[2023] KEHC 25580 (KLR)

Khetias Garment Limited v Cherono (Suing as the Legal Admin. of the Estate of the Late Purity Kangogo Jebiwott - Deceased) (Civil Appeal E154 of 2022) [2023] KEHC 25580 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25580 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal E154 of 2022

RN Nyakundi, J

November 21, 2023

Between

Khetias Garment Limited

Appellant

and

Betabine Jepchumba Cherono (Suing as the Legal Admin. of the Estate of the Late Purity Kangogo Jebiwott - Deceased)

Respondent

(Being an appeal from the judgment of the Honourable Christine Menya (Senior Resident Magistrate) in Eldoret CMCC No. E60 of 2020 delivered on 23. 09. 2022)

Judgment

Coram: Before Justice R. NyakundiRioba Omboto & Company AdvocatesNyairo & Company. Advocates 1. The appeal challenges the judgment and decree of Hon. Christine Menya Senior Resident Magistrate made 23. 09. 2022 both on quantum and liability. In the trial Court the Respondent had sued the Appellant claiming general damages under the Law Reform Act and Fatal Accident, special damages plus costs and interest of the suit arising from road accident that occurred on 25. 8.2022, wherein it is alleged that the Appellant through its driver or agent drove Motor Vehicle Registration No. KBW 787W Mitsubishi FH so negligently and recklessly that he lost control and caused the same to hit/knock down the deceased who was lawfully walking as a pedestrian occasioning her fatal injuries as a consequence she succumbed to the injuries. 2. The appellant filed a statement of defence dated 25th November, 2020 denying the respondent’s allegations as indicated in the defence. He claimed in the alternative that the accident was caused due to the sole or contributory negligence of the deceased.

3. The matter proceeded for full trial and judgment was delivered on 23. 09. 2022 against the appellant as follows:a.Liability 10%:90% in Favor of the Respondentb.Pain and Suffering ……………. Kshs. 100,000/=c.Loss of Expectation of life …. Kshs. 200,000/=d.Loss of dependency …………… Kshs. 3,600,000/=e.Special Damages…………………. Kshs.150,000/=Less 10% contribution ……… Kshs. 405,000/=Grand total Kshs. 3,645,000/=The costs were agreed by consent at Kshs. 175,575/=

4. Aggrieved by the above judgment and decree of the trial court, the appellant filed this appeal setting out 13 grounds of appeal, challenging the judgment both on liability and quantum of damages awarded.

5. The grounds are as follows: -1. That the learned magistrate erred in law and in fact in holding the respondent liable 90% and holding that the respondent had proved her claim on balance of probabilities contrary to the evidence on record.2. That the learned trial magistrate erred in law and fact in failing to hold that the respondent contributed to the accident as she owed the duty of care unto herself.3. That the learned trial magistrate erred in law and in fact in making an excessive award of general damages for pain and suffering and loss of dependency against the weight of the evidence adduced on record, the submissions filed by the appellant and the authorities cited herein.4. That the learned trial magistrate erred in law and fact in awarding pain and suffering of Kshs. 100,000/= without any basis and contrary to the case law on the same issue since the deceased died on the same day.5. That the learned trial magistrate erred in law and fact in awarding damages to the respondent without any basis and which damages were inordinately high considering the evidence tendered and the authorities cited by the appellant.6. That the learned trial magistrate erred in law and fact in awarding Kshs. 200,000/= for loss of expectation of life without any basis as ward and/or decision departs from the conventional figure awarded by the courts over years.7. That the trial magistrate erred in law and fact in applying the dependency ratio of two thirds (2/3) without any basis as the deceased neither had a husband nor children to warrant the application of ratio of two thirds (2/3).8. That the learned trial magistrate erred in law and fact in adopting an income of Kshs. 15,000/= per month without evidence in that regard.9. That the learned trial magistrate erred in law and fact in applying the minimum wage without any evidence and/or proof of income and since the deceased income remained a mystery throughout the proceedings and no evidence was brought by the respondent to that effect.10. That the learned trial magistrate erred in law and fact in awarding special damages of Kshs. 150,000/= for funeral expenses which were not specifically pleaded and proved as no receipt was tendered to prove the existence of expenses alleged by the respondent.11. That the learned trial magistrate erred in law and fact in failing to consider and apply the provisions of Order 21 Rule 4 of the Civil Procedure Rules, 2010 and other provisions as required by law.12. That the learned trial magistrate erred in law and fact in failing to dismiss the respondent’s claim with costs for want of proof.13. That the learned trial magistrate erred in law and fact in misdirecting herself on the application of wrong principles in assessment of damages hence arriving at an erroneous decision/judgment that does not reflect the actual loss suffered by the Respondent.

6. The appeal was canvassed by way written submissions. The Appellant on 27. 10. 2023 filed submissions dated 25. 1.2023 while the Respondent on 14. 09. 2023 filed submissions of even date.

The Appellant’s Submissions 7. The appellant in its submissions condensed the 13 grounds of appeal to three broad issues namely: -a.Whether the trial magistrate erred in its finding on liability.b.Whether the trial magistrate erred in the award made for damages under the fatal Accidents Act and the Law Reform Act.c.Whether the court erred in awarding special damages.

8. On liability, the appellant’s counsel submitted that the respondent did nothing to save her life given that the subject motor vehicle registration No. KBW 787J FH Mitsubishi lorry experienced brake failure, an unforeseeable circumstance.

9. It was further submitted for the appellant that taking into account the fact that DW1 hooted severally to caution other road users the deceased being among them, it would have been prudent for the deceased to move away from the road to avoid being hit. However, the deceased did nothing to avoid the accident.

10. Counsel maintained that the accident was not as a result of the appellant’s negligence as break failure was simply unforeseen and therefore the accident was inevitable since the subject motor vehicle was in good condition, the appellant’s witness having confirmed that the motor vehicle was inspected and found to have no pre-accident defects.

11. Counsel argued that the deceased owed herself a duty of care to do everything humanly possible to avoid falling victim of the accident by fleeing/running far away from the road the same way DW1 (Willy Kipkoech Langat) did everything humanly possible to avoid the accident by hooting, putting full lights and hazards and even shouting brakes! Brakes! to alert other road users.

12. Counsel reiterated that the trial court erred in holding the appellant 90% liable especially when no eye witness account was presented by any of the respondent’s witnesses or evidence tendered showing that the subject motor vehicle had any mechanical defect prior to the accident. On this counsel relied on the case of Joash Musikhu Vuranje v Wanjiru Mwangi & Another (2016) eKLR

13. With regard to the award of damages under the Fatal Accidents Act, counsel for the appellant submitted that for one to sustain a claim for damages for loss of dependency under the Fatal Accidents Act, a party must not only prove dependants by giving full particulars of the person or persons for whom, and on whose behalf, the action is brought but also the nature of the claim in respect of which damages are sought to be recovered as per section 8 of the Fatal Accidents Act (Cap 32) but also adduce evidence to prove dependency. On this counsel cited the case of Beatrice Wangui Thairu versus Hon. Ezekiel Barngetuny & Another – Nairobi HCCC. No. 1638 of 1988

14. It was submitted for the appellant that in the absence of proof of dependency then no award for loss of dependency can be made. Reliance was placed on the cases of James Mukolo Elisha versus Thomas Martin Kibisu (Nairobi Civil Appeal No. 31 of 2006 and Gerald Mbale Mwea versus Kariko Kihara and Another (Civil Appeal No. 112 of 1995) 15. It was counsel’s submission that the respondent who testified as PW1 was not sure of the deceased’s earning and conceded that she had nothing to prove the deceased earnings. She also did not prove how much out of the deceased’s earning went towards providing for her. Counsel therefore maintained that no amount was awardable under the Fatal Accidents Act (Cap 32 Laws of Kenya) for want of proof and there was therefore no basis for the court to award a sum of Kshs. 3,600,000/=.

16. Counsel submitted that Kshs. 15,000/= was applied by the court as monthly income of Kshs. 15,000/= without any legal basis. Further the only dependant enlisted was the respondent. As such the ration of 2/3 adopted by the court had no basis. Counsel urged that the trial court ought to have been based on the minimum wage which stood at Kshs. 7,240. 95 for general damages for general labourers in all other areas apart from cities and municipalities as provided under the regulation of wages (General)(Amendment) Order, 2018. Counsel cited the case of James Gakinya and Another versus Perminus Kariuki Githinji (Nairobi HCC No. 91 of 2014) on the dependency ration to be applied.

17. On the claim under the Law Reform Act, counsel submitted for the appellant that no amount was payable for pain and suffering given that the deceased died on the spot. The trial court therefore erred in awarding a colossal figure of Kshs. 100,000/= which was not supported by any judicial precedents. Reliance was placed on the case of James Mukolo Elisha & Another v Thomas Martin Kibisu (2014) eKLR

18. On loss of expectation of life, it was submitted for the appellant that the court erred in awarding a figure of Kshs. 200,000/=. A figure of Kshs. 80,000/= would suffice being the conventional award by the court under this head. Counsel relied on the case of James Gakinya and Another versus Perminus Kariuki Githinji (Nairobi Hcc No. 91 of 2014).

19. Finally, counsel submitted that the award for special damages was erroneous given that the same were not proved and therefore the respondent was not entitled to any award on special damages. Counsel cited the case of Equity Bank Limited vs Gerald Wang’ombe Thuni (2015) eKLR.

The Respondent’s Submissions 20. It was the respondent’s submission that the court being the first appellate court and as much as it is mandatory for the court to consider the evidence at the trial court and evaluate it afresh before coming to your own conclusion, it is trite law that it is only the trial court that had the advantage of seeing and hearing the witness. Counsel cited the case of Kiruga vs Kiruga & Another (1988) KLR 348.

21. Counsel argued that from the pleadings and the evidence proffered at the trial, it is apparent that some facts which are material to the final determination of the dispute between the appellant and respondent are either not disputed or have been proved or were otherwise admitted. That it is not undisputed fact a road traffic accident occurred on the 25. 08. 2020 along Eldoret-Iten Road near Chepkoilel involving the appellant’s motor vehicle Reg. No. KBW 787 Mitsubishi FH which led to the death of one (Purity Kangogo Jebiwott)

22. Further, counsel submitted that in her testimony, the respondent reiterated the averments made in her pleadings. She testified that she is a mother of the deceased and on the material date she received a call that her child (daughter) was hit by a motor vehicle belonging to the Khetias (Appellant) and taken to hospital. She went to hospital and found her admitted in critical condition and shortly passed on.

23. Counsel submitted that the occurrence of the accident was buttressed by PW2 (PC No. 83722 (PC) Situ Mohammed of Eldoret Police Station (Base Commander) who confirmed that indeed the road traffic accident occurred on 25. 08. 2020 at around 8:20PM involving Motor Vehicle Reg. No. KBW 787J Mitsubishi FH belonging to the appellant herein.

24. Counsel maintained that the appellant’s witnesses (DW1 and DW2) conceded that he was the driver of the appellant’s subject motor vehicle and that the brakes failed, lost control and left the road and knocked the deceased at the pedestrian lane where she succumbed to injuries. That the appellant’s witness statement confirms the blame was attributed to the driver.

25. In light of the above, it was submitted for the respondent that the learned magistrate never in any way whatsoever erred in law and fact in holding that the respondent had proved her claim on a balance of probability and that erred in failing to hold that the respondent contributed to the accident as she owed the duty of care to herself.

26. On the question damages under the Law Reform Act, the respondent submitted that the award of Kshs. 150,000/= for pain and suffering was tenable and reasonable. On loss and expectation of life, counsel submitted that the deceased died at the age of 23 years and she was of good health hence a conventional a=figure of Kshs. 200,000/= awarded to the respondent was reasonable.

27. With regard to the claim under the Fatal Accident Act, counsel submitted that the same is based on computation of the age of the deceased, loss of earnings and loss of dependency. That the age of the deceased as per the death certificate is not disputed that the deceased died at the age of 23 years.

28. Counsel maintained that on the loss of earnings, the deceased was a business lady earning Kshs. 20,000/= per month and as such the award of Kshs. 15,000/= by the trial court is reasonable.

29. On loss of dependency, counsel submitted that the respondent in her evidence stated that the deceased left behind two children, one child in grade one and the other in grade three. That the children are in the care of the respondent herein. Hence the dependency ratio of 2/3 is reasonable.

30. From the foregoing, counsel argued that the loss of dependency arrived at by the trial court was reasonable in the circumstances.

31. On special damages, the respondent pleaded for funeral expenses of Kshs. 175,000/=, however, the trial court awarded Kshs. 150,000/= and relied on section 6 of the Fatal Accident Act envisaged under funeral expenses. Counsel urged the court to adopt the same and cited the case of Premier dairy -vs- Armjit Singh Sangor & Another Civil Appeal no. 312 of 2009. Further that the other special damages were proven as required by the law.

32. Finally, in relying on the case of Butt -vs- Khan 1982 (KAR) counsel submitted that the first appellate court cannot interfere with the decision of the trial court unless it is shown that the trial magistrate proceeded on wrong principles of law and arrived at misconceived principles.

Analysis & Determination 33. Being a first appeal, the Court is mandated to delve into the factual details as presented before the trial court, analyse the same and arrive at a conclusion, conscious of the fact that the trial court had the advantage of observing the witnesses testify.

34. Section 78 of the Civil Procedure Act provides that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts or original jurisdiction in respect of suits instituted therein. The above provision was interpreted by the court in the case of Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123. The court pronounced itself as follows:-…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

35. The issues I find for determination are quantum and liability. The appellant submitted that the trial court erred in holding the appellant 90% liable especially when no eye witness account was presented by any of the respondent’s witnesses or evidence tendered showing that the subject motor vehicle had a mechanical defect.

Liability 36. In Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681 Lord Reid reasoned that:To determine what cause an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it….. The question must be determined by applying common sense to the fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.”

37. The undisputed that indeed an accident occurred on 25. 08. 2020 where the appellant through its driver or agent drove, Motor Vehicle Registration Number KBW 787W Mitsubishi FH so negligently and recklessly that he lost control and caused the same to hit/knock down the deceased who was a lawful pedestrian and succumbed to injuries.

38. The appellant maintains that it is the Respondent to blame whereas the respondent blames the appellant for occasioning the said accident.

39. To what extent is the respondent liable? In determining this, the court will analyse the evidence presented at the trial court.

40. PW1 (Betabine Jepchumba Cherono) testified that she is the mother of the deceased and that she died out of a road traffic accident which occurred on 25. 08. 2020 along Eldoret-Iten road near Chepkoilel junction. She further told the court that the accident was reported and a police abstract was issued. The burial permit as well as the death certificate were as well issued. She testified that they incurred funeral expenses of Kshs. 150,000/= and paid Kshs. 35,000/= for obtaining a grant Ad Litem.

41. PW2 PCW Situ Mohammed, attached to Eldoret police station stated that a road traffic accident occurred on 25. 08. 2020 at around 8:20P.M. That a driver Willy Lagat was driving the motor vehicle KBW 787J Mitsubishi from Iten to Eldoret. At Subaru area, he told tried to overtake another vehicle and knocked down a cyclist who was on the extreme right. He lost control of the motor vehicle and knocked another motor vehicle reg. KBD 895Y Corolla driven by Silas Yator from the opposite direction and a female pedestrian called purity who was on the right facing Chepkanga. She confirmed that she was not the investigation officer and blamed the driver of KBW Mitsubishi lorry because purity was knocked on the pedestrian path.

42. I have considered the parties’ arguments in this regard. It is not denied that the deceased was a lawful pedestrian walking along a pedestrian path. According to DW1, when he reached around Ndovu Area or thereabout, there were bumps on the road and a salon car right ahead and when he tried applying brakes, he realized they had failed.

43. The appellant or his driver did not adduce evidence to show that the vehicle was regularly maintained and when last the brakes were checked and or serviced. Only cogent evidence would assist the appellant in demonstrating that there was no fault on their part. The appellant opined that the respondent ought to have moved away from the road to avoid being hit after the driver hooted and alerted other road users. In my considered view, the trial court in arriving at liability ratio of 90:10%, took into account that the deceased person ought to have exercised a little care. For that reason, I am unable to fault the trial court’s finding on liability.

Quantum 44. On quantum, the appellant faulted the trial court for adopting a ration of 2/3 without any proof. Further that the trial court erred in awarding the damages under the Law reform Act and the Fatal accidents Act.

45. It has long been held that an appellate Court should not interfere with exercise of discretion by a trial court unless it acted on a wrong principle, took into account irrelevant factors or failed to take into account relevant factors.

46. In Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m. Lubia and Olive Lubia [1985] Kneller. J.A, stated:The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V. Manyoka [1961] E.a. 705, 709, 713; Lukenya Ranching And Farming Co-operatives Society Ltd V. Kavoloto [1970] E.A., 414, 418, 419. This Court follows the same principles.”

47. The question is whether this court should interfere with the damages awarded by the trial Court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.

48. Starting with the head of loss of expectation of life, the appellant proposed Kshs. 150,000/- while respondent proposed Kshs. 80,000/-. I am guided by the decision of Mercy Muriuki & Another v Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the late Robert Mwangi) (2019) eKLR where the court observed that:-The generally accepted principle therefore is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident. The conventional award for loss of expectation of life is Kshs.100,000/- while pain and suffering the awards range from Kshs.10,000/- with higher damages being awarded if the pain and suffering was prolonged before death.”

49. All the parties herein are in agreement that the deceased succumbed to injuries while being rushed to hospital, and there is no evidence that he endured a lot of pain before breathing her last. I will thus award Kshs. 20,000 for pain and suffering and Kshs.100,000 for loss of expectation of life.

50. On loss of dependency, PW1 testified that the deceased was a 23-year-old who left two children and that she was a business person who sold chips. The appellant contested that Kshs. 15,000/= adopted was erroneous and further that the only dependant enlisted was the respondent. As such the ration of 2/3 adopted by the court. The appellant urged the court to adopt a minimum wage of Kshs. 7,240. 95/= and a multiplier of 20 years and a dependency ratio of 1/3.

51. Although the deceased income was not clearly established, it would reasonably be expected that she was doing something for herself. PW1 testified that she was engaged in the business of selling chips and making a daily income of about Kshs. 1,500/=.

52. The Court of Appeal in Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) v Hellena Wanjiru Rukanga [2020] eKLR observed that:In our view, there was sufficient evidence that the deceased was a business lady. All that was required of the court was to assess the net income of the deceased, given the business enterprise that she was undertaking and the evidence that was available before the court.

53. In Jacob Ayiga Maruja & Anor vs.Simeon Obayo[2005]eKLR, the Court of appeal in dealing with a similar situation in which a plaintiff had no documentary proof of the deceased’s earning, stated as follows:In our view, there was more than sufficient material on record from which the learned Judge was entitled to, and did draw the conclusion that the deceased was a carpenter and that his monthly earnings were about Shs. 4,000/= per month. We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.”

54. We reiterate that it would be unrealistic and unfair to expect strict proof of income through documents in regard to a small business enterprise carried out by a sole proprietor who is deceased. If there is sufficient evidence that the deceased was carrying out the alleged business, the court has to assess the income, doing the best that it can in the circumstances of the case.

55. We find that the learned judge misdirected herself and abdicated her responsibility in failing to assess the deceased’s net income as she was expected to assess the income as best as she could, using the little evidence available. The minimum wage of Kshs. 11,995/- was an appropriate place to begin because the deceased being a business lady carrying out a timber and furniture business, she must at least have employed a carpenter for the business and was unlikely to earn less than the carpenter. In our view given the evidence before the trial Judge including the bank statement showing monies going into and out of the deceased’s account, a sum of Kshs 30,000/= would have been appropriate as the net monthly income of the deceased.

56. It is my considered view that the minimum wage as urged by the appellant could be a good place to start but I am mindful of the deceased’s young and vibrant age. It is expected that overtime, her earnings could increase. Having said so, I find the sum of Kshs. 15,000/= adopted by the trial court reasonable.

57. I now turn to consider the multiplier adopted by the trial magistrate. The appellant urged the court to adopt a multiplier of 20 years whereas the respondents submitted that the multiplier of 30 years adopted by the trial court was reasonable. I take judicial notice that from the latest World Bank data life expectancy in Kenya is between 64 and 69 years.

58. The deceased being a business lady and in good health could well carry with her business beyond even the retirement age. In the circumstance, I am inclined to agree with the finding of the trial magistrate on the 30 years multiplier.

Dependency ratio 59. The court in Crown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (Legal Representatives of Alvin Nanjala (Deceased) [2020] eKLR when determining this issue stated as follows:As regards the fraction income which is spent on the dependants in the case of an unmarried woman who supports a child (and in this case her mother) I consider that in the absence of evidence that the child or children are also supported by their father pursuant to parental responsibility, or by any other person in filial or other guardian relationship to the child or children, the single female parent’s dependency ratio should be equal to that of a married man who maintains his family household at 2/3 of his income. Both occupy the same position of family breadwinner and provider, and I do not see why an unmarried woman’s support of her family should be at a lower fraction of her income than that of her male counterpart. The court, therefore, approves the use of the dependency ratio of 2/3 in the computation of the applicable damages for dependency under the Fatal accidents Act.”

60. It is with such reasoning that the court approves the use of the dependency ratio of 2/3 in the computation of the applicable damages for dependency under the Fatal accidents Act.

61. Turning to special damages, in the case of Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, the Court of Appeal held as follows;Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

62. The Respondent pleaded special damages of Kshs. 140,000/= but the same were not strictly proven as required by the law. Accordingly, I set aside the award by the trial court on special damages.

63. In the end the appeal partially succeeds and the court proceeds to enter judgment in favour of the Respondent in the following terms;i.Liability .................90:10% against the Appellantii.Pain and Suffering…………………. Kshs 20,000iii.Loss of expectation of life ……… Kshs 100,000iv.Loss of dependency Kshs ………. Kshs. 3,600,000Total Kshs 3,720,000less 10% contribution Kshs (372,000/=)Nett due Kshs 3,348,000It is ordered so.

SIGNED, DATE AND DELIVERED AT ELDORET THIS 21TH DAY OF NOVEMBER 2023. In the presence ofMr. Omboto Advocate for the RespondentM/s Odwa for the Appellant.........................R. NYAKUNDIJUDGE