KIPKOECH RUTTO VS DAVID LIMO BUNDOTICH KIPKOECH RUTTO VS DAVID LIMO BUNDOTICH

JUDGEMENT

The Plaintiff instituted this proceeding through a Plaint dated 07.06.2024 (hereinafter referred to as “the present suit”) seeking the following Orders against the Defendant; -
A Declaration that the Plaintiff is the legal and lawful owner of the Property known as L.R. No. UASIN GISHU/KIMUMU/629.
An Order of Eviction against the Defendant, his agents, servants and any other persons acting through him or on his behalf from the property known as L.R. No. UASIN GISHU/ KIMUMU/629.
An Order of Permanent Injunction preventing the Defendant, his agents, servants or any other person acting through him or on his behalf, from interference with the peaceful and quiet possession and occupation of the Plaintiff’s property known as L.R. No. UASIN GISHU/ KIMUMU/629.
Mesne profit from the time of purchase of the property known as L.R. No. UASIN GISHU/ KIMUMU/629.
The Officer Commanding Station (OCS) Kaptich Police Station, do observe consistent and continuous compliance with Orders (b) and (c) above until the plaintiff fully settles on the land.
Costs of the suit and any interest thereon.
Any other relief that the court may deem fit to grant.
The facts in support of the prayers above can be summarized as follows;-
The Plaintiff herein purchased the property known as L.R. No. UASIN GISHU/ KIMUMU/629 (hereinafter referred to as “the suit property”) from Housing Finance Company Limited (hereinafter referred to as “the Bank”) on 04.10.2012 through a Public Auction.
The Plaintiff duly obtained all the relevant documents from Bank and the suit property was registered in his name.
Upon the Plaintiff’s registration as the owner of the suit property, he sought to take possession but the Defendant has systematically and continuously denied him entry and use of the suit property.
The Plaintiff stated that the Defendant herein instituted proceedings known as ELDORET ELC NO. 798 OF 2012 which were against the Bank wherein various applications were made and rulings pronounced.
The Plaintiff’s position was that the Defendant’s rights over the suit property became extinguished at the fall of the hammer and any impropriety in the manner in which the auction was undertaken can be remedied by way of damages against the Bank.
The Plaintiff stated that Section 99 of the Land Act No. 6 of 2012 gives immunity to a purchaser of a charged property even if there was improper or irregular exercise of powers of sale unless fraud, misrepresentation or a dishonest conduct on the part of the Chargee is proved.
The Plaintiff averred that the Defendant’s occupation of the suit property after he lost the right of redemption in the year 2012 amounts to a violation of his rights under Article 40 of the Constitution and section 99 of the Land Act.
The Plaintiff therefore sought for an eviction order against the Defendant and further issuance of a Permanent Injunction prohibiting the Defendant’s from interfering with the Plaintiff’s quiet possession and use thereafter.
The Plaintiff further sought for mesne profits for the unlawful use of the suit property by the Defendant since 04.10.2012 until determination of this suit.
The present suit was served on the Defendant who filed an Amended Defence and Counter-Claim dated 09.07.2024.
In the Amended Defence, the Defendant pleaded the following facts;-
The Defendant admitted that the suit property had been charged to the Bank.
The Defendants stated that the suit property was advertised for sale through a Public Auction.
According to the Defendant, the Plaintiff herein in a fraudulent manner engaged in fraudulent bidding of the suit property and subsequently, his acquisition was vitiated by fraud, corruption and irregularity.
The Defendant then outlined the particulars of fraud, irregularity, illegality and corruption in paragraph 7 of their Amended Defence.
The Defendant further stated that the Plaintiff cannot benefit from the provisions of section 99 of the Land Act as their conduct did not demonstrate good will and/or did not pay the full consideration declared at the fall of the hammer.
The Defendant further pleaded that the present suit is Sub Judice based on section 6 of the Civil Procedure Act as there was an appeal still pending before the Eldoret Court of Appeal which is CIVIL APPEAL NO. E016 OF 2024.
The Defendant therefore sought this Honourable Court not to grant the prayers in the present suit.
In the Counter-claim pleaded by the Defendant, the facts of the Defence were recaptured word by word.
At the end of the Counter-Claim, the Defendant sought for the following Orders against the Plaintiff; -
A Declaration that the Plaintiff cannot benefit from section 99 of the Land Act Cap 280 as his conduct in the acquisition of the suit property demonstrates fraud, want of good faith and lack bonafide on his part and he did not pay for the value of the property.
An Order cancelling the Plaintiff’s registration as the proprietor of the land parcel L.R. No. UASIN GISHU/KIMUMU/629 and the registration does revert back to the Defendant.
The Amended Defence and Counter-claim was duly served on the Plaintiff who filed a Response to the Amended Defence and Defence to the Counter-claim.
In the Response to the Amended Defence and Counter-claim, the Plaintiff averred as follows; -
That the Defendant through the proceedings known as ELDORET ELC NO. 798 OF 2012 registered a Court Order on 30.03.2012 prohibiting any registration on the suit property in the name of the Plaintiff which Court Order was reviewed and/or set-aside by the Court Orders issued on 26.07.2018.
The Defendant being aggrieved by the Court Orders of 26.07.2018 did file an Application for Stay of Execution and Leave to Appeal but the said application was dismissed on 30.07.2019.
The Defendant once again being dissatisfied with the Ruling of 30.07.2019 filed an Appeal before the Court of Appeal 13.04.2021 which is still pending determination.
The Plaintiff pleaded that the Defendant’s allegation of fraud, irregularity, illegality and corruption could only be against the Bank and that once the property was auctioned, the Defendant’s ownership was extinguished.
The Plaintiff therefore denied any wrongdoing or acts of fraud, illegality, irregularity or corruption as alleged by the Defendant.
As regards whether the amount declared at the fall of the hammer was paid or not, the Plaintiff stated that there was no privy of contract with the Defendant and therefore he cannot seek to challenge the same.
The Plaintiff reiterated that if there was any irregularity with the auction, then the Defendant was entitled to damages.
The Plaintiff in addressing the issue of the Land Control Board Consent stated that the same was obtained and had been produced in court.
Similarly, the Stamp Duty had also been paid and the relevant receipts placed before Court.
As such, the Plaintiff stated that the acquisition of the suit property had been done lawfully and a proper title issued in his name.
In conclusion therefore, the Plaintiff sought this Honourable Court to issue the Eviction Orders sought as well as the Permanent Injunction restraining the Defendant from any interference on the suit property.
The Defendant filed a Reply to the Defence on the Counter-Claim dated 22.02.2025 and sought the Defence to the Counter-claim to be dismissed.

PLAINTIFF’S TESTIMONY & DOCUMENTARY EVIDENCE

The Plaintiff’s first witness was the Plaintiff who was marked as PW1.
The Plaintiff introduced himself as a resident of Hillside Estate ad a farmer by occupation.
The Plaintiff confirmed filing a Witness Statement dated 07.06.2024 which he adopted as his evidence in chief.
In support of his evidence in chief, the Plaintiff produced the following documents; -

PW1 EXHIBIT 1- Copy of the Memorandum of Sale dated 04.10.2012 in respect to the suit property.

PW1 EXHIBIT 2- Copy of the list of attendees to the public auction dated 04.10.2012.

PW1 EXHIBIT 3- Copies of the banker’s cheques No. 001435 and 001436 both dated 04.10.2012.

PW1EXHIBIT 4- Copy of the Certificate of the suit property dated 08.10.2012.

PW1 EXHIBIT 5-Copy of the Application for Consent to the LCB though not signed.

PW1EXHIBIT 6 - Copy of the Certificate of Official Search dated 16.08.2019.

PW1 EXHIBIT 7- Copy of the particulars of the suit property as issued by Garam Investments dated 04.10.2012.

PW1 EXHIBIT 8 - Copy of the Transfer in favour of the Plaintiff.

PW1 EXHIBIT 9- Copy of the Certificate of Title to the suit property issued on 28.08.2019.

PW1 EXHIBIT 10- Copy of a Ruling dated 26.07.2018 in the proceedings known as ELDORET ELC NO. 798 OF 2012.

PW1 EXHIBIT 11- Copy of the court order dated 26.07.2018 in the proceedings known as ELDORET ELC NO. 798 OF 2012.

PW1 EXHIBIT 12- Copy of the Court Order issued on 30.07.2019 in the proceedings known as ELDORET ELC CASE NO. 798 OF 2012.

PW1 EXHIBIT 13-Copy of the Application dated 09.03.2024 in the proceedings known as ELDORET HCCC NO. 24 OF 2021.

PW1 EXHIBIT 14- Copy of the Record of Appeal before the Court of Appeal in CIVIL APPEAL NO. E018 OF 2024.

PW1 EXHIBIT 15- Copy of the Memorandum of Appeal in the proceedings known as ELDORET COURT OF APPEAL NO. E018 OF 2024.

The Plaintiff reiterated that he lawfully purchased the suit property through a Public Auction in the year 2012.
Thereafter, the suit property was registered in his name but he has been unable to take possession due to the Defendant’s refusal to vacate.
The Plaintiff disclosed that there has been a number of Court Cases and that there is even an Appeal before the Court of Appeal in the other cases.
The Plaintiff nevertheless stated that these other proceedings substantially relate to a dispute between Bank and the Defendant who was the former owner.
In concluding his examination in chief, the Plaintiff sought for Orders of Eviction and Injunction to enable him take possession of the suit property.
On cross-examination, the Plaintiff stated that he came to know about the auction through an advertisement.
The Plaintiff stated that he was the one who paid the twenty five percent deposit of the bid although the bidding had been done by somebody else.
The Plaintiff disclosed that the bidding had been done by one MARGARET KAGO.
The Plaintiff stated that he was the one who had allowed her to bid.
The Plaintiff nevertheless insisted that the twenty five percent deposit had been paid upon the fall of the hammer.
The Plaintiff reiterated that he was given a Certificate of Sale to confirm the purchase.
On being referred to the application for the Land Control Board Consent produced as PW1 Exhibit 5, he admitted that the same was not signed.
The Plaintiff stated that he got his title in the year 2013 but has never been able to take possession.
On re-examination, the Plaintiff stated that he paid the full purchase price in the year 2013.
On being referred to PW1 Exhibit 1 and 2, the Plaintiff confirmed that he attended the auction together with MARGARET KAGO.
The Plaintiff confirmed that the Memorandum of Sale indicates that MARGARET KAGO placed a bid on his behalf.
The Plaintiff stated that if there is any issue in term of the procedure or manner in which the suit property was auctioned then the liable person would be the bank.
The Plaintiff indicated that there was no Court Order that prohibited the proceedings before the Court to be heard and determined.
At the end of this re-examination, the Plaintiff was discharged from the witness box and the Plaintiff closed his case.

DEFENDANT’S TESTIMONY & DOCUMENTARY EVIDENCE

The Defence first witness was the Defendant who was marked as DW1.
The Defendant introduced himself as a resident of Kimumu and a farmer by occupation.
The Defendant then informed the Court that he had prepared a Witness Statement dated 26.07.2024 which he sought to adopt as his evidence in chief.
In support of his evidence in chief, the Defendant produced the following documents; -

DW1 EXHIBIT 1- Copy of a valuation report dated 01.11.2012 by City Valuers Limited.

DW1 EXHIBIT 2- Copy of the newspaper advert dated 17.09.2012.

DW1 EXHIBIT 3- Copy of a Memorandum of Appeal dated 09.03.2024 in the proceedings known as ELDORET COURT OF APPEAAL CIVIL CASE NO E018 OF 2024.

DW1 EXHIBIT 4- Copy of a Memorandum of Appeal not dated in the proceedings known as ELDORET COURT OF APPEAL NO. E016 OF 2024.

DW1 EXHIBIT 5- Copy of the plaint dated 17.03.2011 in the proceedings known as ELDORET HCCC NO. 40 OF 2011.

The Defendant stated that he disputes the Plaintiff’s registration as the owner of the suit property.
The Defendant reiterated that he borrowed money from Bank but had fully repaid the same.
As regards ELDORET CIVIL APPEAL NO. E016 OF 2024, the Defendant indicated that he was Appealing against a Ruling pronounced on 17.02.2022 in the proceedings known as ELDORET HCCC NO. 24 OF 2011 also known as ELDORET ELC NO. 798 OF 2012.
In the proceeding known as ELDORET COURT OF APPEAL NO. E018 OF 2024, the Defendant was challenging the Ruling pronounced on 26.07.2018 in the proceedings known as ELDORET ELC NO. 798 OF 2012.
The Defendant informed the Court that all these Appeals were pending hearing and determination.
In concluding his examination in chief, the Defendant sought the Plaintiff’s case to be dismissed and the Counter-Claim to be granted.
On cross-examination, the Defendant stated that the property in dispute is the suit property.
The Defendant stated that the suit property had been developed with a building that has 35 rooms.
However, the rooms were ultimately demolished in the year 2021.
Consequently, there was no rent collection on the suit property.
The Defendant admitted that he has not sued the Bank in the present suit.
The Defendant denied knowledge of the Bank’s auction and the Plaintiff’s registration and/or ownership.
The Defendant insisted that he owned the suit property and therefore had the right to live on it.
On being referred to PW1 Exhibit 9, the Defendant admitted that the suit property had been registered in the name of the Plaintiff.
The Defendant stated that currently, there was no Court Order stopping the proceedings before this Court.
the Defendant confirmed that he did not have any evidence to show that the Plaintiff is the one who did the demolition.
In concluding his cross-examination, the Defendant indicated that the Bank does not demand any money from him because they sold the property.
At the end of this cross-examination, there was no re-examination and the Defendant closed his case.
The Court did direct the parties to file their final submissions wherein the Plaintiff filed his submissions dated 04.07.2025 while the Defendant filed his submissions dated 28.07.2025.
The Court has indeed carefully gone through the pleadings, the testimonies by the parties and the documentary evidence produced before it and identifies the following issues for determination: -

ISSUE NO. 1- WHO IS THE REGISTERED OWNER OF THE SUIT PROPERTY?

ISSUE NO. 2-WHO IS IN OCCUPATION AND POSSESSION OF THE SUIT PROPERTY?

ISSUE NO. 3-IS THE DEFENDANT’S CLAIM OF ILLEGALITY, FRAUD AND CORRUPT CONDUCT MERITED?

ISSUE NO. 4 - ARE THE PRAYERS SOUGHT IN THE PLAINT MERITED?

ISSUE NO. 5 – IS THE COUNTER-CLAIM MERITED?

ISSUE NO. 6 – WHO BEARS THE COSTS OF THE PLAINT?

ISSUE NO. 7 – WHO BEARS THE COSTS OF THE COUNTER-CLAIM?

The Court having identified the issues mentioned hereinabove, the same will now be discussed as provided below;

ISSUE NO. 1 - WHO IS THE REGISTERED OWNER OF THE SUIT PROPERTY

The first issue for determination is who owns the suit property.
According to the Plaintiff, the suit property is registered in his name as contained in PW1 Exhibit 9.
To confirm his registration, the Plaintiff produced as Official Search dated 16.08.2019 as PW1 Exhibit 6.
The Defendant on the other hand disputes the Plaintiff’s registration and ownership.
The Defendant admits that the Plaintiff acquired the suit property through a public auction undertaken by the Bank.
The Defendant however disputes the Bank’s right to sale and the procedure applied by the Bank in disposing off the suit property.
In an effort to challenge the Bank’s actions, the Defendant instituted the proceedings known as ELDORET HCCC NO. 24OF 2011 which was then renumbered to ELDORET ELC CASE NO. 798 OF 2012.
In these proceedings known as ELDORET ELC CASE NO. 798 OF 2012, the Defendant is the Plaintiff while the Bank is the Defendant.
As far as the record before the Court is concerned, there are even 2 appeals before the Court of Appeal namely ELDORET COURT OF APPEAL CIVIL APPEAL NO. E016 OF 2024 and E018 OF 2024 that arise from interlocutory Rulings.
However, the Defendant does not have any Court Order which either sets aside the auction undertaken by the bank which transferred the ownership of the suit property to the plaintiff or Prohibiting the Plaintiff herein taking possession and/or dealing with the suit property as the lawful owner of the same.
In other words, though the Defendant is aggrieved by the actions of the Bank as regards the auction that happened, there is no Court Order or legal basis in which the Plaintiff’s registration and/or rights as the registered owner can be curtailed.
Section 24 and 25 of the Land Registration Act, No. 3 of 2012 provides that the person registered in the certificate of title is deemed as the conclusive owner of the said property.
In this instance, the registered owner of the suit property is the Plaintiff and until that time when his registration is cancelled by a valid Court Order, then there can be no other owner.
This Court therefore is of the considered view and finding that the suit property herein belongs to the Plaintiff.

ISSUE NO. 2 – WHO IS IN OCCUPATION AND POSSESSION OF THE SUIT PROPERTY?

The second issue seeks to ascertain who is in occupation of the suit property.
The Plaintiff herein pleaded and testified before the Court that the Defendant is the one who has been in occupation of the suit property since the year 2012 when he purchased it.
The Defendant similarly in his pleadings and testimonies confirmed that he was the one in occupation of the suit property.
Based on the facts as pleaded and testimonies of both the Plaintiff and the Defendant, this Court hereby makes as finding that it is the Defendant who is in occupation of the suit property.

ISSUE NO. 3 – IS THE DEFENDANT’S CLAIM OF ILLEGALITY, FRAUD AND CORRUPT CONDUCT MERITED?

The third issue is one that has been substantially raised by the Defendant.
The Defendant in his pleadings and testimony before Court vehemently challenges the registration of the Plaintiff as the owner of the suit property.
The Defendant began by stating that the auction undertaken by the Bank was done through fraud, marred by irregularities and in fact was illegal and therefore incapable of transferring any ownership rights to the Plaintiff.
The Plaintiff on the other hand is of the view that once the Right of Sale crystallized and the suit property was auctioned, the Defendant’s right of redemption was extinguished and he cannot challenge the Plaintiff’s registration.
The Plaintiff was of the considered that if there were any illegalities or irregularities that were committed by the Bank during the auctioning process, then the available remedy is compensation by way of damages.
The Plaintiff sought to rely on the provisions of section 99 of the Land Act.
Based on the documentary evidence produced before Court and in particular ELDORET ELC CASE NO. 798 OF 2012, it is clear that there is a dispute between the Defendant herein and the Bank which relates to the manner in which the auction was undertaken in the year 2012 that led to the suit property being transferred to the Plaintiff.
The question that arises in the Court’s mind is whether it has jurisdiction to hear and entertain a dispute relating to the propriety of an auction.
The Defendant admits that there was a commercial transaction with the Bank in which the suit property had been offered as security.
The remedy of auction is one which was prescribed in the transactional documents between the Defendant herein and the Bank based on the Law of Contract and all other supporting Statutory provisions.
In other words, where there is a dispute emanating from the transactional documents between the Defendant and the Bank, then the court which should handle such a dispute is the High Court.
The Court did peruse the file known as ELDORET ELC CASE NO. 798 OF 2012 and took Judicial Notice that this file was transferred from the Environment & Land Court on the 23.09.2021 to the High Court for hearing and determination of the issues therein based on the issue of jurisdiction.
Consequently, to entertain the Defendant’s issues contained in the Counter-claim appertaining to the legality of the Bank’s decision to exercise its Statutory Powers of Sale against the Defendant and the process subsequently thereafter would lead to entertaining a claim without jurisdiction and a duplication of proceedings that would lead to conflicting decisions.
As such, this Court is of the considered view and finding that the Environment & Land Court does not have jurisdiction to deal with the dispute emanating from the transactional documents between the Bank and the Defendant that gave rise to the auction or whether the auction process was done in compliance with the Applicable law.

ISSUE NO. 4 - ARE THE PRAYERS SOUGHT IN THE PLAINT MERITED

The fourth issue is what reliefs can be granted in the present suit.
The first prayer sought by the Plaintiff is an Order of Eviction against the Defendant.
As found in Issue No. 2, the Defendant is actually in occupation and possession of the suit property.
The Defendant does not have any Court Order that allows him to be in occupation of the suit property.
Section 24 and 25 of the Land Registration Act provides that the registered owner of a suit property is entitled to all the rights, use and/or privileges as the legitimate owner of the suit property.
In essence therefore, the Plaintiff herein is entitled to full use, occupation and possession of the suit property herein.
In view of the fact that the Defendant is the one in occupation of the suit property without any lawful order and/or justification, then the Plaintiff is entitled to an Order of Eviction to assert his ownership rights as provided for under section 24 and 25 of the Land Registration Act, No. 3 of 2012.
Similarly, the Plaintiff has sought for a Permanent Injunction against the Defendant prohibiting him from entering, using and/or in any other way interfering with the Plaintiff’s quiet occupation and possession of the suit property.
Indeed, this prayer is one geared towards ensuring that the Defendant does not interrupt the Plaintiff’s possession and use of the suit property after the Defendant has been evicted.
Looking at the Defendant’s conduct and in particular his denial to vacate the suit property and insistence that he is the legitimate owner thereof even after the title has been transferred to the Plaintiff, it is important that the Plaintiff is protected once he takes possession of the suit property.
In essence, the Plaintiff is deserving of an order of Permanent Injunction against the Defendant to prohibit any future forceful entry, occupation and use of the suit property in contravention of the Plaintiff’s ownership rights.
The Plaintiff has also sought for mesne profits against the Defendant for the unlawful use of the suit property since the year 2012.
However, mesne profits is a claim that has to be specifically pleaded and proved.
In this case, the Plaintiff did not specifically plead and/or prove his claim of mesne profits against the defendant.
In other words, the Plaintiff’s claim on mesne profits cannot succeed.

ISSUE NO. 5 – IS THE COUNTER-CLAIM MERITED?

Based on the finding in Issue No. 3 above, the Defendant’s Counter-claim is in the wrong forum and cannot be granted.

ISSUE NO. 6 – WHO BEARS THE COSTS OF THE PLAINT?

The Plaintiff having succeeded in prosecuting his case, the Defendant is condemned to pay the costs of the main suit.

ISSUE NO. 7 – WHO BEARS THE COSTS OF THE COUNTER CLAIM?

This Court having found that the Defendant’s Counter-Claim was filed in the wrong forum, the costs of defending the same is awarded to the Plaintiff.

CONCLUSION

In conclusion, this court hereby makes the following orders: -
THAT THE PLAINT DATED 07.06.2024 IS MERITED.
THAT THE COUNTER-CLAIM DATED 09.07.2024 IS STRUCK OUT.
THAT THE PLAINTIFF HEREIN BE AND IS HEREBY DECLARED AS THE LAWFUL REGISTERED OWNER OF THE PROPERTY KNOWN AS L.R. NO. UASIN GISHU/ KIMUMU/629.
THAT THE DEFENDANT BE AND IS HEREBY ORDERED TO VACATE, YIELD VACANT POSSESSION AND HAND OVER OCCUPATION TO OF THE SUIT PROPERTY KNOWN AS LR.NO.UASIN GISHU/KIMUMU/629 TO THE PLAINTIFF WITHIN 45 DAYS FROM THE DATE OF THIS JUDGMENT FAILURE TO WHICH AN ORDER OF EVICTION BE AND IS HEREBY ISSUED AGAINST THE DEFENDANT IN PERSON, THROUGH HIS AGENTS, SERVANTS, EMPLOYEES AND/OR ANY PERSON CLAIMING UNDER OR ACTING ON INSTRUCTIONS OR ON BEHALF OF THE DEFENDANT AND THE DEPUTY REGISTRAR ELC ELDORET IS HEREBY DIRECTED TO ISSUE THE SAME UPON THE LAPSE OF 45 DAYS FROM THE DATE OF THIS JUDGMENT.
A PERMANENT INJUNCTION BE AND IS HEREBY ISSUED PROHIBITING THE DEFENDANT, HIS AGENTS, SERVANTS, EMPLOYEES AND/OR ANY PERSON CLAIMING UNDER HIM OR ACTING ON HIS AUTHORITY FROM ENTERING INTO, OCCUPYING, USING AND/OR FURTHER INTERFERING WITH THE PLAINTIFF’S PEACEFUL AND QUIET POSSESSION AND OCCUPATION OF THE SUIT PROPERTY KNOWN AS L.R. NO. UASIN GISHU/ KIMUMU/629 HENCEFORTH.
THE OCS KAPTICH POLICE STATION BE AND IS HEREBY DIRECTED TO PROVIDE THE RELEVANT SECURITY IN THE EVENT ORDER NO. D SHALL REQUIRE TO BE ENFORCED BY THE PLAINTIFF.
THE DEFENDANT IS CONDEMNED TO PAY COSTS OF BOTH THE PLAINT AND THE COUNTER-CLAIM.

DATED, SIGNED & DELIVERED Virtually at ELDORET ELC on this 20^TH DAY OF NOVEMBER 2025.

IN THE PRESENCE OF:

COURT ASSISTANT: BRIAN

COUNSEL FOR PLAINTIFF: MS. AKETCH

COUNSEL FOR THE DEFENDANT: MR. MENGICH H/B FOR MR.WAMBUA