JUDGMENT OF COURT
1. Before us is an appeal challenging the exercise of the learned Judge’s (Omollo, J) discretion under Section 94 of the Civil Procedure Act. As such, subject to the requirement that discretionary power must be exercised judiciously, this Court will be slow to interfere with the exercise of discretion by a Judge. In United India Insurance Co. Ltd v. East African Underwriters (Kenya) Ltd [1985] E.A 898 Madan J.A (as he then was) enunciated the principle as follows:
“The Court of Appeal will not interfere with a discretionary decision of the judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of consider…