JUDGMENT OF THE COURT
This is a second appeal and one from a decision of the superior court (Nambuye, J.) given at Eldoret on 20th March, 1997. The learned judge dismissed with costs the first appeal of Kaboswa Tea Estate (the appellant) from a judgment of 9th June, 1995 of the then Senior Principal Magistrate in favour of Moses Ludenyo Ambwere (the respondent).
The litigation between the parties began in July, 1994 when the respondent filed a suit against the appellant in the Senior Principal Magistrate's Court at Eldoret claiming damages for injuries suffered by him whilst playing football when he collided with a member of the opposing team. In his examination-in-chief the respondent said that the accident occurred as his opponent did "hand touch hitting on me". In cross-examination he said that there was foul play by his opponent.
It is not in dispute that the respondent was employed by the appellant as a lawn mower operator and that on days off the appellant facilitated the playing o…