JUDGMENT OF THE COURT
:Regina Thirindi, the respondent in this appeal, (hereinafter called "the plaintiff") sued Japhet Nkubitu (the first defendant) and the County Council of Meru (the second defendant) to recover damages on behalf of the estate and dependants of the late David Mwilaria (the deceased) who was fatally injured in an accident on 5th October, 1992 involving a tractor driven by the first defendant but owned by the second defendant. A defence was filed in which the plaintiff's claim was denied and it was averred that the in the presence of Mr. C. Kariuki for the plaintiff and Mr. Mithega for defendants and the following order was recorded by consent -
"By consent judgment be and is hereby entered for the plaintiff on liability apportioned at 40% against the plaintiff and 60% against the defendant. Case proceeds for assessment of damages."
On 12th February, 1997 the case was listed for assessment of damages before the learned Judge and once again Mr. Kariuki informed the Judg…