dispute. Once a suit has been determined and the appeal dismissed, the court becomes functus officio regarding the merits of the dispute. 32. The Supreme Court in Raila Odinga & Others v IEBC & Others (Petition 5,4 & 3 of 2013(Consolidated))[2013] KESC 8 (KLR)(24 October 2013)(Ruling) explained the doctrine of functus officio as a means of preventing a court from reopening a matter that has been finally determined except as permitted by law. 33. Similarly, the Court of Appeal in Telkom Kenya Ltd v John Ochanda & 996 Others (Civil Appeal 60 of 2013) [2014]KECA 600(KLR)(9 May 2014)(Judgment) affirmed that once a court has performed its function by rendering a final decision, it lacks jurisdiction to revisit the matter save in limited circumstances as provided by law. ELC CASE NO. 688 OF 2017 12 of 26 Ruling Page

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34. As a general principle, upon the delivery of judgment and the determination of any appeal, against it the court becomes functus officio with respect to the substantive issues in dispute. Notwithstanding the foregoing, the courts have acknowledged that, in exceptional and limited circumstances, post-judgment interventions may suffice. 35. While the doctrine of finality of litigation remains a fundamental principle of the law, the court retains a residual jurisdiction to intervene where such intervention is necessary to avert a manifest miscarriage of justice. In Benjoh Amalgamated Ltd & another –vs- Kenya Commercial Bank Ltd (Civil Application 16 of 2012)[2014] KECA 872 (KLR) (20 June 2014)(Ruling), the Court of Appeal emphasized that this jurisdiction is exercised sparingly and only in exceptional circumstances. Post judgment intervention is exceptional rather than the routine. 36. In the present application, the Plaintiff/Respondent states in her replying affidavit that she became entitled to Land Parcel No. Kabete/Nyathuna/1115 pursuant to an order issued on ELC CASE NO. 688 OF 2017 13 of 26 Ruling Page

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1.11.1984. She further deposes that the said order conclusively determined the dispute between the parties. Notwithstanding her knowledge of the court's orders, it appears that she subsequently caused the two parcels of land to be registered in her name. The justification is that the deceased defendant failed to meet the costs the subdivision. She however expressed her desire to transfer the portion to the deceased estate. 37. In instances where execution exceeds the scope of what was authorized by a judgment or a decree, the court has and indeed retains the jurisdiction to stop such an unlawful execution. The judgment delivered by this Court had recognized distinct rights over the two parcels, namely LR Nos. Kabete/Nyathuna/1115 and Kabete/Nyathuna/1116 in favour of both parties to the suit.. 38. The Applicant alleges that notwithstanding that judgment, both parcels are presently registered in the Plaintiff's name. The plaintiff conceded that fact. Therefore there exists a real risk that LR No. Kabete/Nyathuna/1116 may have been ELC CASE NO. 688 OF 2017 14 of 26 Ruling Page

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alienated contrary to the decree of the court. Such alienation would render the decree of the court and may occasion substantial prejudice to the estate. 39. In the circumstances of this case, preservation of LR No. Kabete/Nyathuna/1116 is necessary in order to safeguard the ends of justice.It is for the above reasons that prayer b in the Notice of motion is hereby granted. 40. The general law on joinder is that a court can, either on its own motion or by an application, of a party. The jurisdiction to join a party post-judgment is exercised only in exceptional and justifiable circumstances. In Merry Beach Limited v Attorney General & 18 Others [2018] KECA 18 (KLR) the Court of Appeal stated as follows: “However, there are exceptional circumstances that could justify a court to enjoin a party even after judgment has been passed. One such exception is where a matter has been determined and adverse orders have been issued against a party who was neither given notice of the suit nor heard on the issue in dispute. The order enjoining a party would ELC CASE NO. 688 OF 2017 15 of 26 also have to Ruling set aside the Page

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judgment entered to give him / her an opportunity to be heard.” 41. Order 1 Rule 10(2) of the Civil Procedure Rules vests the Court with discretion, at any stage of the proceedings, either on its own motion or upon the application of a party, to join any person whose presence is necessary for the effective and complete determination of all matters in controversy. The provision is intended to ensure that all persons with a direct and identifiable legal interest in the subject matter are before the Court so that the issues in dispute may be conclusively resolved. 42. In Mayfair Holdings Ltd v Municipal Council of Kisumu; Pauline Mauwa Akwacha (Interested Party/Applicant) [2020] KEELC 213 (KLR), where the Court held that the phrase "at any stage of the proceedings" refers to the period before judgment, and that a party cannot be joined after the suit has been concluded because there are no issues left for determination.”, ELC CASE NO. 688 OF 2017 16 of 26 Ruling Page

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43. The objective of joinder extends beyond the adjudication of the substantive dispute; it also encompasses facilitating the effective implementation and enforcement of the Court's judgment where circumstances so require. Consequently, where issues emerge after judgment that directly affect the enjoyment or protection of rights declared by the Court, joinder may be warranted if it is necessary to enable the Court to effectively exercise its jurisdiction. 44. In the present matter, the Applicant does not seek to reopen the dispute determined by the judgment delivered in 1981 or to challenge the findings of the Court on their merits. Rather, the applicant approaches the Court as the holder of a Grant of Letters of Administration Ad Litem issued in respect of the estate of the deceased Defendant. His complaint is that, notwithstanding the judgment awarding the Defendant both ownership and occupation of LR No. Kabete/Nyathuna/1116, both LR Nos. Kabete/Nyathuna/1115 and 1116 were subsequently illegally registered in the Plaintiff's name. The issues that the Applicant raises therefore relate to the ELC CASE NO. 688 OF 2017 17 of 26 Ruling Page

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preservation and enforcement of accrued rights allegedly vested in the deceased Defendant by the court judgment, and not to the correctness of the judgment or the decree itself. 45. Although Black's Law Dictionary, Ninth Edition, defines "proceedings" as the regular and orderly progression of a lawsuit from its commencement to the entry of judgment, that definition cannot be read in isolation so as to curtail the Court's statutory and inherent powers. The Court retains residual jurisdiction to issue such orders as are necessary to safeguard the integrity of its proceedings, give effect to its judgment and prevent an injustice. To hold otherwise would unjustly preclude a duly appointed legal representative from protecting the interests of a deceased decree holder by a legal representative of the estate post-judgment. See JMK VS MWM& Another (2015) KECA 520 (KLR). 46. The Applicant has exhibited a valid Grant of Letters of Administration Ad 47. Litem, thereby establishing his legal capacity to represent the estate of the deceased Defendant. Given that the rights being ELC CASE NO. 688 OF 2017 18 of 26 Ruling Page

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asserted arise directly from the judgment and the decree of this Court and concern property forming part of the deceased's estate, the Applicant's participation is necessary to facilitate implementation of the judgment and its decree. 48. Guided by the foregoing principles, I am satisfied that the Applicant has established a sufficient legal interest in the subject matter of these proceedings. See JMK v MWM & Another [2015] KECA 524 (KLR) 49. In HMI vs KBH (Civil Appeal Application E019 OF 2022 (2026) KECA 1498 KLR 26th July 2026 (Ruling) the court said that for good order in the administration of justice individuals who and institutions which submit themselves to the judicial process have a duty to obey the orders emanating therefrom so as to preserve and uphold the authority and dignity of our court. The court cited Ochino & Another vs Okumbo & Another (1989) KECA 65 KLR on the ingredient of contempt of court namely: knowledge of clear and an ambiguous and willful and deliberate breach of order, its terms and condition. ELC CASE NO. 688 OF 2017 19 of 26 Ruling Page

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50. The Applicant also pray that this Court compels the Plaintiff to transfer the suit property directly to the beneficiaries of the deceased's estate. That prayer is fundamentally misconceived and has no legal basis. The Applicant appears before this Court solely by virtue of a Limited Grant of Letters of Administration ad litem, which is issued only to authorize the institution or defence of proceedings on behalf of the estate. Such a grant does not vest the holder with authority to administer, distribute, or transfer the assets of the estate to beneficiaries. 51. Pursuant to sections 79 and 82 of the Law of Succession Act, the property of a deceased person vests in the personal representative, who is empowered to deal with the estate only in accordance with the law governing succession. The distribution of estate property falls exclusively within the jurisdiction of the succession court upon the issuance of the appropriate grant of representation. Consequently, the distribution or transfer of estate of the deceased cannot be ELC CASE NO. 688 OF 2017 20 of 26 Ruling Page

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effected through orders made in a post-judgment application in these proceedings. 52. In Trouistik Union International & another v Jane Mbeyu & another [1993] eKLR and Virginia Edith Wambui Otieno v Joash Ochieng Ougo & another [1987] eKLR, the Court of Appeal affirmed that only a duly appointed personal representative may exercise rights on behalf of a deceased person's estate, and only within the scope of the grant issued. It follows that this Court lacks jurisdiction to circumvent the succession process by directing the Plaintiff, to transfer the suit property directly to the Applicant/beneficiaries. 53. Granting the orders sought by the Applicant would, in effect, amount to distributing the deceased's estate outside the statutory framework established under the Law of Succession Act. Such an approach would be contrary to the law and would improperly sidestep the succession process. The prayer seeking the direct transfer of the suit property to the ELC CASE NO. 688 OF 2017 21 of 26 Ruling Page

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Applicant is therefore legally untenable, incompetent, and ought to be dismissed with costs. 54. Whereas the Plaintiff is willing to transfer the suit property to the Applicant, such transfer cannot lawfully be effected on the strength of a Limited Grant ad litem. The court makes an order that the suit property that belongs to the deceased defendant reverts to the estate of the deceased. 55. Upon the Applicant obtaining the appropriate grant with powers of administration and distribution, the reverted property to the estate shall be dealt within accordance with the Law of Succession Act. Any subsequent transmission shall be undertaken through the succession process. 56. The last prayer is to find the plaintiff guilty of contempt of court. Contempt jurisdiction is confined to enforcing compliance with a clear and unequivocal court order. In Samuel M. N. Mweru Commission & Application 443 2 & Others v Others National Land (Miscellaneous Civil of 2017)[2020] KEHC 9233 (KLR) (Judicial Review)(17 January 2020)(Ruling), the Court ELC CASE NO. 688 OF 2017 22 of 26 Ruling Page

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held that an applicant must establish the existence of a clear order and the deliberate disobedience thereof. 57. The Applicant has moved the Court seeking orders that the Plaintiff be cited and punished for contempt on the basis that she allegedly violated the Court's orders by illegally procuring the registration of the two suit parcels in her own name. 58. The principles governing contempt of court are well established. A party seeking such orders must demonstrate the existence of a clear, precise and binding court order, prove that the alleged contemnor had knowledge of the order, and establish that there was deliberate and willful noncompliance with its terms. Given that contempt proceedings are quasi-criminal in nature, the applicable standard of proof is higher than that in ordinary civil claims. 59. In the instant case, it is not disputed that the Plaintiff caused the two suit parcels to be registered in her name. However, the Court also notes that from her replying affidavit she has not resisted the Applicant's request for the surrender and retransfer of the suit properties in accordance with the Court's ELC CASE NO. 688 OF 2017 23 of 26 Ruling Page

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determination. The respondent’s position before the Court reflects a willingness to facilitate compliance with the decree rather than an intention to frustrate or undermine the authority of the Court. 60. The Court reiterates that the principal objective of contempt proceedings is to ensure obedience to court orders and preserve the dignity and authority of the judicial process, as opposed to imposing punishment where compliance has been achieved or is forthcoming and there is no persistent or deliberate defiance of the Court's orders. In the circumstances of this case, the Court is not satisfied that the Plaintiff's conduct meets the threshold necessary to warrant a finding of contempt of court against her. 61. Accordingly, although the registration of the suit properties in the Plaintiff's name may not have been consistent with the Court's orders, the interests of justice will be sufficiently served by directing that the suit property in favour of the estate of the deceased defendant revert to his estate in ELC CASE NO. 688 OF 2017 24 of 26 Ruling Page

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accordance with the decree. The Court therefore declines to find the Plaintiff in contempt of court. 62. Accordingly, the following orders are hereby issued; a) An order restraining the Plaintiff/ Respondent from selling, disposing off, transferring, receiving compensating in regard to or in any way dealing with all that parcel of land known as Kabete/Nathuna/1115 and Kabete/ Nyathuna/1116 ( Subdivisions of Kabete/ Nyathuna/53). b) The name of the Defendant Kimani Gituanja (deceased) who died on 16th December 1996 be and is hereby substituted with the name of Michael Mungai Kimani. c) That the Plaintiff holds parcel of land known as Kabete/Nathuna/1115 in trust for the estate for the late Kimani Kituanja pending formal issuance of letters of administration to a legal representative Michael Mungai Kimani. ELC CASE NO. 688 OF 2017 25 of 26 Ruling Page

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d) There will be no orders as to costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 29TH DAY OF JULY, 2026 HON. JUSTICE C.K NZILI JUDGE In the presence of: Court Assistant: Julius Mr. Okanga for the Plaintiff ELC CASE NO. 688 OF 2017 26 of 26 Ruling Page

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