Nyanguthi v Huri [2025] KEHC 4321 (KLR)

Nyanguthi v Huri (Civil Appeal E243 of 2023) [2025] KEHC 4321 (KLR) (2 April 2025) (Judgment)

Neutral citation: [2025] KEHC 4321 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E243 of 2023

PN Gichohi, J

April 2, 2025

Between

James Kirangu Nyanguthi

Appellant

and

Bernard Njoroge Huri

Respondent

(An Appeal from the Judgement and decree of Hon. E . Oboge (RM) delivered on 23rd August, 2023 in Nakuru SCCC NO. E275 of 2023)

Judgment

1. The background of this Appeal is that through the firm of Francisca & Chelangat Advocates, the Respondent herein sued the Appellant in the Small Claims Court vide the Claim dated 23rd May, 2023 seeking the following reliefs: -a.General damages for pain and suffering.b.Special damages of Kshs. 35,560=c.Loss of income at the rate of Kshs. 1500/= per day until full recovery.d.Cost of the Claim and interest.e.Any other appropriate relief.

2. The Claim was that on or about 16th November, 2022, while the Respondent was walking off the road along Bargain area within Nakuru Town, the Appellant by himself or his driver negligently controlled his motor vehicle registration number KCZ 097G causing it to hit the Respondent from behind occasioning him serious bodily injuries to wit; fracture of the right tibia and fibula, severe soft tissue injuries of the right and left leg, deep cut wound of the right elbow and blunt injury to the anterior chest wall leading to soft tissue injuries.

3. Upon being served, the Appellant entered appearance on 19th June, 2023 through the firm of Matiri Mburu & Chepkemboi Advocates and filed a response to Claim on 20th June, 2023, denying the entire Claim.

4. Without prejudice, he pleaded that the Claim is incompetent, bad in law and otherwise an abuse of Court process. He further stated that he is a stranger to the averments in the Claim and that he has been wrongly sued. He also denied the particulars of negligence ascribed to him directly or impliedly.

5. He pleaded further that if an accident occurred, then, the Respondent was substantially to blame for accident for crossing the road when it was not safe to cross, failing to heed to the horn or warning given by the driver of KCZ 097G, walking too close to the road, exposing himself to unconscionable risk, failing to take adequate measures to avoid the accident and failing to keep or have proper look out to oncoming traffic.

6. After hearing both parties, the trial court delivered its judgement on the 23rd August, 2023 and entered judgment in favour of the Respondent as against the Appellant as follows: -a.Liability………………………..100%.b.General damages………………..Kshs. 300,000/=.c.Special damages………………. Kshs. 20,460/=.d.costs of claim.e.Interest on (b), (c) and(d) above from the date of judgement until payment in full.

7. Aggrieved by that decision, the Appellant filed a Memorandum of Appeal dated 4th September, 2023 on the following grounds: -1. The learned trial magistrate erred and misdirected himself in fact and law by awarding damages to the Respondent that were manifestly excessive.2. The learned trial magistrate erred in law and in fact in assessing damages and failed to apply the principles applicable in award of damages of comparable awards made for analogous injuries.3. The learned magistrate erred in failing to consider and critically analyse the submissions made on behalf of the Defendant and thus arrived at an unjustifiably high award for the injuries sustained.4. The learned magistrate award on damages was so inordinately high.5. The learned trial magistrate erred in law and fact in awarding damages that were neither properly pleaded nor sufficiently proved as by law required.6. The learned trial magistrate was in error of law and fact in awarding damages that were not proportionate to the injuries sustained by the Respondent.7. The learned trial magistrate failed to consider that the plaintiff had fully or substantially healed while assessing the award on damages.8. The learned magistrate erred in law and in fact in finding the Appellant 100 % liable for the accident.9. The learned magistrate’s findings on liability went against the weight of evidence.10. That the learned magistrate erred in law and fact in failing to find that the plaintiff/Respondent had failed to make out his case and hence dismiss the same.11. The learned magistrate was in error of law and fact in failing to take into account certain considerations material to an estimate of evidence.

8. He therefore urged this Court to :-1. Quash and or set aside the judgement/decree of the lower court dated 23rd August, 2023. 2.Find that the Respondent failed to prove his case and therefore dismiss the Respondent’s suit.3. Find that the Respondent failed to take measures of his own to avoid the accident and proceed to apportion liability.4. Reassess and reduce the award of general and special damages.5. Order that the costs of this Appeal be borne by the Respondent.

9. When he was served, the Respondent lodged a Cross-Appeal dated 20th September, 2023 on the following grounds:-1. The learned trial magistrate/Adjudicator erred in law and facts by awarding the Respondent general damages of Kshs 300,000 which was inordinately too low as to represent an erroneous estimate of damages payable.2. The learned trial magistrate/Adjudicator erred in law and facts by failing to award the Respondent loss of earnings for the period the Respondent/Appellant was not at work yet the same was proved.3. The learned trial magistrate/Adjudicator erred in law and facts in applying wrong principles to take into account material facts arriving at an erroneous award and finding in general damages and loss of earnings.4. The learned trial magistrate/Adjudicator erred in law and fact in disregarding the Appellant’s submissions on quantum and on all points of facts and law in as far as the award of damages is concerned.

10. He therefore prayed that:-a.The Appeal herein be dismissed with costs to the Respondent and the cross Appeal be allowed.b.The trial Magistrate’s findings on quantum and loss of earnings be set aside and be substituted with the judgement of this Court.c.The costs of this Appeal and Cross-Appeal be borne by the Appellant.

Appellant’s Submissions 11. He condensed his grounds of Appeal into two issues being:-a.Whether the learned magistrate’s findings on liability went against the weight of evidence.b.Whether the learned magistrate erred and misdirected himself on the principles applicable to damages and his findings.

12. This being the first appellate court, the Appellant submitted that this Court should proceed with caution as it did not have the advantage of observing the demeanour of the witnesses and hearing their evidence first hand as was held in the case of Selle Vs Associated Motor Boat Company Limited [1968] EA 123.

13. On liability, the Appellant argued that in the Respondent’s witness statement, he (Respondent) stated that he was walking off road from mosque towards the market and also confirmed that there was no pedestrian crossing at the place where the accident occurred. He also stated that vehicles had been parked along the road and he was hit 20 meters off the road.

14. Further, he submitted that the Police Officer who testified herein was not the Investigating Officer and did not have the police file and therefore, he did not know how the accident occurred hence, his evidence did not have much weight in the Respondent’s case.

15. In support of that argument, reliance was placed on the case of Samuel Irungu Njuguna vs Francis Kibe & Another [2016] eKLR and James Tom Mulekye vs Mativo Kovi Civil Appeal No. 27 of 2019, where the Court in both instances impeached the testimony of a police officer who was not the Investigating Office and did not have the police file but only produced the Police Abstract.

16. He further argued that the Police Abstract produced herein did not blame the Appellant for the accident and therefore, the trial court erred in finding the Appellant 100% liable for the accident without laying basis on what informed its decision.

17. Arguing that pedestrians owe themselves and other road user duty of care as provided for under Part 1 Clause 6 and 7 of the Highway Code, the Appellant cited the case of Patrick Mutie Kamau V Jane Wambui Ndurumo (a Minor) C.A 254/1996 where the Court of Appeal emphasised as follows:-“We think it necessary to emphasizes the statement in paragraph186 of Charlesworth on Negligence, Third Edition which is as follows: “A pedestrian owes a duty to other highway users to move with due care.”Indeed, part 1 of our own Highway Code where relevant in this regard provides: (6) Before you cross the road, stop at the Kerb, Look Right, Look Left, and Right Again. Do not cross until the road is clear; then cross at right-angles, keeping a careful look-out all the time. If there is a refuge, stop on it and look again. On one-way traffic road, stop and look towards oncoming traffic before you cross. (7) Do not cross unless you have a clear view of the road both ways. Take extra care near stationary vehicles or other obstructions, and whenever you view is limited.”

18. He therefore urged this Court to dismiss the suit in its entirely. However, he urged that in the event the Court finds the Respondent liable, then liability be shared between both parties in the ratio of 50:50.

19. On general damages, the Appellant made reference to the book ‘Measure of damages of Bodily injuries’ by Justice Richard Kuloba and further cited the case of Hassan V Nathan Mwangi Kamau Transported & 5 Others NBI CACA No. 123 of 1985 to submit that courts at first instances are prone to compensate victims generously, which result to rise of insurance premiums but which can be avoided in making sure awards are reasonable. He further submitted that awards must be within consistent limits and that in making the awards, the courts should take into account comparable injuries.

20. While arguing that the award of Kshs 300,000/= on general damages was excessive, the Appellant cited the case of Ramadhan Komora Dhadho v John Kariuki & Another [2017]eEKLR, where the Court reiterated that first, no amount can restore the physical frame of a victim arising out of injuries sustained; secondly, the award should not be seen as a punishment for the offending party and thirdly, the award should be done within the settled principles to avoid disparity on similar case and facts.

21. He therefore proposed an award of Kshs. 250,000/= as compensation for the injuries sustained. In support of that proposal, the Appellant relied on the following decisions:- Michael Adeka Khaemba & 2 Others vs Rassangyllo Muli Kumuyu [2018] eKLR, where the Respondent suffered fracture of the femur tibia and the court reduced the award of Kshs. 600,000/= to Kshs 200,000/=.

Issac Muriungi Mbataru vs Silas Kalumani [2017] eKLR where a Plaintiff suffered fracture of the femur and tibia and was awarded Kshs. 350,000/= but on appeal, the award was reduced to Kshs. 200,000/=.

Robert Kithinji Kithaka vs AG [2018] eKLR, where the court awarded Kshs. 250,000/= for fracture of the left leg involving both tibia and fibula, fracture of the left collar bone and bruises all over the body.

22. As regards the Cross-Appeal on damages, the Appellant reiterated his submissions that the award was excessive and should be reduced to a sum of Kshs. 250,000/= as argued above.

23. On loss of income, the Appellant relied on the case of SJ V Franscesco Di Nello & Another [2005] eKLR, where the Court of Appeal held that: -“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved.”

24. Based on the above holding, he argued that the claim was indeed pleaded but the Respondent did not lead any evidence in support and therefore, the trial court rightly declined to award the Respondent’s claim under this head.

Respondent’s Submissions 25. On liability, he submitted that the trial court properly directed itself as all evidence on record pointed out to the Appellant causing the said accident. He argued that the accident occurred off the road and that during hearing, the Appellant admitted to being on the wrong and therefore, the Appellant was solely to blame for the accident.

26. On quantum, he submitted that the sum of Kshs 300,000/= awarded to him is inordinately low for the injuries sustained as compared to award in comparable cases. In support of a higher award, the Respondent placed reliance on the case of Francis Ndungu Wambui & 2 Others V VK (a minor suing through next friend and Mother MCWK) [2019] eKLR, where the Plaintiff therein was awarded Kshs. 1,000,000/= for soft tissue injuries to the upper limbs and fracture of distal tibia & fibula shaft.

27. Further, he relied on the case of Kornelius Kwrya Ebichet v C& P Show Industries Ltd [2008] eKLR, where the Plaintiff was awarded a sum of Kshs. 1,000,000/= for blunt trauma to the forehead and fracture of the left tibia and fibula bones.

28. Regarding the claim for loss of earnings, the Respondent submitted that he was a barber earning Kshs. 1500 daily but owing to the injuries sustained, he was unable to work for a period of six (6) months from the date of accident up to 1st June, 2023 and therefore, he ought to be compensated for the loss incurred during that period of incapacity. Cumulatively, he prayed for the sum of Kshs. 270,000/= under this head.

29. In conclusion, he urged this Court to dismiss the Appeal and allow the Cross-Appeal as prayed and with costs to him.

Analysis and determination 30. This Court has considered the Appeal, the Cross- Appeal and the Submissions by parties and this being an Appeal and Cross Appeal from the Small Claims Court, then Section 38 of the Small Claims Court provides that:-“(1)A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.(2)An appeal from any decision or order referred to in subsection (1) shall be final.”

31. Consequently, this court cannot be invited to interfere with the factual findings of the trial court but on issues of law only even as it carries its duty to analyse the material before the trial court and come to its own conclusion.

32. As to what constitutes matters of law and matters of fact, the Court of Appeal in Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR distinguished between matters of law and matters of fact and stated that: -“... In a first appeal the appellate court is by law enjoined to revisit the evidence that was before the trial court and analysed it, evaluate it and come to its own independent conclusion. In other words, a first appeal is by way of a retrial and facts must be revisited and analysed a fresh…in a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law unless it is shown that the two courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse.”(Emphasis added)

33. In the circumstances, the trial court’s findings are to be accepted unless it is apparent, on evidence, that the conclusions on facts reached by the trial court, are so unreasonable that no reasonable court could arrive at the same conclusion.

34. In this matter, it is clear that the Appellant’s contention is on both liability and quantum while in his Cross-Appeal, the Respondent contends quantum and failure by the trial court to award him loss of income.

35. This Court has looked at the trial court’s record. On liability, the Respondent (CW1) testified before the trial court that he was working off the road, on the left side towards Wakulima Market, at around 2030 hours at night, when he was hit from behind by the Appellant’s vehicle KCZ 097G.

36. On being cross- examined, he confirmed that he was attempting to cross the road in front of a parked motor vehicle when the accident occurred. That it was 8. 30 pm. Asked whether he was indeed 20 meters off the road, he answered in the negative and stated that he was 20 meters away from the vehicle parked beside the road.

37. On his part, No. 88950 P.C David Gitahi (CW2) told the trial court that the accident occurred at a busy area of the road near the market. He explained that it was the driver who reported the accident at Nakuru Police Station and that after preliminary investigations, they ascertained that the Respondent was indeed walking beside the road when the accident occurred and therefore, he blamed the Appellant for the accident.

38. When cross- examined, he testified that he and one C.P Tiga were the Investigating Officers. He confirmed that they visited the scene of the accident the next day and that the Police Abstract indicated that the matter be referred to insurance for the Claimant to be compensated. He confirmed that the Police Abstract did not indicate who was to blame for the accident.

39. The Appellant (RW1) denied hitting the Respondent from behind and stated that the accident occurred when Respondent was attempting to cross the road in front of another car and as a consequence, the Respondent hit himself on the Appellant’s vehicle’s bonnet. He explained that he was not charged for the accident. He blamed the Respondent for failing to look out before crossing the road.

40. In cross examination, the Appellant confirmed his recorded statement where he stated that that an unknown vehicle suddenly stopped in front of him but denied blaming the unknown vehicle for the accident. He admitted that had he not been liable for the accident , he could not have paid the Respondent’s hospital bills. In re-examination, he told the court that the Respondent was trying to cross the road in front of a parked motor vehicle.

41. Though agreeing with the Appellant that the Police Officer’s evidence was hearsay as he did not witness the accident and did not produce the Police Abstract, the trial court acknowledged that negligence can be established even in absence of a Police Abstract and while holding the Appellant (Respondent therein) 100% liable for the accident, the trial court cited the case of Masembe Sugar Corporation & another [2002] EA 434 and held:-“The Respondent having been driving a lethal machine ought to have taken more care to avert the accident...I also find paragraph 7 of the Respondent/’s statement intriguing. He claimed that it was the Claimant who landed on his bonnet and fell on the road. During cross examination the respondent denied the averment that the claimant was in front of him when the accident occurred . This denial is self-rebutted by the admission that the bonnet hit the Claimant. Again, during cross examination, the respondent admitted that he only took the Claimant to the hospital because he was liable…In view of the above reasons, I am satisfied that the Claimant demonstrated liability against the respondent on a balance on a balance of probability.”

42. Based on the evidence tendered by both parties, it is evident, that the accident occurred at night and that it occurred on the edge of the road and not 20 meters off the road. The Respondent confirmed that he was about to cross the road in front of the vehicle parked besides the road, when the accident occurred.

43. It was his duty to ensure that the road was clear before attempting to cross the road but he failed to do so and therefore he cannot be free from any liability. The Appellant too confirmed that the Respondent was attempting to cross the road when the accident occurred.

44. There is no dispute that the road was at a busy place, where there was market obviously with both human and motor traffic. As a driver, the Appellant ought to have driven with utmost care in that area. In short, both parties contributed to the occurrence of this accident.

45. In such a scenario, the Court of Appeal in Isabella Wanjiru Karanja v Washington Malele [1983] KECA 72 (KLR) opined that:-“There are two elements in the assessment of liability, namely causation and blameworthiness. See Baker v Willoughby [1970] AC 467. In my opinion there can be no excuse for the driver’s complete failure to see the pedestrian, or for the pedestrian’s complete failure to see the car. I would not disagree with the learned judge’s finding that the appellant’s speed was excessive in the circumstances, but the failure to keep a proper look out would seem to be the predominant factor. I respectfully agree that the learned judge was right to apportion the blame 75 per cent to the appellant driver and 25 per cent to the respondent pedestrian.”

46. In the circumstances of this case , this Court is satisfied that trial court erred in holding the Appellant 100% liable for the accident thus calling for interference by this Court by substituting the trial court’s finding on liability with an order on liability at the ratio 75: 25 in favour of the Respondent against the Appellant.

47. As regards quantum, the Medical Report by Dr. Obed Omuyoma dated 13/12/2022 shows that the Respondent sustained:- Fracture of the right tibia and fibular.

Severe soft tissue injuries of the right leg.

Soft tissue injuries of the left leg.

Deep cut wound on the right elbow joint leading soft tissue injuries.

Blunt injury to the anterior chest wall leading to soft tissue injuries.

48. In the doctor’s opinion, the degree on the said injuries was grievous harm. It is apparent in both Appeal and cross- Appeal that both parties have no issue in regard to the injuries sustained by the Respondent herein. The only issue is whether the award was too high or too low as compared to the injuries sustained so as to call for interference by this Court.

49. The general principle is that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirety erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low-See the case of Butt v Khan [1981] KLR 470.

50. In this case, it is noted that in awarding Kshs. 300,000/= as general damages, the trial court relied on the case of Michael Adeka Khaemba & 2 Others v Rassangyllo Muli Kumuyu [2018] eKLR, where the trial court awarded the Respondent Kshs. 600,000/= for fracture of the femur sustained in an accident but on appeal, High Court reduced the award to Kshs. 200,000. However, the High Court decision has since been appealed to the Court of Appeal in Kumuyu v Khaemba & 2 others (Civil Appeal 393 of 2019) [2023] KECA 227 (KLR) where the Court enhanced the award of General Damages for pain and suffering from Kshs. 200,000/= to Kshs. 400,000/=.

51. As regard to the cases relied on by the Respondent being, Francis Ndungu Wambui & 2 Others and Kornelius Kweya Ebichet (supra), the injured parties had complication arising from the accident. For instance, in the former case, it was noted that due to the severity of the fracture the Respondent was at risk of secondary stress fractures on the same site. In the latter, it was noted that there was non-union and progressive chronic osteomyelitis of the left tibia bone, part of the bony tissue was lost due to the osteomyelitis with the effect of resulting in abnormal leg movement at the fractured site and the plaintiff would suffer permanent disability.

52. In the present case however, Dr. Obed Omuyoma did not address the issue of disability as the Respondent was still under treatment and there was no second medical examination done and therefore, the severity or degree of permanent incapacity cannot be ascertained. The award of damages therein cannot be applied for comparison to the injuries sustained by the Respondent herein.

53. Likewise, the Appellant’s reliance on the case of Michael Adeka Khaemba & 2 Others (supra) cannot be useful having been reviewed by the Court of Appeal as highlighted above.

54. In Robert Kithinji Kithaka v Attorney General [2018] KEHC 2944 (KLR), D.S Majanja J (as he then was), declined to interfere with the trial court’s award of Kshs. 250,000/= for fracture of the left leg involving both tibia and fibula, fracture of the left collar bone and bruises all over the body. His reasons were that the Advocate failed to assist the court to arrive at a fair decision by citing more recent and relevant cases so that the trial court can come up with a conventional award or an award that is reflective of the general trend of awards of injuries in similar cases. The Court therefore noted that the award was not commensurate to the injuries suffered.

55. In the case of Isaac Muriungi Mbataru v Silas Kalumani [2017] KEHC 8176 (KLR), cited by the Appellant, it is not factual that the Plaintiff therein sustained fracture of the femur and tibia. The injuries sustained by the Respondent in that case were actually soft tissue injuries on the right side of the face, loss of 2 incisors (upper teeth) and tenderness and swelling of lower back.

56. In Mohammed Younis Quereshi & Another v Chris Maina Mathu [2020] eKLR , the Respondent therein sustained fracture of left tibia, bruises on the head, both hands and left leg. It was opined that the injuries would heal but leave him with disability at 20%. The appellate court reduced the trial court’s award of Kshs. 800,000/= to Kshs. 400,000/=.

57. In Kiama v Mutiso (Civil Appeal 40 of 2023) [2024] KEHC 5135 (KLR) , the Respondent had sustained a fracture of the left tibia bone (upper 1/3) and a blunt injury to the left leg and thigh. High Court reduced the trial court’s award of Kshs. 700,000/= to Kshs. 400,000/=.

58. In Wabomba v Wanyama (Civil Appeal E007 of 2021) [2024] KEHC 2191 (KLR), the Respondent sustained soft tissue injuries and psychological trauma and also sustained fractures of the right tibia and fibula and was awarded Kshs. 800,000 general damages. On appeal, R.E. Ougo J found the trial court’s award excessive and substituted it with an award of Kshs. 500,000/-.

59. In the circumstances, this Court finds the award of Kshs. 300,000/= inordinately low. It is therefore set aside and substituted with an award of Kshs. 500,000/=.

60. In this Appeal, none of the parties submitted on the issue of special damages. Nevertheless, a look at the record reveals that though the Respondent had pleaded a sum of Kshs 33,560/= , he strictly proved Kshs. 20,460/= and that is what was awarded by the trial Court. That award is upheld.

61. On the claim for loss of income, the trial court disallowed it on the ground that the duration of disability was not ascertained. Regarding such a claim , it is trite that it has to be specially pleaded and strictly proved. Indeed, the Court of Appeal in Kenya National Highways Authority v Mistry Premji Gangji (Investments) Ltd (Civil Appeal E051 of 2021) [2024] KECA 500 (KLR) held that:-“Loss of income, and in this case loss of rental income are special damages claims, which ought to be specifically pleaded and proven.”

62. In this case, the fact that the Respondent was a barber is not in dispute. It is also not in dispute that he was involved in an accident that resulted to fracture of his leg. What is in issue is the duration of such disability (if any) that put him out of work. He alleged that he was out of work for a period of 6 months, from the date of accident on 16th November, 2022 till 1st June, 2023.

63. From the record, the Respondent was treated and discharged the same day. As earlier stated in this judgment, Dr. Obed Omuyoma’s medical report did not address the issue of disability.

64. The report does not also mention the duration the Respondent would be unable to work. The said doctor only stated that a second medical examination should be carried out.

65. There is however no indication of the Respondent undergoing a second medical examination and indeed, the Respondent confirmed during cross examination, that there was nothing to show that he has been out of work for the 6 months. In the circumstances, the trial Court was justified to disallow the claim. That finding is upheld.

66. In conclusion, both the Appeal and the Cross-Appeal partially succeed. The trial court decision is set aside and substituted with judgment in favour of the Respondent as against the Appellant in the following terms:-1. Liability in the ratio of 75:25 in favour of the Respondent as against the Appellant.2. Loss of Income-Nil3. General damages………………………………Kshs. 500,000/=4. Special damages…………………………………Kshs. 20,460/=Less 25 % contributory negligence of………… Kshs. 130,115/=Grand Total………………. ……………………Kshs. 390,345/=5. Interest on the above at court rates from the date of this judgment.6. Each party to bear its own costs of the Appeal and cross Appeal.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 2ND DAY OF APRIL, 2025. PATRICIA GICHOHIJUDGEMs Karanja for Mr. Matiri for AppellantMs Chelangat for RespondentRuto, Court Assistant