RULING OF BOSIRE JA
Regrettably in this matter we were unable to come to a unanimous decision. I have had the advantage of reading in draft the rulings of Aganyanya JA and Nyamu JA. On the basis of the settled principles which guide this Court in an application under rule 5(2)(b) of this Court’s Rules, which the matter before us is, I agree with the reasoning and conclusions reached by Aganyanya JA. I would only add a few words of my own.
As I stated earlier the matter before us is an application under rule 5(2)(b) of the Court of Appeal Rules. The Court in a matter under that rule exercises original and discretionary jurisdiction. In dealing with a matter under that rule, the Court is not handling the appeal of the parties. Often times the Court in exercising its powers under that rule has reminded itself of the danger of expressing a concluded opinion on any issue. Whatever views the Court expresses are on a prima facie basis only bearing in mind that any view expressed might embarras…