JUDGMENT OF THE COURT
[1] The key issue for determination in this appeal is whether the first appellate Judge erred in apportioning liability equally between the appellant and the respondents. This is a second appeal as the record shows the original suit was filed by the appellant before the Principal Magistrates’ court at Voi. Therefore, by dint of the provisions of Section 72(1) of the Civil Procedure Act, Cap 21 Laws of Kenya only matters of law fall for our consideration. The section provides as follows:-
“Except where otherwise expressly provided in this Act, or by any other law for the time being in force, an appeal shall lie to the Court of Appeal from every decree passed in appeal by the High Court, on any of the following grounds, namely:
(a) the decision being contrary to law or to some usage having the force of law.
(b) the decision having failed to determine some material issue of law or usage having the force of law.
(c) a substantial error or defect in the procedure provided …