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PROF OJIENDA SEEKING MORE THAN SH5 MILLION FROM NAIROBI COUNTY GOVERNMENT.

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Kisumu Senator Prof. Tom Ojienda.

BY SAM ALFAN.

Kisumu Senator Tom Ojienda has moved to court seeking orders to compel Nairobi City county government to pay him Sh5.1 million.

Prof Ojienda, who is also an advocate of the High Court, accuses the county government of failing to pay him for legal services undertaken on behalf of the county.

He has named the County Executive committee member for finance, county secretary and county chief finance officer as respondents in the case.

“The Applicant(Prof. Ojienda) is therefore seeking leave of this Court to file an application seeking an order of mandamus to compel the Respondents (County Government) to settle the amounts owed, that is Sh. 5,112,445.24,” says Ojienda. 

He said despite being aware of the sums we’re due and owing for legal services rendered, the county government have to date failed or refused to settle the decretal sums.

Prof Ojienda said the debt has been pending for over five years now and he is left with no other recourse other than to seek refuge from the Court, hoping that it will be reimbursed for legal services rendered to the county government. 

In a different matter, Ojienda confirmed to the court he was paid Sh15 million by the County government on Friday. 

The lawyer told the court that an Advocate-Client Bill of Costs dated 16th January 2019, which Bill arose out of a Court Judgement in the parent file, Petition No. 315 of 2014; Wycliffe Indalu Adieno vs City Council of Nairobi, Attorney  General & Nairobi City County Assembly in which he represented the County Council of Nairobi (now County Government of Nairobi). 

The Deputy Registrar of the High Court then taxed the Bill of Costs dated 16th January 2019 at Sh. 3,585,785.00 in a Rruling delivered on 9th October, 2019.

The Deputy Registrar also issued a Certificate of Taxation dated 10th January 2020 of Sh3,585,785.00 against the County Government of Nairobi.

 
He adds that  at the time of Taxation, the County Government was represented by the firm of Munyasya & Company Advocates who entered appearance and even filed submissions dated 8th July 2020 in opposition to the Ojienda’s Bill of Costs.

On 7th June 2021, Judgment was entered in favour of the Applicant for the payment Kshs. 3,585,785.00 and an Order issued on 7th June 2021 for the same. 

Subsequently, the Applicant extracted a Certificate of Order against Government and on 24th February, 2023.

The Certificate of order directed that the sums payable by theNairobi County to Ojienda were principal amount Sh.  Interest at 14% p.a from 10th February 2020 to 24th February 2023 Sh5,112, 445.24

Ojienda proceeded to serve the county with reminders dated 27th March 2023, 2nd May 2023 and 3rd July 2023 requiring the county to settle the decretal sum of Sh. 5,112,445.24 to no avail and further filed affidavit of Service dated 3rd July 2023 depicting proof of service.

COURT BLOCKS I&M BANK APPOINTED ADMINISTRATOR FROM MANAGING CAPE HOLDING LIMITED.

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Dusit D2 Hotel. /COURTESY PHOTO.

BY SAM ALFAN.

The High Court has suspended the appointment of two receiver managers to administer Cape Holdings Limited, a company that was placed under administration by I &M Bank.

Justice Alfred Mabeya suspended the appointment Ponangipalli Venkata Rao and Swaroop Rao as joint administrators, pending hearing and determination of the suit filed by Senergy Industrial Credit Limited, which lays claim to Cape Holdings.

The court blocked the joint administrators from assuming office, pending the determination of the case.

“A temporary injunction is hereby issued restraining Ponangipalli Venkata Rao and Swaroop Rao from assuming office as joint administrators of Cape Holding Limited and from taking any other steps in furtherance of their appointment,” ordered Judge Mabeya.

Synergy Industrial Credit limited through Senior Counsel Ahmednasir Abdullahi submitted that the placement of the Company under Administration is very prejudicial to the rights and interests of the firm who is presently embroiled in litigation before various courts over the execution of its Decree issued on 25th March 2021.

“This Court has powers under Section 604 of the insolvency Act to remove an administrator from office if satisfied that circumstances exist that make it inappropriate for the administrator to continue in office,” Ahmednasir told the court.

He added that the matter is urgent and should be prioritized for hearing and disposal on the grounds Cape Holdings Ltd was placed under Administration for the second time by I&M Bank Limited on 29th February 2024 under Section 534 of the Insolvency Act.

“A precursor to such appointment is that the appointing creditor must be a holder of a qualifying floating charge. Section 536 of the Insolvency Act also provides that an Administrator cannot be appointed if the floating charge is not enforceable,” submitted Ahmednasir.

The firm contends that I&M Bank’s appointment of Rao and Swaroop as Joint Administrators of the Company on 26th February 2024 is irregular as the Debenture upon which such appointment is premised is unenforceable and does not meet the criterion of a “qualifying floating charge capable of giving rights to the Bank to appoint an Administrator in the manner that it did.

He said Cape Holdings Ltd, was first placed under Administration by I & M Bank on 12th October 2021 in under the guise of a Debenture dated 15th December 2020.

“This is the same Debenture under which the present Administration has been undertaken. The Debenture was for the sum USD 25.000.000) and was secured by, inter alia, a floating charge over all freehold and leasehold properties, all stocks bonds and securities, book and other debts revenues, uncalled capital and goodwill undertakings and all other assets and rights such as stock-in-trade, ” court heard.

The Debenture was categorical in the First Schedule that there is no immovable property, whether freehold or leasehold, that had been charged as security for purposes of this Debenture.

“When the Company was first placed under Administration, the firm as a creditor of the Company, filed an application under Section 560(1)(d) of the Insolvency Act seeking leave to institute execution proceedings against the Company on account of its Decree issued in High Court issued on 25th March 2021,” he added.

Justice Mabeya granted leave on 10th December 2021. In the matter of Cape Holdings Ltd for the firm to proceed with execution aforesaid. Indeed the firm proceeded to execute against the Company for the decretal sum of Sh. 4,497,776,260.35 by attaching the property known as L. R. No. 209/19436 (I.R 120877) otherwise known as the 14 Riverside.

Vide a Prohibitory Order issued on 5th January 2022 by the Deputy Registrar under the Provisions of Order, the execution against the Company in respect of the attached property L. R. No. 209/19436 was completed such that what is pending is the sale thereof which sale could not be conducted as directed by the High Court on account of stay of execution orders issued by the Court of Appeal on 1 April 2022 pending the hearing of the Appeal. The same is pending Judgement on 21 June 2024. 8.
The Bank, despite enjoying an order of stay and awaiting Judgement, as a result of the First Administration has now placed the Company under a Second Administration thereby using Two Administration processes to protect its interests to the detriment of the firm.

JOURNALIST RABURU WINS CASE AGAINST AIRTEL FOR INFRINGEMENT ON HIS ‘BAZU’ TRADEMARK.

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Director Digital Services and Innovation at TV47 Willis Raburu. PHOTO COURTESY.

BY SAM ALFAN.

Former Citizen TV presenter Willis Raburu has won Sh6.5 million against mobile firm Airtel for using his trademark ‘Bazu’ without authority.

Milimani Chief Magistrate Rawlings Musiega awarded Raburu special damages amounting to Sh5 million and another Sh1.5 million for general damages, after finding that the Telco infringed on the journalist’s trademark.

The court also restrained Airtel, its agents and employees from further use of the trademark Bazu.

“A permanent injunction is hereby issued restraining the defendant from publishing any material in the print and broadcast media in respect of the plaintiff’s Registered Trademark No. 116744 in respect to the mark ‘BAZU’ and/or any confusing or deceptive mark that directly or substantially is similar to that of the Plaintiff’s,” the magistrate ruled.

The court, however, suspended the decision for 45 days to allow the company to pursue an appeal.

Raburu filled the case against the Telco on 24th June 2022 at the High Court but was transferred to the magistrate’s court on 9th May 2023.

It was his case that he is the registered owner of the trademark ‘Bazu’ in class 25, 35 and 38 effective 13th April 2021.

“The registration grants the plaintiff the exclusive right to the use of the trade mark in relation to those goods or services classified under ‘advertising and telecommunications services’, in accordance with the International Classification of Goods and Services,” Raburu’s lawyer Victor Orandi submitted. 

The court heard that Raburu is utilizing the trademark in advertising, business management, branding, and telecommunication services through the media, including the internet, which records millions of viewership per day.

However, as from December, 2022 the Airtel engaged in an unauthorized use of the trademark ‘BAZU in connection with marketing and promotion of their internet products and services.

It was his argument that the unauthorized use of his trademark constituted trademark infringement

DP GACHAGUA’S FIRM WINS BATTLE FOR SH1. 5 BILLION CONTESTED LAND NEAR JKIA.

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Deputy President Rigathi Gachagua.

BY SAM ALFAN.

Deputy President Rigathi Gachagua has won a battle for the ownership of a multi million parcel of land near Jomo Kenyatta International Airport (JKIA).

Gachagua won the battle for the land worth Sh1.2 billion against a company linked to a former lands official, John Ohas.

Ohas through his company Columbus Two Thousand claimed ownership of the land saying he had documents to prove that the land belonged to him.

Environment and Land Court Judge Oguttu Mboya ruled that the disputed land belongs to Wamunyoro Investments limited and not Columbus Two Thousand.

“A declaration be and is hereby issued that the Plaintiff is the lawful registered absolute owner of all that parcel of land known as L.R No. 209/12077 [L.R. No. 909231,” declared the judge in hus decision. 

In the 64-page judgement, the court confirmed the land near the busy airport belongs to the said company which is associated with DP Gachagua adding that Wamunyoro Investments is the lawful registered owner of the property in question.

Judge Mboya said the title documents issued to Ohas and his Columbus Two Thousand by the Chief Land Registrar’ and records at the Lands Registry on the Plaintiff’s parcel of land known as LR. No. 209/12077 [L.R No. 90923], were irregular, fraudulent and therefore illegal and that the same should be ancelled accordingly. 

In his decision, the land court judge further declared that the Columbus Twi Thousand’s title known as LR, No. 209/12077 [L.R. No. 909231 was obtained fraudulently irregularly and illegally and that the same is therefore invalid, null and void.  

The court ordered the Chief Land Registrar to rectify the register in the land’s office to cancel all unlawful entries on behalf of Ohas and replace Wamunyoro as the lawful and registered proprietor of the parcel of land.

“The 3rd Defendant (Chief Land Registrar) be and is hereby ordered to cancel, revoke and nullify the title known as LR. No. 209/12077 [1.R No. 2136511 in the name of the 2nd Defendant(Columbus Two Thousand),” court ordered. 

The court issued a permanent injunction restraining the Ohas and his company whether by itself, employees, servants, agents or any other person acting on his behalf from excavating, carrying out any construction works, building any structures, carrying out any subdivisions or transferring the land.

The judge said the retired civil servant and Columbus Two Thousand failed to demonstrate or prove his claim in respect of the suit property. 

SUPREME COURT JUDGES WRONG ON PRELIMINARY OBJECTION – AHMEDNASIR SAYS IN REPLY TO JUDGES PLEA FOR DISMISSAL OF PETITION.

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Outspoken veteran lawyer Ahmednasir Abdullahi SC. /PHOTO BY S.A.N.

BY SAM ALFAN.

Senior Counsel Ahmednasir Abdullahi and his law firm want the High court to dismiss an application by the Supreme Court in a case challenging the decision to deny him audience at the apex court.

The law firm has told the court the objection by the Supreme Court judges is misconceived, frivolous, bad in law and lacks merit.

The law firm said it was in the interest of justice that the preliminary objection be dismissed with costs, to pave way for the hearing and determination of the petition.

It is the argument of the law firm that the petition challenges the violation of its constitutionally guaranteed rights and freedoms as a result of the arbitrary administrative decision.

“High court is not being called to sit on appeal of a decision of the Supreme Court as mistaken by the chief Justice Martha Koome, Deputy CJ Philomena Mwilu, Justice Isaac Lenaola, Justice Smokin Wanjala, Justice William Ouko, Justice Mohammed Ibrahim, Justice Njoki Ndung’u, Supreme Court Registrar Elizabeth Wachira and Attorney General but to exercise its jurisdiction under Article 163(3)(d)(ii) to determine the constitutionality of an action purportedly done  under authority of the Constitution, ” law firm told the court.

Through lawyer Issa Mansour, the firm argues that the decision to deny Ahmednasir audience was not a judicial decision of the court made in the exercise of its original or Appellate jurisdiction under the constitution or Supreme Court Act.

“It neither constituted a Ruling or a judgment of the court and as an administrative decision of a constitutionally established institution, is therefore one subject to judicial review and the jurisdiction of thoe high court to determine whether the decision is in accord with the constitution and the Supreme Court Act, ” the law firm told the court through lawyer Mansour.

Lawyer Mansour told the court that the Supreme Court judges admitted in their PO that they elected to take an administrative decision in a manner that contravenes their constitutional duties and violates the rights of the the firm under the constitution as pleaded in the petition.

In the judges PO, they stated that the letter by the Supreme Court registrar is notba decision but merely conveyed the decision of the judges of the Supreme Court to recuse themselves which decision was formalised by the recusal order made by thr judges on 24rd January this year.

According to the judges, the recourse to any action or decision taken by the Supreme Court is to challenge it before the Supreme Court and thr letter and its contents are administrative matters which are not justiciable and in respect of which the court has no jurisdiction.

Lawyer Mansour further argued that the impugned administrative decision as contained in the letter of 18th January this year and the resultant order issued on 23rd January, 2024, is not a decision capable of appeal having been rendered bybtge apex court.

“Neither can the said decision be subject of review under section 21A of the Supreme Court Act as the same decision is not a of the court in the manner envisaged in law, not having arisen from determination if matters before court in a specific matter,” says the law firm

The veteran lawyer and his law firm argues that the decision in the letter of 18th January was not a result of an official judicial inquiry into a pleaded cause before the court and was therefore not a decision of the Supreme Court which must emerge from pleadings filed before court. 

The firm reiterated that the case before court is not to challenge the Supreme Court judges exercise of Judicial power but a challenge on the administrative decision by the judges and Supreme Court to deny the firm audience before the court. 

“The Supreme Court judges were not acting judicially and were well aware that they acted without jurisdiction,” the firm said in court papers.  

The Supreme judges had filed a preliminary objection, asking the High Court to dismiss the case or strike out their names.

The firm dismissed claims by the Supreme court judges that the petition would not occasion an inevitable subversion of the Constitution and create an absurdity and embarrassment of the judicial system in the country as alleged.

“What has instead created the said absurdity and embarrassment of the judicial system, is the election by the seven judges being judges of apex court of the land and eminent legal minds and being of the opinion that SC Ahmednasir Abdullahi had over the years “relentlessly and unabashedly conducted a campaign in the broadcast, print and social media aimed at scandalizing, ridiculing and outrightly denigrating” the Supreme Court, to arbitrarily deny him and the partners audience before the court without according then due process,” Mansour said.

JOWIE TO SUFFER DEATH FOR KILLING MONICA KINANI.

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Joseph Irungu popularly knows as Jowie who has been sentenced to death being handcuffed by a prison officer before being escorted to prison. /PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

Joseph Irungu alias Jowie has been sentenced to death for the murder businesswoman Monica Nyawira Kimani.

While sentencing Jowie, High Court judge Grace Nzioka described the murder of Monica as gruesome and cold-blooded.

Judge Nzioka noted that there was no provocation from the deceased, it was not accidental but was intended, planned and executed.

“There’s no evidence that leads to a conclusion that this murder was accidental therefore it was intentional, not out of provocation it was planned, intended and executed,” the Judge said.

Referring to a probation report by Andrew Kanyotu, the judge noted that Jowie was an aggressive and impulsive person, a thrill seeker who lacks stable partner relationships and exhibited antisocial personality.

The report also noted that 33-year-old Jowie used anger to control those around him.

The judge said the report was corroborated by Monica’s brother, George, who said Jowie confronted him while he was out on bond.

Further, Jowie would refuse to be searched by guards whenever entering the gates to his residence and would brandish a gun if the search was insisted.

“The court noted from the guards at Royal Park Estate evidence that Jowie would not allow to be searched and drew a gun whenever approached, saying he worked at State House,” said Justice Nzioka.

The court noted that Monica’s death shuttered her and her mother sunk into depression and suffered a stroke.

Further, the family business she was running in Juba, South Sudan collapsed killing the family’s only source of income.

Jowie had initially been charged alongside Former Citizen TV Anchor Jackie Maribe but she was acquitted of the murder charge.

Monica’s lifeless body was found lying in a bathtub at her Lamuria Garden Apartment on the morning on September 20, 2018.

The 28-year-old businesswoman had jetted into the country from Juba, not knowing that it was her final day on earth.

PROSECUTOR OPPOSES RELEASE OF MUSLIM WOMAN ACCUSED OF FORGING MARRIAGE CERTIFICATE.

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Faduma Mohamed Mire who has denied forging marriage certificate. /PHOTO BY S.A.N.

BY SAM ALFAN.

The Director of Public Prosecution Renson Ingonga has opposed the release of a woman charged with forging a marriage certificate on bail.

The DPP opposed the release of Faduma Mohamed Mire on bail arguing that the complaints- Sahro Mahdi Abdi, Marian Abdullahi Musse and Ayan Musse, who are widow and daughters of Abdulkadir Musse Farah, are Canadian citizens.

The investigating officer corporal Lucas Juma told the court that Faduma is a Swedish citizen and has been living in the country since the year 2018. He said the suspect has three other court cases all touching on inheritance of Farah’s properties.

He told the court that investigations established the marriage certificate was obtained fraudulently from Highridge location chief by accused, to enable her file a case in court.

Faduma is accused of forging a marriage certificate purporting it to be marriage certificate issued by Kadhi’s court in Nairobi 10th September 1993. She allegedly committed the offence on diverse dates between 17th November 2016 and 3rd June 2019, jointly with others not before court.

The prosecution told the court on the same dates and years, Faduma made a Muslim marriage certificate purporting it to be a marriage certificate made by government printer and issued by Kadhi’s court.

It is alleged that she committed the offence jointly with others not before court without lawful authority or excuses.

She is further accused that with intent to deceive, knowingly and fraudulently uttered a purported Muslim Marriage certificate on 27th January in the year 2022 at Milimani Commercial Magistrate’s court in civil suit No. Mccc E345/2022.

TRIO CHARGED WITH OBTAINING MILLIONS IN FAKE GOVERNMENT TENDER.

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Erick Otieno Atanga, Alex Stephen Ogolla and Mophat Gicheru Kamau alias Aden before court where they denied stealing Millions of money. /PHOTO BY IRENE ONYANGO.

BY IRENE ONYANGO.

Three men have been charged with stealing millions of shillings money from a trader promising to secure him government tenders.

Erick Otieno Atanga, Alex Stephen Ogolla and Mophat Gicheru Kamau alias Aden were arraigned before Milimani Chief Magistrate Lukas Onyina and denied the charges preferred against them.

It is alleged that they conspired to steal Sh. 60,000,000 from Vijay Virma, on diverse dates between 4th September and 30th December 2023 at unknown place, with others not before court.

According to the charge sheet produced in court, the trio had pretended to be in a position to secure for Virma a tender for supply of laptops and other accessories to the Ministry of Information Communication And Digital Economy.

The accused persons are also charged with forging a quotation document purporting it to be genuine and issued by the Ministry of Information Communication and Digital Economy.
The charge sheet stated that they committed on 1st November 2023 with intent to defraud NVT mobile telecom and actessones trading FZCO company Sh60 million.

They were released on a bond of Sh 3,000,000 plus two surerities

EACC ALLOWED TO SEIZE VEHICLES, MONEY AND ASSETS BELONGING TO LANDS OFFICIALS PENDING CONCLUSION OF PROBE.

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Thika Principal Land Registrar Felix Mecha Nyakundi whose properties have been frozen. /PHOTO BY EACC.

BY SAM ALFAN.

A senior lands official has suffered a major blow after the High Court ordered the preservation more than 100 parcels of land, 17 motor vehicles and Sh4.2 million in cash, pending the conclusion of investigations by the anti-graft agency.

Anti-corruption division judge Esther Maina allowed the Ethics and Anti-Corruption Commission (EACC) to seize the properties belonging to Felix Mecha Nyakundi, pending conclusions of investigations and recovery process. The freeze will remain in place for six months.
Nyakundi, currently the principal lands registrar in Thika also served in Baringo in the same capacity.

“A prohibition order be and is hereby issued prohibiting the respondent, by himself or through his agents or servants from transferring, selling disposing of, wasting, charging or dealing with the properties listed for a period of six months,” ordered justice Maina.

The EACC told the court they are undertaking investigations in respect to allegations of embezzlement of public funds and abuse of office by the official.

The court heard that preliminary investigations have revealed that Nyakundi has accumulated wealth that is not commensurate with his known legitimate sources of income.

In the documents, EACC revealed that pursuant to a search warrant issued by the magistrate court, the commission undertook search on the resident, business and office premises of Nyakundi which search yielded significant number ownership documents for land, motor vehicles and bank accounts.

The investigators also seized Sh 4,260,000 during the search.

“The applicant intends to analyze the documents seized in conduct of search and is reasonably apprehensive that the discovery and ongoing investigations, the said properties at risk of being transferred, sold, charged or otherwise wasted thereby jeopardizing the recovery,” the ECC said.

The anti-graft agency investigator Charity Muniu in her supporting affidavit told the court that there is reasonable suspicion that Nyakundi has been involved in corruption or economic crime which has led him to accumulate the properties.

She added that it is necessary to prohibit any dealings with the assets as the commission completes its investigations, to obviate a situation whereby the investigations and intended recovery or restitution proceedings may be compounded or rendered nugatory all together.

“The investigations by the commission are likely to take some time and in the absence of a preservation order, there is nothing to prevent the respondent from dealing with the properties in the intervening period to the detriment pf the public,” said the investigating officer.

The properties are in Kilifi, Nairobi, Kisii, Malindi and Kajiado among other areas.

HOTEL TO PAY CHINESE FAMILY OVER HALF A BILLION MILLIONS FOR DEATH OF TOURIST WHO FATALLY STABBED AT TGR FACILITY IN 2016.

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Keekorok Lodge in Masai Mara.

BY IRENE ONYANGO.

Keekorok Lodge in Masai Mara to compensate the family of a Chinese Tourist who was stabbed to death in 2016 at the facility Sh553 million.

Justice Francis Gikonyo ruled that Lodge management owed Luo Jinli the duty of care and was therefore, 100 percent liable for her death

The judge said the management should have ensured security personnel intervened when Luo and her husband Dong Yo were attacked by a Chinese tour guide.

Dong Yi and her 45 year wife had visited the country with her family and checked in the hotel for 10 days on 8th August 2016.

The husband stated that the family later that day went to take dinner in a restaurant within the hotel where they had reserved a table in which their names were tagged and most guests were Chinese foreigners. 

Dong stated that to he had gone to buffer a table to serve his food when he heard a verbal altercation in Chinese language between his wife and another Chinese man whom he could not recognize.

“I heard a commotion closer to where my wife was and upon coming closer, I saw a man repeatedly shouting abusive words in Chinese looking at his wife,” narrated Dong Yi.

He further stated that he later came to identify the man as Mr Lee Changpin who was claiming the table they occupied was not reserved for them and he became persistent that it was his table and they must relocate to another.

Changpin then got into a verbal fight with the deceased who persisted that the table was reserved for her and her family and pointed towards their tagged names.

Dong narrated that before his family could get back to their seats, Changpin left and shortly came back with a steak knife from one of the tables in the restaurant.

He came straight towards their table concealing the knife at his back and started to confront his wife again cursing her.

He then attacked Luo stabbing her in the abdomen and when Dong tried to intervene, Changpin became furious and stabbed him as well leaving both of them with serious injuries.

The guests was attracted by the commotion and everybody was staring at them but when the wife screamed they intervened and that was  when they realized the duo had been injured.

Dong stated that everybody in the restaurant was staring towards the commotion and its only after his wife screamed that the hotel staff intervened along with other guests and helped the couple to a nearby dispensary to get first aid from the stab wounds where his wife was pronounced dead.

The deceased husband through his lawyer Conrad Maloba filed a suit before the high court in Narok against the hotel management for what he termed as negligence and failure of the hotel management to protect Luo from the attack.

Maloba argued that Luo was a guest in the facility and her safety was guaranteed by the hotel where they could have prevented the attack.

He added that the hotel security was supposed to get involved and protect the fatal attack since the tourists were under their security whenever they camp in their premises and prayed for general damages incurred from pain, damages under the fatal accident act, for the loss of a dependency, damages for loss of life’s expectation and special damages of Sh 2,065,100.

He also sought interest on damages sought saved for special damages from the date of judgement to the date of payment in full and interest on special damages from the date of cause of action as well as cost of the suit and any other relief as long as it’s deemed fit by the court.