https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10739

Kinyua v Murigu (Civil Appeal E118 of 2025) [2026] KEHC 10739 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 10739 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal E118 of 2025 EM Muriithi, J May 14, 2026 Between Daniel Wachira Kinyua Appellant and Peter Muthii Murigu Respondent (Being an appeal from the Ruling of Hon. F. Mutuku (PM) in Wang’uru PMCCC No. E079 of 2021 delivered on 29th September 2025) Ruling Introduction 1.This is a ruling on the appellant’s application by Notice of Motion dated 5/11/2025 expressed to be brought “under Order 40 Rule I (a) &(b), Rule 2, Order 42, Rule 6, Order 51,Rule 1 of the Civil Procedure Rules 2010; section 1A, IB,3A& 63 (e) of the Civil Procedure Act and an other Enabling Provisions of the law” for stay of execution pending appeal in specific terms as follows:“Orders That:-1.There be stay of proceedings and intent execution of decree dated 15thMay 2025 in Wang'uru Civil case NO. E079 of2021 pending the hearing and determination of the application.2.The be stay of proceedings and intent of execution decree dated 15thMay 2025 at Wang'uru Civil case No. E079 of 20 21 pending the hearing and determination of appeal Kerugoya High Court Civil Case No. E 118 of 2025.3.The cost of application be in cause. 2.The grounds of the application are set out in the application as follows:1.This suit has been set for mention on 24thNovember 2025 to confirm full settlement of the decretal amount is paid.2.That the court arrived it's decision to clear the decretal amount in full on 29th September 2025.3.The court did not consider all averments on record in tenus of settling the entire decretal amount.4.The appellant/applicant being dissatisfied with the decision filed Appeal herein.5.The appeal has high chances of succeeding and raise contestable point of law.6.If the orders of stay of the lower court is not granted the appellant stand to suffer substantial and irreparable prejudice which will expose him to justice.7.The application has been filed without unreasonable delays.8.It is in the interest of justice that the orders sought are granted.9.The respondent shall not suffer any prejudice if the orders sought are granted.” 3.The facts relied on were set out in the Supporting Affidavit sworn on 5/11/2025 as follows:“Supporting AffidavitI, Daniel Wachira Klnyua of PO Box 12848-00100 Nairobi in the Republic of Kenya do hereby make oath and state as follows.-1.That I am the Appellant! Applicant herein fully conversant with the facts in the matter and hence competent to swear this affidavit.2.That the firm of Advocate of M/S Kuria Mburu & Co Advocates is on record representing the Respondent herein.3.That on 23rd May 2025 the appellant herein was served with a decree amounting to Kshs.77,680 dated 15th May 2025 and the same was received by the firm of S.G Wachira & Co Advocates representing the Appellant/Applicant (annexed and marked DWKl is a copy of the evidence)4.That on 5th June 2025 the same firm of Advocate served upon Notice to showcause why execution should not issue dated 21st may 2025 to Applicant through his Advocate on record which was coming up for hearing on 7th July 2025 (annexed and marked DWK1 is a copy of the evidence).5.That on 30th June 2025 the Appellant/Applicant made a proposal 00 the mode of payment of the decretal amount till full and final payment and the same was severed to respondent Advocate on record.6.That the Advocates received and acknowledged the proposal by signing and stamping on our copy (annexed and marked DWKJ is the copy of the evidence).7.That on 28th August 2025 the Appellant /Applicant complied with the content of the proposal and paid the first installment of Ksh.10 000/= and the same was received and acknowledged by signing and stamping with issuance of official receipt of Ksh 10,000/= (annexed and marked DWK4 is a copy of the evidence).8.That all this annexures are on record in court file and were disregarded by the court and proceeded to allow the respondent to apply warrant of arrest and the matter was set for mention on 24th September 2025 to confirm whether the decre9.tal amount is fully settled.10.That my advocate on record filled a memorandum of Appeal against the mention decision on 8th October 2025 Vide Civil Appeal No. E118 OF 202511.That I am advised by my Advocate on record which advice are verily belief to be true that the Appeal is prima facts and arguable one.12.THE Appeal has a high chance of succeeding and it raises contestable point law.13.If the orders for stay of proceedings in lower court are not granted the outcome of the Appeal will be a nullity.14.If the stay of this Hounarable court is not granted 1stand to suffer substantially and irreparable prejudice which expose me to injustice.15.That the respondent shall not suffer any prejudice should the orders sought are granted.” 4.The Respondent filed a Replying Affidavit of 26/11/2025 as follows:“Replying Affidavit(To the Notice Motion Application dated 5th November; 2025.)l, Peter Muthii Murigu of P.O Box No: j 17-10303 WANG'URU in the Republic of Kenya do hereby make oath and state as follows.1.That 1 am a male adult of sound mind and disposition, the Respondent herein with full knowledge of the facts herein hence competent to swear this affidavit.2.That I ha c read the application dated 5th November, 2025 and understood the same to be hollow, vexatious, frivolous and otherwise amounts to an abuse of the Court process therefore a proper candidate for dismissing with costs .3.That the Applicant has not raised any justifiable issue to warrant the stay of execution of the Decree dated 15th May. 2025 issued in Wang'uru Civil Case No: E079 of 2025.4THAT the Appellant's application for stay of execution is misconceived and meant to mislead this Honourable Court since the parties herein have never entered into a consent for settlement of costs in installrnents as alleged.5.That I am informed by my advocates on record which information I believe to be verily true that they received a letter dated 28th August. 2025 from the firm on record for Applicant forwarding a sum of Kenya Shillings Ten Thousand (Kshs.10,000/=) being partial settlement of the costs in this matter. (Annexed hereto and marked "PMM-l" is a copy of the letter)6.That on the day the letter was brought to his office Counsel was in court hence the same was received by the receptionist and an official receipt was issued.7.That as soon as this information was brought to the Counsel's attention, he wrote a letter to the firm on record for the Applicant refunding the said sum. My advocate personally took the said letter to firm's office. (Annexed hereto anti marked "PMM-2" is a copy of my letter dated 6th September, 2025).8.That the Firm declined to acknowledge receipt of the letter by stamping on his return copy but surprisingly took back their Kshs. 10,0001= which was delivered in cash.9.That on 291h September, 2025 when the matter came up before the trial Court for Notice to Show Cause, the Applicant claimed that there was a consent on settlement of the costs through monthly instalments of Kshs.10,000/=. He further alleged that he had already paid the first instalment.10.That the Applicant clearly and intentionally misrepresented facts. Noteworthy, when the matter was in court on 7th July, 2025 it is on record that' in presence of Mr. Wachira who appeared for the Applicant, it was indicated that I was not amenable to settlement of the costs on monthly instalments of Kshs.10,000/= and the Court granted the Applicant two months to fully settle the costs.11.That the record speaks for itself that no consent has ever been recorded by the parties herein for settlement of the costs in monthly instalments of Kshs.10,000/=.12.That owing to the serious misrepresentation of facts raised in Court by the Applicant through his Counsel on 29th September, 2025 meant to portray the firm on record for me as dishonest and the malignment of its good repute, my advocate wrote a formal demand to the Applicant through his firm demanding that they acknowledge a sum of Kshs.10,000/= refunded to their office and issue a formal apology to us. They have failed to do 0 and we are in the proces of lodging a formal complaint to the Advocates Complaint Commission. (Annexed hereto and marked “PMM-3" is a copy of my letter 2nd October, 2025)13.j-IAT the Applicant has not shown any substantial loss which he stands to suffer if the stay of execution is denied.14.That under paragraph 3 of his supporting affidavit, the Applicant has expressly admitted that the Certificate of stated cost was issued on 15th May, 2025 and served upon him on 22nd May, 2025.Therefore, there is inordinate delay in bringing the application and no security for due performance of decree had been offered.15.That the prayers sought are not available because the Memorandum of Appeal as filed does not disclose how he intends to settle the costs awarded by the lower court.16.That the application is brought in bad faith as the Appellant has not shown willingness to deposit part of the entire costs awarded as security in an interest earning account in the names of both parties' Advocates and neither has he express cd willingness to comply with any conditions given by this Honorable Court.17.That the execution of costs is not a violation of the Applicant's right to be heard as he was granted every opportunity to be heard in the lower court but failed to ventilate his issues in the trial court.18.That the granting of an order for stay i. discretionary and should only be granted on very necessary circumstances. This Honourable Court has an inherent duty to ensure that a decree or certificate of costs should be honored without delay and abuse of the Court process.19.That in the event that this Honourable Court is inclined to grant the stay of execution pending the hearing and determination of the appeal. I pray that the Applicant be directed to deposit the entire costs as security in an interest earning account in the names of both parties' advocates.” 5.The applicant did not file any supplementary affidavit despite leave granted, the Counsel for the applicant indicating on 11/12/2025 at he did not did not wish to file a supplementary affidavit and that the matter could proceed to ruling on the basis of submission to be filed by the parties each taking 14 days. 6.The Memorandum of Appeal dated 23/10/2025 sets out the grounds of appeal as follows:“Memorandum Of AppealThe Appellant herein Daniel Wachira Kinyua being dissatisfied and aggrieved with the ruling of the Honourable F.Mutuku Principal Magistrate in Wanguru Civil Case No. E079 OF 2021 delivered on 29th September 2025 hereby appeals against the entire decision on the following grounds:-1.That the learned magistrate erred in law and in fact for taxing bill of costs of the Respondent without giving the appellant /judgment debtor an opportunity to defend or challenge.2.That the learned magistrate erred in law and in fact for denying the appellant the right of justice as provided by our constitution.3.The learned magistrate erred in law by failing to sufficiently appreciate and take cognizance of the appellant evidence on record in support of settlement of the decretal amount in full.4.The learned magistrate erred in law and in fact b erroneous determination that the appellant /judgment debtor to settle the whole amount by 24th November 2025.5.The learned magistrate erred in Lawand in fact b erroneously exercising her discretion and arriving at the decision that is wholly and substantially divergent to the la and evidence on record.6.The learned magistrate erred in law and in fact by shifting the evidently burden of proof upon the-appellant as to deny the proposal on record agreed upon by the appellant and the Respondent dated 30th June 2025.Reasons wherefore:- The Appellants prays for orders:-I.That the appeal be allowed.2.That the Ruling of the lower court by HON. F. Mutuku declared on 29th September 2025 be overturned3.That costs of this court and the lower court be awarded to the Appellant.Dated at Wang’uru this 23rd day of October 2025.” Submissions 7.The applicant’s written submissions dated 2/2/2026 urged as follows:“Your Ladyship, the Application before you is the one dated os" November 2025 seeking for the following Orders:-There be a stay of proceeding and execution of a decree of May 15th 2025 in Wanguru CMCC E079/2021 pending the hearing and determination of this application.There be a stay of execution of the abo e stated decree dated 15th May 2025 pending the hearing and determination of the appeal herein.The claim in the Subordinate Court had been withdrawn by the Applicant/Appellant herein and the only issue that remained the issue of costs of the suit .The parties failed to reach a settlement on the costs payable to the Defendant as a result of which the Defendant filed his Defendant’s Bill of costs that was taxed at Ksh.77.680/=( Seventy Seven Thousands Six Eighty ) vide certificate of costs 15th May 2025. Subsequently the Defendant/Respondent [took out] a notice to show cause dated 21 SI May 2025. At the hearing of the notice to show cause the Applicant/Appellant proposed to settle the amount of the costs stated above by paying Kshs.10,000/= Ten Thousand Shillings Only) being the 1st instalment as he proposed to his proposal dated 30th June 2026 and Kshs.5,000/= (Five Thousand Shilling) being the balance in e cry succeeded month thereafter until full and final payments i made.On 28th August 2025 the Applicant/appellant demonstrated the settling of the Respondents costs by paying Ksh.10.000/= (Ten Thousand hilling) in respect of proposal dated 30th June 2025.It is the decision to pay Kshs.66,680 whole amount on or before 24th October 2025 that has provoked the Applicant herein hence the filing of this application for stay of proceedings and stay of execution pending the hearing and determination of both this Application and Appeal herein.as the Applicant/appellant respectful submission that the application has Merit and should be granted in the interest of Justice. This Honourable Court has obligation and supervisory jurisdiction to interfere and vary the decision of the subordinate court.It is the Applicant position that the decision to pay aforesaid costs by 24th October 2025 was pertinently harsh.In Communication Commission of Kenya -Vs- Odhiambo (2025) the High Court used its supervisory power to review a tribunal decision highlighting its role in administrative fairness. In the instance case we urge this Honourable Court to make a finding that the Honourable Court acted harshly and unfairly in ordering the Appellant to pay in full Kshs.66,680 by 24lh October 2025.Our humble submissions is that the decision was arbitrary lacked evidence and was disproportional to the issue at hand. In jurisdiction, a party can apply to offset any payments by installment under Order 22 Rule 8 of Civil Procedure Rules.” 8.The Respondent’ s submissions dated 23/1/2026 urged as follows:“B. Issues For Determination5.The Respondent submits that from the pleadings and evidence on record the application raises two issue for determination by this Honourable Court.i.Whether the Applicant has met the threshold for granting stay of execution[; and]ii.What are the appropriate orders as to costsC. Analysis And The Lawi.Whether the Applicant has met the threshold for granting stay ?f execution6.Your Lordship, the Respondent appreciates that this Court's discretion while dealing with an application for stay of execution of a decree pending the hearing and determination of an appeal is wide and unfettered provided that it is just to do so.7.This Court, in accordance with precedent, has to decide first, whether the Applicant has presented an arguable appeal, and second, whether the intended appeal would be nugatory if these interim orders were denied.8.These conditions are found under Order 42 Rule 6(2) of the Civil Procedure Rules which provides that:“No order for stay of execution shall be made under subrule (1) unless-(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court ordersfor the due performance of such decree or order as may ultimately be binding on him has been given by the applicant."9.This position was emphasized by the Court in the case of Butt -Vs- Rent Restriction Tribunal (1972) KLR 417, which is a relevant decision of the Court of Appeal on matters stay of execution of decree pending appeal, the Court of Appeal stated that:“(a)The power of the court to grant or refuse an application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.(b)The general principle in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal court reverse the Judge s discretion.(c)A Judge should not refuse a stay if there are good reasons/grounds for granting it merely because in his opinion, a better remedy may become available to the applicant at the end of the proceedings.(d)The court in exercising its discretion whether to grant or refuse an application for stay will consider the special circumstances of the case and unique requirements. The special circumstances in the Butt - Vs- Rent Restriction Tribunal case were that there was a large rent amount of rent in dispute and the appellant had an undoubted right of appeal.(e)The court in exercising its powers under Order 41 (2) (b) of the Civil Procedure Rules (then), can order security upon application by either party or on its own motion. Failure to put security for costs as ordered will cause the order for stay of execution to lapse. "10.My Lord, as per his memorandum of appeal, the Applicant intends to appeal the trial court's decision on grounds that the Learned Magistrate erred in law by failing to sufficiently appreciate and take cognizance of the Applicant's evidence on record in support of settling the decretal amount. The Applicant has alleged that the trial Court erred both in law and facts for erroneously exercising her discretion and arriving at the decision that is wholly and substantially divergent to the law and evidence on record.11.As much as the above-mentioned issues may be arguable, they are not an automatic guarantee that the appeal will succeed. We respectfully submit that those issues are frivolous and merely intended to delay execution.12.0 doubt, in law, the fact that the process of execution has been put in motion, or is likely to be put in motion, by itself, does not amount to substantial loss. Even when execution has been levied and completed, that is to say, the attached properties have been sold or the Applicant committed to civil jail as is the case here, does not in itself amount to substantial loss under Order 42 Rule 6 of the Civil Procedure Rues. This is so because execution is a lawful process.13.The Applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail, a question that was aptly discussed in the case of Silverstein N. Chesoni [2002] I KLR 867, where the Court dealing with the question of substantial loss emphasized the centrality of substantial loss thus:“... the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory. "14.My Lord, we humbly submit that litigation must always come to an end. There being a valid order to settle the decretal amount which has not been set aside and the Applicant has deliberately failed to comply, he is only using the intended appeal as a delaying tactic aimed at preventing the Respondent from enjoying the fruits of his ruling.15.With this observation, of course, a frivolous appeal cannot in practical terms be rendered nugatory. The only admonition however, is that the High Court should not base the exercise of its discretion under Order 42 Rule 6 of the Civil Procedure Rules only on the chances of the success of the appeal. Much more is needed in accordance with the test as was set out in the above quoted case of Butt -Vs- Rent Restriction Tribunal (1972) KLR 417.16.Noteworthy, in his appeal the Applicant does not intend to challenge the costs as awarded by the trial Court but instead challenges the directive of settling the costs within two months. This means that he is willing to settle the costs only that he wishes to do so at his convenience to irritate and frustrate the Respondent.17.Additionally, the Applicant has not offered or proposed any security for the due performance of the decree of the lower court.18.The Applicant ought to have done this as a sign of good faith that he is ready and willing to commit to giving security in the event that this Honourable Court is inclined to grant the stay of execution pending the hearing and determination of the appeal.19.In this regard it is the Respondent's humble submission and prayer that in the event that this Honourable Court is inclined to grant the stay sought, that the Applicant be directed to deposit the entire costs as security in an interest earning account in the names of both parties' advocates.This will ensure that both parties to these proceedings are not prejudiced by the time taken while prosecuting the appeal and its subsequent outcome. We humbly pray that this Honorable Court holds and finds as such.ii.What are the appropriate orders as to costs20.My Lord, the power of the court to determine who bears the cost in a suit is provided for under Section 27 of the Civil Procedure Act which states as follows: -27(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid. and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise direct.21.The courts in awarding costs will look at the circumstances that led to the instituting of the suit among other factors.22.In the case of Party of Independent Candidate of Kenya & another -Vs- Mutula Kilonzo & 2 others (2013) eKLR the court cited with approval the words of Murray CJ. in Levben Product -Vs- Alexander Films 1957 (4) SA 225 (SR) at 227 that:“... it is clear from authorities that the fundamental principle underling the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion ...But this is judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at.... In the second place the general rule that costs should be awarded to the successful party. a rule which should not be departed from without the exercise of good grounds for doing so."23.Your Lordship, the Respondent having demonstrated that the instant application is unmerited and that the Applicant is not entitled to any of the reliefs sought, the Respondent is therefore the successful party and should be awarded the costs of this application.D. Conclusion24.My Lord, in conclusion, the Respondent humbly submits that the trial Court applied the correct principles and took into account all relevant factors in arriving at the ruling directing the Applicant do settle the costs within two months. The trial Court exercised its judicial authority Judiciously.25.The instant application and the intended appeal is a mere delaying tactic as there is no need to disturb the trial Court's ruling. The instant application should therefore be dismissed with costs to the Respondent.” 9.Ruling was reserved. Stay of execution pending appeal 10.The Court has considered the application together with the Replying Affidavit of the Respondent and the written submissions thereon filed by counsel for the parties. 11.The Court has evaluated the application on the principles for the grant of stay of execution pending appeal under Order 42 Rule 6 (1) and (2) of the Civil Procedure Rules, which require proof of substantial loss if stay is not granted and provision of security for the due performance of the decree together with a demonstration that the application is made without undue delay, as follows:“6.Stay in case of appeal [Order 42, rule 6](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.(2)No order for stay of execution shall be made under subrule (1) unless— (a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” On the merits 12.There is not demonstrated that the appellant/applicant shall suffer substantial loss or that the appeal if successful, will be rendered nugatory. 13.There is no offer for security for the due performance of such decree as may ultimately be binding on the appellant upon determination of the appeal. 14.Without deciding, it would appear that in view of the modest amount in the judgment for taxed costs of 77,680, the proposal to pay by one instalment of 10,000/- and thereafter in monthly instalments of 5,000/- (so that it takes over 14 months to settle excluding interest) yet the appellant is able to instruct Counsel to lodge an appeal from refusal of an order for such payment proposal is an attempt to game the system, with an obvious intent to buy time and delay the day of reckoning while the matter is pending hearing and determination of the appeal at the busy High Court level. 15.As there is no evidence or even assertion that the appellant may not recover the decretal sum from the respondent and there is no indication that the only form of execution that the trial court could ordered was committal to civil jail, there is no basis for finding that the appeal shall be rendered nugatory. In any event, execution by lawful court process cannot, without more, found a claim for substantial loss. 16.There is no appeal from the judgment of the court on the costs or the taxation thereof. The appeal is from the discretion of the Court on a request for payment of the costs by instalments. While the Court has jurisdiction, as submitted by the appellant, to order payment by instalment under Order 22 Rule 8 of the Civil Procedure Rules, the exercise of that jurisdiction was a matter of discretion of the trial court which may only be interfered with on well-known principles of Mbogo v. Shah [1968] EA 93. 17.At this stage, and on the grounds of appeal and the facts before it, the Court is not persuaded that there is a prima facie case as would justify a finding of an arguable appeal, even when understood as one that need not succeed at the hearing of the appeal. Significantly, the Court notes from the copy of the court record attached to the application that the letters on proposal for settlement by instalment and response thereto now attached as DWK4 and PMM1-3 to the appellant’s and respondent’s respective affidavits were not before the trial court when it made the order appealed from on 29/9/2025. 18.The record of proceedings of the trial court of the day 29/9/2025 is set out in full as follows:“29. 09.2025Before·HON. F. MUTUKU SPMCourt assistant: Eric/BenardMr. Mutiso holding brief for Mr. Wachira for the plaintiff/Judgement Debtor.Mr. Kamau for the defendant/Decree holder.Mr. Kamau: Matter is to confirm settlement. The amount of Ksh.77,680 has not been settled by the Judgement Debtor. I pray for warrant of arrest against the plaintiff Judgement Debtor.Mr.Mutiso:- We paid Ksh.10000 to the firm of Kuria Mburu.Mr. Kamau:- The proposal was not agreeable the amount has not been settled.Court: - Last mention 24/11/2025.The Judgment Debtor to settle the whole amount.Hon F. MutukuPM” 19.It may not properly be argued that the trial court declined the proposals and alleged acceptance when the documents signifying such proposal and/or acceptance were not produced before it. Orders 20.Accordingly, for the reasons set out above, the Court finds that the application for stay of execution pending appeal has no merit and it is dismissed. 21.The interim order for status quo to be maintained made on 10/11/2025 and severally extended subsequently is discharged. 22.However, to give the appellant an opportunity to pay the decretal sum before execution is levied, the Court will grant him seven (7) days to the pay the amount in full, and in default the Respondent may pursue full execution of the decree in the trial court. 23.The Costs of this application shall be paid by the Appellant to the Respondent. Orders accordingly. DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.EDWARD M. MURIITHIJUDGEAPPEARANCES:Mr. Mutiso for Mr. S.G. Wachira for the Appellant.Mr. Kamau for Mr. K. Mburu for the Respondent.