JUDGMENT OF THE COURT
This is an appeal from the judgment and decree of Birech P.K.K.A. (Commissioner of Assize) dated 24th March, 2003. The appellant in a memorandum of appeal dated 16th December, 2003 set out eight grounds of appeal as follows:-
“1. The learned trial Commissioner of Assize erred in law when he awarded judgment jointly in favour of the respondents in the sum of Kshs.490,600/=, without any factual and/or legal basis, whatsoever.
2. The learned trial Commissioner of Assize erred in law and in fact in entering judgment jointly in favour of the respondent for such amounts, which the respondents had not pleaded in the plaint or at all and thus occasioning a miscarriage of justice.
3. The learned trial Commissioner of Assize clearly misdirected himself in law and in fact when he entered judgment jointly in favour of the respondents, notwithstanding the material discrepancies discernable from the evidence on record, particularly as concerns the cause of action.
4. The judgment …