Boma Hotel t/a Red Court Hotel Limited v Brandables E.A. Limited

Boma Hotel t/a Red Court Hotel Ltd v Brandables E.A. Ltd (Civil Appeal E650 of 2025) [2026] KEHC 13389 (KLR) (Civ) (9 September 2026) (Judgment) Neutral citation: [2026] KEHC 13389 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E650 of 2025 AC Mrima, J September 9, 2026 Between Boma Hotel t/a Red Court Hotel Limited Appellant and Brandables E.A. Limited Respondent (Being an appeal against the Ruling and Order of Hon. J. Asiago (Adjudicator/RM) in Small Claims Court Commercial Court Case No. E326 of 2024, delivered on 17 th February 2025) Judgment Background: 1.The Respondent, Brandables E.A Limited, instituted a claim against Boma Hotel t/a Red Court Hotel Limited, the Appellant herein, in Nairobi [Milimani] Small Claims Court Commercial Case No. E326 of 2024 (hereinafter referred to as ‘the suit’) seeking the sum of Kshs. 391,233.89. The trial Court entered a default judgment on 16th April 2024 against the Appellant. 2.On 21st January 2025, the Appellant filed an application seeking to set aside the default judgment and for leave to defend the suit. The application was premised on grounds of improper service and the existence of triable issues. 3.The trial Court delivered its ruling on 17th February 2025. It dismissed the Appellant's application on the finding that the judgment entered was regular, that the Appellant had not demonstrated any triable issues and that it was deliberately evading justice. 4.It was that rendition that precipitated the instant appeal which appeal was heard by way of written submissions, hence, this judgment. The Appeal: 5.The Appellant, through a Memorandum of Appeal dated 18th February 2025, fronted the following grounds of appeal: - 1.That the Learned adjudicator erred in fact and in law by finding that the service that was effected was regular and that service was properly effected. 2.That the Learned adjudicator erred in fact and in law by failing to consider that the service effected was not proper as it was not done in accordance with Order 5 rule 3 which provides for service on corporations to be upon a secretary, principal officer or director. 3.That the Learned adjudicator erred fact and in law by failing to consider the fact that the Claimant had offended the provisions of section 12 and 13 of the small claims Act which precludes the division of claims and excludes the jurisdiction of the court on matters that have been filed in two different courts save for the exceptions which the present claim did not fall under. 4.That the Learned Magistrate erred in fact and in law by failing to consider that the Respondent through its advocate did in fact admit to having divided the claims by filing them separately. 5.That the Learned adjudicator erred in fact and in law by failing to consider the fact that the fact that the Appellant was disputing the indebtedness claimed and or amounts owed on account of having settled the amounts owed vide making payment in MCCOMM/E035/2024 was in and of itself an issue that the Honourable court ought to have effectually determined at the main suit stage. 6.That the Learned adjudicator erred in fact and in law by finding that to allow the present application would be akin to aiding the Appellant to delay, evade and or obstruct the cause of justice and deny the Respondent the fruits of its judgment. 7.That the Learned Adjudicator erred in finding that the Respondent was well aware of the suit and deliberately sought not to defend itself. 8.That the Learned Adjudicator erred in failing to consider that the Appellant who contests service equally has a right to be heard in court. 9.That the Learned Adjudicator erred in failing to consider an injustice would be occasioned on the appellant by striking out the application especially since it is clear that the Appellant was disputing the amounts owed and further that it was clear that the Appellant and the Respondent clearly had a dispute on how much was owed and that in itself was a triable issue. The Submissions: 6.In its written submissions dated 19th September 2025, the Appellant asserted that the trial Adjudicator erred in law by finding that service was regular. It was its position that service was improperly effected through an email addressed to generic or administrative officers, which contravened the strict requirements of Order 5 Rule 3 of the Civil Procedure Rules regarding service upon a corporation. 7.The Appellant contended that electronic service required prior consent or a Court order. Drawing from various decision, among them, Agigreen Consulting Corp Limited -vs- National Irrigation Board [2020] KEHC 3507 , Mwende Maluki Mwinzi -vs- Cabinet Secretary, Ministry of Foreign Affairs & 2 others [2019] KEHC 2293 , Musa Mohamed Kaleve & 2 others -vs- East African Portland and Cement Limited [2020] KEELRC 1606 , and Syokimau Bright Homes Ltd v East African Portland Cement [2021] KEELC 660 , the Appellant argued that non-compliance with statutory modes of service vitiated the proceedings and an irregular judgment must be set aside ex debito justitiae. 8.The Appellant further submitted that the trial Court lacked jurisdiction because the Respondent had divided its claims from a single commercial transaction by filing two separate suits, SCCCOMM/E326/2024 and MCCOMM/E035/2024, in clear violation of Sections 13 and 14 of the Small Claims Court Act. In reference to the longstanding decision in Owners of the Motor Vessel "Lillian S" -vs- Caltex Oil (Kenya) Ltd [1989] KLR the Appellant asserted that claims artificially divided to fit jurisdictional thresholds amount to an abuse of process and render the proceedings void ab initio. 9.Finally, the Appellant submitted that the existence of a dispute over the alleged indebtedness, following a settlement in the concurrent matter, constituted a triable issue. It relied on the precedent in DT Dobie & Company (Kenya) Ltd -vs- Muchina [1982] KLR 1, and the one in Shah -vs- Mbogo & Another [1967] EA 116 and Silas Langat -vs- The Standard Group Ltd & Another [2018] eKLR to advance the argument that Courts should not summarily shut out litigants where a bona fide triable issue exists, and that the summary dismissal occasioned a miscarriage of justice. 10.On the basis of the foregoing, the Appellant prayed that the appeal be allowed, the exparte judgment be set-aside and it be granted leave to defend the suit. The Respondent’s Case: 11.Brandables E.A Limited challenged the appeal through written submissions dated 29th September 2025. It claimed that the Appellant was properly served with pleadings and mention notices by email on 18th January 2024, but elected not to file a response or enter an appearance, resulting in the default judgment on 16th April 2024. It argued that it filed two separate suits because the Appellant had two distinct unpaid invoices, one for Boma Nairobi and another for Boma in Eldoret, and the claims pertained to different accounts and amounts. 12.The Respondent maintained that the Small Claims Court properly possessed the pecuniary jurisdiction to determine the specific invoice claimed in that forum separately. 13.It was the Respondent's contention that the Appellant was indolent. It observed that it was aware of both decrees but chose to settle only the Chief Magistrate's Court decree while failing to settle the trial Court's decree. The Respondent submitted that the application to set aside was filed after an inordinate delay, and that allowing the appeal would merely assist the Appellant in evading justice and denying the Respondent the fruits of its judgment. 14.The Respondent prayed that the appeal be dismissed with costs. Analysis and Determination: 15.Flowing from the respective parties’ positions, the written submissions and the decisions referred thereto, the following two main issues that distil for determination: -a.Whether the trial Court erred in holding that service of summons was regular.b.If the answer to [a] above is in the negative, whether the Appellant raised any triable issues. 16.Under Section 38(1) of the Small Claims Court Act, an appeal to the High Court from the Small Claims Court is strictly restricted to matters of law. Whereas there has been no universally accepted definition of the term ‘matters of law’, there has been some working definitions thereto. The term ‘point of law’ may also be referred to as ‘matter of law’. The Black’s Law Dictionary defines ‘a matter of fact’ and ‘a matter of law’ as follows: -Matter of fact: A matter involving a judicial inquiry into the truth of alleged facts and Matter of law: A matter involving a judicial inquiry into the applicable law. 17.Lord Denning, J in Bracegirdle vs. Oxley (2) [1947] 1 ALL E.R. 126 at p 130 in espousing the two terms had the following to say: -…. The question whether a determination by a tribunal is a determination in point of fact or in point of law frequently occurs. On such a question there is one distinction that must always be kept in mind, namely, the distinction between primary facts and conclusions from those facts. Primary facts are facts which are observed by the witnesses and proved by testimony; conclusions from those facts are inferences deducted by a process of reasoning from them. The determination of primary facts is always a question of fact. It is essentially a matter for the tribunal who sees the witnesses to assess their credibility and to decide the primary facts which depend on them. The conclusions from those facts are sometimes conclusions of fact and sometimes conclusions of law. In a case under the Road Traffic Act, 1930, s. 11, the question whether a speed is dangerous is a question of degree and a conclusion on a question of degree is a conclusion of fact. The court will only interfere if the conclusion cannot reasonably be drawn from the primary facts, and that is the case here. The conclusion drawn by these justices from the primary facts, was not one that could reasonably be drawn from them. 18.Drawing from the above, the Court of Appeal in Bashir Haji Abdullahi v Adan Mohammed Nooru & 3 others [2014] eKLR sated as under: -…. That reasoning has been adopted in this jurisdiction. In A.G. Vs. David Murakaru [1960] EA 484, for instance, Chief Justice Ronald Sinclair sitting with Rudd J. adverted to the factual foundations of legal questions by stating that an appellate court restricted to determining questions of law may yet quite properly interfere with the conclusion of a lower court if the same is erroneous in point of law. This is the case where that lower court arrives at a conclusion on the primary facts that it could not reasonably come to. Such a conclusion or decision becomes an error in point of law. See also Patel Vs. Uganda [1966] EA 311 and Shah Vs. Aguto [1970] EA 263. 19.Earlier, the Court of Appeal in M’riungu and Others -vs- R [1982-88] 1 KAR 360 observed thus: -…. We would agree with the views expressed in the English case of Martin v Glyneed Distributors Ltd (t/a MBS Fastenings) [1983] 1 CR 511 that where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of law or mixed findings of fact and law, and, it should not interfere with the decision of the trial of first appellate court unless it is apparent that; on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad law. 20.Later, the Court of Appeal in Charles Kipkoech Leting -vs- Express (K) Ltd & another [2018] eKLR discussed what entails matters of laws as the Court considered its role as a second appellate Court. It observed thus;…. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina -vs- Mugiria [1983] KLR 78, Kenya Breweries Ltd v Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & another v Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters, they should not have considered or failed to consider matters they should have considered or, looking at the entire decision, it is perverse….. 21.And, in Peter Gichuki King'ara vs. IEBC & 2 others, Nyeri Civil Appeal No. 31 of 2013, Court of Appeal held that a decision challenged on the basis of wrongful exercise of discretion raises a point of law. [See also Twaher Abdulkarim Mohamed v Independent Electoral and Boundaries Commission (IEBC) & 2 others, (2014) eKLR]. 22.From the foregoing explication, whereas the issue of service appears on the face of it, to be one of fact, it mutates into a point of law on the question as to the manner in which the Court exercised its discretion in arriving at the conclusion to disallow the application. In other words, this Court is called upon to ascertain whether the trial Court arrived at a decision which no Court would reasonably come to on such set of primary facts. The Court, therefore, is possessed of the requisite jurisdiction to deal with this appeal. As such, a consideration of the issues follows. (a) Whether the Trial Court Erred in Holding that Service of Summons was Regular: 23.At the heart of the application that was dismissed by the trial Court, being a Notice of Motion dated 21st January 2025, was the contention that the Appellant was never duly served with the statement of claim and the summons to enter appearance and as such it was not aware of the dispute. In paragraph 5 and 6 of the supporting Affidavit sworn by Ben Wainaina, it was the Appellant’s case that had they been served with pleadings, they would have instructed an Advocate to come on record. 24.On its part, through a Replying Affidavit of Mureithi Ndirangu sworn on 14th February 2025, the Respondent categorically stated in paragraph 6 that the Appellant was served with a copy of the pleadings and a copy of the Notice of first mention by e-mail on 18th January 2024. 25.The issue at hand calls upon this Court to render itself on the aspect of service of process in the Small Claims Court. In discharging that duty, the High Court should remain alive to the rationale behind the establishment of the Small Claims Court as a special and unique Court which is different from the mainstream civil Courts. The Small Claims Court has its own self-regulating legal regime and unless expressly provided for, any other legal regime has no room in proceedings before the Small Claims Court. Of essence, it must always be remembered that the focal point of the Small Claims Courts is expeditious disposal of cases and that is why the Court is not bound by the strict rules of evidence [Section 32 of the Small Claims Court Act] and further the Court has power to control its own procedure in determining any claim before it subject to regard to the principles of natural justice [Section 17 of the Act]. The High Court, therefore, is under a mandatory obligation to assist the Small Claims Court realize the said objective and it ought to consider appeals from the said Court through those special lenses. 26.The foregoing was buttressed by an expanded bench of the High Court in Gathaiya v Attorney General & 178 others (Petition E008 & E010 of 2024 (Consolidated)) [2026] KEHC 290 (KLR) (22 January 2026) (Judgment) when the three-Judges rendered themselves as follows: -94.The jurisdiction of the [Small Claims] court therefore primarily was meant to handle civil claims or actions for the payment of money which was capped at below one million. The jurisdiction of personal injury claims, which by dint of insurance contracts on policy secured between the insurer and the insured, makes them complex which require the entire regulatory framework and applicable statute like cap 405 of the Laws of Kenya not to be rendered moribund.95.The letter and the spirit of Small Claims Court is the real peoples’ court meant to provide an informal, uncomplicated proceedings to resolve small disputes that do not involve large sums of money to warrant the expense and legal threshold of formal litigation before the Magistrates Courts. We see that court as a vehicle for social change and the case for equitable relief. Therefore, being a peoples’ court where personal, small valued disputes are quickly and informally resolved without the need for legal representation mitigates the cancer of backlog in a litigious society like Kenya where every dispute is a threat to another ‘see you in court’. 27.The Learned Judges went to state as under: -100.It is trite that when the language used in a statute is plain and unambiguous, it is not permissible for the court to go outside the four corners of the provision to seek the meaning thereof…. 28.Returning to the matter at hand, whereas the Appellant contended that the service of the Claim and the Notice by way of email allegedly undertaken upon itself did not comply with Order 5 of the Civil Procedure Rules, this Court finds and hold that since the Small Claims Court Act and the Rules made thereunder do not make reference to the Civil Procedure Act and the Rules thereof on the applicability of their provisions on service, then the Appellant’s reference and reliance to Order 5 of the Civil Procedure Rules in this appeal lacks any legal leg to stand on and is hereby dismissed. Going forward, this Court will address the issue of service within the parameters provided for in the Small Claims Court Act [hereinafter referred to as ‘the Act’] and the Small Claims Courts Rules [hereinafter referred to as ‘the Rules’]. 29.Service of process under the Act and the Rules is variously provided for. In the Act, Section 25[1] obligates ‘… the Registrar or other officer designated for that purpose to cause to be served on the respondent a copy of the statement of claim.’ However, Rule 7[1] provides that ‘the claimant shall serve a copy of the Statement of Claim on each of the respondents named in the Statement in the manner prescribed under rule 35. Be that as it may, given the centrality of Rule 35 in this matter, this Court will reproduce the said Rule as under: -35.Mode of service(1)Service of any document under these Rules shall be made by delivering a copy thereof personally to the party upon whom it is to be served and, where there are more than one party to be served, on each of them.(2)Wherever it is practicable, service shall be made on each party in person unless they have an agent authorised to accept service, in which case service on the agent personally shall be sufficient.(3)The person served under this rule is required to endorse an acknowledgment of service on the original document:Provided that, if the Court is satisfied that the party or such agent or other person has refused so to endorse, the Court may declare the document to have been duly served, and a Certificate of Service shall be sufficient proof of service.(4)Where it is not practicable to effect personal service of a document on a party in accordance with this rule, service may be effected by mail addressed to the party's last known postal address, and a certificate of posting in that regard shall be attached to the Certificate of Service.(5)Where the respondent is a corporation, the claimant may—(a)send by registered mail a copy of the document to the registered office of the corporation, and obtain a certificate of posting; or(b)deliver a copy of the document—(i)at the registered office of the corporation;(ii)at the principal place of business of the corporation; or(iii)to a director, chief officer, manager, Receiver or Liquidator, or Receiver Manager, of the corporation.(6)The person served pursuant to subrule (6) (b) is required to sign and affix a stamp or seal of the corporation on the original document in acknowledgment of service.(7)This rule applies with necessary modifications, subject to section 13 of the Government Proceedings Act, to service of documents on the Government for the purpose of, or in connection with, civil proceedings against the Government. 30.Rule 8 further provides for service of Court process out of jurisdiction of the Small Claims Court as follows: -8.Service out of the Court's jurisdiction:1.A claimant may serve the Statement of Claim on a respondent outside the local limits of the Court's jurisdiction, with the Court's approval, if the respondent carries on business or ordinarily resides outside the local limits of the jurisdiction of the Court.2.Where the claimant is, for reasons shown to the satisfaction of the Court, unable to serve a Statement of Claim personally on the respondent, the claimant may apply to the Court either orally or in writing to—a.direct the alternative manner in which the claimant may serve; andb.fix the time within which the respondent shall file the response to the claim. 3.Where the Court directs that the claimant may effect service of the Statement of Claim otherwise than personally on the respondent, the claimant shall serve a copy of the court order together with the Statement of Claim unless—a.the Court otherwise directs; orb.the Court directs that the notice of the claim be advertised, at the claimant's expense, in at least one newspaper with national circulation. 4.A person who effects service of any document under this rule is required to file a Certificate of Service in Form SCC 5 set out in the Schedule hereto. 31.Rule 36 is on proof of service. It provides as follows: -36.Proof of serviceService of a document may be proved by filing in court any or all of the following—(a)in the case of personal service, a copy of the document duly endorsed in acknowledgment of service;(b)in the case of service by mail, a copy of the document that was mailed, accompanied by a certificate of posting; or(c)in the case of service on an agent of the party to be served, a copy of the document duly endorsed in acknowledgment of service. 32.There is no doubt that there is a conflict between Section 25[1] of the Act and Rule 7 on who should effect service of the statement of claim. While the Act calls upon the Registrar or other officer designated for that purpose to cause to be served on the Respondent a copy of the statement of claim, Rule 7[1] commands the Claimant to undertake service. Despite the obvious conflict, its resolution is not out of the world for the reason that in such a case, the provision of the Act [Section 25(1)] supersedes Rule 7. Therefore, the reigning legal provision is that it is the Registrar or any other officer designated for that purpose to cause to be served on the Respondent a copy of the statement of claim. It is this Court’s belief that the conflict will be soon resolved in the oncoming proposed amendments to the Act and the Rules. However, and even before that takes place, still this Court will not frown upon a Claimant who effects service of Court process on a Respondent instead of the Registrar or any other Court official for two reasons. The first reason is the purpose behind service of the statement of claim. It is beyond any peradventure that the service effected upon a Respondent is to inform of the legal proceedings or case filed against that Respondent. That is in line with Articles 47, 48, 50 and 159 of the Constituion. Article 159[2][d] of the Constituion calls on administration of justice without regard to procedural technicalities. In this case, as long as the Respondent is properly served with the Court process, the necessity of service to be effected by the Registrar and not the Claimant or the party’s Advocate should not be allowed to impede expedition in determination of cases. The converse will amount to derogation of the calling in Article 159[2][b] of the Constitution. 33.The second reason is the practicality of service of all processes in the small claims Court by the Court officials. Going by the heavy number of matters filed before the said Courts on a daily basis against the number of judicial staff in Court stations, such a requirement will far too much outweigh the ability of the officials to effect service expeditiously. In fact, such a requirement may lead to non-service for longer periods if not months. No doubt that will be an injustice to the parties. 34.It is on the basis of the reasons discussed above that this Court finds and hold that proper service of Court process in the Small Claims Court by Claimants or their Advocates instead of the Court officials, without more, does not cause any miscarriage of justice to any party and that such a ground cannot be allowed to impede on the expeditious determination of cases. 35.By juxtaposing the foregoing with the record, this Court has come across copies of emails from the Claimant’s Advocates in the suit [now the Respondent in this appeal] to the Respondent in the suit [now Appellant] dated 15th and 18th January 2024 transmitting copies of documents including the Statement of claim and a Mention Notice to the Appellant’s alleged email address. They are marked as annextures MN-1. It is, therefore, this Court’s duty to ascertain whether there was proper service as contemplated under the Act and the Rules. 36.The provisions of the Act and Rules on service have already been reiterated above. A keen perusal of the said provisions leads to a running trail of the legislative intention on how service is to be undertaken before the Small Clims Courts. In a very careful manner, more so since the proceedings have strict timelines, the Act and the Rules identifies three modes of service. The primary one is personal service on the Respondent. There is also personal service on a Respondent’s agent and service by way of registered mail. The law further empowers the Court to allow any other mode of service and to give directions on how such mode will be undertaken and proof of service filed in Court. 37.Therefore, unlike the Civil Procedure Act and its Rules which provides for service by way of electronic mails, the Act and the Rules makes no provision for service by way of electronic mail [email]. As such, a Claimant who opts to effect service by way of email, and an Adjudicator who accepts such mode of service as a basis of entry of an ex-parte judgment or making any other order, runs the risk of setting aside all such proceedings or orders ex debito justiciae [as of right] once that service is challenged save in instances where the Court directed service by way of email or in cases where the Respondent entered appearance and/or filed a response to the claim or participated in the proceedings in one way or the other. 38.In this case, whereas service was effected by way of email and without an order of the Court to that end, the Appellant filed a Memorandum of Appearance. It, therefore, acquiesced its right to challenge the service by way of email and it cannot seek to set aside the judgment as of right. To that end, this Court finds and hold that the service of the statement of claim on the Appellant was regular. The finding leads to the next issue. (b) Whether there are any Triable Issues: 39.There is a longstanding legal adage to the effect that parties are bound by their pleadings and that pleadings are the bedrock of the triable issues in a case. In this matter, the Appellant did not annex a draft defence to its application which was dismissed and is the basis of the instant appeal. The failure to annex a draft defence in an application to set aside judgment was, rightly so, discussed in International Air Transport Association & another v Tusmo Travel Tours & Cargo Limited & 2 others (Civil Case E419 of 2020) [2021] KEHC 391 (KLR) (Commercial and Tax) (9 December 2021) (Ruling) as follows: -11.The above cited cases espouse the principle that the court has discretion to set aside the default judgment. In the case of, Patel vs EA Cargo Handling Services Ltd (1974) EA 75, the Court held that: -There are no limits or restrictions on the judge’s discretion except that if he does vary the judgment, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose condition on itself or fetter wide discretion given to it by the rules, the principle obviously is that unless and until the count has pronounced judgment upon merits or by consent, it is to have power to revoke the expression of its coercive power where that has obtained only by a failure to follow any rule of procedure.13.I find that the even though the reasons advanced by the applicants for failing to file the defence on time or at all appear plausible, the defendants did not attach a draft copy of their intended defence to this application so as to satisfy this court that the defence raises triable issues. Courts have taken the position that failure to annex a draft defence to an application to set aside a default judgment is fatal to such an application. I am guided by the decision in Harun Rashid Khator suing as the representative of Rashid Khator (Deceased) v Sudi Hamisi & 11 Others [2014] eKLR wherein it was held that: -Failure to annex a draft defence on an application to set aside a regular ex-parte judgment is fatal to such an application.14.My finding is that in the circumstances of this case, the least and the most prudent action that the defendants ought to have taken should have been to present a draft defence to this court in order to justify the application to set aside the judgment. I find that no credible reason has been advanced for the failure to file a draft defence and that without a defence, there would be no basis upon which this court can hold that there are triable issues that would warrant the granting orders to set aside default judgment. To my mind, such setting aside will be in vain. 40.Likewise, this Court finds that there is no basis of inferring any triable issues in the absence of a draft defence. Courts can only adjudicate on issues laid bare before them by parties, but cannot reign into the arena of searching for triable issues from the parties’ submissions or filed documents. Consequently, this Court finds that the Appellant failed to demonstrate any triable issues and the second issue is answered in the negative. Disposition: 41.Flowing from the foregoing findings and conclusions, this Court finds no merit in the appeal and makes the following final orders: -a.The Appeal is hereby dismissed.b.Costs of the appeal to be borne by the Appellant.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 9TH DAY OF SEPTEMBER, 2026.A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Ms Okemwa holding brief for Ms Ndera Learned Counsel for the Appellant.Mr. Muriithi, Learned Counsel for the Respondent.Amina – Court Assistant.