https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12749

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NYERI** **CIVIL SUIT NO. E004 OF 2024** **PATIALLA DISTILLERS LIMITED……………………………. PLAINTIFF** **VERSUS** **RODGERS OSUNDWA…………….………………………...1ST DEFENDANT** **EPHANTUS KARIUKI…….. ………...……………………. 2ND DEFENDANT** **DANIEL MUNGUTI……………...………………….…….. 3RD DEFENDANT** **KIRAGU KAMAU …………………………………………... 4TH DEFENDANT** **RUPARE OLE RINYAI ……………….……………...……. 5TH DEFENDANT** **JOSEPH KINGORI ………………………………..….……. 6TH DEFENDANT** **JUDGMENT** 1. The Plaintiff stated that it is a limited liability company engaged in the manufacture and importation of alcoholic beverages. It manufactures its products at its premises in Mlolongo, along Mombasa Road, Machakos County. The Plaintiff further stated that it manufactures and supplies, among other products, Diamond Ice, Flying Horse Gin, Best Classic Gin, and Blue Ice Vodka. They instituted suit by way of the Plaint dated 9.5.2024 seeking the following reliefs against the Defendants: 2. General damages for the tort of misfeasance in a public office. 3. General damages for brand assassination and reputational loss. 4. Special damages of Ksh. 3,900,000/= being the value of the Plaintiff’s property destroyed. 5. Special damages of Ksh. 100,000,000/= being the cost incurred in repairing the Plaintiff’s reputational damage. 6. Interest 7. Costs of the suit 8. The defendants are members of the national government, duly appointed under the National Government Co-ordination Act and the National Police Service. The first defendant was an Acting Deputy County Commissioner at Mathira East County Commissioner. The 5th defendant was an Assistant Sub-County Commissioner stationed at Mathira East Sub-County. The 2nd, 3rd, 4th and 6th defendants are members of the National Police Service. 9. The Plaintiff averred that on 20.2.2024 the Defendants acting jointly seized the Plaintiff’s manufactured products described as 399 crates of Diamond Ice 500ml, 996 cartons of Flying Horse Gin 250ml, 6 cartons of Classic Gin and 27 bottles of Blue Ice Vodka. It was averred that the goods were then stored under lock and key within the 1st Defendant’s premises between 20.2.2024 and 26.2.2024 pending alleged investigations. 10. Further, on 26.2.2024, the Defendants released the Plaintiff’s detained goods to organised groups who oversaw a public destruction without due process. 11. They averred that the exercise of destruction of the Plaintiff’s goods was recorded and published throughout the Republic of Kenya, including by a public statement to the media announcing the seizures and while declaring that Diamond and Flying Horse products were banned; which acts led to a reputational blow to the products of the Plaintiff. 12. It was the Plaintiff’s pleaded case that another consignment containing 74 cartons of Flying Horse gin was detained for 14 days and released to the Plaintiff with instructions not to sell. The Plaintiff particularised loss and malfeasance as follows: 1. General damages loss 2. Loss of goods 3. Brand assassination and reputational damage 13. The Plaintiff contended that its claim is founded on the common law tort of misfeasance in public office. It averred that the Defendants are the primary tortfeasors in the eyes of the law and that its claim is not based on the doctrine of vicarious liability against the State. Particulars of malfeasance were set out, among them deliberate abuse of public power, blatantly acting without lawful authority, causing the plaintiff harm, deliberate and blatant indifference to the plaintiff’s legal rights, unmitigated recklessness and negligence in exercise of public power, acting in bad faith and targeted malice. They did not, however, set out particulars of negligence and malice. 14. The Defendants filed their joint statement of defence dated 24.2.2025 denying all the allegations in the plaint. It was pleaded that there was a multi-agency task force that had recommended a crackdown on alcoholic drinks and the Plaintiff’s brands were heavily counterfeited. 15. The Defendants also stated that on 26.2.2024, samples of the seized goods were taken to the Government Chemist for analysis. Evidence 1. At the hearing, the Plaintiff's witness, PW1, Mary Waigwa Muthoni, relied on her statement dated 9.5.2024 and on the documents in the Bundle of Documents of the same date. According to her, she was one of the directors of the Plaintiff. They had a distribution point in Karatina. She stated that the Defendants organised the destruction of the goods that had been seized. After they issued and signed a notice of seizure of the goods, they were eventually destroyed in public. 2. On cross-examination, she maintained that the Defendants acted maliciously in detaining the Plaintiff's goods. She conceded that there was no evidence to show that the media had been invited or called to the premises. She nevertheless asserted that the Plaintiff suffered loss of brand value and reputation, which she quantified at Ksh. 100,000,000/=. 3. It was her evidence that, had the Defendants acted lawfully, they ought to have conducted proper investigations before detaining the goods. She further testified that she did not lodge any complaint with the Independent Policing Oversight Authority. According to her, no investigations were carried out. She confirmed that the seizure notice listed the goods that had been seized as well as the names of the arresting officers. 4. DW1, Rodgers Osundwa, testified on behalf of the Defendants. He adopted his witness statement together with the Defendants' bundle of documents dated 24.05.2024 as his evidence-in-chief. He testified that the Plaintiff's alcoholic beverages were seized by the Inter-Agency Task Force established to combat illicit alcoholic drinks following a surge in counterfeit and suspected illicit alcoholic products. According to him, the authorities had received information that the Plaintiff's brands, Flying Horse and Diamond Ice, were among the most counterfeited alcoholic beverages in the area. 5. DW1 stated that, upon seizure, the goods were transported to the Sub-County offices because the police stores lacked sufficient storage space. He further testified that the Plaintiff had been informed on 07.09.2023 that its brands were being extensively counterfeited. According to him, the sale of the two brands, Flying Horse and Diamond Ice, had been banned in Mathira East and Mathira West Sub-Counties because they were the most frequently counterfeited and, in many instances, lacked the requisite security features. He maintained that, despite being notified of the rampant counterfeiting of its products, the Plaintiff had not taken adequate measures to curb the problem. 6. DW1 further testified that, subsequently, a Member of Parliament and the County Senator led members of the public in breaking into the premises where the seized suspected illicit alcoholic drinks were stored and destroyed the exhibits. He stated that the police were overwhelmed by the angry crowd and were unable to prevent the destruction, although they did not support or sanction the actions of the members of the public. 7. He further testified that investigations into the incident were being conducted by the Nyeri County Directorate of Criminal Investigations (DCI) and that, at the time he testified, those investigations had not been concluded. He also contended that the Plaintiff lacked the requisite legal capacity to institute the present suit. 8. On cross-examination, he testified that he was given a mandate to confiscate alcohol. Diamond Ice was the most counterfeited. He stated that one Eunice Gathoni Mwangi was seen accessing the premises, and the Chief followed him, who confirmed upon entry that there was alcohol illegally stored in the office. The chief contacted and informed the 1st Defendant’s office on 20.2.2024. There was a security meeting on 7.9.2023. The alcohol was in a building not licensed to store liquor. No persons were charged. The area MP and Senator entered the store and destroyed the alcohol. There were pending investigations. The police were not in support of the actions. Submissions 1. The Plaintiff filed submissions dated 22.6.2026. It was submitted that the Defendants were liable for the tort of misfeasance in a public office. They seized the goods and did not act in good faith by failing to ensure the safe custody and safety of the goods. They allowed the public to access and destroy the goods in the presence of politicians. 2. The court had requested the parties to address the court on Section 22 of the National Government Coordination Act. They submitted that the Act did not apply. 3. The Plaintiff submitted that there was deliberate abuse of public power by the public officers as defendants, and the Plaintiff proved illegality and reckless indifference by the Defendants. In submitting that the Plaintiff had proved malfeasance, reliance was placed on Three Rivers District Council v Bank of England ([2003] 2 AC 1235), where the House of Lords defined the test for misfeasance in public office. It was submitted that the Plaintiff proved targeted malice on the part of the Defendants and the deliberate and dishonest abuse of power, deliberate wrongdoing or reckless indifference to duty and harm. It was submitted that the duty to act and ensure safe custody of the Plaintiff’s goods is provided for under Articles 40 and 47 of the Constitution and the Criminal Procedure Code and the National Police Service Act. 4. It was also submitted for the Plaintiff that the plaintiff was entitled to special and general damages for the loss occasioned by deliberate abuse of public power. There was a damage to the reputation of the Plaintiff leading to impaired goodwill and losses. 5. It was submitted that the Plaintiff proved the quantity and value of destroyed goods. It was submitted that the applicant did not act in good faith, by failing to have regard to the safety of their goods. It was their submissions that the defendants were public servants under Article 260 of the Constitution. It was further submitted that misfeasance in public office has two aspects, that is distinct and intentional, intended to protect citizens. It was submitted that it is not enough to have acted negligently. There must be specific intention, targeted malice, acting outside the scope of duty, and reckless indifference to the legality of their actions, while appreciating the legality of their actions. According to the plaintiff, they provide that: 1. The defendants are public officers. 2. They exercised public power or purported power. 3. Acted with malice, bad faith and knowledge of illegality. 4. The plaintiff suffered damage. 6. It was submitted that the defendant’s actions were unlawful, arbitrary, actuated by malice and improper considerations. It was submitted that general damages of Ksh. 100,000,000/= were proved, as well as special damages of Ksh 3,900,000/=. 7. The Defendants had yet to file submissions by the time of delivering the judgment herein. Analysis 1. It is not a disputed fact that the goods of the Plaintiff were seized. The Plaintiff maintained that the seizure was due to misfeasance on the part of the Defendants, jointly and severally. However, it is clear from the evidence that the seizure was carried out by the Inter-Agency Task Force for the Control of Portable Spirits and Combat of Illicit Brews. The task force was published in the Kenya Gazette on 6.07.2015 by General Nkaissery, the Cabinet Secretary for Interior and Co-ordination of National Government. 2. The seizure was not impugned. The destruction of the said goods was the main bone of contention. A seizure notice was alleged to have been duly given. The breach is said to have occurred on 26.02.2024, where the defendants were said to have allowed release of the seized goods to the members of the public, and a pre-organised group. The plaintiff maintained that the destruction was orchestrated by the defendants. 3. It is not clear whether the alleged loss arose from the seizure conducted on 20.02.2024 or from the ban of the plaintiff's products. The evidence also indicates that another consignment was seized on 12.01.2024 but was subsequently released to the plaintiff's local distributor. In those circumstances, it remains uncertain which particular seizure or regulatory action forms the basis of the plaintiff's claim for loss. 4. It was both pleaded and submitted that the Plaintiff had established the tort of misfeasance in public office. The Plaintiff contended that the Defendants acted in bad faith and abused their statutory powers by deliberately targeting the Plaintiff and acting with reckless indifference. It was further argued that, having unlawfully seized the goods, the Defendants failed to preserve them or ensure their safe custody, thereby occasioning the loss complained of. 5. On the other hand, the Defendants' position was that the seizure formed part of a government initiative aimed at restoring order by combating the proliferation of illicit and second-generation alcoholic drinks. They pleaded that the seizure was undertaken lawfully and in good faith, and that the goods were securely stored in government premises. According to the Defendants, the goods were subsequently accessed and destroyed by members of the public, allegedly incited by politicians, after police officers assigned to guard the premises were overwhelmed. They contended that, in the circumstances, there was nothing they could reasonably have done to prevent the destruction. 6. The burden was on the plaintiff to prove misfeasance on the part of the Defendants. The court is aware that the burden of proof is set out in sections 107-108 of the Evidence Act. 7. The burden lay on the Plaintiff to establish the tort of misfeasance in public office on the part of the Defendants. The applicable principles on the burden of proof are set out in sections 107 and 108 of the Evidence Act. Under those provisions, the party who asserts the existence of a fact bears the burden of proving it, and where no evidence is adduced by either side, the party who would fail if no evidence were led bears the legal burden of proof. It was therefore incumbent upon the Plaintiff to prove, on a balance of probabilities, the facts necessary to establish the alleged misfeasance. The said sections provide as follows: *107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.* *108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.* 1. The question of what constitutes proof on a balance of probabilities was considered by Kimaru J. in **William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526,** where the learned Judge observed: **In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is more probable than not that the allegations that he made occurred.”** 1. The standard of proof on a balance of probabilities requires that the evidence establish a reasonable degree of probability in favour of the party bearing the burden of proof. It does not require proof beyond all reasonable doubt, which is the higher standard applicable in criminal proceedings. Rather, it is sufficient if the court is satisfied that the facts asserted are more probable than not. In [**Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] KECA 616 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/616/eng%402015-06-19), the Court of Appeal [Karanja, Okwengu & G. B. M. Kariuki, JJ.A] held as follows: The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –v- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: “That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 1. The plaintiff had a duty to prove matters within their knowledge. A party has a duty to prove matters within their knowledge. In [**Kenya Akiba Micro Financing Limited v Chebii & 14 others [2012] KEHC 5590 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/5590/eng%402012-05-04)**,** the court stated as follows: 26.In any event, this is a suit that falls on documents to prove the matters alleged by the Defendants, i.e. that the plaintiff was carrying out banking business. Why withhold such documents if they exist? Section 112 of the [Evidence Act](https://new.kenyalaw.org/akn/ke/judgment/kehc/2012/5590/aknkeact196346) Chapter 80 of the laws of Kenya provides:-“In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.” 27. Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make an adverse inference that if such evidence was produced, it would be adverse to such a party. In the case of Kimotho –v- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession. 1. The Plaintiff had a duty to demonstrate that the Defendants purported to exercise powers which were conferred on them for their personal advantage but for the benefit of the public or a section of the public, either with intent to injure another or in the knowledge that they were acting ultra vires. In [**Ethics and Anti-Corruption Commission v Joseph Oroko Ongera & another [2021] KEELC 420 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/420/eng%402021-12-09), the court considered the tort of misfeasance in public office and stated as follows: The tort of misfeasance in public office has been judicially defined – in a persuasive authority, Jones v. Swansea City Council [1990] 1 WLR 55, at p.71 (per Slade, L.J.): The essence of the tort, as I understand it, is that someone holding public office has misconducted himself by purporting to exercise powers which were conferred on him not for his personal advantage but for the benefit of the public or a section of the public, either with intent to injure another or in the knowledge that he was acting ultra vires. 1. The tort of misfeasance was later on considered by the House of Lords in **Three Rivers District Council & Others v Governor and Company of the Bank of England (No. 3) [2001] UKHL 16**, where it was held, *inter alia*, that the tort lies where a defendant makes a decision with knowledge that it is unlawful or in excess of his powers and that is likely to cause harm or injury to individuals. 2. The court notes that the goods were kept in government offices under the security of Mathira East subcounty officers pending investigations, and not homes or designated private places of the Defendants. This was also the testimony of DW1. No sooner were the samples of the goods taken for analysis by a government chemist in Nairobi than members of the public invaded the premises and destroyed the goods. It was said that politicians steered the activity and were in fact present during the destruction. 3. I have examined the circumstances under which the goods of the Plaintiff were destroyed against the allegations of misfeasance on the part of the Defendants. Having seized the goods from the Plaintiff’s store, the Defendants were under a duty to assure their safety. The circumstances of the destruction of the property and the efforts that were made prior for the safety and security of the goods, though not revealed, were not linked to the private acts of the Defendants. There was no material from which the court could infer that the break-in and destruction of the goods was exacerbated by an act or omission of the Defendants. In the case of [**Safaricom Limited v Transcend Media Group [2016] KEHC 1271 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2016/1271/eng%402016-10-04)**,** F. Tuiyott, J, as he then was, posited as follows: What are the essential elements of this Tort? * + 1. There must be an act intended to cause loss to the claimant. 2. The act must interfere with the freedom of a 3rd Party to deal with the claimant. 3. The act against the 3rd party must be unlawful. 4. An unlawful Act for this purpose is one that is actionable by a third party or would be, if it suffered loss.” 1. The Plaintiff thus failed in the duty to prove that the Defendants were malfeasant in their individual capacities while holding public power. The Defendants ought to have been proved to have feigned public power for their own private advantage to the detriment of the Plaintiff. This court in [**Transcend Media Group Limited v Independent Electoral Boundaries Commission & another [2025] KEHC 11080 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/11080/eng%402025-07-25)**,** Mabeya J stated as follows in relation to the principles underlying the tort of misfeasance. This Court’s understanding is that the aforementioned tort attaches to an individual officer holding public office. Consequently, the subject officer must be cited and evidence brought against him demonstrating that he/she exercised his powers for his personal advantage. In the present case, the plaintiff did not cite any officer nor highlight any actions that were committed that benefited the particular individual. 1. The case referred to above, **OBG Ltd & Another V Allan And Others, Douglas & Another V. Hello Ltd & Others, Mainstream Properties Ltd V. Young & Others [2007]4 ALL ER 545**, the House of Lords disapproved the unified theory. The Decision distinguished the tort of causing loss by unlawful means from the tort of inducing Breach of Contract in four respects: “First, unlawful means was a tort of primary liability, not requiring a wrongful act by anyone else, while *Lumley v. Gye* (1853), created accessory liability dependent upon the primary wrongful act of the contracting party. Secondly, unlawful means required the use of means which were unlawful under some other rule (independently unlawful), whereas liability under Lumley v. Gye required only the degree of participation in the breach of contract which satisfied the general requirements of accessory liability for the wrongful act of another person. Thirdly, liability for the unlawful means did not depend upon the existence of contractual relations; it was sufficient that the intended consequence of the wrongful act was damage in any form, for example, to the claimant’s economic expectations. Under Lumley v Gye the breach of contract was of the essence. If there was no primary liability, there could be no accessory liability. Fourthly, although both were described as torts of intention, the results which the defendant had to have intended were different. In unlawful means the defendant had have intended to cause damage to the claimant (although usually that would be a means of enhancing his own economic position) Because damage to economic expectations was sufficient to found a claim, there need not have been any intention to cause a breach of contract or interfere with contractual rights. Under Lumley V. Gye an intention to cause a breach of contract was both necessary and sufficient. 1. Therefore, for the tort of misfeasance, there ought to be personal liability for the concerned public officer for the acts committed for personal benefit as opposed to the exercise of state power for the public good. In the case of **Kenya Anti- Corruption Commission v Bernsoft Limited & 2 Others (Environment & Land Case 168 of 2009) [2023] KEELC 16159 (KLR),** L. L. Naikuni considered the issue of personal liability of a public officer for misfeasance in public office as follows: 54. In the instant case, the Court holds that the 3rd Defendant acted contrary to his statutory duties. The 3rd Defendant was personally liable for the loss of the suit property belonging to the Government of Kenya, which the other Defendants were likely to suffer in the event that the Court ordered that the title deed issued to the 1st Defendant was a nullity. It was for this reason that the Plaintiff had sued the 3rd Defendant in his personal capacity and not the office he held. I fully concur with the Counsel for the Plaintiff, while supporting her case on this point, cited the cases of: “Rhyl Urban Amusement Limited (1959) ALLER 257 where the Court stated:-“If therefore, the Minister does something which is an ultra vires act, it is not the act of the Minister at all.” 1. To succeed, including the award of damages, the Plaintiff had first to prove on a balance of probabilities that the Defendants were malfeasant. The Defendants herein did only one thing, that is, confiscated suspected counterfeit goods and nothing more. It came out what happened to the goods. The defendants did not break into the store. They also did not have higher duties than the departments they were working for. They had no duty as individuals to protect the suspected counterfeit goods. It was the duty of the government. It was not shown that they acted in bad faith, in other words, in any way other than good faith. 1. It is not in dispute that members of the public, led by some members of parliament, broke into the store and destroyed the suspected counterfeit goods. They were not agents of the defendants. Further, the plaintiff alleged that the attack was pre-planned. This is a serious positive assertion. The plaintiff bore the burden of proving it. Section 109 of the Evidence Act provides as follows: **109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”** 1. There was no proof of the role the defendants bore in the destruction. It was shown by both parties that the goods were safely secured. Nothing thereafter places the burden on the officers. To do so will extend the law to an absurdity. I find and hold that the defendants did not act in bad faith and there was no proof that they acted with impunity. Lastly, there was no proof that they acted not in the public interest that was expected of them, in the circumstances. Further, the plaintiff ought to have proved that the defendants or any of the defendants personally acted for their benefit to occasion loss to the Plaintiff. In the recent case of [**Ethics and Anti-Corruption Commission v Bangra Limited & another [2026] KEELC 606 (KLR)**,](https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/606/eng%402026-02-05) Angima J stated as follows: **The court is of the opinion that the tort of misfeasance in public office has been adequately proved against the 2nd defendant. He acted with impunity and with utmost disregard of public interest in purporting to alienate part of Tom Mboya Avenue which was a tarmacked and operational public road in Mombasa Island. The court is of the view that the 2nd defendant should pay Kshs. 2,000,000/= as general damages for misfeasance in public office.** 1. This then places the case within the protections given under the Constitution. Under Article 236 of the Constitution, public officers are protected in the performance of their duties. Article 236(a) of the Constitution provides as follows: *A public officer shall not be-* * 1. *victimised or discriminated against for having performed the functions of office in Accordance with this Constitution or any other law; or* 1. Article 260 of the Constitution provides a definition of both the public officer and public officers as follows: "Public office" means an office in the national government, a county government or the public service, if the remuneration and benefits of the office are payable directly from the Consolidated Fund or directly out of money provided by Parliament; "public service" means the collectivity of all individuals, other than State officers, performing a function within a State organ; 1. In the absence of evidence of bad faith, the actions of the Defendants remain acts performed in the discharge of public duties. Consequently, any liability arising therefrom is governed by the applicable statutory framework. In this regard, section 22 of the National Government Co-ordination Act provides as follows concerning liability: **22. Nothing done by a public officer appointed under this Act shall, if done in good faith for the purpose of executing the functions of the office, render such officer personally liable for any action, claim or demand.** 1. The functions of national government administrative officers are prescribed under section 17 of the National Government Co-ordination Act. The evidence on record demonstrates that the public officers were discharging their statutory mandate in accordance with the functions assigned to them under that provision. There is no evidence that they acted arbitrarily, unlawfully, or with impunity. Section 17 of the National Government Co-ordination Act provides as follows: 17. Subject to the Constitution, this Act or any other written law, a national government administrative officer appointed under section 15, shall be responsible for the co-ordination of national government functions as set out in the Constitution, this Act and any other written law at the county level and other decentralised units as far as may be necessary. 1. A similar statutory protection is afforded to police officers. Section 66 of the National Police Service Act, Cap. 84, Laws of Kenya, shields police officers from personal liability for acts or omissions done in good faith in the performance of their official duties. The provision states as follows: 66. (1)No matter or thing done by a member, employee or agent of the Service shall, if the matter or thing is done in good faith for the performance and execution of the functions, powers or duties of the Service, render the officer, employee or agent personally liable to any action, claim or demand whatsoever. (2)Subsection (1) shall not preclude a person from bringing legal proceedings against the Inspector-General in respect of an act or omission of the kind referred to in that subsection if the person can satisfy the court that the police officer or other person would, but for that subsection, have incurred liability for the act or omission. 1. The National Police Service Act contemplates proceedings against the Inspector-General of the National Police Service in respect of acts or omissions of police officers undertaken in the course of their official duties. In the present case, the Plaintiff took the position that the Government bore no liability and, consequently, did not join the Inspector-General of Police as a party to these proceedings. In the circumstances, the Plaintiff failed to sue the proper party and was therefore nonsuited. 2. The final issue on liability concerns the Plaintiff's proprietary interest in the goods that were allegedly seized. The evidence established that the goods were recovered from a depot operated by a distributor. However, the Plaintiff neither joined the distributor as a party nor adduced evidence demonstrating the legal relationship between itself and the distributor, whether as bailor and bailee, seller or otherwise. Were the goods in her custody? Are these the same goods or just counterfeits? Were the goods actually from the factory or just counterfeits? This limb of evidence was missing. 3. More fundamentally, the Plaintiff failed to establish that the goods were in its legal custody or control at the time of the seizure. There was also no cogent evidence proving that the seized goods were the Plaintiff's genuine products as opposed to counterfeit goods, which was the very basis upon which the enforcement operation had been undertaken. Nor was there evidence tracing the goods to the Plaintiff's manufacturing facility or otherwise establishing their provenance. The chain of custody was not demonstrated. 4. These were not peripheral matters but fundamental elements of the Plaintiff's claim. In their absence, the Court is unable to conclude, on a balance of probabilities, that the goods seized belonged to the Plaintiff or that they were the same goods pleaded in the plaint. Consequently, the Plaintiff's evidence falls far short of the requisite standard of proof. It does not support the claim as pleaded and is therefore insufficient to establish liability against the Defendants. 5. A further difficulty with the Plaintiff's case concerns the ownership of the seized goods. The Plaintiff did not adduce evidence of the contractual arrangements between itself and the distributor from whose premises the goods were seized. Consequently, the Court is unable to determine whether property in the goods had passed to the distributor under the Sale of Goods Act or whether the Plaintiff retained ownership or an immediate right to possession. In the absence of such evidence, the Plaintiff failed to establish the proprietary interest necessary to sustain a claim founded upon the alleged wrongful seizure of the goods. 6. This is compounded by the fact that these were Specific or ascertained goods. Ordinarily, where there is an unconditional contract for the sale of specific goods in a deliverable state, property passes to the buyer when the contract is made, irrespective of whether payment or delivery has taken place. Further, section 20 of the Sale of Goods Act provides as follows: Unless a different intention appears, the following rules apply for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer- 1. where there is an unconditional contract for the sale of specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment or the time of delivery or both be postponed; 2. where there is a contract for the sale of specific goods and the seller is bound to do something to the goods for the purpose of putting them into a deliverable state, the property does not pass until that thing be done, and the buyer has notice thereof; 3. where there is a contract for the sale of specific goods in a deliverable state, but the seller is bound to weigh, measure, test or do some other act or thing with reference to the goods for the purpose of ascertaining the price, the property does not pass until that act or thing be done, and the buyer has notice thereof; 4. when goods are delivered to the buyer on approval or “on sale or return” or other similar terms, the property therein passes to the buyer- * + - 1. when he signifies his approval or acceptance to the seller or does any other act adopting the transaction; 2. if he does not signify his approval or acceptance to the seller but retains the goods without giving notice of rejection, then, if a time has been fixed for the return of the goods, on the expiration of that time, or, if no time has been fixed, on the expiration of a reasonable time; 3. where there is a contract for the sale of unascertained or future goods by description, and goods of that description, and in a deliverable state, are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in the goods thereupon passes to the buyer; and assent may be express or implied, and may be given either before or after the appropriation is made; 4. (ii)where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee or custodier (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have unconditionally appropriated the goods to the contract. 5. The manufacturer is in Mlolongo, and the goods were not in a factory but in Karatina. The certifications are good for the alcohol in the factory. The plaintiff cannot certify who counterfeited. There is no form of invoice or delivery note following the vehicle from Mlolongo and Karatina. The alcohol may also have been from Ruaraka, Kerema, Makuyu, Igare, Kaptagat or some other place on the planet. It could even be from Karatina. 6. Section 2 of the Anti-Counterfeit Act, cap 510 provides as follows: “Counterfeiting" means taking the following actions without the authority of the owner of intellectual property right subsisting in Kenya or outside Kenya in respect of protected goods 1. the manufacture, production, packaging, re-packaging, labelling or making, whether in Kenya, of any goods whereby those protected goods are imitated in such manner and to such a degree that those other goods are identical or substantially similar copies of the protected goods; 2. the manufacture, production or making, whether in Kenya, the subject matter of that intellectual property, or a colourable imitation thereof so that the other goods are calculated to be confused with or to be taken as being the protected goods of the said owner or any goods manufactured, produced or made under his licence; 3. the manufacturing, producing or making of copies, in Kenya, in violation of an author’s rights or related rights; 4. ...: 5. There was no evidence tendered that established, on a balance of probabilities, that the goods alleged to have been destroyed belonged to the Plaintiff. The Plaintiff failed to adduce evidence demonstrating ownership or any other proprietary interest in the goods. Unfortunately, the Government was not joined as a party to these proceedings, thereby denying the Court the opportunity to determine the respective rights and liabilities of the parties *inter se*. In any event, the Defendants' statutory mandate ended upon the confiscation and surrender of the goods to the appropriate Government authorities. There was no evidence that the Defendants participated in, authorised, or were otherwise responsible for the subsequent destruction of the goods. Consequently, no liability can attach to them for the alleged destruction. Relating to confiscation, it is a duty that only a suit against the Attorney General and the Inspector General of police will deal with. 6. The second aspect is brand assassination and reputational loss. Brand assassination is the deliberate, malicious effort to damage the credibility and reputation of a business or public figure using smear tactics, misinformation, or brand impersonation. This is basically defamation. However, no evidence was led at all on the effect of the confiscation on the brand. They also do not question the confiscation but the destruction. This was not done by the defendants. Admittedly, it is another group. The plaintiff failed to link the said group to the defendants or any of them. In the case of [**Miguna Miguna v Standard Group Limited, Standard Limited, James Smart, Cyrus Ombati & Kenya Television Network (KTN) [2017] KECA 365 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/365/eng%402017-07-28)**,** the court of appeal [G. B. M. Kariuki, Sichale & Kantai, JJ.A**.)**]addressed defamation as follows: 7. Author Patrick O'Callaghan, while discussing the subject of defamation in "Common Law Series: The Law of Tort" at paragraph 25.1, says: "The law of defamation, or, more accurately, the law of libel and slander, is concerned with the protection of reputation: "As a general rule, English law gives effect to the ninth commandment that a man shall not speak evil falsely of his neighbour. It supplies a temporal sanction ..." Defamation protects a person's reputation, that is the estimation in which he is held by others; it does not protect a person's opinion of himself nor his character. 'The law recognises in every man a right to have the estimation in which he stands in the opinion of others unaffected by false statements to his discredit ', and it affords redress against those who speak such defamatory falsehoods...". (emphasis added). It was held in Knupffer v London Express Newspaper Limited [1944] 1All ER 495 that: "The only relevant rule is that in order to be actionable, the defamatory words must be understood to be published of and concerning the plaintiff". This Court while dealing with an appeal in a defamation case held in SMW v ZWM [2015] eKLR: "A statement is defamatory of the person of whom it is published if it tends to lower him/her in the estimation of right-thinking members of society generally or if it exposes him/her to public hatred, contempt or ridicule or if it causes him to be shunned or avoided". (Emphasis added). 1. There was a claim for defamation or brand assassination and reputational damage. No witness was called even for the brand assassination or reputational damage. Secondly, there was no nexus drawn between confiscation of goods by an inter-agency task force and destruction by members of the public. None of the members was a servant of and an agent of the defendants. Further, no evidence was led on this aspect at all. 1. The last aspect was loss of goods. The goods were destroyed by members of the public. The goods were recovered from a distributor. Once the goods were with the distributor, it is not clear whether the goods that were lost were the same as those that were sent to the distributor. The distributor knew what goods were confiscated. The plaintiff was under a duty to call the distributor and produce evidence of the chain of custody. 2. More surprisingly, the goods had been banned by the Security and Intelligence Committee. The plaintiff did not bother to have the decision quashed before supplying the goods. It is also not clear whether the confiscated goods were supplied by the plaintiff. What is clear is that what was confiscated is a brand that had been banned. Whether this was counterfeit or not is a question that documentation from the distributor will help answer. Unfortunately, there is no evidence on the source of the goods that the state confiscated. In any case, this was a proper case to be dealt with by the government, not hapless police officers and the national government officials, Acting Deputy County Commissioner and an Assistant Sub-County Commissioner. 3. The next aspect is damages. First, the nature of injuries sought was in the form of special damages. In the case of [**Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR)**,](https://new.kenyalaw.org/akn/ke/judgment/keca/1996/99/eng%401996-04-26) the Court of Appeal, [Akiwumi, J. A],stated thus: The words of Jessel M.R. on this issue are the following: When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given.” 1. The court in the above case continued as follows: In the subsequent appeal to this court, it was held that a mere denial is not a sufficient defence in the type of action that had been brought against the defendant. In the judgment of this court delivered by Platt, J. A. as he then was, it is clearly stated as follows: “First of all a mere denial is not a sufficient defence in this type of case there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.” Thus is Maguga General Stores this court authoritatively enunciated the principle that in an action for a debt or liquidated demand a mere denial or general traverse will not do for all purposes. Applying the same principle a defence in an action of that type that is a mere general traverse cannot be and is not a sufficient defence and also discloses no reasonable defence for the purposes of 06 r 13(1)(a). 1. The figures thrown to the court were arbitrary. There was no evidence whatsoever led, even on the value of the confiscated alcohol suspected to be counterfeit. In the case of [**Lei Masaku v Kalpama Builders Ltd** [2014] KEHC 1196 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2014/1196/eng%402014-12-05), A. MABEYA J, held as follows: It has been held time and again by the Court of Appeal that the court of first instance assesses damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issue of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages, as they are not courts of last resort. Their decisions are appealable, and the appellate court needs to know the view of the Court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behoves this court to assess quantum.” 1. The Court of Appeal also dealt with the duty to assess damages in the case of [**Andrew Mwori Kasaya v Kenya Bus Service [2016] KECA 408 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/408/eng%402016-07-14)**,** where the Court of Appeal [**Waki,** Nambuye & Kiage, JJA], posited as follows: Turning to issue No. 2, the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No 124 of 1993 (UR). The court made the following observations on this issue: “The judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment” This principle has religiously been followed by the courts below. We highlight a few of such decisions on the point by way of illustration. In Pamela Misiga Okelo versus Odero O. Alfred [2011] eKLR the following observation were made: “With regard to grounds 3 this court is satisfied that although the plaintiff’s claim had been dismissed it was imperative on the trial magistrate to make an assessment of damages the appellant would have been awarded had she succeeded” In Lei Masaku versus Kalpama Builders Ltd [2014] eKLR it was observed thus: “There is the issue of failure to assess damages. It has been held time and again by the Court of appeal that the court of first instance assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issue of damages in this case is a serious indictment on the part of the trial court.” Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know the view by the court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behoves this court to assess quantum.” See also Gladys Wanjiru Njaramba versus Globe Pharmacy and another [2014] eKLR for the observation that:- “It is trite law that the trial court was under duty to assess the general damages payable to the plaintiff even after dismissal of the suit. This position is confirmed by the Court of Appeal in the case of Mordekai Mwangi Nandwa versus Bhogals Garage CA No. 124 of [1993] (UR) Where the court held that the that damages be assessed even if the case is dismissed does not imply writing an alternative judgment.’ And in the case of Matiya Byaba Loma & Another versus Uganda Transport Co Ltd. Uganda Supreme Court Appeal No. 10 of 1993 IV KALR 138 where the court held that:- “the judge erred in not assessing the damage (sic) he would have awarded had the appeal court been successful in her claim” 1. It must be remembered that assessment of damages is discretionary. In the case of [**Migori County Government & another v Migori County Transport Sacco [2021] KECA 7 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2021/7/eng%402021-09-23), the court of appeal [MSA Makhandia, J Mohammed & S ole Kantai, JJA] held as follows: The comparable common law measure of damages would often be a useful guide in assessing the amount of compensation. But that measure was no more than a guide because the award of compensation was discretionary and moreover, the violation of the constitutional right would not always be co-terminus with the cause of action at law. An award of compensation would go some distance toward vindicating the infringed constitutional right. How far it went would depend on the circumstances, but in principle, it could well not suffice. The fact that the right violated was a constitutional right added an extra dimension to the wrong. An additional award, not necessarily of substantial size, could be needed to reflect the sense of public outrage, emphasize the importance of the constitutional right and the gravity of the breach, and defer further breaches. The duty and task to assess damages was discretionary and once exercised properly, valid reasons had to be proffered to justify interference by the appellate court. An appellate court would however only interfere with an award where an appellant demonstrated that the award was too high or so low as to represent an entirely erroneous estimate. 1. Further, the Court of Appeal posited as follows in regard to assessment of damages. In our jurisdiction, however, the question of assessment of damages will have to be guided by, amongst others, common law and decided cases. Assessment of quantum of damages is a matter for the discretion of the trial judge, which must be exercised judicially and with regard to the general conditions prevailing in the country, such as inflation, and also prior relevant decisions. An appellate court should only interfere with such an award where the trial Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or where the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. (See [Kariuki v Attorney General [2014] KECA 713 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/713/eng%402014-03-21) 1. Special damages must not only be particularised but must be specifically proved. While addressing special damages, which can aptly apply to the liquidated claim herein, in the case of **David Bagine v Martin Bundi[1997]** eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. In**Bonham Carter v Hyde Park Hotel Limited (1948)** 64 TLR 177)**,**where he stated that: [The] Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it. 1. There was no scintilla of evidence tendered on the value of the goods lost. The claim for Ksh 3,900,000/= was the value of the Plaintiff’s property destroyed. The entire list of documents, from page 21 to page 39, has notices, invoices, licenses, employee rolls and scientific analysis of products. None has the cost of the goods, either in production or sale. There was no evidence of the cost of goods sold. The claim for Ksh 3,900,000/= is therefore dismissed *in limine*. 2. Of Ksh. 3,900,000 special damages, Ksh. 100,000,000/= being the cost incurred in repairing the Plaintiff’s reputational damage. The next question is the loss of goods and Ksh 100,000,000/=. 3. General damages for the tort of misfeasance in a public office were claimed. Had malfeasance been proved, there was still no damage for confiscation of the goods. Therefore, only nominal damages could have sufficed. In the case of [**Jogoo Kimakia Bus Services LTD v Electrocom International LTD [1992] KECA 48 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1992/48/eng%401992-12-15)**,** the Court of Appeal [Gicheru, Cockar & Muli JJ A**)**] posited as follows: In ‘Medina’ and the ‘Mediana’ [1900] AC 113, 116 Earl of Halsbury LC as he then was defined nominal damages:- “My Lords, here I wish, with reference to what has been suggested at the bar, to remark upon the difference between damages and nominal damages. ‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damages, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term nominal damages does not mean small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small they are necessarily nominal damages.” 1. In addressing nominal damages, this court in the case of [**Kamau & another v Kingdom Bank Limited [2026] KEHC 6242 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6242/eng%402026-05-08) stated as follows: Having been forgiven, he did not suffer any loss. Therefore, general damages cannot flow from the actions. In the case of Jogoo Kimakia Bus Services Ltd V Electrocom International Ltd [1992] Keca 48 (KLR), the Court of Appeal (Gicheru, Cockar & Muli JJ A described what general and nominal damages are: The law on damages stipulates various types of damages. The distinction between general damages and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded. (See Chitty on Contracts 26 edition para 1772 at p117 et seq.) With greatest respect, the Judge misdirected himself when he speculated that the respondents were kept away from other contractual work. Although the respondent did not quantify the loss to be entitled to an award of special damages, they in fact proved the breach of the contract but failed to prove the actual amount of the loss or any loss flowing from the breach of the contract. The award of general damages was not available to them. The loss suffered was therefore capable of compensation by an award of nominal damages.In ‘Medina’ and the ‘Mediana’ [1900] AC 113, 116 Earl of Halsbury LC as he then was defined nominal damages:-“My Lords, here I wish, with reference to what has been suggested at the bar, to remark upon the difference between damages and nominal damages.‘Nominal damages’ is a technical phrase which means that you have negatived anything like real damages, but that you are affirming by your nominal damages that there is an infraction of a legal right which, though it gives you no right to any real damages at all, yet gives you a right to the verdict or judgment because your legal right has been infringed. But the term nominal damages does not mean small damages. The extent to which a person has a right to recover what is called by the compendious phrase damages, but may be also represented as compensation for the use of something that belongs to him, depends upon a variety of circumstances, and it certainly does not in the smallest degree suggest that because they are small, they are necessarily nominal damages.” 71.Consequently, a sum of Ksh 1/= will have sufficed had the plaintiffs succeeded in their claim. 1. Regarding general damages for brand assassination and reputational loss, there was completely no nexus between the claim and the defendant. There is therefore no basis for award. There was nothing to deal with in terms of damages. In regard to special damages, there is no duty to assess special damages when the same are not proved. 2. Given that there was no loss or injury from the defendants’ actions, a sum of Ksh 10/= will suffice, if the plaintiff had proved his case. 3. In any event, the evidence does not establish that the Plaintiff suffered any loss or injury attributable to the Defendants' actions. Had the Plaintiff succeeded in establishing liability, I would have awarded nominal damages of Ksh. 1/=, which, in the circumstances, would have constituted reasonable compensation. However, having found that the Plaintiff failed to prove its case on liability, no award is payable. 4. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows: **(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 to give all necessary directions for the purposes aforesaid; and the fact that the court or judge 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 order.** **(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.** 1. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: **It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.** 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: **18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation.** **22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant.** 1. Costs follow the event. The defendants were dragged to court to defend the suit. They are entitled to costs. The same shall be taxed or agreed upon by the parties. Determination 1. In the circumstances, I make the following orders: 2. The suit lacks merit and is hereby dismissed with costs. 3. 14 days right of appeal. 4. 30 days stay of execution on costs. 5. File is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** onthis **30th** day of **July** the year of our Lord **Two Thousand and Twenty-Six**. Judgment delivered through Microsoft Teams Online Platform **KIZITO MAGARE** **JUDGE** **In the presence of; -** Mr. Kabugu for the Plaintiff No appearance for the Defendants Court Assistant – Timothy