[2021] KEHC 8168 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO. 132 OF 2019

WILFRED OGERO MOSIGISI.....................................................................APPELLANT

VERSUS

JULIUS OGERO MOSIGISI..........................................................1ST RESPONDENT

HON. ATTORNEY GENERAL......................................................2ND RESPONDENT

(Being an appeal from the Judgment and Decree of Hon. P.N. Wamucii (R.M.)

dated and delivered on 4th day of December2019 in Kisii CMCC No. 482 of 2017)

JUDGMENT

INTRODUCTION

1. The appellant in this matter sued the respondents for damages following his arrest, arraignment in court and subsequent prosecution in Keroka PMCR No. 1499 of 2015. He averred, in his plaint dated 9th October 2017, that the 1st respondent had, without lawful cause, reported a complaint with the O.C.S., Kisii Police Station, alleging that he had inter alia forged the signature of the District Commission, Kisii Central on various documents. Pursuant to the complaint, the O.C.S., Kisii Police Station, arrested, interrogated and detained him for 4 days awaiting arraignment in court.

2. On 21st October 2015, the appellant was arraigned in court and was subsequently charged with 5 counts relating to forgery and making a document without authority contrary to Sections 345 and 257 of the Penal Code vide Keroka PMCR No. 1499 of 2015. The criminal case culminated in his acquittal on 24th January 2017. In the matter before the trial court, the appellant contended that his arrest, arraignment and prosecution at the instant of the 1st respondent in collusion with the 2nd respondent was malicious and occasioned the deprivation of his right to liberty and freedom. He averred that due his arrest, arraignment in court and prosecution on the basis of the tramped up charges, he had to retain an advocate to defend him in the criminal proceedings and thus incurred expenses totaling to Kshs. 842,000/=. He therefore sought judgment against the respondents in the following terms:

a. General damages for unlawful arrest, wrongful confinement and malicious prosecution;

b. Aggravated damages as against the 1st defendant herein on the basis of the false and malicious allegations fronted and/or made to the 2nd defendant as well as for mental anguish;

c. Special damages in the sum of Kshs. 842,000/= only;

d. Interests at court rates (14%) per annum on (i) (ii) & (iii) from date of filing of suit;

e. Costs and interests thereon be borne by the defendants;

f. Such further and/or other relief as the Honorable court may deem fit and expedient so to grant.

3. The 1st respondent and the 2nd respondent, who had been sued in his capacity as the legal representative for the O.C.S., Kisii Police Station, filed their respective defences denying that the appellant was prosecuted maliciously and without reasonable and probable cause. They asserted that there was reason to believe that the appellant had committed an offence triable in law. The 2nd respondent asserted that the police had done thorough investigations before charging and prosecuting the appellant and the suit for malicious prosecution was defective and an abuse of court process.

4. The duty of this court on a first appeal is to re-evaluate and re-assess the evidence adduced before the trial court keeping in mind that it did not see or hear the parties and giving allowance for that (see Selle v Associated Motor Boat Co. [1968] EA 123). An appellate court will not normally interfere with a finding of fact by the trial court unless it is based on no evidence, or on a misapprehension of the evidence or the magistrate is shown demonstrably to have acted on wrong principles (see Ephantus Mwangi and Another v Duncan Mwangi Wambugu [1982 – 88] 1 KAR 278).

5. The appellant, Wilfred Ogero Mosigisi, told the trial court that he was arrested sometime in October 2015 and charged in court for forging documents relating to the transfer of LR No. Nyaribari Chache/Boburia/4068 and a court order to remove a caution placed on the title to the land. He insisted that the documents were genuine. He stated that he, his father and his brothers had all gone to the Land Control Board and had signed the application for consent. He could not tell how their father got the titles he gave them or whether their father was in a coma when the consent was obtained and the transfer registered, but he insisted that his father was okay at that time although he was in hospital.

6. The appellant acknowledged that his brothers had also been arrested over a similar matter. He was, however adamant that there was no reason to arrest him as there was no evidence of the alleged forgery. According to him, the 1st respondent picked on him because he was the executor in the will of their late father. He stated that the 1st respondent was bitter because his mother had been divorced and their father had told him that he was not entitled to anything. He maintained that the police had no cause to arrest him and that he had been acquitted of all counts in the criminal proceedings.

7. The 1st respondent’s testimony was that his mother was one of the two wives his father had. They lived together until the time of her death in 1996. The 1st respondent testified that he was not privy to any divorce between them as claimed by the appellant. He testified that the complaints he had made related to parcel nos. Nyaribari Chache / B / B / Boburia / 4068 and Nyaribari Masaba / Bonyamasicho / 1008 which were registered in his father’s name. He stated that at the time of the transfer of parcel no. 4068 his father was alive and that he passed away on 24th July 2015. Before his death, the deceased had been admitted at RAM Hospital since 19th May 2015. A nurse caught his brothers, including the appellant, taking their father’s fingerprints while his father was in a coma and being apprehensive that they wanted to transfer their father’s land, he registered a caution against the title. The caution was later removed by a court order in CMCC Misc. 143 of 2015.

8. The 1st respondent testified that he instructed his advocate to write a letter demanding the documents used to remove the caution. The land registrar furnished them with the application for Land Control Board Consent, transfer forms, consent of the Land Control Board and the purported court order. He realized that the consent had been issued on 3rd January 2015 while their father was in a coma. The Deputy County Commissioner also denied issuing the consent and even went ahead to write a letter to the DCIOP to the effect that his signature had been forged. They also received a response stating that the court order dated 3rd July 2015, which had been used to lift the caution, had not emanated from the court.

9. He reported the matter to the police who found out that the appellant had paid for the transfer at the land’s registry. The appellant was arrested after investigations and charged but he was later acquitted. The 1st respondent stated that the prosecution informed him that they had applied for review but he did not know the results of that application. He also admitted that he did not have a grant of representation in his father’s estate but asserted that he did not require one for the criminal matter. He insisted that his report was made without malice and that the appellant was the author of the fraud.

10. James Adanje (DW2) the executive officer of Kisii Law Courts confirmed that his predecessor had written a letter stating that the order issued on 3rd July 2015 had not originated from the court. He stated that the parties in the original file, Misc 143/15 were Kenneth Morori Mokua vs Amaco Insurance and not Joseph Mosigisi vs Julius.

11. During cross-examination, James Adanje stated that an Executive Officer could communicate to third parties on behalf of the Head of Station but had to show that the communication had been done on behalf of the Head of Station and the letter copied to him. In this case, the letter written by his predecessor had not been copied to the Head of Station. He admitted that he had not produced a copy of the register for the year 2015 but he stated that he had looked at it that morning and that as the executive officer, he would know which files existed and which ones did not. DW2 testified that although he was not sure whether the letter had been authorized by the Head of Station, it had been written by the Executive Officer and it was sealed.

12. Linet Amata (DW3), a clinician from RAM Hospital testified that from their records, Mr. Johnson Mosigisi was admitted at the hospital and had been attended to by her colleagues who were no longer with them. She stated that Mr. Johnson Mosigisi was admitted to the hospital on 6th May 2015 with a history of diabetes, hypertension, arthritis, post-operative cana with wound sepsis. She explained that post-operative cana meant that the patient went to coma after operation and had septic wounds. She testified that after a long time of nursing care, he passed on, on 19th July 2019.

13. During cross-examination, DW3 stated that there was a copy of discharge summary which indicated that the deceased had been discharged on 7th June 2015 and another discharge summary which stated that the deceased was discharged on 24th July 2015. She admitted that there was no carbon copy for a discharge summary dated 24th May 2015. She also stated that she did not know whether the deceased was admitted again after discharge.

ISSUES

14. The dismissal of the appellant’s claim for malicious prosecution is what precipitated the instant appeal. The appeal is premised on 19 grounds of appeal which were canvassed by way of written submissions. From those submissions, the evidence and the record of appeal, I find that the main issues arising for determination are:

a. Whether the trial magistrate erred in finding that the 1st respondent could lodge a complaint having not been issued with grant in respect of the deceased’s estate in violation of section 82 of the Law of Succession Act;

b. Whether there was reasonable cause to lodge the complaint culminating into the arrest and ultimate prosecution of the appellant and whether the prosecution was actuated by malice;

c. Whether the trial court erred in its assessment of damages awardable to the appellant; and

d. Whether the 1st respondent was entitled to costs

ANALYSIS AND DETERMINATION

15. It is common ground that the appellant was charged with five counts of forgery vide Keroka PMCR No. 1499 of 2015. The charges the appellant faced were, in a nutshell: Making a Kisii Chief Magistrate’s court order in case number 143 of 2015 purporting it to be genuine and issued by Chief Magistrate’s court Kisii; Forging the signature of Kisii central sub-county Deputy County Commissioner; Forging the official stamp impression of the Kisii central sub-county Deputy County Commissioner; Uttering the court order at the land registry in Kisii county and Uttering a forged letter of consent at the land registry purporting it be a genuine letter of consent issued by the deputy county commission Kisii sub-county.

16. The criminal case against the appellant was based on a report made by the 1st respondent who believed that the appellant had forged and uttered the documents to facilitate the fraudulent transfer of Land Parcel No. Nyaribari Chache/B/B/Boburia/4068 belonging to their father, Johnson Mosigisi to his name. The appellant was acquitted of the charges, when the prosecution failed to avail witnesses to testify in support of the case.

a. Whether the trial magistrate erred in finding that the 1st respondent could lodge a complaint without grant of letters of administration grant in respect of the deceased’s estate

17. The appellant contested the finding by the trial court that the 1st respondent was capable of mounting a complaint without obtaining a grant of representation due to his personal interest in the deceased’s estate. It has been submitted that the trial court’s finding was erroneous and contrary to the provisions of Section 82 of the Law of Succession Act. The appellant’s counsel argued that if the trial court appreciated the significance of the grant, it would have found that the 1st respondent was actuated by ulterior motives. He relied on the cases of Virginia Edith Wamboi Otieon vs Joash Ochieng Ougo & Another (1982 -88)KARandCharles Ratemo Nyambati v Jacton Ocharo & 4 Others [2016]eKLR in support of his argument that it was incumbent upon the 1st respondent to obtain a grant to acquire the requisite locusbefore lodging the criminal proceedings.

18. Contrarily, the respondents’ counsels urged that based on the facts of the case, the 1st respondent had every reason to believe that a crime had been committed and had a justifiable and reasonable cause to make a complaint to the police. It was urged that the trial magistrate was right in holding that the 1st respondent was a direct beneficiary of the estate of their late father and could not be faulted for taking action when he felt that his father’s estate and his share of the inheritance was in danger.

19. The question of whether the appellant could lodge a complaint regarding the deceased’s property without obtaining a grant is easily disposed of by the decision of the Court of Appeal in Kamau John Kinyanjui v Republic Criminal Appeal No. 295 of 2005 [2010] eKLR. In a comprehensive discourse on the issue the Court held:

What the appellant and his legal advisers do not seem to appreciate is that the issue which was for determination in that case was who was entitled to bring a claim in court on behalf of the estate of a deceased person. But if a person be dead and another person, whether it be a relative, a neighbour, a friend or a total stranger goes and makes a report of a crime in respect of the estate to the police, the Attorney-General, or any other authority is the person reporting the alleged crime to be told by the person to whom the report is being made:-

“Before I can take action on your complaint, may I see, the letters of administration which you have obtained from a competent court" If you have not obtained letters of administration, go and obtain them first before you can report the alleged crime against the estate.”

No sensible system of criminal justice can operate in that fashion. The fallacy in the appellant’s argument lies in the fact that he is confusing the purpose of a criminal prosecution with the purpose of claim in civil litigation where the claimant gets the estate of a deceased person with rights pertaining thereto vested in himself or herself to distribute the assets or liabilities of the estate in accordance with the law.”

20. The Court of Appeal pointed out that a person reporting a crime in criminal proceedings does not acquire any rights with respect to the estate. It stated that the complainant in criminal proceedings was always the Republic and “the Republic did not need letters of administration to institute the prosecution of the appellant.” Anyone, including a stranger, with justifiable cause to believe that a crime had been committed against the estate had a right to report the matter. In this case, the 1st respondent had an interest in the estate of the deceased by virtue of him being a son of the deceased. He was not the only person aggrieved by the alleged actions of the 1st respondent. The Chief Magistrate’s court Kisii and Kisii central sub-county Deputy County Commissioner were also victims of the alleged crime. The criminal matter could well have proceeded without the 1st respondent’s testimony. The trial court’s finding that the 1st respondent did not need a grant of representation to lodge the complaint was well founded.

b. Whether there was reasonable cause to lodge the complaint, culminating into the arrest and ultimate prosecution of the appellant and whether the prosecution was actuated by malice

21. The elements to be proved in an action for damages for malicious prosecution are that:

a. The criminal proceedings were instituted by the defendant who was instrumental in setting the law in motion;

b. The defendant acted without reasonable cause;

c. The defendant acted maliciously; and

d. The criminal proceedings must have been terminated in the plaintiff’s favour.

22. There is no contention that the criminal proceedings were commenced at the instance of the respondents and that the appellant was acquitted of the criminal charges against him. The gravamen of the appeal is the argument that there was no reasonable cause for the respondents to institute and prosecute the criminal proceedings against the appellant which demonstrated that ulterior motives and ill will inspired the respondents to cause the appellant’s arrest, arraignment and prosecution on tramped up charges.

23. The appellant’s learned counsel complained that the trial court had given undue premium to the complaint touching on the forgery of a court order while the executive officer, DW2, had failed to produce the relevant court file. He argued that the letter produced by DW2, upon which the trial court was persuaded that there was a reasonable cause in lodging the complaint, was not authored by a judicial officer who is the only person conferred with the mandate to address the legality of orders. The holding by the trial court that certain transfer documents were obtained when the deceased was seriously sick was also faulted for the reason that the court did not consider that the evidence on the deceased’s illness was based on fraudulent documentation produced by DW3.

24. Counsel also contested the finding by the trial court that the 2nd respondent had tendered evidence and availed documents, since, according to him, the 2nd respondent did not produce any evidence and thus failed to show the basis upon which the arrest, detention and prosecution was founded upon. That in contrast the appellant tendered evidence and produced documents including copies of transfer instruments and the title deed to show that the disputed transactions were lawfully carried out.

25. Conversely, it was submitted for the 1st respondent that he had every reason to believe that a crime had been committed and that he had justifiable and reasonable cause to make the complaint. The 1st respondent’s counsel urged that the court did not err in holding that the removal of the caution touching on the suit property was a forgery based on the testimony of DW2 and substantial evidence to the effect that the deceased was hospitalized at the material time. The difference in dates was said to be an error of the hospital records and not the 1st respondent.

26. The 2nd respondent’s counsel also supported the trial court’s finding that there was no evidence to demonstrate that the respondents were driven by malice. It was submitted that there was proof that the transfer of the subject land had been effected by the appellant or in his name at a time when the rightful owner was not in a position to transact. These were genuine reasons to cause the 1st respondent to report on the matter, setting the law in motion. Counsel added that the respondent’s acquittal was based on a technicality and not for lack of evidence.

27. Considering that the cause of action was based on criminal proceedings which are governed by distinct evidentiary principles, it is necessary to restate that the burden of proof in the case before the trial court was upon the appellant and the standard of proof was the standard applicable to civil cases. To succeed in his claim for damages, the appellant was required to prove his case on a balance of probabilities. The fact that the appellant had been acquitted did not of itself demonstrate malice on the part of the prosecution. It was upon the appellant to prove that his prosecution was actuated by malice and was without reasonable cause. (SeeJames Karuga Kiiru vs Joseph Mwamburi & 3 Others [2001] eKLR)

28. At the hearing of the matter before the trial court, the 1st respondent testified that on the circumstances that led him to believe that the appellant was culpable of a crime. He stated that a caution he had caused to be placed against the title to his father’s parcel of land was lifted in unclear circumstances. The reasons for lodging the caution dated 6th May 2015 as indicated on the flip side of the application was that the 2nd house had fraudulently taken the fingerprints of the deceased while he was admitted in hospital in a critical condition.

29. When the 1st respondent learnt that his caution had been lifted, he instructed his advocates to ask to be furnished with the documents used to remove the caution. Among those documents was a court order issued in CMCC Misc. No. 143 of 2015. The executive officer, Kisii Law Courts at the time wrote a letter addressed to the 1st respondent’s advocate stating that the order had not emanated from the court. His successor, DW2, testified that the parties in CMCC Misc. No. 143 of 2015 were Kenneth Morori Mokua vs AMACO Insurance and not Johnson Mosigisi and the 1st respondent as indicated in the purported court order. During cross-examination, DW2 acknowledged that the letter should have been written on behalf of the Head of Station and the Head of Station copied with the letter which had not been done. He also failed to produce the court file with respect to CMCC Misc. No. 143 of 2015. Were these omissions sufficient to disregard the evidence given by DW2 as contended by the appellant?

30. The applicable test in cases of malicious prosecution, as aptly put by Rudd J. in the case of Kagane and Others v Attorney General & Another [1969]EA 643, is that of an ordinary, reasonable, prudent and cautious man. The court must ask its self whether an ordinary, prudent and cautious man placed in the position of the accuser would come to the conclusion that the person charged was probably guilty of the crime imputed. In the instant case, the 1st respondent instructed his advocates to write to the relevant institutions for information on how the caution he had placed against the title to the subject land had been removed. His advocate was furnished with the letter written by DW2’s predecessor. The actions taken by the appellant strike me as those an ordinary man would take under similar circumstances. In my view, an ordinary and prudent man in receipt of a letter authored by the executive officer of the court stating that a court order had not emanated from the court, would be justified to believe such communication. The appellant claimed that the court order but failed to produce any evidence to confirm that.

31. Other than the court order, the questionable manner in which an application for the Land Control Board consent was made and the subsequent transfer of the subject land to the appellant and others would further reinforce the conviction of an ordinary, prudent man that a crime had been committed. The 1st respondent testified that at the time the deceased allegedly transferred the subject land to the appellant and other co-owners, he was in a coma. A discharge summary dated 24th July 2015 which had been issued by RAM Hospital (Dexh-5) indicated that the deceased had remained comatose since he was admitted on 19th May 2015 until he died on 24th July 2015. DW3, the clinician from RAM Hospital, stated that there was no carbon copy of the discharge summary produced as Dexh-5. She referred the court to a discharge summary contained in the deceased’s patient file, dated 7th June 2015 which showed that the deceased was admitted on 19th May 2015 and discharged on 7th June 2015. The discharge summary stated that the deceased was “weak” and “sick looking.”

32. The appellant’s counsel contested the reliance by the trial court on the deceased’s patient file (Dexh-14) for the reason that there were obvious contradictions which were not explained by DW3. Having carefully analyzed the discharge summaries dated 24th July 2015 and 7th June 2015, I find that I am unable to agree with the argument that the medical evidence led by DW3 was devoid of probative value. The reason for this finding is that the discharge summaries although not similar are not starkly different as to warrant a complete disregard of the medical evidence. Both discharge summaries indicate that the deceased was admitted at the hospital on 19th May 2015. Although the original copy of the discharge summary dated 7th June 2015, states that the deceased was discharged on 7th June 2015, the flip side of the discharge summary contains hand written entries that go up to 23rd July 2015. I find that the discharge summary dated 7th June 2015 tallies with the one dated 24th July 2015 which indicates that the deceased was discharged from the hospital on 24th July 2015, when he died. These documents proved that deceased was hospitalized from 19th May 2015 and died on 23rd or 24th July 2015.

33. The application for transfer of the subject land from the deceased to the appellant and his brothers was received at the lands registry on 7th July 2015. Prior to that the Land Control Board had purportedly issued a letter of consent dated 3rd July 2015. Not to mention that the court order which had purportedly been issued in a suit between the deceased and 1st respondent was given on 3rd July 2015. The medical evidence proves, on a balance of probabilities that the deceased was critically ill in the month of July 2015 when these processes were carried out. It would be perfectly logical for any man faced with the facts outlined above, to believe that there were unscrupulous dealings relating to the subject land, orchestrated by the benefactors of such a transfer. There was overwhelming evidence to the effect that the court order used to lift the caution placed by the 1st respondent against the title to the subject land was dubious and the transfer of the land from the deceased to the appellant and his siblings was questionable, as it was done at a time when the deceased was ailing. No evidence was led by the appellant to counter these facts which demonstrate that there was justifiable cause to have him prosecuted vide Keroka PMCR No. 1499 of 2015.

34. The proceedings in the criminal case demonstrate that the appellant was acquitted before any witnesses were called by the prosecution. The appellant’s acquittal was not adequate proof of malice. Ill will had to be proved against the prosecutor. In Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held that, “The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.”The appellant cannot purport to shift the onus of proof to the respondents. Failure by the 2nd respondent to call witnesses did not absolve the appellant of the duty to prove his case. I also find no fault in the trial court’s observation that the 2nd respondent had made efforts to procure witnesses and the evidence in support of the respondents’ case was sufficient. I therefore answer the second issue in the affirmative.

c. Whether the trial court erred in its assessment of damages awardable to the appellant.

35. Next I turn to the assessment of damages by the trial court. It is contended that the award of Kshs. 60,000/= in general damages did not take cognizance of comparable awards. As a principle, an appellate court will not disturb an award for general damages unless it is inordinately high or low as to represent an erroneous estimate, consideration of wrong principles or a misapprehension of the evidence in some material respect. (See Butt v Khan (1982-88) KAR). General damages are evaluated within the context of the nature and extent of the harm suffered and comparable awards made in the past.(SeeSimon Taveta vs. Mercy Mutitu Njeru [2014] eKLR)

36. It is not disputed that the appellant was wrongfully detained for four days before he was arraigned in court for plea taking. The arrest of the appellant in this case was justified but his detainment for 4 days without being charged was not. He was held in violation of his constitutional right to be taken to court within 24 hours of his arrest as provided in Article 49 (f) of the Constitution.

37. The appellant proposed Kshs. 500,000/= as general damages for his unlawful arrest and Kshs. 200,000/= for unlawful confinement in his submissions before the trial court. He relied on the cases of Thomas Mboya Oluoch & Another v Lucy Muthoni Stephen & Another [2005] eKLRwhere the court had awarded the plaintiff Kshs. 500,000/= as general damages for false imprisonment for 28 days. In the case of Robert Kisiara Dikir & 3 Others v Officer Commanding Keiyan General Service Unit (GSU) Post & 3 Others [2010] eKLRthe court awarded the petitioners Kshs. 200,000/= each for unlawful arrest and Kshs. 200,000/= for wrongful confinement. The petitioners in that case had been held incommunicado for a period ranging from 4 to 5 days.

38. The trial court did not lay a basis for its assessment of damages for wrongful confinement at Kshs. 60,000/=. Taking into account the fact that the circumstances of the petitioners in the foregoing matters were more dire as compared to those of the 1st appellant and also considering the age of those authorities vis-à-vis the rate of inflation, I find that the award of Kshs. 60,000/= was inordinately low. An award of Kshs. 200,000/= is more befitting in this case.

39. I however find no reason to interfere with the trial court’s finding that the appellant was not entitled to aggravated damages having failed to produce evidence to prove them. The court in M W K v another v Attorney General & 3 others CONSTITUTIONAL PETITION NO. 347 OF 2015[2017] eKLRdefined aggravated damages thus;

“116. … Aggravated damages are the special and highly exceptional damages awarded on a defendant by a court, when his/her conduct amounts to tortious conduct subjecting the plaintiff to humiliating and malicious circumstances. Additional damages are also awarded in situations where a plaintiff is subjected to distress, embarrassment, or humiliation. Aggravated damages are basically compensatory in nature and they are awarded for the aggravated damage that is caused to a plaintiff. Aggravated damages are determined on the basis of the intangible injury inflicted on a plaintiff. Intangible injury includes the pain, anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that are caused by the conduct of a defendant. When compared to punitive damages aggravated damages require proof of injury. Aggravated damages can be attained as additional compensation if the injured establishes that a breach caused mental distress.”

40. The appellant did not demonstrate the injury he had suffered to warrant the award of aggravated damages in addition to general damages. His argument that he was entitled to special damages notwithstanding that he had not proved his claim for malicious prosecution is untenable. There was no basis for granting special damages when the appellant had failed to prove his claim of malicious prosecution. Since the appellant was only partially successful, the court was right in awarding him half the costs.

41. In the end, I find this appeal merited only to the extent that the award of Kshs. 60,000/= for wrongful confinement is found to be inordinately low and is hereby set aside and substituted with an award of Kshs. 200,000/=.

42. Each party shall bear his costs of the appeal.

DATED, SIGNED AND DELIVERED AT KISII THIS 26TH DAY OF MARCH 2021.

R.E.OUGO

JUDGE

In the presence of;

Mr. Mulisa For the Appellant

1st Respondent Absent

Miss Opiyo For the 2nd Respondent

Ms. Rael Court Assistant