JUDGMENT OF BOSIRE J.A
This appeal is from the judgment and decree of the superior court (Bauni J.) dated 18th March 2004 in its Civil Case number Kisii High Court Civil Case No. 208 of 2001. The Plaintiff in that suit Robin Makori Ratemo, the respondent in this appeal was awarded damages of Kshs. 4,326, 610/= for injuries he sustained in a Hot Air balloon accident. The defendant in that suit, Transworld Safaris (K) Ltd, is the appellant in this appeal. In its Memorandum of Appeal the appellant raises issues of both fact and law, and both challenge the appellant’s liability and quantum of damages.
The main issue of law raised is worded in the following terms.
“The learned Judge having taken cognizance of the fact that the accident is governed by the provisions of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (The Warsaw Convention) are expressly applied to Kenya, and consequently:
(i) in failing to appreciate that the Plaintiff’s failure to …