Mwanasokoni v Kenya Bus Services Ltd & 3 others

Court of Appeal, at Mombasa

July 26, 1985

Hancox, Nyarangi JJA & Gachuhi Ag JA

Civil Appeal No 35 of 1985

(Appeal from the High Court at Mombasa, Bhandari J)

Civil Practice and Procedure - issues – issues of fact – additional issue framed and added by judge in course of judgment - whether issue properly raised – circumstances in which Court of Appeal will overturn finding of fact by High Court judge- Civil Procedure Rules order XIV rule 5.

Appeal – Court of Appeal – powers of - power to interfere with finding of fact by High Court judge – circumstances in which such power is exercised – power to examine and re-evaluate evidence.

Damages – general damages – for negligence – loss of vision in right eye due to injury in traffic accident – measure of damages.

The appellant filed a suit in the High Court for damages for negligence on account of an accident in which an omnibus belonging to the 1st respondent and driven by the 3rd respondent collided with a bus belonging to the 2nd respondents and driven by the 4th respondent. The appellant alleged that her right eye had been injured in the accident and that the injury had resulted in the loss of vision in that eye. In the course of his judgment, the trial judge added a fifth issue of fact for decision, namely, whether the appellant had been injured as a result of the accident. The judge found that the driver of the omnibus was negligent, that the appellant was a passenger in the other bus and, rejecting the appellant’s evidence on the alleged injury, he found that it had not been proved satisfactorily that the appellant had suffered any injury as a result of the collision. The appellant’s suit was dismissed, and she appealed.

Held:

1. A judge is empowered by the Civil Procedure Rules, order XIV rule 5 to frame additional issues on such terms as he thinks fit at any time before the passing of the decree in a case. Notwithstanding this provision of law, the trial judge in this case would have been obliged to answer the same question as that raised in the additional issue in order to arrive at a just and fair decision on the case.
2. The Court of Appeal will interfere with a finding of fact by the High Court where the finding is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the finding.
3. The appellate court also has the power to examine and re-evaluate the evidence on a first appeal where that becomes necessary.
4. The trial judge was wrong in rejecting certain strong and unchallenged evidence which corroborated that of the appellant and in giving undue weight to some other evidence in the case. If the judge had not made these errors, he would have decided the additional issue in favour of the appellant.
5. The 3rd respondent was wholly liable for the collision and it was his negligence which caused injury to the appellant. The 1st respondent was vicariously liable for the negligence of the 3rd respondent. 6. The appellant was entitled to Shs. 100,000 in general damages for her injury.

Appeal allowed.

Cases

1. Sotiros Shipping v Sauviet Sohold The Times, 16th March, 1983
2. Peters v Sunday Post Ltd [1958] EA 424
3. Watt v Thomas [1947] 1 All ER 582; [1947] AC 484
4. Juma v Kenya Glassworks Ltd Civil Appeal No 1 of 1980 (unreported)
5. Kemfro Africa Ltd t/a Meru Express Services (1976) v A M Lubia and Olive Lubia Civil Appeal No 21 of 1984 (unreported)
6. Makube v Nyamuro Civil Appeal No 8 of 1983; [1983] KLR 327
7. Kiriri Cotton Co Ltd v R K Dewani [1958] EA 239
8. Young v Bristol Aeroplane Co [1944] 2 All ER 293; [1944] 1 KB 718
9. Morelle Ltd v Wakeling [1955] 1 All ER 708; [1955] 2 QB 379
10. Mwangi & Another v Wambugu (1983/84) 2 KAR 100; [1983] KLR 453

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XIV rule 5

Advocates

1. Mr AYA Jiwaji for the Appellant
2. Mr M Satchu for the 1st & 3rd Respondents
3. Mr CB Gor for the 2nd & 4th Respondents

Kariuki & another v Republic

Court of Appeal, at

Mombasa

July 25, 1985

Kneller, Hancox & Nyarangi JJA

Criminal Appeal No 177 of 1984

(Appeal from an Order of the High Court at Mombasa, Bhandari J)

Appeal – appeals from High Court to Court of Appeal - how appellate jurisdiction conferred – whether Court of Appeal possesses inherent jurisdiction – appeal from a refusal by the High Court to admit an appeal out of time – whether Court of Appeal having jurisdiction to hear such appeal - Criminal Procedure Code (cap 75) sections 349; 361(1), (8)

The appellants were tried in a Resident Magistrate’s court and convicted for the offence of robbery. After they failed to appeal to the High Court within the 14 days prescribed by the Criminal Procedure Code (cap 75) section 349, they applied under the proviso to that section for the admission of their respective appeals out of time.

When their applications came up for hearing, it was stated that they were absent and unrepresented. The reason stated for the delay in bringing the appeals was that the appellants were waiting to hear from their advocate.

The judge was unimpressed by these reasons and he dismissed the applications.

On appeal to the Court of Appeal, it emerged that the advocate who had represented the appellants in the trial court had written to the prison authorities stating that he had filed an appeal against their convictions and sentences and that a hearing date was due to be fixed by the High Court registry.

It was stated that this letter was unknown to both state counsel and the court at the time of the hearing of the appellants’ applications and that if the judge had been aware of the letter, he might have exercised his discretion differently. The appellants also submitted that they had been in the cells of the High Court when their applications were dismissed.

Held:

1. The Court of Appeal has no inherent jurisdiction to hear appeals; the Court can only hear an appeal if the right to the appeal is conferred by statute.

2. By virtue of the Criminal Procedure Code (cap 75) section 361(8), the Court of Appeal had no jurisdiction to hear an appeal against a refusal by the High Court to admit an appeal out of time.

3. It was unfortunate that due to a series of events, the appellants were deprived of a reasonable chance of the exercise of the judge’s discretion in their favour and of their appeals at least being heard. However, as this Court had no jurisdiction, their appeals had to be dismissed.

Appeals dismissed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 296(1)

2. Criminal Procedure Code (cap 75) sections 349; 361(1), (8)

3. Statute Law (Miscellaneous Amendments) Act 1978

Advocates

J Metho, Principal State Counsel, for the Respondent

Criminal law - assault causing actual bodily harm - ingredients of the offence - how plea of the offence taken - Penal Code s 251. Plea - plea of guilty - pleading to offence of assault causing actual bodily harm - what amounts to plea of guilty to suc