Nyagwoka & another v Cherono (Suing as the Legal Representative of the Estate of Samuel Kiprono Koech - Deceased) & another [2022] KEHC 15825 (KLR) | Fatal Accidents | Esheria

Nyagwoka & another v Cherono (Suing as the Legal Representative of the Estate of Samuel Kiprono Koech - Deceased) & another [2022] KEHC 15825 (KLR)

Full Case Text

Nyagwoka & another v Cherono (Suing as the Legal Representative of the Estate of Samuel Kiprono Koech - Deceased) & another (Civil Appeal E038 of 2021) [2022] KEHC 15825 (KLR) (1 December 2022) (Judgment)

Neutral citation: [2022] KEHC 15825 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal E038 of 2021

RL Korir, J

December 1, 2022

Between

Paul Woka Nyagwoka

1st Appellant

Paul Woka Nyagwoka

2nd Appellant

and

Gladys Cherono (Suing as the Legal Representative of the Estate of Samuel Kiprono Koech - Deceased)

1st Respondent

Gladys Cherono (Suing As The Legal Representative Of The Estate Of Samuel Kiprono Koech (Deceased

2nd Respondent

(Being an Appeal from the Judgment of the Principal Magistrate, L. Kiniale delivered on 18th October 2021 in the Principal Magistrate’s Court at Bomet, Civil Suit Number 20 of 2020)

Judgment

1. The Respondent (then Plaintiff) as the Legal Representative of the estate of the deceased, sued the Appellant (then Defendant) for General and Special Damages that arose when the deceased was allegedly knocked down by Motor Vehicle Registration Number KBF 170D that allegedly belonged to the Appellant.

2. The trial court conducted a hearing where one witness (the Respondent) testified and produced exhibits in support of her case. On 16th August 2021, the parties recorded a Consent on liability in the ration of 70:30 in favour of the Respondent (then Plaintiff).

3. In the Judgment dated 18th October 2021, the trial court awarded Kshs 1,598,669. 80/= as General and Special Damages to the Respondent/ Plaintiff). The Award was broken down as:-i.Pain and suffering Kshs 50,000/=ii.Loss of expectation of life kshs 100,000/=iii.Dependency Kshs 1,908,160/=iv.Special damages Kshs 225,654/=v.Sub total Kshs 2,283,814/=vi.Less 30% Kshs 685,144. 20/=vii.Total Kshs 1,598,669. 80/=

4. Being aggrieved with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 1st November 2021 and relied on the following grounds:-I.THAT the learned Magistrate erred in law and in fact by awarding General Damages which were excessive in the circumstances.II.THAT the learned Magistrate erred in law and in principle by adopting a wrong approach in computation of the General Damages under various headings and by departing from the trends contained in the Authorities cited by the Appellant which were binding on her and adopting a method which was erroneous in the circumstance and thereby occasioning a miscarriage of justice.III.THAT the learned Magistrate erred in law and fact by computing damages under the Law Reform Act, loss of expectation of life and Fatal Accidents Act in contravention of the practice and trend laid down by both the Superior Court and Court of Appeal in decisions and/or precedents dealing with claims in respect of victims of fatal accidents.IV.THAT the learned magistrate erred by awarding an award of Kshs 50,000 for pain and suffering based on the fact that the deceased did not die the same day but rather died the following day. This was without proof of the pain and suffering occasioned on the deceased up until his death.V.THAT the learned Magistrate based her Judgment on extraneous issues which were never pleaded nor proved before her to pick a multiplicand of Kshs 11,926 and multiplier of 20 years to compute for loss of dependency without proof of the same therefore reaching an erroneous decision.VI.THAT the learned trial Magistrate erred in law and in fact by computing damages under the Fatal Accidents Act at Kshs 1,908,160/=VII.THAT the learned trial Magistrate erred in law and in fact in disregarding and/or failing to take into account the Appellant’s Written Submissions which had articulated weighty and relevant issues of the law and facts thereby arriving at an erroneous decision both in law and in principle.VIII.THAT the learned trial Magistrate erred in law and in fact in awarding the Respondent Special Damages in the sum of Kshs 225,654/= without adequate proof.IX.THAT the learned trial Magistrate misdirected herself to rely on the receipts which were in contravention of Section 19 of the Stamp Duty Act to assess Special Damages.X.THAT the learned trial Magistrate erred in law and in fact by failing to dismiss the Respondent’s suit with costs to the Appellant.

The Plaintiff’s/respondent’s Case 5. Through the Plaint and his evidence in the trial court, the Respondent stated that on 22nd August 2017 the deceased was hit by Motor Vehicle Registration Number KBF 170D as he walked along Bomet-Kaplong road.

6. The Respondent stated that the Appellant being the owner and driver of Motor Vehicle Registration Number KBF 170D, he was negligent in causing the accident and particularized the negligence in paragraph 6 of the Plaint. It was the Respondent’s further case that the deceased had dependants and the said dependants were listed in paragraph 7 of the Plaint.

7. It was the Appellant’s case that at the time of the death of the deceased, he was aged 44 years and that he worked as a farmer earning approximately Kshs 20,000/= per month which he used to support his family. That his dependants fully depended on him and that the estate of the deceased suffered great loss and damage.

8. The Respondent’s claim against the Appellant was for Special and General Damages under the Law Reform Act and Fatal Accidents Act.

The Respondent’s Submissions. 9. The Respondent submitted that in arriving at the figure of Kshs 1,908,160, the trial court adopted the minimum wage of Kshs 11,960 in 2017, a multiplicand of 20 years since the deceased was 44 years at the time of his death and a ratio of 2/3. That the award by the trial court was clearly set on sound principles supported by authorities and law and that it should not be disturbed. She relied on the cases of Justo Mungathia Mwithalie & Another vs Joseph Maore Angacia & Another (suing as the legal representative of the estate of EKM) (2022) eKLR, Butt vs Khan (1982-88) KAR 1 and Crown Bus Services Limited & 2 others vs Jamilla Nyongesa and Amida Nyongesa (legal representative of Alvin Nanjala (deceased) 2020 eKLR) to support this submission.

10. It was the Respondent’s submission that the award of Kshs 50,000 for pain and suffering was inordinately low given the amount of pain and suffering the deceased underwent for almost two months while undergoing treatment. The Respondent urged the court to replace the award of Kshs 50,000 with Kshs 300,000 and used the case of Florence Ng’onga & Another vs Eliud Ndungu Ndekenye & Another HCCC No. 2132 of 2021 as a guide.

11. In the trial court, the Respondent submitted that the Special Damages awarded by the trial court were specifically pleaded, prayed and proved as required by the law. That the issue of the receipts not having stamps was not fatal. She relied on the cases of Paul Njoroge vs Abdulsabuni Sabonyo (2015) eKLR and Juliet Kemunto Ondati vs Gladys Mwende Mwende (2021) eKLR.

12. It was the Respondent’s submission that the Appellant failed to identify the pertinent issues or the weighty issues that the trial court failed to consider. That that ground of appeal was too general to warrant any serious consideration by this court. It was her further submission that the trial court dealt with all this issues that were drawn and submitted upon by the parties.

The Appellant’s/defendant’s Case. 13. In the trial court, the Appellant denied ownership of Motor Vehicle Registration Number KBF 170D and further denied that the said motor vehicle was under his management and control.

14. The Appellant denied the particulars of negligence levelled against him stating that if any accident happened, it was attributable to the negligence of the deceased. He particularized the negligence in paragraph 6 of his Defence.

15. The Appellant stated that the doctrines of res ipsa loquitor and vicarious liability were not applicable in the present case.

16. The Respondent however closed their case upon recording Consent on liability.

The Appellant’s Submissions. 17. On this Appeal, the Appellant submitted that the deceased died aged 44 years. That there was no evidence adduced to prove the earnings of the deceased therefore the amount awarded by the trial court was unwarranted. The Appellant further submitted that courts have awarded lumpsum amounts in fatal accidents. He relied on Stanwel Holdings Limited & Another vs Rachael Haluku, Emanuel & Another and Peters vs Sunday Post Limited (1958) to support this submission.

18. It was the Appellant’s submission that the Respondent neither proved that the deceased was engaged in any income generating activity at the time of his death nor did she prove that his family members depended on him. That the issue of dependency was an issue of fact. He relied on the case of Gerald Mbale Mwea vs Kariko & Another (1997) eKLR to support his submission.

19. He submitted that if the court was to find on the issue of loss of dependency then he urged the court to adopt a basic income of Kshs 3,000/= and a multiplier of 10 years which would bring the total sum under loss of dependency to Kshs 240,000/=.

20. The Appellant submitted that no award was payable under pain and suffering as the deceased died instantly at the scene of the accident. He relied on the case of James Mukolo Elisha & Another vs Thomas Martin Kibisu (2014) eKLR.

21. The Appellant proposed the amount of Kshs 100,000/= for the loss of expectation of life as opposed to the Kshs 60,000/= that the trial court awarded. He submitted that the amounts under the Law Reform Act i.e. loss of expectation of life and pain and suffering ought to be discounted from the total award because awarding the same would mean the deceased’s estate would benefit twice from the same accident. He relied on the case of William Momanyi vs Zipporah Kwamboka Abunda Kisii HCCA No. 93 of 2004.

22. It was the Appellant’s submission that the trial court proceeded on the wrong principles in awarding damages and as a result it arrived at an excessive figure. The Appellant urged this court to set aside the trial court award and substitute it with Kshs 525,654 which was a reasonable sum. The Appellant broke down the award as; loss of dependency at Kshs 240,000, loss of expectation of life at Kshs 60,000 and Special Damages at Kshs 225, 654.

23. My duty as the 1st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I have neither heard nor seen the witnesses testify. This duty was espoused in the Court of Appeal case of Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates (2013) eKLR.

24. I have read through and carefully considered the Memorandum of Appeal dated 1st November 2021, the Appellant’s Written Submissions dated 9th August 2022 and the Respondent’s Written Submissions dated 2nd October 2022. The only issue which arises for my determination is the quantum payable to the Respondent.

25. With respect to evaluating quantum on appeal, the Court of Appeal in the case of Johnson Evan Gicheru vs Andrew Morton & another (2005) eKLR, restated the principle thus:-“In order to justify reversing the trial judge on the question of the amount of damages it was generally necessary that the court of appeal should be convinced that either the judge acted upon some wrong principle of law or, that the amount awarded was so extremely high or so very small as to make it, in the judgement of the court, an entirely erroneous estimate of the damage to which the appellant was entitled”.

26. In assessing quantum I am guided by the principles enunciated by the Court of Appeal in the case of Tayab vs Kinanu (1983) eKLR, as follows:-“I would commend to trial judges the following passage from the speech of Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”

27. In this case, the parties entered into a Consent on 16th August 2021, where liability was entered in the ratio of 70:30 in favour of the Respondent (then Plaintiff). I now consider quantum under the various heads:-

28. In regard to the pain and suffering, the trial court awarded Kshs 50,000/=. The trial court stated that the basis of the award was that the deceased did not die on the spot but rather on the following day. The Appellant submitted that there should be no award under this heading as the deceased died on the spot. On the other hand, the Respondent submitted that the award of Kshs 50,000/= was inordinately low as the deceased died almost two months after the accident. They submitted that the accident occurred on 22/08/2017 while the deceased died on 2/10/2017. In the case of West Kenya Sugar Co. Limited vs Philip Sumba Julaya (Suing as the Administrator and personal representative of the estate of James Julaya Sumba) (2019) eKLR , Njagi J (as he then was) observed that-“The principle is that damages for pain and suffering are recoverable if the deceased suffered pain and suffering as a result of his injuries in the period before his death. In addition, a Plaintiff whose expectation of life has been diminished by reason of injuries sustained in an accident is entitled to be compensated in damages for loss of expectation of life. The generally accepted principle is that very nominal damages will be awarded on these two heads of damages if the death followed immediately after the accident.”

29. Further in the case of Sukari Industries Limited vs Clyde Machimbo Jumba (2016) eKLR Majanja J. stated:-“On the first issue, I hold that it is natural that any person who suffers injury as a result of an accident will suffer some form of pain. The pain may be brief and fleeting but it is nevertheless pain for which the deceased’s estate is entitled to compensation. The generally accepted principle is that nominal damages will be awarded on this head for death occurring immediately after the accident. Higher damages will be awarded if the pain and suffering is prolonged after death. According to various decisions of the High Court, the sums have ranged from Kshs 10,000 to Kshs 100,000 over the last 20 years………

30. PW1 testified that the deceased was knocked down by Motor vehicle Registration Number KBF 170D on 22nd August 2017 and died on 23rd August 2017 while admitted at Tenwek Mission Hospital. She produced a Post Mortem Report and Death Certificate that were marked as P. Exh 3 and P.Exh 7 respectively which indicated that the deceased died on 23rd August 2017, a day after the accident occurred. The Appellants did not controvert the evidence tendered by PW1. It is therefore my finding that the award of Kshs 50,000/= was reasonable. It is unclear to this court why the Respondent’s counsel would make a submission that the deceased died on 2/10/2017 when such submission is not supported by evidence.

31. On the issue of the loss of expectation of life, I am persuaded by the case of Mercy Muriuki & Another vs Samuel Mwangi Nduati & Another (suing as the Legal Administrator of the estate of the late Robert Mwangi) (2019) eKLR where Muchemi J. stated:-“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 for pain and suffering the awards range from Kshs 10,000 to Kshs 100,000 with higher damages being awarded if the pain and suffering was prolonged before death”.(See also Hyder Nthenya Musili & Another v China Wu Yi Limited & Another [2017] eKLR,

32. As shown above, courts have adopted the figure of Kshs 100,000/= for loss of expectation of life. The Appellant proposed a sum of Kshs 100,000 under this heading. It is my finding that the award of Kshs 100,000 by the trial court as reasonable and sufficient.

33. With respect to loss of dependency, Section 4 of the Fatal Accidents Act provides as follows-“Every action brought by virtue of the provisions of this act shall be for the benefit of the wife, husband, parents and the child if the person, whose death so caused and shall , subject to the provisions of section 7, be brought by and in the name of the executor or administrator of the person deceased, and in every such action the court may award such damages as it may think proportioned to the injury resulting from the death to the persons respectively for whom and for whose benefit the action is brought, and the amount so recovered, after deducting the cost not recovered from the defendant shall be divided amongst those persons in such shares as the court by its judgment shall find and direct”.

34. The claim for loss of dependency constitutes the multiplicand, the dependency ratio and the multiplier. (See Melbrimo Investment Company Limited vs Dinah Kemunto & Francis Sese (Suing as Personal Representative of the Estate of Stephen Sinange alias Reuben Sinange (Deceased) [2022] eKLR).

35. The Court of Appeal in the case of Isaack Kimani Kanyingi & another (Suing as the legal representative of the Estate of Loise Gathoni Mugo (Deceased) vs Hellena Wanjiru Rukanga (2020) eKLR held that a minimum wage ought to be adopted as a multiplicand where monthly income could not be ascertained. It stated:-“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………”

36. In this case, the Respondent pleaded that the deceased worked as a farmer and earned approximately Kshs 20,000 per month. There was no evidence on record to ascertain what the deceased actually earned and therefore the deceased’s income was unknown. However, in such circumstances, courts are minded to use the minimum wage as the base income when calculating the loss of dependency. The Death Certificate produced as P.Exh 7 indicated that the deceased died aged 44 years.

37. I defer further to the case of Frankline Kimathi Maariu & Another vs Philip Akungu Mitu Mborothi (suing as Administrator and Personal Representative of Antony Mwiti Gakungu deceased (2020) eKLR where the court in dealing with a similar issue stated:-“In the present case, there was no satisfactory proof of the monthly income. Where there is no salary proved or employment, the Court should be wary into subscribing to a figure so as to come up with a probable sum to be used as a multiplicand. In such circumstances, it is advisable to apply the global sum approach or the minimum wage as the appropriate mode of assessing the loss of dependency……….”

38. It was pleaded that the deceased was a farmer, so I will use The Regulation of Wages (Agricultural Industry) (Amendment) Order, 2017 which came into force on 1st May 2017. The Order stated that a farm clerk or farm foreman’s wages were Kshs 11,573. 55. I consider the multiplier of 20 years reasonable as there was nothing to suggest that a farmer cannot remain productive beyond the 60 year retirement age indicated for persons in formal employment. The dependency ration of 2/3 was also reasonable because the children listed as the deceased’s dependents were well under 18 years at the time of the accident and depended wholly on the deceased. It is reasonable to expect they were school going. I therefore concur with the trial court on the multiplier and dependency ratio. I however, substitute the multiplicand of Kshs. 11,926 with Kshs. 11,573. 55 as the correct minimum wage then. The dependency will therefore be 11,573. 55 x12 x20 x2/3 = 1,851,768/=

39. The Appellant submitted that the awards under Law Reform Act i.e. loss of expectation of life and pain and suffering should be discounted from the total award as failure to do so would amount to double compensation from the same accident. In the case of Hellen Waruguru Waweru (suing as the legal representative of peter Waweru Mwenja (deceased) vs Kiarie shoe stores limited (2015) eKLR, the Court of Appeal stated:-“This Court has explained the concept of double compensation in several decisions and it is surprising that some courts continue to get it wrong. The principle is logical enough; duplication occurs when the beneficiaries of the deceased’s estate under the Law Reform Act and dependants under the Fatal Accidents Act are the same, and consequently the claim for lost years and dependency will go to the same persons. It does not mean that a claimant under the Fatal Accidents Act should be denied damages for pain and suffering and loss of expectation of life as these are only awarded under the Law Reform Act, hence the issue of duplication does not arise.The confusion appears to have arisen because of different reporting of the Kenfro case (supra) which was heavily relied on by Mr. Kiplagat. The version he relied on is from [1982-88] 1 KAR 727 which concentrates on the decision of Kneller JA in extracting the ratio decidendi. The same case, however, is more fully reported in [1987] KLR 30 as Kenfro Africa Ltd t/a Meru Express Services 1976 & Another -VS- Lubia & Another (No. 2) and the ratio decidendi is extracted from the unanimous decision of all three Judges. It was held, inter alia, that:-6. An award under the Law Reform Act is not one of the benefits excluded from being taken into account when assessing damages under the Fatal Accidents Act; it appears the legislation intended that it should be considered.7. The Law Reform Act (Cap 26) section 2 (5) provides that the rights conferred by or for the benefit for the estates of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of the deceased persons by the Fatal Accidents Act. This therefore means that a party entitled to sue under the Fatal Accidents Act still has the right to sue under the Law Reform Act in respect of the same death ………….”

40. It is my finding that the issue of double compensation does not arise as a party entitled to sue under the Fatal Accidents Act is also entitled to sue under the Law Reform Act. All that the court is required is to take into consideration the awards under the different heads.

41. With regard to Special Damages, the Respondent stated that he had incurred a cumulative sum of Kshs 225,634/=. The charges were broken down as follows; Medical Bill of Kshs 75,634, Funeral Expenses of Kshs 100,000, Hearse, Coffin, Public Address System and Tents at Kshs 35,000 and the fee for obtaining Letters of Administration at Kshs 15,000. These were Special Damages that ought to be specifically pleaded and proved.

42. The Respondent produced a Receipt from Tenwek Hospital marked as P.Exh 4 which showed that they had incurred Kshs 75, 634/= as medical expenses. I find that the Respondent has proved this expenditure.

43. Section 6 of the Fatal Accidents Act makes provision for funeral expenses as follows:-“In an action brought by virtue of the provisions of this Act the court may award, in addition to any damages awarded under the provisions of subsection (1) of section 4, damages in respect of the funeral expenses of the deceased person, if those expenses have been incurred by the parties for whom and for whose benefit the action is brought.”

44. In the case of Premier Dairy Limited vs Amarjit Singh Sagoo (2013) eKLR , the Court of Appeal stated that;“We do take judicial notice that it would be wrong and unfair to expect bereaved families to be concerned with the issue of record keeping when their primary concern is that a close relative has died”.

45. Similarly, in the case of Jacob Ayiga vs Simon Obayo (2005) eKLR, the court held that;“We agreed and the courts have always recognized that a reasonable award ought to be made in respect of reasonable and legitimate funeral expenses. But when such a large sum is claimed for such expenses then there ought to be proof of what the money was spent on. We however must not be understood to be laying down any law that in subsequent cases Kshs 60,000 must be given as reasonable funeral expenses. Those items are and must remain subject to proof in each and every case and the Kshs 60,000 awarded herein apply strictly to the circumstances of this case”.

46. Guided by the precedents above, it is my finding that the award of Kshs 100,000 for funeral expenses by the trial court was reasonable.

47. Regarding the Hearse, Coffin, Tents and Public Address System, the Respondent a receipt in the bundle of receipts produced as P.Exh 1 that showed that she had incurred Kshs 35,000 for that expense. She also produced the receipt for the preparation of the Limited Letters of Grant of Administration marked as P. Exh 2(b).

48. Flowing from the above, it is my finding that the trial magistrate was not in error when she awarded Kshs 225,634/= as Special Damages as the expenses were specifically pleaded and proved. It is worth noting that the Appellant also proposed the award of Kshs 225,634 in his written submissions.

49. Ground IX of the Appeal was that learned trial Magistrate misdirected herself when she relied on the receipts which were in contravention of Section 19 of the Stamp Duty Act to assess Special Damages. It is my finding that failure by the Respondent to have the receipts stamped was not fatal. The receipts were admissible as evidence. In the case of Paul N.Njoroge v Abdul Sabuni Sabonyo (2015) eKLR, the Court of Appeal held that:-“The finding is often made by lower courts that documents which do not comply with the Stamp Duty Act, Cap 480, Laws of Kenya were invalid and inadmissible in evidence. But this Court has held that to be erroneous and accepts the view it took in the case of Stallion Insurance Company Limited v. Ignazzio Messina & Co S.P.A [2007] eKLR where it stated thus:“Mr. Mbigi submitted that the guarantee document relied on by the respondents to enforce their claim was inadmissible in evidence as it was not stamped contrary to the Stamp Duty Act. It is a submission which has been raised in other cases before but this Court has approved the procedure that ought to be followed in such matters. A case in point is Diamond Trust Bank Kenya Ltd vs. Jaswinder Singh Enterprises CA No. 285/98 (ur) where Owuor JA, with whom Gicheru JA (as he then was) and Tunoi JA, agreed, stated: -“The learned Judge also found that the agreements could not be enforced because they contravened section 31 of the Stamp Duty Act (cap 480). In view of my above finding, it suffices to state that sections 19(3) 20, 21, and 22 of the same Act provided relief in a situation where a document or instrument had not been stamped when it ought to have been stamped. The course open to the learned Judge was as in the case of Suderji Nanji Ltd. -vs- Bhaloo (1958) EA 762 at page 763 where Law J., (as he then was) quoted with approval the holding in Bagahat Ram -vs- Raven Chond (2) 1930) A.I.R Lah 854 that:“before holding a document inadmissible in evidence on the sole ground of its not being properly stamped, the court ought to give an opportunity to the party producing it to pay the stamp duty and penalty ……………………We would adopt similar reasoning in finding that the trial court was in error in peremptorily rejecting evidential material on account of purported non-compliance with the Stamp Duty Act. At all events, the Act itself provides a penal sanction for failure to comply with the provisions thereunder, but this is subject to proof."

50. Following the above, I find that the receipts were properly admitted. I also find the award, which I have adjusted minimally to be reasonable. For clarity the award is:-i.Pain and Suffering Kshs 50,000ii.Loss of expectation of life Kshs 100,000iii.Loss of dependency Kshs 1,851,768Kshs 2,001,768Less 30% Contribution Kshs 600,530. 4Kshs 1,401,237. 6Add Special Damages Kshs 225,634

TOTAL Kshs 1,626,871. 60 51. The Appeal dated 1/11/2021 fails and is dismissed with costs to the Respondent. The Plaintiff/Respondent shall also have costs in the trial court.

52. Orders accordingly.

Judgement delivered, dated and signed at Bomet this 1stday of December, 2022. .........................R. LAGAT-KORIRJUDGEJudgment delivered in the presence of Ms. Gogi for the Appellant, Mr.Kadet for the Respondent and Kiprotich (Court Assistant).Judgment emailed to the parties at:xxxxx.com for the Respondentxxxxx.com for the Appellant