RISING RAYS INVESTMENTS LTD .. M/S DICEJELANI CONTRACTORS CO. LTD. «. REPUBLIC OF KENYA IN THE SMALL CLAIMS COURT AT MACHAKOS SCCCOMN .... E557... OF 2023 CLAIMANT ERSUS RESPONDENT CLAIMANT'S WRITTEN SUBMISSIONS ‘May it please the Honourable Court; INTRODUCTION: - ‘The Claimant instituted this claim vide a Statement of Claim dated 06.11.2023 which has been defended by the Respondent through its response to statement of claim dated 01.12.2023 which claim is liquidated in that the Respondent owes the Claimant Kshs. 350,000/= arising, from a breach of Agreement for hire of equipment which they entered into. The Claimant additionally filed a list of witnesses, a list of documents, a witness statement by Jeremiah Muange Musyoka, all dated 06.11.2023 and which documents include a Demand letter to the Respondent dated 09.10.2023, WhatsApp extract messages dated between 14.08,2023 and 14.09.2023 and an Agreement for hire of equipment dated 11.11.2022. Together with the response to statement of claim, the Respondent filed a Witness Statement, its list of documents all dated 01.12.2023 and which documents are an Agreement for hire of equipment dated 11.11.2022 and an undated copy of records of hours worked, ‘These submissions are in respect of the Claimant's claim against the Respondent for Kshs. 350,000/= arising from an Agreement for hire of equipment, 5. ‘The Claimant called one witness in support of its case. CLAIMANT WITNESS 1: JEREMIAH MUANGE MUSYOKA; 6. The Claimant witness introduced himself as the Jeremiah Muange Musyoka, the Manager of the Claimant. He Adopted the Claimant's statement of claim, list of witnesses, list of documents and his ess statement all dated 06.11.2023 as his evidence in support of the claim. He testified that the case involved a claim arising from an Agreement for hire of construction equipment between the Claimant and the Respondent. He briefly explained the particulars of the agreement whereby the Respondent hired construction equipment from the Claimant for a construction project which was to commence in November 2022 for an unspecified period of time but would not go beyond May 2023. wi Page Lof 610. The Respondent and the Claimant were to independently record working hours of the hired machinery, reconcile their records at the completion of the project and the Respondent was to make payments in instalments as the project progressed, to the Claimant for the equipment. 11. The Agreement for hire was capped at Kshs. 5000/= per hour dry rate. 12. During cross examination the Claimant's Witness, Jeremiah Muange Musyoka was questioned as to whether he had tried to reach out to the Respondent or whether he had met him after the completion of the project, which he responded in the affirmative and pointed out to ‘Document 2 of his list of documents as evidence of communication. 13. He was also questioned whether he recorded minutes of their meetings with the Respondent to that effect which he testified in the negative. 14. The Claimant's Witness, Jeremiah Muange Musyoka was questioned on his ‘Document 4° whereby he was questioned on whom Stephen Wachira was and his relationship to the Claimant and the Respondent. 15. He responded that the said Stephen Wachira was the Respondent's client whom the Respondent, behind the Claimant's back, sub-hired the Claimant's equipment to. 16. The Claimant's Witness, Jeremiah Muange Musyoka was also asked how many hours the machinery worked for during the project which he stated that it was 245 Hours according to his records which were not filed in Court but were privately shared with the Respondent, 17. He also testified that he was sure of his records since he used to visit the construction site from. November to March, and after compiling his records at the completion of the project, he sent them to the Respondent on WhatsApp on 14.08.2023 which the Respondent did not object to nor dispute, 18. During re-examination the Claimant's Witness, Jeremiah Muange Musyoka confirmed that the Respondent paid the Claimant a total of Kshs.1, 143,500/= only and that the balance due and owing by the Respondent to the Claimant is Kshs. 350,000/= which he prayed that the Court does compel the Respondent to pay it. RESPONDENT'S CASE 19. The Respondent called one witness in support of its case. RESPONDENT WITNESS 1: |JOSEPHAT MUITHYA MUSYOKA 20. The Respondent witness introduced himself as the Josephat Muithya Musyoka, the Manager of the Respondent. 21. He Adopted the Respondent's Response to Statement of Claim dated 01.12.2023, his Witness Statement and the Respondent's list of documents all dated 01.12.2023 and; which documents include an Agreement for hire of equipment dated 11.11.2022 and an undated copy of record of hours worked as his evidence in defence against the Claim, 22. The Respondent admitted to the claim to the tune of only Kshs. 44,000/= which the Court duly recorded as stayed judgment until the Claim is fully determined. 23. The Respondent’ witness briefly explained the particulars of their Agreement with the Claimant, whereby the Respondent hired consiruction equipment from the Claimant for a construction project which was to commence in November 2022 for an unspecified period of time. Page 2 0f624. The Respondent admitted to have paid the Claimant Kshs. 1,143,500/= as at the time of filing this suit and which balance due as per the Respondent, is Kshs. 44,000/~ that the Respondent admitted to. 25. During cross-examination, the Respondent witness stated that he used to record the daily hours worked on site but could not pick out the Claimant's operator's signature from his records 26. He also stated that he had never communicated with the Claimant since the project was completed and that he tried to reach out to the claimant severally to reconcile and harmonize the records but admitted that he did not file any documents in Court to prove that he tried to reach out to the Claimant. 27. The Respondent witness stated that he only made payments to the Claimant ‘at his own pleasure’ 28. The Respondent witness denied knowing the person known as Stephen Wachira who was mentioned in the Claimant's Account Records (Document 5) 29, The Respondent witness also said he believes his records are correct but has no way of verifying the same to the Court. 30, During Re-examination, the Respondent witness reiterated that he had his own records but he has never been in communication with the Respondent after the completion of the project ILis our considered view that only two (2) issues fall for determination to wit: a) Whether the Respondent has proven his claim of Kshs. 44,000/= against the Claimant's claim of Kshs. 325,000/= against the Respondent. b) Costs. ANAI SIS a) Whether the Claimant has sufficiently proven its claim of Kshs. 325,000/= against the Respon 31. The basis of claim is the amount of money owed to the Claimant by the Respondent which we would be demonstrating through these submissions how much is owed by the Respondent 32. Section 107 of the Evidence Act (Cap 80), provides that: 1) Whoever desires any court to give judgmentas to anyllegal 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.” Page 3 of 633. The onus of proof in this case rests in the Claimant to prove that the Respondent owes it Kshs. 325,000/= and not Kshs. 44,000/= as the Respondent claims and as it has admitted on its part. 34. The Claimant filed Five (8) documents in support of its claim, being, a Demand letter to the Respondent dated 09.10.2023 and which letter elicited no response from the Respondent and which contents and receipt of the same was not disputed by the Respondent. 35. The Claimant also filed WhatsApp extract messages between it and the Respondent dated between 14.08.2023 and 14.09.2023 among which sufficiently and without doubt shows that: - i. The messages sent by the Claimant to the Respondent were received. ii, Further, the Respondent used to respond to the Claimant's messages and even promised to pay the said balance owed soon (Claimant's Document 2). & The Claimant filed detailed tabulated Account details of how the Respondent used to pay it as well as a detailed tabulation of amounts payable and amounts due and owing by the Respondent as proof that it had carefully reconciled its records, which it duly shared with the Respondent (Documents 2, 4 and 5). 37. Ina brief shift of the rule of burden of proof, we shall refer to the case Civil Appeal 032 of 2021; John Bwire Vs Joram Saidi Wayo & Euliana Nabalayo Sailoki whereby Mativo J. clearly illustrated how “legal burden of proof” rule is applicable; “Talking about the legal burden and evidential burden of prove placed upon the Plaintiff by the law, I find it useful to recall Mbuthia Macharia » Annah Mutua Newiga & another in which the Court of Appeal when dealing with the issue of burden of proof obserced: - ‘The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes evidential burden Therefore, while both the legal and evidential burdens initially rested upon the Appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced. As the weight of evidence given by either side during the trial varies, so will the evidential burden shift" to the patty who would fail without further evidence?" 38. The legal burden of proof, however, is tackled in Section 109 of the Evidence Act which provides for Proof of particular fact; “The burden of proof as to any particular fact lies on the person who wishes the court to beligve in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” 39, Placing reliance in Mativo J’s stance and Section 109 of the Evidence Act, the Responclent only filed two documents in rebuttal, the documents being the Agreement between him and the Claimant, a document which is not disputed by the Claimant, 40. The second document filed by the Respondent is an undated record of hours allegedly worked that the Respondent's manager recorded during the entire contractual period, a record which is strongly disputed since the Respondent never shared it with the Claimant neither did the Claimant's machinery operator sign to standardize the record. 41. The Respondent never justified its claim further other than through its witness’ testimony during trial. Page 4 of 642, The Respondent's copy of records worked is undated. Moreover, the said records were tabulated independently and the same was never shared with the Respondent for reconciliation and harmonization of the same. 43. The Respondent heavily relies on its said record of hours worked but it did not file any document showing a record of tabulation of payment it paid to the Claimant nor filed any document to illustrate it even kept any record of how much it owed the Claimant and how much it was still owing for reference, leaving room for doubt as to how it arrived at its alleged figure of Kshs. 44,000/=. 44, Further, the Respondent never, before the filing of this suit, dispute the Claimant's copy of compiled record shared with it on 14082023 and 14.09.2023 as per Document 2 of the Claimant's documents. 45, Justice C.B. Madan in Civil Appeal Nai 12 of 1978; CMC Aviation Ltd Vs Kenya Airways Ltd (Crusair Ltd) stated as follows; “Proof is the foundation of evidence. As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted to investigation, is proved or disproved.” 46. We wish to invoke the provisions of Section 112 of the Evidence Act(Cap 80) which provides for Proof of special knowledge in civil proceedings:- “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” 47. The Respondent also relied on his witness’ oral testimony to prove his facts, through which the aspect of contradiction in that during examination-in-chief the witness denied ever being in communication with the Claimant but later on during cross-examination he contradicts his ‘earlier statement by saying that he had reached out to the Respondent for reconciliation purposes which he claimed that the Claimant ignored him, but failed to file any evidence of the alleged attempted communication in Court. 48, A close scrutiny of Document 2 of the Claimant’s documents, the Claimant clearly sent its compiled records of hours worked and payments to it, to the Respondent, all of which the Respondent did not dispute. In fact, it responded to the Claimant's record by stating “paying soon”, This evidently shows that the Respondent is being, very mean with the truth as it clearly received correspondence from the Claimant but is trying to discredit the Claimant's efforts and attempts to communicate with it over the matter. 49. The Claimant also filed an Agreement for hire of equipment dated 11.11.2022 which document was also filed by the Respondent and which terms of the agreement were neither disputed nor objected to. 50, Based on the analysis of facts and law herein, we hereby, strongly believe and submit that the Claimant sufficiently proved its case as per the provisions of $.107 of the Evidence Act (Cap £80) and is therefore entitled to its prayer of Kshs. 350,000/= against the Respondent (b) Costs Page 5 of 651. We believe that through these submissions, we have illustrated to this Honourable Court, that the Claimant, having fully proved its claim against the Respondent, is entitled to Costs. CONCLUSION: 52, As demonstrated above, the Claimant has genuinely and elaborately proven that it has a legal and valid claim of Kshs. 350,000/= against the Respondent. 53. We therefore pray that the Claimant's claim of Kshs. 350,000/= against the Respondent be upheld and the Respondent's claim be dismissed with Costs. DATED at NAIROBI this_ 15" day of __Feloru a4 2024 KIVI A & CO. THE CLAIMANT AZA, 15t FLOOR, , TAIFA ROAD NAIROBH/ KEL: OTTT243 940 Email: kivuvaadvocates@gmail.com TO BE SERVED UPO! J.MONYANCHA & COMPANY ADVOCATES, RELI CO-OP HOUSE, 38° FLOOR, ROOM 301, P.O. BOX 11612 - 00400, NAIROBI. Email: onyanchaassociates@gmail.com Page 6 of 6GK ENYA LAW ‘Whe Legal ntermaton Pub Knowledge Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) (24 January 2022) (Judgment) ‘Neutral citation: [2022] KEHC 7 (KLR) REPUBLIC OF KENYA. IN THE HIGH COURT AT Vor (CIVIL APPEAL 032 OF 2021 JM MATIVO, J JANUARY 24, 2022 BETWEEN JOHN BWIRE soe APPELLANT JORAM SAIDI WAYO & EULIANA NABALAYO SAILOKI (BOTH SUING ON BEHALF OF THE ESTATE OF BENJAMEN WAYO SAILOKI.... RESPONDENT (An appeal against the Judgment decree of Hon. Khapoya 8, Benson, Principal Magistrate delivered on 3rd June 2021, in Taveta Principal Magistrates Civil Case No. EY of 2020) JUDGMENT Inteoduction 1, ‘The appellant seeks to overturn the decision in PMCC No. E 1 of 2020, Taveta rendered on 3° June 2021 by Khapoya S. Benson, Principal Magistrate on both ability and quantum of damages. In the said case, che Respondents had sued the appellant seeking recovery of general and special damages, los of future income; lst years and or dependency loss of expectation of lif; pain and suffering before death arising from a road accident on 20°" May 2020 in which a one Benjamin Wayo Saloki-deceased sustained injuries from which he did. The Duty ofa first appellate court 2. A firs appellate is mandated co re-evaluate the evidence before the tial coure as wel as the judgment and arrive a its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind thar it did not have the opportunity of seeing and hearing the22. The Plaintifs counsel placed heavy relanee on several decisions which held that where a party fils to adduce evidence, ts pleadings remain mer allegations which have not been proved, However, the applicability and relevaney ofthe said decisions to the fats and circumstances ofthis ease is in doubs, Iki settled law tha seas is only an authority for what it decides. This is correctly captured in the following passage: - “A decision is only an authority for what ie actully decides. What i of the essence in 2 decision sits rato and not every observation found therein nor what logically follows rom * the various observations made init... every judgment must be read as applicable tothe particular facts proved, or assumed to be proved, since the generality of the expressions ‘which may be found there arenot intended to be expositions ofthe whole law, bur governed and qualified by the particular facts ofthe casein which such expressionsareo be found. ‘ase is only an authority fr what it actually decides..." 23. The ratio of any decision must be understood inthe background ofthe facts ofthe particular case. It has been said long time ago that a casei only an authority for what itactually decides, and not what logically follows from i. Tei well setled that a litle difference in facts or additional facts may make a Jot of difference inthe precedential value ofa decision, 24, Each case depends on its own facts and a close similarity between one case and another is not enough ‘because eve a single significant detail may alter the entire aspect. In deciding cases, one should avoid the temptation to decide cases by matching the colour of one case against the colour of another. To decide therefore, on which side of the linea case flls, the broad resemblance to another case is not a all decisive. Precedent should be followed only sofa asic marks the path of justice, bu one must cut the dead wood and tim off the side branches ele you will ind yourself lost in thickets and branches. 26, 2 James 8 ayer A Prliminary Teton Beidence at the Comma La (1898) at 355. ser ye9sR (NSH) NG 22700028, Incvery egal proceeding, the partis are required to adhere to important rules known as evidentiary standards and burdens of proof. These rules determine which party is responsible for putting forch ‘enough evidence to ether prove or defeat a particular claim and the amount of evidence necessity to accomplish that goal In my view, in the instant case, to meet this standard, the Respondent was ‘required to do much more inthe lower court as I wil show shortly. As stated earlier, che Respondent's «ase in the lower court rested on two witnesses who were not atthe scene. The Police Office testified that a report was received a the Police Station, He was nor atthe scene. His testimony on how the accident occurred is not direct evidence but secondary evidence. Similarly, PW2, only learnt about the accident and went tothe hospital only to find that the deceased had died. He wasnotat the scene. None of the two witnesses could give an account on how the accident occurred. None of them could give an cye witness account. Eyewitness testimony is eritial in both criminal and civil tials, and i frequently accorded high status in the courtroom. 29, Ditectevidenceis evidence thatif believed, directly proves fie in issue. Directly means thata person docs not have to make any inferences or presumptions as to proof. Direct evidence is a piece of| evidence often in the form of the testimony of witnesses or eyewitness accounts. Examples of direct, cvidence are when a person testifies that he/she:-saw an accused commit rime, heard another person say acertain word or words or observed a certain act take place.” If for example, witness estes that it was raining outside, this personal knowledge is direct proof to show that it was raining. 30. “Direct Evidence” is evidence that establishes a particular fat without the need to make an inference in order to connect the evidence to the fact. t support the truth of an assertion (In criminal la an assertion of guilt or of innocence) directly, ie, without the need for an intervening inference. Iedirectly proves or disproves the fact. So Direct Evidences real, tangible, or clear evidence of a fact, happening, ‘or thing thar requires no thinking or consideration to prove its existence, It does not require any type ‘of easoning or inference to arrive atthe conelusion. (Gi Appeal No. 297 of 2015 (2017) eKLR. ‘Black's Law Diconary Sat Editon, [Buck's Law Dictionary, Sth Elion, awry esl 227001 .precise definition.” Reasons given should not be read pedantcally, but sensibly,” provided the reasons ‘expose the logic’ ofthe decision, and contain findings on those matters of fact essential co that logic, they would normally be adequate.” 54. IF itis not possible to understand from the judgment how the final orders were arrived at, then plainly chose reasons will be inadequate. The reasons should trace the major steps in the reasoning. process so that anyone reading them can understand exactly how the decision-maker reached his o her conclusion, The legal principles applied should be evident from the judgment. 55, Ifthe reasons are poorly expressed, and anyone reading them eft to speculate as ro the possible route by which the result was achieved, the reasons will i. The reasons must demonstrate tha a finding of fact was based upon logically probative evidence. If they do not do so, an appellate court will not strain to find a basis upon which the decision ean be upheld The duy to give reasons is, of course, an iniegral part of any courts task in deciding a eas. I would add that itis also an important part of any courts task in culing upon a procedural question an interlocutory issue, or determining an evidentiary point:"The absence of reasons isa serious omission which renders theaward on damages arbitrary and ‘undefendable in Law "The dependants are said to be aged between 26 and 36 years. There was no attempt toshow that at heir age they were depending on ther father. As authorities suggest, dependency isa question is fact. [tmust bbe proved by way of evidence. To me, dependeney was not proved and there was no basis for awarding damages under this head. In view of my conclusions herein above on quantum, itis my finding that the appeal on quantum of damages succeeds. On this ground alone, [allow the appeal and set aside the entire award on damages. 56 Notwithstanding my above finding, [will address the question of quantum of damages inthe event my findings on liability and quantum are found to be wrong, The deceased was said to have been a farmer. Of course, no details were provided to explain the kind of farming, the products and the market or even the sizeof the firm. ‘There was no evidence that the farm collapsed upon his death. The amount applied as income was in my view on the higher: 57. However, in my view, the multiplier of 10 years is not unreasonable and if | were to award damages, would still apply itand allow the amount of Kshs. 6,736.30 suggested by the appellane’s counsel as, ressonableincome. Asforthe ration, adependency aio of 3 isreasnable. Onossofieexpectation, T would not disturb the amoune of Ksbs. 200,000/= awarded lo find no reason co disturb the Ks 50,000/» for pain and suffering. I would ao leave the award on funeral expenses undisturbed hich ae special damages. The legal fxs of Kshs. 30,000/= cannot be special damages because the Pins had st to aan locsstand to sue, The foregoing constitates my view of reasonable aad of damages IfT were to make such an award Conclusion 58, In viewof my indingson liability and quantum, the inevitable conclusion is that this appeal is merited and therefore it succeeds. I allow it and substitute the judgment of the learned Magistrate dated 3" See Tbe Corporation Li Arden (1994) 20 AAR 28S. Burch. Dads Core Australia (1993) 31 ALD 630631 hid é kenyalawor law/cases/view/227001/ 13June 2021 with an order dismissing the Plainsilfs sui with no orders as to costs. Each party shall bear his costs for this appeal Orders accordingly SIGNED, DATED AND DELIVERED VIRTUALLY VOI THIS 24™ DAY OF JANUARY 2022 JOHN M. MATIVO, JUDGE 6CMC Aviation Ltd v Kenya Airways Ltd (Crulsair Ltd ) (1978}eKLR fk ENYA LAW AT NAIROBI (Coram: Madan JA chambers) CIVIL APPLICATION NAL 12 OF 1978 CMC AVIATION LTD ‘AND KENYA AIRWAYS LTD (CRUISAIR LTD )...... RESPONDENT JUDGMENT ‘This is an application under rule 29(2) of the Rules of this Court for an order that the amended pleadings in High Court Civil Case 842 of 1976, Kenya Ainvays Ltd (now Cruisair Ltd) v CMC Aviation Ltd be admitted as additional evidence in Civil Appeal 31 of 1977 which is the substantive appeal between these parties (Cruisair Ltd being the appellant, and CMC Aviation Ltd the respondent) from a decision of the High Court consequent upon a winding-up petition presented by the respondent company against the appellant company, under the Companies Act on the ground that the appeliant company is insolvent and tunable to pay its debts, and in the circumstances, itis just and equitable that the appellant company should be wound up. Co-existent with the with the winding-up petition was Civil Case 842 of 1976, which has not been heard yet, in which the appellant company as plaintiff claims from the respondent company as defendant the return of an aircraft and certain equipment or their total value in the sum of Shs 1,368, 105 and damages, ‘as against the respondent company's claim of Shs 206,825/50 against the appellant company in the winding-up petition, It appears from paragraph 9 of the amended paint filed in the civil case that the appellant company as the plaintiff was ordered by the court to join a certain insurance company as the second defendant. The amended plaint, the amended defence of the respondent company which has become the first defendant, and the defence of the second defendant (ie the insurance company), were all fled after the delivery of the judgment of the court in the bankruptcy and winding-up cause Rule 29 reads (1) On any appeal from a decision of a superior court acting in the exercise of its original jurisdiction, the court shall have power... (b) in its discretion, for sufficient reason to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner. Mr Hewett for the applicant has argued that the amended pleadings are evidence and they ought to be nt to kenya org - Page 13‘CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd ) [1978}eKLR ‘admitted as additional evidence in Civil Appeal 31 of 1977 as this evidence was not available to the respondent company at the time the hearing of the winding-up petition in the High Court and it came into being later. He submitted that this application falls well within the dictum of Denning LJ in Ladd v ‘Marshall [1954] 3 All ER 745, 748: In order to justify the reception of fresh evidence or a new tral, three conditions must be fulfilled: first, it ‘must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible. ‘Apart from the fact that the amended pleadings could not in any way have influenced the judge having been filed after his judgment was delivered, it must first be considered whether the amended pleadings constitute evidence. ‘The pleadings contain the averments of the three parties concerned. Until they are proved, or disproved or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence. As stated in the definition of “evidence” in ‘section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact. the truth ‘of which is submitted to investigation, is proved or disproved. Averments are matters the truth of which is ‘submitted for investigation. Unti their truth has been established or otherwise they remain unproven ‘Averments in no way satisfy, for example, the following definition of “evidence” in Cassel’s English Dictionary, p 384 Anything that makes clear or obvious; ground for knowledge, indication or testimony; that which makes truth evident, or renders evident to the mind that itis truth. The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents. In the Australian case, Re Wiliams Bros Ltd (1928) 29 SRNSW 248, Harvey Ci said: “To give evidence in my opinion means to make statements on oath before a person duly authorised to administer an cath’, Therefore, the application is dismissed with costs. Order accordingly. Dated and delivered at Nairobi this 18th May 1978, C.B MADAN JUDGE OF APPEAL (IN CHAMBERS) | certify that this is a true copy of the original DEPUTY REGISTRAR pe kenya org - Page 23‘CMC Aviation Ltd v Kenya Airways Ltd (Crui CRN se i tint ee Sh ns ce sp ee ci z fete ne acl opors conaresn tre hte bic sana an ae om coyote coo Bac alyssa htpiniwkeryetaw.org- Page 33