https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9807

Ayieko v CA (Minor Suing through her Next Friend GO) (Civil Appeal E037 of 2024) [2026] KEHC 9807 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9807 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E037 of 2024 JM Omido, J June 18, 2026 Between Elly Omondi Ayieko Appellant and CA (Minor Suing through her Next Friend GO) Respondent (Being an Appeal from the Judgement and Decree of Hon. R.M. Oanda Senior Principal Magistrate delivered on 21st February, 2024 in Winam SPMCC No. 107 of 2018) Judgment A. Background. 1.This appeal emanates from the judgement and decree Hon. R.M. Oanda, Senior Principal Magistrate delivered on 21st February, 2024 in Winam SPMCC No. 107 of 2018. 2.This appeal is concerned both liability and the assessment and determination of damages. 3.The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 6th April, 2022:i.That the learned trial Magistrate erred in law and fact in failing to hold that the failure by the Respondent to discharge the next friend upon attaining the age of majority was fatal to her case.ii.That the learned trial Magistrate erred in law and fact in finding that the Respondent proved her case on a balance of probability yet the Respondent never adduced any evidence of injury considering that the initial treatment notes were not produced in evidence.iii.That the learned trial Magistrate erred in law and fact in failing to hold that failure to produce the initial treatment notes was fatal to the Respondent’s caseiv.That the learned trial Magistrate erred in law and fact in using the wrong principles in the assessment of damages thereby arriving at an erroneous decision.v.That the learned trial Magistrate failed to appreciate the totality of the evidence before him and the submissions made on behalf of the Appellant thus arriving at an erroneous decision.vi.That the learned trial Magistrate erred in applying erroneous standards of proof and failed to appreciate that the Respondent had failed to discharge the burden of proof placed upon her as a matter of law.vii.That the learned trial Magistrate erred in assessing general damages at Ksh.150,000/- and failed to apply the principles applicable in award of damages and comparable award made for similar injuries. 4.The Appellant proposes that the appeal be allowed, the award of general damages be set aside, the Respondent’s suit in the lower court be dismissed and the costs of the appeal be awarded to the Appellant. 5.As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. 6.In Selle, Sir Clement De Lestang observed that:“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 7.The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” B. The Pleadings Before The Trial Court. 8.The matter before the trial court was based on tortious liability arising out of a road traffic accident that is said to have occurred on 27th August, 2018 along the Kisumu–Kakamega Road at the Coptic Area. 9.The Respondent, a minor suing through her next friend, instituted the suit against the Appellant, whom she described as the registered and/or beneficial owner of motor vehicle registration number KAQ 664J Toyota Matatu, vide a plaint dated 8th September, 2018. 10.The Respondent pleaded that at the material time, she was lawfully travelling as a passenger aboard the said motor vehicle when the same was negligently, recklessly and/or carelessly driven by the Appellant’s servant, agent, driver and/or employee. 11.It was alleged that due to the manner in which the motor vehicle was driven and/or controlled, it lost control and veered off its lane, thereby causing an accident in which the Respondent sustained injuries. 12.The Respondent attributed the occurrence of the accident wholly to the negligence of the Appellant’s servant, agent, driver and/or employee and particularized the alleged negligence to include driving at an excessive speed, exposing passengers to foreseeable risk, driving and permitting the use of a defective motor vehicle on the road, failing to prevent the accident, failing to exercise due care and attention, failing to swerve, brake or slow down to avoid the accident, failing to indicate properly and failing to abide by the Highway Code and the traffic laws. 13.As a consequence of the accident, the Respondent pleaded that she sustained various injuries, namely a head injury with loss of consciousness, facial lacerations, tenderness on the lower limbs, injuries to the neck and chest, a swollen left elbow joint, bruises on the knees and back injuries. 14.The Respondent further averred that she had not fully recovered from the injuries sustained and would require further medical treatment, the costs of which she sought to recover from the Appellant. 15.On the basis of the foregoing allegations, the Respondent sought judgement against the Appellant for general damages, costs of the suit, and interest thereon. She also indicated her intention to rely on the doctrine of res ipsa loquitur in support of her claim. 16.The Appellant resisted the claim and, in that regard, filed a statement of defence dated 7th November, 2018. In his defence to the Respondent’s claim, the Appellant generally denied all the allegations contained in the plaint save for those expressly admitted and put the Respondent to strict proof thereof. 17.The Appellant denied being the registered and/or beneficial owner of motor vehicle registration number KAQ 664J Toyota Matatu, and put the Respondent to strict proof of ownership. 18.The Appellant further denied that the alleged road traffic accident occurred in the manner pleaded by the Respondent. In particular, he denied that the subject motor vehicle was negligently, recklessly or carelessly driven by his driver, servant, agent and/or employee, or that the vehicle lost control and occasioned the accident complained of. 19.The Appellant also denied all the particulars of negligence attributed to him or to his alleged driver, servant and/or agent and put the Respondent to strict proof thereof. 20.The Appellant similarly denied that the Respondent sustained the injuries pleaded in the plaint and put her to strict proof of the alleged injuries, loss and damage. 21.Without prejudice to the foregoing denials and in the alternative, the Appellant pleaded that if any accident occurred, then the same was wholly caused or substantially contributed to by the Respondent’s own negligence. 22.In that regard, the Appellant particularized the Respondent’s alleged negligence as including failing to take adequate precautions for her own safety, failing to heed safety instructions and traffic regulations, failing to use a seatbelt and distracting the driver of the motor vehicle by engaging him in conversation. The Appellant also invoked the doctrine of volenti non fit injuria. 23.Further and without prejudice to the foregoing, the Appellant pleaded that if the Respondent proved that an accident occurred, then the same was unavoidable and constituted an inevitable accident for which he bore no liability. 24.The Appellant further denied the alleged injuries, loss and damage, denied having received any demand or notice of intention to sue and maintained that the plaint disclosed no reasonable cause of action against him. 25.Consequently, the Appellant prayed for the dismissal of the Respondent's suit with costs. C. The Evidence Before The Trial Court. 26.The Respondent testified before the trial court as PW1 and stated that she was a student at Kisumu National Polytechnic and resided in Kisumu. She recalled that on 27th August, 2018, she was involved in a road traffic accident while travelling as a passenger in motor vehicle registration number KAQ 664J. 27.PW1 testified that the accident occurred when the motor vehicle lost control as a result of being driven negligently, causing it to overturn. She stated that the motor vehicle belonged to the Appellant, whom she identified as Elly Omondi Ayieko. 28.According to PW1, she sustained injuries to the head, chest, waist and leg as a result of the accident. She testified that she was taken to Russia Hospital for treatment following the accident. 29.PW1 further stated that the matter was reported at Kondele Police Station. In support of her claim, she produced a P3 form as PExh1, a certificate of birth as PExh2 and a police abstract as PExh3. 30.PW1 also testified that she was subsequently examined by Dr. Okombo, who prepared a medical report dated 16th July, 2019. The medical report was produced by consent as PExh4. 31.She further told the trial court that she had not fully recovered from the injuries sustained in the accident and continued to experience pain in her chest and head. She blamed the Appellant for the accident, maintaining that she was merely a passenger in the vehicle and that the driver was overspeeding. She further stated that there was nothing she could have done to prevent the accident. 32.PW1 therefore prayed for compensation for the injuries and losses she allegedly suffered as a result of the accident. 33.Upon cross-examination, PW1 stated that Gideon Otieno Anyango was her father and that he had instituted the suit on her behalf because she was a minor and did not possess a national identity card at the time. She confirmed that she had since attained the age of majority and had obtained an identity card bearing number 41xxxxxxx19. 34.She testified that she had been seated on the rear seat of the motor vehicle at the time of the accident and that she had been wearing a seat belt. She further stated that although she was treated at Russia Hospital, she did not produce any treatment documents from that facility before the court. 35.PW1 further testified that she occasionally collapsed and continued to experience health complications which, according to her, may not have been captured in the medical records. She stated that she had been issued with documents from Russia Hospital and that she continued to undergo treatment. She also testified that after visiting the insurance company, the doctor who examined her requested her to obtain treatment notes from Russia Hospital and return with her advocate. 36.In re-examination, PW1 reiterated that Gideon Otieno Anyango was her father and the person who had instituted the suit on her behalf. She confirmed that although she was at the time of testifying 22 years old, her father remained involved in the proceedings. 37.The Appellant called DW1, Dr. Steve Ochieng, who testified that he prepared a medical report in respect of the Respondent, Catherine Achieng, dated 27th October, 2023. DW1 stated that according to the history provided, the Respondent had been involved in a road traffic accident on 7th August, 2018 along the Kisumu–Kakamega Road and allegedly sustained head injuries with loss of consciousness, lacerations, tenderness of the lower limbs, a swollen left joint, bruises on the knees and back injuries. 38.He testified that the said injuries could not be confirmed in the absence of initial treatment notes and a P3 form, which he indicated were necessary for proper medical verification of injuries. 39.DW1 further stated that although he had requested the Respondent to avail the initial treatment notes and P3 form, the same were not availed to him at the time of his assessment. He produced the medical report he prepared as DExh 1. 40.On cross-examination, DW1 stated that he had been working with Directline Assurance for about one year and a few months and clarified that he did not personally examine the Respondent, noting that another doctor, Dr. Jennifer, may have examined her. He further testified that the objective confirmation of injuries is ordinarily done through initial treatment notes and a P3 form, and that in the absence of such documentation, confirmation of injuries is not possible. 41.DW1 also stated in re-examination that the Respondent was not re-examined due to failure to present the relevant documents, reiterating that confirmation of injuries depends on initial treatment records. D. The Trial Court’s Findings. 42.In his judgement rendered on 21st February, 2024, the learned trial Magistrate considered the claim and set out two issues for determination, namely:(i)whether the Respondent had proved her case on a balance of probabilities; and(ii)whether she was entitled to the reliefs sought, including damages. 43.On liability, the court found that the Respondent’s testimony as a passenger was largely unchallenged and that she had no control over the manner in which the motor vehicle was driven, and further found that the occurrence of the accident was attributable to negligence on the part of the Appellant’s driver. 44.The court further considered the medical evidence on record, including a P3 form (PExh1), birth certificate (PExh2), police abstract (PExh3) and medical report by Dr. Okombo (PExh4) and concluded that the Respondent had proved that she sustained bodily injuries as alleged. 45.The learned trial Magistrate also addressed the defence medical evidence by Dr. Steve Ochieng (DExh1), noting that the said doctor did not personally examine the Respondent and that the absence of initial treatment notes did not, in the circumstances of the case, disprove the injuries. 46.On quantum, the court found that the Respondent sustained soft tissue injuries which had largely healed and awarded general damages in the sum of Ksh.150,000/-, rejecting special damages for want of proof. 47.Consequently, the trial court entered judgement in favour of the Respondent against the Appellant on liability at 100%, awarded general damages of Ksh.150,000/- and granted costs and interest. 48.It is the foregoing findings of the trial court that the Appellant is now dissatisfied with and consequently challenges through the present appeal. E. The Appellant’s Submissions. 49.In support of the appeal, the Appellant submits that the Respondent’s suit before the trial court was fatally defective and that the learned trial Magistrate erred in law and fact in entering judgement against the Appellant. 50.The Appellant states that the trial court’s finding on liability and damages was erroneous, as the trial court misapprehended the evidence and reached conclusions not supported by the record. 51.On a distinct legal issue, the Appellant contends that the Respondent, who was initially a minor suing through a next friend, had attained the age of majority at the time of testifying but was never formally discharged from the next friend arrangement nor was proper substitution effected. The Appellant submits that this non-compliance with Order 32 Rule 12 of the Civil Procedure Rules, which is mandatory, rendered the suit fatally incompetent and liable to be struck out. 52.He relies on the decision in MNW v Kilimani Junior Academy [2011] eKLR, where the court held that failure to comply with the mandatory provisions governing suits involving minors is fatal to the proceedings. 53.On the issue of liability and proof of injuries, the Appellant submits that the Respondent failed to establish a causal link between the alleged accident and the injuries complained of. It is contended that no initial treatment notes or contemporaneous medical records were produced to confirm that the Respondent was treated immediately after the alleged accident. 54.The Appellant further argues that the medical report produced did not rely on any initial treatment records and did not sufficiently connect the injuries to the alleged accident. It is also submitted that the absence of treatment notes created doubt as to the source and timing of the injuries. He maintains that the Respondent failed to establish a nexus between the alleged accident and the injuries suffered, and therefore failed to prove the claim on a balance of probabilities. 55.Reliance is placed on the decision in Eastern Produce (K) Ltd v James Kipketer Ngetich (Eldoret HCCA No. 85 of 2002), where failure to produce initial treatment notes was held to be fatal to a claimant’s case. 56.Ultimately, the Appellant submits that the Respondent did not discharge the burden of proof, that the trial court erred in finding liability against the Appellant and that the judgement ought to be set aside with the suit dismissed with costs to the Appellant, together with costs of the appeal. F. The Respondent’s Submissions. 57.The Respondent did not file any written submissions in response to the appeal and therefore did not advance any arguments or authorities for the Court’s consideration in opposition to the Appellant’s case. G. Issues For Determination. 58.On the basis of the pleadings, evidence, findings of the trial court and the grounds of appeal, the following issues arise for determination in this appeal:a.Whether the failure to formally discharge the Respondent’s next friend upon attainment of the age of majority, and/or failure to effect substitution, rendered the suit incompetent and fatally defective for non-compliance with Order 32 Rule 12 of the Civil Procedure Rules.b.Whether the Respondent proved, on a balance of probabilities, that the accident occurred as pleaded and that the Appellant was liable for the same through negligence, recklessness or breach of duty of care.c.Whether the Respondent sufficiently proved that she sustained the alleged injuries and whether there was credible and legally sufficient medical evidence establishing a nexus between the alleged road traffic accident and the injuries complained of, particularly in light of the absence of initial treatment notes.d.Whether the learned trial Magistrate erred in the assessment and award of general damages, including whether the sum of Ksh.150,000/- was inordinately high or arrived at without proper application of the applicable principles governing awards for comparable injuries. H. Analysis And Findings. 59.The first issue for this court to address is whether the failure to formally discharge the next friend upon the Respondent attaining the age of majority rendered the suit incompetent. 60.The Appellant contends that the Respondent’s suit was fatally defective for non-compliance with Order 32 Rule 12 of the Civil Procedure Rules, on the basis that although the Respondent had attained the age of majority by the time of testifying, no formal application was made to discharge the next friend or to regularize the proceedings through substitution. It is argued that the said rule is couched in mandatory terms and that failure to comply automatically renders the proceedings a nullity. 61.Order 32 Rule 12 of the Civil Procedure Rules provides that upon attaining majority, a former minor must elect whether to proceed with the suit and, where they elect to proceed, must apply for an order discharging the next friend and for leave to continue the suit in their own name. 62.The rule further requires correction of the suit title to reflect attainment of majority. The Appellant therefore maintains that the failure to comply with these procedural steps deprived the suit of legal competence. 63.Although Order 32 Rule 12 is couched in mandatory terms, the Court in NJWW (A minor suing through next friend) v Ngugi & Another [2025] KEHC 16116 (KLR), did not treat non-compliance with the provision as automatically fatal to the proceedings. The Court reiterated the modern approach that failure to strictly comply does not, by itself, render the suit a nullity. Instead, the Court emphasized that such non-compliance is a procedural irregularity which should be evaluated in light of the overriding objective under Article 159(2)(d) of the Constitution and the central question is whether any prejudice or miscarriage of justice has been occasioned. 64.In essence, the Court held that where a party who was previously a minor has since attained majority and participates in the proceedings, courts should lean towards substantive justice rather than striking out the suit on technical grounds, unless it is demonstrated that the irregularity has caused real prejudice or goes to the root of the proceedings. 65.In the present appeal, it is not disputed that the Respondent had attained the age of majority during the pendency of the suit and that no formal application was made to discharge the next friend or to amend the pleadings to reflect that change. 66.However, the record also shows that the Respondent personally testified in court, confirmed her adulthood and actively participated in the proceedings thereafter. The trial court was therefore seized of a party who was no longer a minor in substance, even if the procedural formalities had not been strictly regularized. 67.This Court is guided by the principle that rules of procedure are handmaidens of justice and not its mistress, and that courts should avoid elevating procedural technicalities above substantive determination of disputes. The defect complained of did not go to the jurisdiction of the court, did not occasion prejudice capable of vitiating the proceedings, and was effectively cured by the Respondent’s personal participation upon attaining majority. In any event, the same can be cured without prejudice to the parties by the Respondent filing the requisite application before the trial court, albeit belatedly. 68.Accordingly, while there was non-compliance with the formal steps contemplated under Order 32 Rule 12 of the Civil Procedure Rules, this Court finds that such non-compliance was not fatal to the suit. The proceedings remained valid and properly before the trial court, and no miscarriage of justice has been demonstrated. 69.The second issue for determination is whether the Respondent discharged the burden of proving, on a balance of probabilities, that the accident occurred in the manner pleaded and that the Appellant was liable for the same. 70.It is trite law that in civil claims the burden of proof rests upon the Plaintiff, who must prove their case on a balance of probabilities as required under Sections 107 – 109 of the Evidence Act. However, once a Plaintiff adduces credible evidence which is not rebutted by the defence, such evidence may be sufficient to discharge the legal burden. 71.In the present case, the Respondent testified as PW1 and gave a clear account of the circumstances under which the accident occurred. She stated that she was a lawful passenger in motor vehicle registration number KAQ 664J when the said vehicle was driven negligently, lost control and overturned along the Kisumu–Kakamega Road. She attributed the accident to excessive speed and lack of proper control by the driver. 72.Significantly, the Respondent’s evidence on the manner of occurrence of the accident remained unchallenged in material particulars. The Appellant did not call any evidence to contradict the version presented by the Respondent or to disprove the occurrence of the accident or the circumstances under which it occurred. The defence remained largely a denial and did not dislodge the Respondent’s testimony through countervailing evidence. 73.It is a settled principle of law that where evidence is not challenged in cross-examination or rebutted by contrary evidence, and where such evidence is not inherently incredible, the court is entitled to accept it as proof of the facts asserted. The Respondent’s testimony in this regard was consistent, coherent and corroborated by the police abstract and medical documentation produced before the trial court. 74.Further, it is not in dispute that the Respondent was a fare-paying passenger in the subject motor vehicle at the material time. As such, she had no control over the manner in which the vehicle was driven. The doctrine of contributory negligence cannot, in the circumstances of this case, attach to her, as no evidence was adduced to demonstrate any act or omission on her part that could have contributed to the occurrence of the accident. Her role was purely passive as a passenger, and liability, if any, would rest upon the driver and the owner of the vehicle. 75.In the absence of any rebuttal evidence from the Appellant to displace the Respondent’s account, this Court finds that the Respondent’s version of events remains credible and is sufficiently established on a balance of probabilities. 76.Accordingly, the Court is satisfied that the Respondent proved that the accident occurred as pleaded and that the Appellant is liable for the same. 77.The third issue for determination is whether the Respondent proved, on a balance of probabilities, that she sustained the injuries pleaded and whether a causal link was established between those injuries and the accident in question. 78.It is a fundamental principle of civil litigation that a claimant bears the burden of proving not only the occurrence of an accident but also the injuries allegedly suffered as a consequence thereof. 79.In the present case, the Respondent adduced both oral and documentary evidence in support of her injuries. She testified that she sustained injuries to the head, chest, waist and lower limbs following the accident. 80.The Respondent’s testimony was supported by a P3 form and a medical report prepared by Dr. Okombo, which were duly produced in evidence. The medical report detailed the nature of the injuries sustained and confirmed consistency with trauma arising from a road traffic accident and its contents were not challenged by the Appellant. 81.Although it is correct that initial treatment notes from Russia Hospital were not produced, this omission is not, in the circumstances of this case, fatal to the Respondent’s claim. The law does not make treatment notes the sole proof of injury. They are part of the evidentiary material that may be considered alongside other medical evidence such as a P3 form and a medical report. In this case, the documentary and oral evidence taken together sufficiently established the injuries complained of. 82.Of particular significance is the Appellant’s contention, through DW1, that the absence of initial treatment notes and a P3 form rendered it impossible to verify the injuries. This Court finds that argument to be without merit and, with respect, far-fetched in the circumstances of this case. 83.The record shows that the P3 form was part of the documents supplied in the Respondent’s bundle and was duly produced as an exhibit before the trial court. It is further noted that the said documents formed part of the materials availed to the Appellant, who in turn instructed his medical expert to prepare a report based on the same record. 84.Having been part of the Appellant’s own instructions and trial bundle, the Appellant cannot properly turn around and allege non-production or absence of the P3 form as a basis for impeaching the Respondent’s case. Notably, no objection was raised at the time of production of the P3 form or the medical report during the trial. 85.The Respondent’s medical evidence was therefore not only uncontroverted in substance but also supported by contemporaneous documentary proof of injury. 86.The Appellant’s evidence did not dislodge the Respondent’s version but instead amounted to a theoretical challenge based on absence of treatment notes, which in the circumstances did not outweigh the cogent evidence on record. 87.Accordingly, this Court is satisfied that the Respondent proved, on a balance of probabilities, that she sustained the injuries pleaded and that a sufficient nexus exists between the injuries and the accident. 88.The final issue for determination is whether the learned trial Magistrate erred in law and principle in the assessment and award of general damages in the sum of Ksh.150,000/-. 89.It is a well-settled principle that assessment of damages is a discretionary exercise vested in the trial court. An appellate court will not readily interfere with such an award unless it is demonstrated that the trial court acted on wrong principles, misapprehended the evidence, took into account irrelevant factors or arrived at an award that is so inordinately high or low as to represent an erroneous estimate of damages. 90.This principle was stated in Butt v Khan [1981] KLR 349, where the Court of Appeal held that an appellate court will only interfere where the award is inordinately high or low or where the trial court applied wrong principles. 91.In the present appeal, the Appellant contends that the award of Ksh.150,000/- was excessive and not supported by comparable awards. However, the record shows that the learned trial Magistrate carefully considered the nature of the injuries sustained by the Respondent, which were essentially soft tissue in nature and had largely healed. 92.The trial court further considered comparable authorities dealing with similar injuries and awards, and anchored its assessment on established judicial precedent. The approach adopted demonstrates that the court did not act arbitrarily, but rather exercised its discretion judiciously and within the accepted parameters of comparable awards. 93.This Court has also reviewed the record and notes that the authorities relied upon by the trial court were relevant and comparable to the injuries sustained by the Respondent. The award of Ksh.150,000/- falls within the reasonable range of awards commonly granted by courts for similar soft tissue injuries sustained in road traffic accidents and cannot be said to be manifestly excessive or founded on a wrong principle. 94.Further, the Appellant has not demonstrated any misdirection in principle, nor has it been shown that the trial court took into account irrelevant considerations or failed to consider relevant factors in arriving at the award. Mere dissatisfaction with the quantum is not a sufficient basis for interference by an appellate court. 95.Accordingly, this Court finds no basis upon which to disturb the discretion exercised by the trial court in assessing general damages. I. Conclusion And Disposition. 96.Having carefully re-evaluated the evidence on record, the pleadings, the findings of the trial court, and the submissions by the Appellant, this Court has found that all the issues framed for determination are resolved in favour of the Respondent. 97.Accordingly, the appeal is found to be without merit and is hereby dismissed in its entirety. The judgement and decree of the trial court delivered on 21st February, 2024 are hereby upheld and affirmed. 98.The Respondent shall have the costs of the appeal, assessed at Ksh.25,000/-, to be paid by the Appellant. 99.This file is hereby closed. DELIVERED (VIRTUALLY), DATED & SIGNED THIS 18TH DAY OF JUNE, 2026.JOE M. OMIDOJUDGEFor Appellant: No Appearance.For Respondent: No Appearance.Court Assistants: Mr. Ngoge & Mr. Juma.