JUDGMENT
The appeal before us is a 1st appeal. Our mandate as a 1st appellate court is as enunciated in several decisions of this Court including Selle vs. Associated Motor Boat Co. of Kenya & others [1968] EA 123 wherein it was stated:
“An appeal to this court from a trial by the High Court is by way of a re-trial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the ca…