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Tom (trading as Yanku Farmers Inc) v Fresh Produce Development Agency Ltd [2024] PGSC 145; SC2676 (20 December 2024)

SC2676

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 96 OF 2020

BETWEEN:
PHILIP TOM trading as YANKU FARMERS INC.
Appellant

AND:
HENRY PORA trading as HENRY PORA LAWYERS
Second Appellant

AND:
FRESH PRODUCE DEVELOPMENT AGENCY LIMITED
Respondent

WAIGANI: MAKAIL J, KAUMI J AND PURDON-SULLY J
16 & 20 DECEMBER 2024

APPEAL – NEGLIGENCE – COSTS - where first appellant brought proceedings in negligence arising from a failed potato crop – whether the primary Judge erred in dismissing the proceedings for failure to disclose a reasonable cause of action – whether the primary Judge erred in making a costs order against the first and second appellants where the respondent did not press for a costs order at the hearing and where the primary Judge did not invite submissions from the parties before making the order – appeal allowed in part - proceedings remitted on question of costs

Cases cited:

Papua New Guinean cases
Mount Hagen Urban Local Government v Sek No 15 Limited (2009) SC1007
Porgera Joint Venture v Anor v Yako [2008] SC916
Angora & Ors v Tugupa Association Inc & Ors [2009] SC978
Kitogara Holdings & Others v NCDIC [1988-89] PNGLR 346
PNG Forest Products v the State [1992] PNGLR 84
Kani v Barrick (Niugini) Limited [2024] SC2557
Toap v The State [2004] 1 PNGLR 25
Wanire v Biloi (2018) SC1721
Cragnolini v Constantinou [2023] PGSC 71; SC2421
Government of Papua New Guinea v Barker [1977] PNGLR 386
Muirgen No 18 Ltd v Deugro (PNG) Ltd (2019) SC1838
Anita Baikisa & Andrew Kuri Baikisa v J & Z Trading Limited [2016] N6181
Papua New Guinea Banking Corporation (PNGBC) v Jeff Tole (2002) SC694

Overseas cases
Donoghue v Stevenson 1932 AC 562

Legislation cited
National Court Rules, Order 12 Rule 40
Supreme Court Rules, Order 7 Rule 9(a)
Supreme Court Act, ss 14(3)(c), 17
Constitution, s 37(1)

Counsel
Mr. H Pora for the first appellant
Mr. J Sunungu for the second appellant
Mr. R Obora as city agent for Mr. Konigi for the respondent

1. BY THE COURT: The first appellant, Mr Philip Tom, trading as Yanku Farmers Inc, is a potato farmer from Malke Village, Tambul District of the Western Highlands. Tambul is situated in the high altitude area of the Highlands where the main cash crops grown are English potato, broccoli, carrots and cabbage.
   
2. The respondent is a company incorporated and registered in Papua New Guinea whose object as established by its Constitution is to promote the horticulture industry in PNG.
   
3. On 8 April 2013 Mr Tom deposited K4,500 with the respondent’s Mt Hagen office purchasing 29 bags of potato seeds through a seed supplier agent Mr Thomas Marea.
   
4. The first appellant planted the seeds however the crop failed by reason of seed decomposition or disease.
   
5. The first appellant held the respondent liable and looked to it for its loss. The respondent denied liability.
   
6. Aggrieved, the first appellant instituted proceedings in the National Court at Mt Hagen by way of WS 1149 of 2014 for damages for negligence against the respondent. The particulars of the negligence claimed were that the first appellant had used working capital under a loan facility in the sum of K9,242 paying K4,500 to the respondent for 29 bags of ‘certified seeds sources of potato supplied to the first appellant by the respondent’s employee or servants Thomas Marea and Gabi Ipanga without proper inspection, recommendation and certification.
   
7. By Order of 6 January 2016 entered on 18 January 2016 the first appellant was granted leave to withdraw/discontinue the proceedings WS 1149 of 2014 against the respondent with each party to bear their own costs.
   
8. On 8 April 2019 the first appellant commenced fresh proceedings in the National Court at Mt Hagen, by way of Writ of Summons No 351 of 2019 claiming damages in negligence against the respondent and the Independent State of Papua New Guinea for his failed crop.
   
9. The particulars of the negligence claimed were that the respondent’s chief inspector, Gabi Ipanga was wrong in recommending to the first appellant to buy the seeds from Thomas Marea and failed to conduct an inspection at the first appellant’s farm when requested to do so on several occasions.
   
10. The first appellant claimed general damages for the lost harvest in the

sum of K925,240 together with special damages, interest and costs.

11. The supplier of the seeds, Mr Marea, was not made a party to the proceedings.
    
12. On 23 October 2019 the respondent filed a Notice of Motion seeking orders pursuant to Order 12 rule 40 of the National Court Rules, to dismiss the proceedings on the basis that the first appellant had failed to disclose a reasonable cause of action.
    
13. Order 12 rule 40 states:
    

Frivolity, etc.

(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) no reasonable cause of action is disclosed; or
(b) the proceedings are frivolous or vexatious; or
(c) the proceedings are an abuse of the process of the Court, the Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.

(2) The Court may receive evidence on the hearing of an application for an order under Sub-rule (1)

14. On 14 August 2020 the primary Judge upheld the Notice of Motion and dismissed the proceedings ordering costs on a solicitor client basis against the first and second appellant, lawyers for the first appellant.

THE DECISION OF THE PRIMARY JUDGE IN WS 351 OF 2019

15. After outlining the principles relevant to Order 12 Rule 40 as enunciated in Mount Hagen Urban Local Government v Sek No 15 Limited (2009) SC1007, the learned primary Judge said at [3] of his reasons dated 14 August 2024:
    

In his statement of claim the plaintiff alleges the following facts:

3.1 he obtained a bank loan of K9,242 (“Loan”);
3.2 (sic) 8 April 2013, he paid K4,500.00 of the Loan to the first defendant for certified potato seeds, which one Gabi Ipanga (also known as Ngambi Gabby Aipanga), employed by the first defendant as an inspector had recommended to him and arranged for one Thomas Matea (“Supplier”) who supplied the plaintiff with 29 bags of potato seeds (“Seeds”);
3.3 the Supplier was an agent of the first defendant when he supplied the Seeds;
3.4 the first defendant paid the Supplier for the Seeds;
3.5 as its practice, the first defendant recommends to farmers seeds from certified seed growers;
3.6 relying on Mr Aipanga’s recommendation, the plaintiff expended K4,742.00 representing the balance of the Loan, for fertilisers, pesticides, insecticides and labour;
3.7 Mr Aipanga was negligent in recommending to the plaintiff the Seed when they were bad, and in failing to attend, at his request, and inspect his potato farm;
3.8 He has suffered loss because, after the Seeds were planted, most of it decomposed and some which sprouted had died when they were affected by bacteria and disease.
3.9 purchased the seed potatoes from a seed supplier, Mr Marea, planted them and the crop failed;

1. He incurred PGK9,240 which he secured through a bank loan and expended in purchasing seed, fertilisers, pesticides and insecticides, paying for the labour he engaged to plant the seeds;
2. The person he initially contacted to supply the seeds was an employee of the respondent, Mr Gabi Ipanga, the respondent’s authorised seed inspector, who recommended that the first appellant take the bags of seed from Mr Marea; and

100. the respondent was negligent in recommending the seeds without inspecting them and failing to conduct an inspection at the first appellant’s farm when requested to do so on several occasions.
     

16. The primary Judge then said this at [6], [7], [9] – [12] of his reasons:

6. With respect to the plaintiff’s cause of action in negligence it is alleged that:

6.1 Mr Aipanga recommended to the plaintiff to take the Seeds;

6.2 the first defendant paid the Supplier for the Seeds; and

6.3 Mr Aipanga failed to inspect the plaintiff’s farm despite the plaintiff’s request.

7. Of the recommendation, no fact, matter or circumstance has been pleaded which might show how:

7.1 the Seeds were identified or inspected by the first defendant before they were delivered to or collected by the plaintiff;

7.2 the first defendant –

(a) knew or might have known that the Seeds were bad;

(b) recommended the Seeds to the plaintiff; or

(c) owed a duty of care as to the quality of the Seeds.

...

9. The statement of claim does not plead and the evidence does not disclose:

9.1 any agreement between the plaintiff and the first defendant for the supply of the Seeds;

9.2 the first defendant was the owner of the Seeds or that the plaintiff paid the first defendant and the latter paid to the Supplier the price for the Seeds;

9.3 that Ms Winga and Mr Aipanga acted in the course of and discharge of employment their duties;

9.4 any basis by which the first defendant might have warranted to or assured the plaintiff of the quality of the Seeds;

9.5 any duty owed by the first defendant to inspect the plaintiff’s potato farm or how any failure to inspect the farm affected the quality of the Seeds or might have created a duty with respect to the provision of the Seeds.

10. From these, I conclude that no reasonable cause of action between the plaintiff and the first defendant is disclosed from the statement of claim or the evidence and that the plaintiff’s claim also for those reasons is frivolous and vexatious.

11. I could allow the plaintiff the opportunity to plead facts in light of the observations earlier made. I had also considered the joinder of the Supplier and then to allow the plaintiff to decide if he wishes to pursue a claim against him but have decided against these because despite being served on 14 May 2020 with the affidavits on which the first defendant relied, and despite an earlier invitation by the first defendant to the lawyers for the plaintiff to discontinue this proceeding the plaintiff has not sought to address its statement of claim.

12. As to the second defendant, no cause of action is pleaded against it other than that the first defendant is fully funded by it and this appears to be the reason for it being made a party.

17. The primary Judge then dismissed the proceedings and ordered the first appellant to pay the costs of the proceedings to be taxed if not agreed, such costs to be on a solicitor client basis against the first appellant and his lawyers, the second appellant in light of the notices and warning issued by the respondent’s lawyers in terms of its letters to the first appellant’s lawyers dated 13 February 2020 and 23 March 2020 (the order).
    

GROUNDS OF APPEAL

18. On 9 September 2020 the first and second appellants filed a Notice of Appeal against the order in the following terms:
    
    1. The learned trial judge erred both in fact and law in deciding that there was no reasonable cause of action disclosed by the First Appellant's Statement of Claim filed together with the Writ of Summons on 08^th April, 2019. In fact the Statement of Claim disclosed a cause of action based in negligence wherein the Respondent through its employees breached a duty of care owed to the First Appellant.
    2. The learned trial judge erred in law and in fact when he hastily allowed the Appellant to be driven from the judgment seat in a summary manner when the claim before him warranted a proper trial. The pleadings, although may not have been properly drafted, disclosed matters of fact which disclosed the liability of the Respondent occasioned out of its employees' negligence.
    100. The trial judge erred in law and in fact when his approach was if he was determining a matter after completion of trial. Those allegations raised by the Respondent were contrary to the First Appellant's Statement of Claim hence the need for proper trial of the matter. There was not even an agreement or direction for trial to be conducted by way of affidavit evidence nor was there any direction for all affidavits to be relied on at the trial to be filed before the application by the Respondent was to be determined.
    4. Alternatively, the learned trial judge erred in law and in fact when he ordered that costs of the Respondent were to be paid by the First Appellant and his lawyers on a solicitor-client basis when the First Appellant's claim was not remote or that which was too vexatious or frivolous. There was no clear line between the arguments for and against by parties.

Alternatively, the learned trial erred in law and in fact when he ordered costs also against the lawyers of the First Appellant including against the Second Appellant on a solicitor-client basis, when there was no evidence of any bad faith or negligence on the part of the Second Appellant pertaining to the Respondent's lawyer's forewarning notice for the discontinuance of the claim. Rather, the Second Appellant was under no obligation to discontinue the First Appellant's claim contrary to his client's instruction to continue pursuit of the claim. Thus, the Second Appellant acted only on the First Appellant's instructions, hence there was no reason for costs to be ordered against the Second Appellant or lawyers for the First Appellant. Even the Second Appellant was not a party in WS No. 351 of 2019. Therefore, an order for costs against the lawyers for the First Appellant in the circumstance was not only wrong but affects in general the credibility and responsibility of the legal profession in so far as solicitor-client relationship is concerned.

ORDERS SOUGHT

19. In lieu of the order appealed from, the appellants seek the following orders:
    
    1. That the judgement and Order of the National Court by His Honour, Justice Kenneth Frank in the National Court of Justice at Mount Hagen made on 14^th August, 2020 in matter WS. No. 351 of 2019 between Philip Tom and Fresh Produce Development Agency Limited and the Independent State of Papua New Guinea, be quashed.
    2. That this appeal be upheld.
    100. The matter be reverted back to the National Court for directions and trial.
    4. Alternatively, the order for costs made on a solicitor-client basis be quashed.
    5. Alternatively, the order for costs on a solicitor-client basis made against lawyers for the Plaintiff including against the Second Appellant be quashed.
    6. Costs to be paid by the Respondent.
    7. Such other orders that the Court deems fit.
       

PRELIMINARY ISSUE

20. Before we turn to consider the grounds of appeal the respondent raises a preliminary issue that relates to the standing of the second appellant to bring the proceedings.
    
21. It is submitted on behalf of the respondent that the second appellant was not a party to the National Court proceedings and thus should have obtained the prior approval of the Supreme Court pursuant to Order 7 rule 9(a) of the Supreme Court Rules (SCR) and s.14(3)(c) of the Supreme Court Act (SCA) such that this Court lacks jurisdiction to deal with the appeal which should be struck out with costs being an abuse of process.
    
22. Order 7 rule 9(a) of the SCR provides that a notice of appeal shall state that an appeal lie without leave or that leave has been granted and or annex the appropriate order to the notice of appeal.
    
23. Section 14(3)(c) of the SCA states that no appeal lies to the Supreme Court without leave of the Supreme Court from an order of the National Court as to costs only that by law are left to the discretion of the National Court.
    
24. It is further submitted that the State, a second defendant in the proceedings before the primary Judge, has not been included as a party to this appeal, there being no evidence of the approval of this court to the respondent removing or abandoning the State as a second respondent to the appeal. As such the appeal, it is contended, is formally defective and should be struck out with costs.
    
25. We reject both submissions.
    
26. With respect to the first argument while the second appellants were not parties to the proceedings in which the order appealed was made, the appeal is brought pursuant to section 17 of the SCA which relevantly provides:
    

Where a person desires to appeal to or to obtain leave to appeal from the Supreme Court, he shall give notice of appeal.....within 40 days after the date of the judgment in question....

27. Nothing in the SCA defines who may appeal and the SCA does not limit the right of appeal to a person who were parties below. It is now settled law that section 17 of the SCA operates so as to provide a right of appeal to any ‘person’ whose interests are affected by or who is aggrieved by the order of the court and who might have been joined as a party to the proceedings (Porgera Joint Venture v Anor v Yako [2008] SC916). Angora & Ors v Tugupa Association Inc & Ors [2009] SC978 citing with approval at [9] the majority decision in Kitogara Holdings & Others v NCDIC [1988-89] PNGLR 346).
    
28. We accept the submission on behalf of the first appellant that the rights of the second appellant were directly affected by the decision of the primary Judge and as such it has a right to appeal that part of the decision on costs that affects its interests.
    
29. We are otherwise not persuaded by the second argument advanced on behalf of the respondent. It was always a matter for the first appellant to determine if they included the State in their appeal, the basis for the respondent’s insistence that they do so unclear in circumstances where there is no evidence that the State had filed a Notice to Defend the lower court proceedings and the learned primary Judge found at [12] of his reasons for judgment that no cause of action had been pleaded against the State other than the respondent being fully funded by it.
    

THE ISSUES

30. The essential issues that arise on the grounds of appeal are:
    
    1. Did the learned primary Judge err in deciding that there was no reasonable cause of action disclosed in the first appellant’s Statement of Claim and evidence and summarily dismiss the proceedings (Grounds (a), (b) and (c) of the Notice of Appeal); and
       
    2. Did the learned primary Judge err in ordering costs against the Appellants on a solicitor client basis (alternative Grounds (d) and (e) of the Notice of Appeal).
       

CONSIDERATION

Did the primary judge err in the exercise of discretion to summarily dismiss the proceedings?

31. In considering this question some general principles relevant to the circumstances of the matter are necessary.
    
32. The purpose of Order 12 rule 40 is to give the court power to terminate actions that are plainly frivolous or vexatious or untenable.
    
33. If the court is satisfied that the conditions of Order 12 rule 40 are or have been established, it may strike out that offending action. Quite apart from the powers given to the court by Order 12 rule 40 the court also has an inherent jurisdiction to protect itself from abuse of its process (PNG Forest Products v the State [1992] PNGLR 84-85; Mount Hagen Urban Local Government v Sek No 15 Limited (2009) SC1007).
    
34. A frivolous claim is one that is characterised as a claim that is plainly and obviously untenable that it cannot possibly succeed or would be bound to fail if it went to trial (Toap v The State [2004] 1 PNGLR 25; Mount Hagen Urban Local Government v Sek No 15 Limited (2009) SC1007).
    
35. A vexatious claim is one that cannot succeed where it merely seeks to harass the opposing party and put the party to unnecessary trouble and expense in defending or proving the claim (Mount Hagen Urban Local Government v Sek No 15 Limited (2009) SC1007).
    
36. The phrase a “reasonable cause of action” consists of two parts: cause of action and form of action. A cause of action is defined as a legal right or form of action known to law whereby a plaintiff in a statement of claim must plead all necessary facts and legal elements or ingredients to establish or prove his claim (Mount Hagen Urban Local Government v Sek No 15 Limited (supra); Kani v Barrick (Niugini) Limited [2024] SC2557 (Kani)).
    
37. The discretion available to the National Court in Order 12 rule 40(1) of the National Court Rules to summarily dismiss proceedings must be exercised with caution after examining all the circumstances of a case, as an erroneous exercise of discretion can result in denial to a plaintiff of the full protection of the law guaranteed to all persons in Papua New Guinea under s 37(1) of the Constitution (Toap v The State [2004] 1 PNGLR 25; Wanire v Biloi (2018) SC1721, PNG Forest Products Pty Ltd v The State [1992] PNGLR 85; Cragnolini v Constantinou [2023] PGSC 71; SC2421).
    
38. The appellant bears the onus of satisfying the court that the primary Judge exercised the discretion on a wrong principle, considered extraneous or irrelevant matters, mistook the facts or failed to take account of a relevant matter, before it would be proper for this court to exercise its own discretion or decide otherwise (Government of Papua New Guinea v Barker [1977] PNGLR 386, Muirgen No 18 Ltd v Deugro (PNG) Ltd (2019) SC1838); Cragnolini v Constantinou (supra)).
    
39. Applying these principles to the grounds of appeal we are unable to conclude that the discretion of the primary Judge miscarried in dismissing the proceedings.
    
40. The learned Judge correctly identified the relevant principles to which he was required to have regard (at [2] of his reasons). He outlined the cause of action in negligence and the facts as alleged (at [6]). He identified what the first appellant had pleaded in his Statement of Claim (at [3]). He then identified the deficiencies in the pleadings at [7] of his reasons, concluding at [10] that there was no reasonable cause of action.
    
41. The first appellant’s claim was one grounded in negligence. The elements to establish a cause of action in negligence are that the respondent owed the first appellant a duty of care, that it then breached that duty causing damage to the respondent and the type of damage was not too remote (Donoghue v Stevenson 1932 AC 562; Anita Baikisa & Andrew Kuri Baikisa v J & Z Trading Limited [2016] N6181; Kani).
    
42. In his Statement of Claim the first respondent was required to concisely lay out a proper foundation for his cause of action in negligence against the respondent sufficient to enable the respondent to understand and meet his claim (Papua New Guinea Banking Corporation (PNGBC) v Jeff Tole (2002) SC694).
    
43. In our view the first appellant’s Statement of Claim was deficient in that it failed to adequately establish the elements of the tort of negligence such as to sufficiently disclose that the first appellant had a reasonable cause of action.
    
44. The primary Judge detailed at [9] of his reasons the deficiencies in the Statement of Claim.
    
45. The Statement of Claim did not plead with clarity the connection between the first appellant and respondent based on duty, breach and loss. The first appellant did not plead that the duties and responsibilities of the respondent included a duty to provide technical support and information through the provision of advisory and/or extension services to farmers, namely, advice to him on suppliers of certified potato, to inspect the supplied seed before it was planted in the ground to ensure it was fit for purpose and to inspect his farm when invited to do so, together with the bases of such duties. These facts were a necessary foundation for his claim which was one based on a reliance placed by him on the purported expert advice given by an employee of the respondent, to his detriment.
    
46. It is the submission of learned Counsel for the first appellant that the relevant elements of the cause of action can be found at [3] to [6] of the Statement of Claim and in particular [6]. We are unable to agree. We reproduce those paragraphs in full:

3. On 8 April 2013 the Plaintiff deposited K4,500.00 with the First Defendant’s Mount Hagen Office for ‘certified seed sources’ of potato and the Defendant’s inspector, Gabi Ipanga recommended and arranged with the First Defendant’s seeds supplier agent Thomas Marea who supplied the Plaintiff 29 bags of potato seeds.

4. The First Defendant’s Mount Hagen office paid Thomas Marea for the 29 potato seed bags.

5. Certified potato seeds suppliers are specially trained to produce and sell healthy potato seeds to potato farmers. Thus, it was the practice that the First Defendant and its employees recommended farmers to purchase potato seeds only from certified seed growers, so purchases from uncertified seed growers are done at farmers’ own risk.

6. A farmer in such arrangement was not expected to know the quality and reliability of potato seeds since they lacked specific training as to a seed’s quality. The signs of a bad seed would only be revealed after being planted and germinated. Only experts such as the inspector and certified potato seeds grower would ascertain the quality of a seed.

47. It is not sufficient to “circle” the facts or leave it to the respondent and/or the court to make connections or attempt to bridge from a surfeit of alleged facts a necessary fact or legal element not otherwise pleaded. While pleadings should be concise, the material facts should be sufficiently clear and detailed.
    
48. In short, while the first appellant acknowledges in his ground of review at 3(b) of the Notice of Appeal that the pleadings “may not have been properly drafted”, unlike the facts in Kani (supra), relied upon by the first appellant, where the court was able to ascertain the elements of the tort of negligence notwithstanding extraneous matters which should not have been pleaded, we are unable to conclude that the first appellant has pleaded sufficient alleged facts in its Statement of Claim to constitute the elements of his cause of action against the respondent.
    
49. As such the primary Judge was correct in our view in concluding as he did at [10] of his reasons that no cause of action between the first appellant and the respondent was disclosed on the Statement of Claim.
    
50. The primary Judge then determined not to permit the first appellant an opportunity to amend his Statement of Claim or join the supplier for the reasons given at [11] of his judgment.
    
51. We accordingly find no error in His Honour’s reasoning in dismissing the proceedings for failing to disclose a reasonable cause of action in negligence. Grounds 3 (a), (b) and (c) of the Notice of Appeal are not upheld.
    

Did the learned primary Judge err in ordering costs against the Appellants on a solicitor client basis (Grounds (d) and (e)).

52. We uphold this ground of the appeal.
    
53. While the discretion to make a costs order is wide and lies with a Judge hearing a matter based on the evidence and as dictated by the justice of the matter, at the hearing of the respondent’s motion to dismiss, Counsel for the respondent informed the primary Judge that the respondent did not intend to proceed with the orders in his motion at 2, 4, 5, 6 and 7 (see AB p 128 lines 7 to 13). It was a position then acknowledged by the primary Judge.
    
54. Order 7 of the Motion was in these terms:
    

The Plaintiff and/or his lawyers pay (s) the First Defendant’s costs of this Motion on a solicitor client basis.

55. We are of the view that if, following the delivery of his reasons for upholding the motion to dismiss the proceedings, the learned primary Judge was of the view that a costs order was appropriate in the circumstances and notwithstanding the respondent’s earlier intimation that it did not intend to press for costs, then the parties should have been alerted to that circumstance and then afforded the right to be heard on the question. Not to afford parties the right to be heard will constitute a denial of natural justice.
    
56. For this reason, the appeal on costs should be upheld and the matter remitted to the National Court for hearing on that issue.
    
57. On the issue of costs neither party having been wholly successful each we make no orders as to costs.
    

CONCLUSION AND ORDERS

58. In the result we uphold the appeal in part on the issue of costs.
    
59. Neither party having been wholly successful on the appeal, each party should bear their own costs.
    
60. We make the following orders:
    
    1. The appeal be allowed in part.
    2. Order 2 of the orders of the National Court of 14 August 2020, entered on 18 August 2020 in WS No 351 of 2019 be set aside.
    3. The proceedings be remitted to the National Court for the hearing and determination of the issue of costs with respect to the dismissal of the proceedings in WS No 351 of 2019 by a Judge other than the primary Judge.
    4. That the appeal be otherwise dismissed.
    5. There be no order as to costs.
    6. Time to abridge.
       

________________________________________________________________
Lawyers for the first appellant: Henry Pora Lawyers
Lawyers for the second appellant: Eagle Lawyers
Lawyers for the respondent: Obora Lawyers as city agent for Koningi Lawyers