JUDGMENT OF THE COURT
This is a first appeal from the judgment and orders of the High Court (Tuiyott, J.) delivered on 19th April, 2017 in H.C.C.C. No. 91 of 2007. It is our duty as a first appellate court to review the record as provided by Rule 29 of the rules of this Court and come to our own conclusions. See the oft-cited case of Selle v. Associated Boat Company Limited [1968] EA 123 where at page 126 the duty of the court was stated to be:
“An appeal to this court from a trial by the High 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. 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…