1. This Court is reminded that there can be no liability without a fault. In the same manner, the fault must point to a tortfeasor for the liability to attach. In this Appeal, the Court is called upon to determine whether the question of liability was properly addressed by the Trial Court.
Background Facts
2. This Court is moved by way of a Memorandum of Appeal dated 21st July, 2022. The appeal challenges the judgment of the Senior Principal Magistrate, Hon. J.M. Kituku, delivered on 23rd June, 2022, in Kilifi Civil Case No. 3 of 2020. The dispute pits David Ochieng, the Appellant (and Plaintiff before the Trial Court) against Aswa Developers & Contractors Ltd, the Respondent (and Defendant before the Trial Court).
3. The brief background is that the Appellant instituted a suit seeking general and special damages. The cause of action arose from a road traffic accident on 22nd July, 2019, along the Old Ferry Road at Mnarani Village in Kilifi. The Appellant, a cyclist, averred that he was pushed off the road into a deep ditch by an overtaking motor vehicle.
4. The Trial Court assessed general damages at Kshs. 750,000 and special damages at Kshs. 431,538.65. The Trial Court, however, dismissed the suit in its entirety. The dismissal was predicated on the finding that the Appellant failed to prove liability. The Appellant failed to connect the accident to any specific motor vehicle owned by the Respondent.
5. The accident is said to have occurred at 9:00pm. The Respondent led evidence that its fleet operations routinely closed at 6:00pm. Furthermore, the Appellant pleaded five distinct registration numbers in a single claim: KCH 459H, KCH 458H, KCH 456H, KCH 460H, and KCH 457H.
6. The Memorandum of Appeal sets out four grounds of appeal as follows:
1. THAT the Learned Trial Magistrate erred in Law and Fact in finding and holding the Respondent not 100% liable for the accident the subject of the suit.
2. THAT the Learned Trial Magistrate erred in Law and Fact by failing to consider the evidence of the Appellant and his witnesses as to how the accident the subject of the suit happened.
3. THAT the Learned Trial Magistrate erred in failing:
a) To appreciate the evidence that the motor vehicle of the Respondent do (sic) not display Motor Vehicle registration number plates while plying the road where the accident happened.
b) To consider or properly consider all the evidence before him, and or,
c) To make any or any proper finding on the aspect of liability of the Respondent and the quantum of damages payable on the evidence before him.
4. THAT the Learned Trial Magistrate erred in failing to adequately consider the written submissions filed by the Counsel for the Appellant.
7. The Appellant seeks the following reliefs in this Appeal:
a) THAT the appeal herein be allowed and Judgment of the Trial Court delivered on 23rd June 2022 be and is hereby set aside and/or overturned.
b) THAT the Appellant's Suit before the Trial Court (being MCCC NO. 3 OF 2020 DAVID OCHIENG -VS- ASWA DEVELOPERS & CONTRACTORS LTD) be allowed as prayed in the Plaint dated 7th January, 2020 with Costs to the Appellant.
c) THAT the Costs of this Appeal be awarded to the Appellant.
8. The Court acknowledges the submissions filed by the parties. The Appellant filed submissions dated 7th October, 2024. The Respondent filed submissions dated 28th October, 2024.
9. A summary of the key points arising from the Appellant's submissions reveals a reliance on eyewitness testimony. The Appellant submits that PW3, an eyewitness, corroborated the Appellant's account that a yellow truck belonging to the Respondent caused the accident. The Appellant further contends that PW4, Corporal Patrick Safari Mwango, confirmed through police investigations that the offending truck belonged to the Respondent. On quantum, the Appellant argues the Trial Court's assessment was inordinately low for a 30% visual impairment.
10. A summary of the Respondent's submissions highlights a fundamental failure in the burden of proof. The Respondent contends that the Appellant relied on hearsay and failed to identify the specific tortfeasor. The Respondent emphasizes that suing five different motor vehicles demonstrates fatal uncertainty. The Respondent asserts that its only operational truck on 22nd July, 2019, had ceased work at 6:00 pm.
Issues for Determination
11. The Court has considered the Memorandum of Appeal, the Record of Appeal, and the rival submissions filed by Counsel for the parties. The Court frames two core issues for determination.
a) Whether the Appellant discharged the burden of proof on the issue of liability.
b) Whether the quantum of damages assessed by the Trial Court is appropriate.
Analysis
12. This being a first appeal, the duty of the Appellate Court is well-settled. The Court must reconsider the evidence, evaluate it, and draw its own independent conclusions. The Court must make due allowance for the fact that it neither saw nor heard the witnesses testify.
13. This principle is articulated in the binding case of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123. The Court of Appeal stated:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally".
14. In Peters vs Sunday Post Ltd [1958] EA 424, the predecessor to the Court of Appeal held that an Appellate Court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand.
(i) Whether the Appellant discharged the burden of proof on the issue of liability.
15. The current law on how liability attaches places the burden squarely on the Plaintiff. The burden of proof is statutorily enshrined in the Evidence Act (Cap 80). Section 107(1) dictates that whoever desires any Court to give judgment as to any legal right or liability must prove that those facts exist.
16. Section 108 of the Evidence Act provides that the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side. The Appellant, therefore, carried the primary evidential burden to connect the accident directly to the Respondent.
17. Proof of ownership and subsequent vicarious liability in running-down claims is anchored in Section 8 of the Traffic Act (Cap 403). The section creates a rebuttable presumption. It provides that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.
18. The application of Section 8 of the Traffic Act necessitates the precise identification of the motor vehicle in question. Liability in tort requires a direct, established nexus between the specific offending instrument and the injury suffered. A Plaintiff cannot indiscriminately sue a fleet of vehicles in the hope that liability will attach to one of them.
19. The Court has reviewed the evidence on this aspect. The Appellant testified as PW1. PW1 averred that he was pushed by a truck driven at high speed. However, PW1 admitted during cross-examination that he did not see the number plate of the vehicle.
20. The eyewitness, PW3, testified that a yellow vehicle bypassed the Appellant. PW3 conceded in cross-examination that he was on the opposite side of the road. PW3 admitted he was not sure if the vehicle actually hit the appellant. Crucially, PW3 failed to capture any registration details.
21. The police evidence adduced by PW4, Corporal Patrick Safari Mwango, further weakens the Appellant's case. PW4 produced the police abstract. The abstract listed five suspected trucks. PW4 testified that the investigating officer was unable to identify the specific vehicle involved. The matter remained pending under investigation. No one was formally blamed or charged.
22. A police abstract is ordinarily prima facie evidence of involvement. However, an abstract that fails to isolate the offending vehicle cannot securely fasten liability. The abstract in this matter merely documented suspicions rather than established facts.
23. The Respondent presented DW1, its Transport Manager. DW1 testified that only one truck operated on 22nd July, 2019. DW1 confirmed that operations commenced at 7.00 am and concluded at 6:00 pm. The accident occurred at 9:00 pm. The Appellant failed to adduce any evidence to rebut this alibi.
24. Did the Plaintiff/Appellant discharge the burden of proof? The answer is firmly in the negative. The evidence adduced fell significantly short of the required standard on a balance of probabilities. The Trial Court correctly deduced that the Appellant failed to prove liability.
25. The Court finds the jurisprudence in Moi v Muriithi & another [2014] KECA 642 (KLR) binding upon this Court. The Court of Appeal held:
"It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side".
26. The duty to prove his case primarily lay upon the Appellant. It was only upon discharging this duty that it could be said to lie on the part of the Respondent to rebut. In this case the Court upon the review of the evidence is not persuaded that the burden was shifted even an inch. The identity of the tortfeasor was not established on a balance of probabilities.
(ii) Whether the quantum of damages assessed by the Trial Court is appropriate.
27. The Court now turns to the issue of quantum. The Appellant's main challenge is on liability, but quantum must be reviewed. The Trial Court awarded Kshs. 750,000 in general damages and Kshs. 431,538.65 in special damages.
28. The medical evidence demonstrates severe injuries. The Appellant sustained a deep cut on the left eye, a fractured eyeball, a fractured cheekbone, and facial bruises. Dr. Matende of Aga Khan Hospital noted a 30% visual impairment in the left eye.
29. The principles guiding an Appellate Court's interference with damages are strict. The Court cites the locus classicus of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). The Court of Appeal held:
"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal for Eastern Africa to be that – it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage".
30. The Court further relies on Mwangi & another v Wambugu [1984] KECA 13 (KLR). It establishes that an Appellate Court should not interfere with an award of general damages simply because it would have awarded a different figure, provided the Trial Court did not act on wrong principles.
31. The Appellant cites David Wafula Wepukhulu v Kundan Singh Construction Limited [2019] KEELRC 1103 (KLR) where general damages of Kshs. 1,200,000/= were awarded. The Respondent relies on Jagat Singh & Sons Ltd Vs Njenga Moche [2002] KEHC 847 (KLR) where general damages were assessed at Kshs. 250,000/=.
32. The Trial Court's assessment of Kshs. 750,000 for a 30% loss of vision and facial fractures is undeniably conservative. The authority of David Wafula Wepukhulu v Kundan Singh Construction Limited [2019] KEELRC 1103 (KLR) is highly relevant. In that matter, the Court awarded Kshs. 1,200,000 for a 30% partial blindness.
33. Taking into account inflation and the devaluation of the Kenyan shilling since the accident, an award in the region of Kshs. 1,000,000 to Kshs. 1,200,000 would have been more commensurate with the injuries suffered. This Court would have enhanced the award to Kshs.1,200,000/=.
34. The special damages of Kshs. 431,538.65 were specifically pleaded and strictly proved. The Trial Court's assessment in this regard was legally sound and mathematically accurate.
35. However, the discourse on quantum remains entirely academic. A Court cannot award damages in a vacuum. Liability must first be established before damages can crystallize. Since the Appellant failed to prove liability, the suit was rightfully dismissed.
36. The inability to identify the number plate, coupled with the Respondent's unchallenged operational timelines, created an insurmountable evidentiary gap. A Plaintiff must prove their case; they cannot rely on the weakness of the defence.
37. The Court finds no reason to interfere with the well-reasoned judgment of the Trial Court on the issue of liability. The Learned Trial Magistrate properly evaluated the evidence and correctly applied the law on the burden of proof.
38. The appeal is hereby dismissed in its entirety.
39. Costs ordinarily follow the event. The same lie at the discretion of this Court. The Court is persuaded to award costs to the successful Respondent.
Determination
40. The Court is not persuaded that the Appeal is merited and proceeds to make the following orders:
a) The Appeal is HEREBY dismissed in its entirety for lack of merit.
b) The costs of the Appeal are HEREBY awarded to the Respondent.
41. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Mwendo holding brief for Kinaro for the Appellant.
Miss Ngaira for the Respondent.
Mr. Mohamed - Court Assistant.
Background Facts
2. This Court is moved by way of a Memorandum of Appeal dated 21st July, 2022. The appeal challenges the judgment of the Senior Principal Magistrate, Hon. J.M. Kituku, delivered on 23rd June, 2022, in Kilifi Civil Case No. 3 of 2020. The dispute pits David Ochieng, the Appellant (and Plaintiff before the Trial Court) against Aswa Developers & Contractors Ltd, the Respondent (and Defendant before the Trial Court).
3. The brief background is that the Appellant instituted a suit seeking general and special damages. The cause of action arose from a road traffic accident on 22nd July, 2019, along the Old Ferry Road at Mnarani Village in Kilifi. The Appellant, a cyclist, averred that he was pushed off the road into a deep ditch by an overtaking motor vehicle.
4. The Trial Court assessed general damages at Kshs. 750,000 and special damages at Kshs. 431,538.65. The Trial Court, however, dismissed the suit in its entirety. The dismissal was predicated on the finding that the Appellant failed to prove liability. The Appellant failed to connect the accident to any specific motor vehicle owned by the Respondent.
5. The accident is said to have occurred at 9:00pm. The Respondent led evidence that its fleet operations routinely closed at 6:00pm. Furthermore, the Appellant pleaded five distinct registration numbers in a single claim: KCH 459H, KCH 458H, KCH 456H, KCH 460H, and KCH 457H.
6. The Memorandum of Appeal sets out four grounds of appeal as follows:
1. THAT the Learned Trial Magistrate erred in Law and Fact in finding and holding the Respondent not 100% liable for the accident the subject of the suit.
2. THAT the Learned Trial Magistrate erred in Law and Fact by failing to consider the evidence of the Appellant and his witnesses as to how the accident the subject of the suit happened.
3. THAT the Learned Trial Magistrate erred in failing:
a) To appreciate the evidence that the motor vehicle of the Respondent do (sic) not display Motor Vehicle registration number plates while plying the road where the accident happened.
b) To consider or properly consider all the evidence before him, and or,
c) To make any or any proper finding on the aspect of liability of the Respondent and the quantum of damages payable on the evidence before him.
4. THAT the Learned Trial Magistrate erred in failing to adequately consider the written submissions filed by the Counsel for the Appellant.
7. The Appellant seeks the following reliefs in this Appeal:
a) THAT the appeal herein be allowed and Judgment of the Trial Court delivered on 23rd June 2022 be and is hereby set aside and/or overturned.
b) THAT the Appellant's Suit before the Trial Court (being MCCC NO. 3 OF 2020 DAVID OCHIENG -VS- ASWA DEVELOPERS & CONTRACTORS LTD) be allowed as prayed in the Plaint dated 7th January, 2020 with Costs to the Appellant.
c) THAT the Costs of this Appeal be awarded to the Appellant.
8. The Court acknowledges the submissions filed by the parties. The Appellant filed submissions dated 7th October, 2024. The Respondent filed submissions dated 28th October, 2024.
9. A summary of the key points arising from the Appellant's submissions reveals a reliance on eyewitness testimony. The Appellant submits that PW3, an eyewitness, corroborated the Appellant's account that a yellow truck belonging to the Respondent caused the accident. The Appellant further contends that PW4, Corporal Patrick Safari Mwango, confirmed through police investigations that the offending truck belonged to the Respondent. On quantum, the Appellant argues the Trial Court's assessment was inordinately low for a 30% visual impairment.
10. A summary of the Respondent's submissions highlights a fundamental failure in the burden of proof. The Respondent contends that the Appellant relied on hearsay and failed to identify the specific tortfeasor. The Respondent emphasizes that suing five different motor vehicles demonstrates fatal uncertainty. The Respondent asserts that its only operational truck on 22nd July, 2019, had ceased work at 6:00 pm.
Issues for Determination
11. The Court has considered the Memorandum of Appeal, the Record of Appeal, and the rival submissions filed by Counsel for the parties. The Court frames two core issues for determination.
a) Whether the Appellant discharged the burden of proof on the issue of liability.
b) Whether the quantum of damages assessed by the Trial Court is appropriate.
Analysis
12. This being a first appeal, the duty of the Appellate Court is well-settled. The Court must reconsider the evidence, evaluate it, and draw its own independent conclusions. The Court must make due allowance for the fact that it neither saw nor heard the witnesses testify.
13. This principle is articulated in the binding case of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123. The Court of Appeal stated:
"An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally".
14. In Peters vs Sunday Post Ltd [1958] EA 424, the predecessor to the Court of Appeal held that an Appellate Court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand.
(i) Whether the Appellant discharged the burden of proof on the issue of liability.
15. The current law on how liability attaches places the burden squarely on the Plaintiff. The burden of proof is statutorily enshrined in the Evidence Act (Cap 80). Section 107(1) dictates that whoever desires any Court to give judgment as to any legal right or liability must prove that those facts exist.
16. Section 108 of the Evidence Act provides that the burden of proof in a suit lies on that person who would fail if no evidence at all were given on either side. The Appellant, therefore, carried the primary evidential burden to connect the accident directly to the Respondent.
17. Proof of ownership and subsequent vicarious liability in running-down claims is anchored in Section 8 of the Traffic Act (Cap 403). The section creates a rebuttable presumption. It provides that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.
18. The application of Section 8 of the Traffic Act necessitates the precise identification of the motor vehicle in question. Liability in tort requires a direct, established nexus between the specific offending instrument and the injury suffered. A Plaintiff cannot indiscriminately sue a fleet of vehicles in the hope that liability will attach to one of them.
19. The Court has reviewed the evidence on this aspect. The Appellant testified as PW1. PW1 averred that he was pushed by a truck driven at high speed. However, PW1 admitted during cross-examination that he did not see the number plate of the vehicle.
20. The eyewitness, PW3, testified that a yellow vehicle bypassed the Appellant. PW3 conceded in cross-examination that he was on the opposite side of the road. PW3 admitted he was not sure if the vehicle actually hit the appellant. Crucially, PW3 failed to capture any registration details.
21. The police evidence adduced by PW4, Corporal Patrick Safari Mwango, further weakens the Appellant's case. PW4 produced the police abstract. The abstract listed five suspected trucks. PW4 testified that the investigating officer was unable to identify the specific vehicle involved. The matter remained pending under investigation. No one was formally blamed or charged.
22. A police abstract is ordinarily prima facie evidence of involvement. However, an abstract that fails to isolate the offending vehicle cannot securely fasten liability. The abstract in this matter merely documented suspicions rather than established facts.
23. The Respondent presented DW1, its Transport Manager. DW1 testified that only one truck operated on 22nd July, 2019. DW1 confirmed that operations commenced at 7.00 am and concluded at 6:00 pm. The accident occurred at 9:00 pm. The Appellant failed to adduce any evidence to rebut this alibi.
24. Did the Plaintiff/Appellant discharge the burden of proof? The answer is firmly in the negative. The evidence adduced fell significantly short of the required standard on a balance of probabilities. The Trial Court correctly deduced that the Appellant failed to prove liability.
25. The Court finds the jurisprudence in Moi v Muriithi & another [2014] KECA 642 (KLR) binding upon this Court. The Court of Appeal held:
"It is a firmly settled procedure that even where a defendant has not denied the claim by filing a defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of rebuttal by the other side".
26. The duty to prove his case primarily lay upon the Appellant. It was only upon discharging this duty that it could be said to lie on the part of the Respondent to rebut. In this case the Court upon the review of the evidence is not persuaded that the burden was shifted even an inch. The identity of the tortfeasor was not established on a balance of probabilities.
(ii) Whether the quantum of damages assessed by the Trial Court is appropriate.
27. The Court now turns to the issue of quantum. The Appellant's main challenge is on liability, but quantum must be reviewed. The Trial Court awarded Kshs. 750,000 in general damages and Kshs. 431,538.65 in special damages.
28. The medical evidence demonstrates severe injuries. The Appellant sustained a deep cut on the left eye, a fractured eyeball, a fractured cheekbone, and facial bruises. Dr. Matende of Aga Khan Hospital noted a 30% visual impairment in the left eye.
29. The principles guiding an Appellate Court's interference with damages are strict. The Court cites the locus classicus of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). The Court of Appeal held:
"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal for Eastern Africa to be that – it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage".
30. The Court further relies on Mwangi & another v Wambugu [1984] KECA 13 (KLR). It establishes that an Appellate Court should not interfere with an award of general damages simply because it would have awarded a different figure, provided the Trial Court did not act on wrong principles.
31. The Appellant cites David Wafula Wepukhulu v Kundan Singh Construction Limited [2019] KEELRC 1103 (KLR) where general damages of Kshs. 1,200,000/= were awarded. The Respondent relies on Jagat Singh & Sons Ltd Vs Njenga Moche [2002] KEHC 847 (KLR) where general damages were assessed at Kshs. 250,000/=.
32. The Trial Court's assessment of Kshs. 750,000 for a 30% loss of vision and facial fractures is undeniably conservative. The authority of David Wafula Wepukhulu v Kundan Singh Construction Limited [2019] KEELRC 1103 (KLR) is highly relevant. In that matter, the Court awarded Kshs. 1,200,000 for a 30% partial blindness.
33. Taking into account inflation and the devaluation of the Kenyan shilling since the accident, an award in the region of Kshs. 1,000,000 to Kshs. 1,200,000 would have been more commensurate with the injuries suffered. This Court would have enhanced the award to Kshs.1,200,000/=.
34. The special damages of Kshs. 431,538.65 were specifically pleaded and strictly proved. The Trial Court's assessment in this regard was legally sound and mathematically accurate.
35. However, the discourse on quantum remains entirely academic. A Court cannot award damages in a vacuum. Liability must first be established before damages can crystallize. Since the Appellant failed to prove liability, the suit was rightfully dismissed.
36. The inability to identify the number plate, coupled with the Respondent's unchallenged operational timelines, created an insurmountable evidentiary gap. A Plaintiff must prove their case; they cannot rely on the weakness of the defence.
37. The Court finds no reason to interfere with the well-reasoned judgment of the Trial Court on the issue of liability. The Learned Trial Magistrate properly evaluated the evidence and correctly applied the law on the burden of proof.
38. The appeal is hereby dismissed in its entirety.
39. Costs ordinarily follow the event. The same lie at the discretion of this Court. The Court is persuaded to award costs to the successful Respondent.
Determination
40. The Court is not persuaded that the Appeal is merited and proceeds to make the following orders:
a) The Appeal is HEREBY dismissed in its entirety for lack of merit.
b) The costs of the Appeal are HEREBY awarded to the Respondent.
41. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Mwendo holding brief for Kinaro for the Appellant.
Miss Ngaira for the Respondent.
Mr. Mohamed - Court Assistant.