JUDGMENT OF THE COURT
This is a first appeal from the Ruling of Musinga, J. (as he then was) delivered at the High Court of Kenya, Kisii, on 22nd April, 2010 in Kisii High Court Civil Case No. 98 of 2010. The application before the learned Judge requested him to set aside, vary or vacate an interlocutory judgment and decree which had been entered in the said suit. The learned Judge dismissed the application for reasons recorded in the Ruling. That is what provoked this appeal.
Being a first appeal we must reevaluate the matter and come to our own conclusions but must remember that we did not handle the matter in the first instance. We must only interfere with the findings of the learned judge if the Judge failed to take into account particular circumstances or based his impression on matters inconsistent with the evidence – see the judgment of this court in Maimuna s/o Patrick Mutou v. Wilson Njau Nyaki Civil Appeal No. 131 of 1994. In the oft–cited case of Peters v. Sunday Post Limited…