JUDGMENT
1. This is a first appeal from the judgment of the High Court of Kenya at Nairobi (Sergon, J.) delivered on 20th July, 2018. It is our duty as a first appellate court to re-evaluate the evidence and reconsider the case but must give allowance to the fact that we do not have the advantage that the trial Judge had of seeing and hearing witnesses, we must give allowance for that – Selle vs. Associated Motor Boat Co Ltd & Others [1968] EA 123 where the mandate of the Court on a first appeal was identified thus: -
“ this Court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial 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 "
2. In the pla…