Mariam Maghema Ali v Nyambu t/a Sisera Store

Court of Appeal, at Mombasa July 24, 1990

Nyarangi, Gachuhi & Gicheru JJ A

Civil Appeal No 5 of 1990

(From a Judgment of the High Court at Mombasa (Boisire J) dated

31st October, 1989 in Civil Case No 438 of 1989)

Damages – general damages–– for pain, suffering, loss of amenities, loss of marriage prospects – appellant suffering personal injuries in accident – crush injuries, fracture of the femur, scarring on legs with residual incapacity to carry out her profession – appellant a twenty-eight year old lady – quantum of damages – circumstances in which an appellate court will interfere with an award of damages by a trial court.

Damages – special damages–– how special damages claimed and proved – claim for medical expenses – failure to prove payment – whether court could award damages.

The appellant, who was herself a matatu driver by trade and aged 28 years, was involved in a road accident while being driven in her employer’s motor vehicle. She suffered serious injuries for which she was hospitalized for over three months. She underwent treatment for crush injuries, fracture of the left femur and skin grafting. She became incapacitated from carrying on her trade as a driver, remained with scars on her legs and required further operation to remove k-nail.

The appellant sued her employer for damages. Bosire J awarded her a total of Kshs 744,869, which included an award of Kshs 220,000 in general damages for pain, suffering and loss of amenities. She appealed against the decision on the grounds that the award of special damages was less than she had claimed and that in awarding general damages, the trial Judge had failed to take into consideration her future pain and suffering for future operation. The respondent filed a cross-appeal arguing that the appellant’s medical expenses had been exorbitant and that the award of general damages was manifestly high.

Held:

1. As the appellant was challenging the damages awarded by the trial court, the question for the Appellate Court was whether the amount claimed in the plaint was so inordinately high as to be a wholly erroneous estimate.

2. Special damages, in addition to being pleaded, must be strictly proved. There was no evidence that the two doctors whose charges were included in the appellant’s claim for special damages had actually been paid.

3. The judge had taken into account irrelevant factors and as a result the award for special damages was so inordinately high as to be a wholly erroneous estimate of the damages.

4. For pain, suffering and loss of amenities, including the loss of marriage prospects and future pain and suffering, the appellant was entitled to Kshs 250,000.

General damages enhanced, special damages reduced.

Cases

1. Bonham-Carter v Hyde Park Hotel Ltd [1948] 64 TLR 177

2. Ouma v Narobi City Council [1976] KLR 297

3. Nance v British Columbia Electric Railway Co Ltd [1951] PC 601; [1951] 2 All ER 448

4. Ilanga v Manyoka [1961] EA 705

5. Lukenya Ranching and Farming Cooperative Society Ltd v Kavoloto [1970] EA 414

Statutes

No statutes referred.

Advocates

Mr Jiwaji for the Appellant

Mrs Adogo for the Respondent

Chivatsi Dzombo Chivatsi & another v Republic

Court of Appeal, at Mombasa July 18, 1990

Nyarangi, Masime & Gicheru JJ A

Criminal Appeal No 77 of 1989

(Appeal from a Judgment of the High Court at Mombasa, Bosire J, dated 25 May 1989 in High Court Criminal Case No 29 of 1988)

Criminal law – provocation – when threat to kill by witchcraft amounts to provocation.

The appellants were tried and convicted of murder contrary to section 203 as read together with section 204 of the Penal Code (cap 63).

In their defence the appellants stated that when they went to see the deceased in Mombasa he told them that he had killed the appellants’ mother and uncle through witchcraft and that he would kill other people in the village in the same way. A struggle therefore ensued and the deceased used a knife to injure the 2nd appellant’s arm. The 2nd appellant then grabbed the knife and fatally stabbed the deceased.

The crux of this appeal was whether the trial judge had erred in holding that withchcraft as a provocative act could only avail an accused person where the victim was performing in the actual presence of the accused some act which the accused genuinely believed was an act of witchcraft against him and he was thereby so angered as to be deprived of self control.

Held:

1. There may be cases where threat to kill taken with other existing circumstances could amount to legal provocation.

2. The threat to kill was made by the deceased in the presence of the appellants and angered them to such an extent that each was deprived of his power of self-control and induced both to jointly and fatally injure the deceased.

3. This was a case where a threat to kill taken together with the existing circumstances of the deaths of close relatives of the appellants amounted to legal provocation.

Appeal allowed, conviction reduced to manslaughter.

Cases

1. Eria Galikuwa v Rex (1951) 28 EACA 175

2. Rex v Fabiano Kineno s/o Mukye and others (1941) 8 EACA 96

3. Yovan v Uganda [1970] EA 405

Statutes

Penal Code (cap 63) sections 203,204,207,208

Abdalla Mohamed & another v Mbaraka Shoka

Court of Appeal, at Mombasa June 15, 1990

Nyarangi, Gicheru & Kwach JJ A

Civil Appeal No 163 of 1989

(Appeal from a Ruling and Order of the High Court at Mombasa,

(Bosire J) dated the 20th day of July 1988 in

Civil Case No 1118 of 1982)

Civil Practice and Procedure – setting aside – judgment in default of appearance - factors taken into consideration before setting aside – duty of applicant to explain the reason for the delay - application made after final judgment had been satisfied - whether proper to set aside judgment.

The respondents sued the appellants claiming damages on behalf of a minor who was injured in an accident involving a vehicle owned by the 2nd appellant and driven by the 1st appellant.

Summons were duly served on the 2nd appellant who accepted service on behalf of the 1st appellant but no appearance or defence was filed to the action.

The case proceeded exparte and judgment was entered in favour of the respondent which was partly paid by the appellants insurers. Two years later, the appellants applied to court to set aside the ex parte judgment claiming that the service of summons, if it was done, had been irregular and that they had a good defence to the suit.

The High Court in dismissing the application observed that although summons were served contrary to amended provisions of the Civil Procedure Rules, this omission did not render the summons inoperative and in any event the applicant was guilty of inordinate delay in bringing the application.

The appellants appealed.

Held:

1. The test for the correct approach in an application to set aside a default judgment are; firstly whether there was a defence on merits, secondly whether there would be any prejudice and thirdly what is the explanation for any delay.

2. It was for the appellants to establish on a balance of probabilities that even with the irregular return of service, they were never served with the summons. This they did not do as they rested their application on those returns of service.

3. Considering the lapse of time and taking into account that the final judgment had been satisfied and in view of the absence of plausible explanation for the inordinate delay, the trial judge could not have exercised his discretion in favour of the appellants without prejudice to the respondent.

Appeal dismissed.

Cases

Nyangombe, Merama v Chacha Mwita Civil Appeal No 79 of 1983

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order V rule 9(1)

Advocates

Mr Khanna for the Appellants

Kenya Meat Commission v Richard Ambogo Raden

Court of Appeal at Mombasa February 26, 1990

Hancox CJ, Gachuhi & Kwach JJ A

Civil Appeal No 40 of 1989

(From a judgment and decree of the High Court at Mombasa, Bosire J,

dated the 25th November 1988 in High Court Civil Case No 490 of1984)

Civil Practice and Procedure - issues - agreed issues - where parties agree on an issue – the issue is properly framed and arises out of the pleadings – requirement that the court should decide the case upon that issue.

Civil Practice and Procedure - pleadings – function of pleadings – to give fair notice of the case to the opposing party – whether proper to condemn a party on ground of which no fair notice was given – whether proper to deny a party a remedy due to niceties of pleading.

Civil Practice and Procedure - finding – duty of the court to arrive at a finding based on the facts – extent of the duty – when a court can make a finding from an inference of facts.

Civil Practice and Procedure – Pleadings – fraudulent conduct – whether such conduct must be distinctly alleged – whether fraud can be inferred from the facts – whether the universal rule of pleading regarding fraud is applicable to a case of industrial injury.

The respondent worked for the appellant as a casual labourer. He alleged that on the material day, he had been assigned the duty of trickling water on horns during the process of dehorning cows. By the time of dehorning, the animal would have gone through a shower, it would have been stunned and then its throat would have been cut, so that it was supposed to be dead. The respondent testified that as one cow was being dehorned, it jerked its head due to pain. The horn hit an electric saw which in turn cut the plaintiff’s right hand.

Three years later, the respondent brought a negligence claim against the appellant and in the alternative, sought damages for breach of statutory duty to provide a safe workplace. The foreman at the material time gave evidence on behalf of the appellant. He stated that no showering was done at the stage of dehorning as the Health Department did not allow it. The trial judge nonetheless formulated an opinion that there was an operation of hosing the horns in the course of dehorning. The judge went on to find that there was breach of statutory duty and awarded judgment for the respondent.

On appeal, the appellant alleged that the trial judge erred in holding it liable on grounds which fell outside the scope of the pleadings as well as of the issues agreed between the parties. The respondent on his part, submitted that there was no dispute, on the pleadings or otherwise, that the injury was caused by the electric saw and that the judge had properly addressed the issue.

Held:

1. Where parties agree on an issue, the court should decide the case upon that issue, if it is properly framed and arises out of the pleadings. There was no transgression of that rule in this case.

2. The function of pleadings is to give fair notice of the case so that the opposing party may direct his evidence to the issue disclosed by them.

3. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded.

4. The defendant in this case had more than fair notice of what the plaintiff’s case was.

5. It would be most unfortunate in a case of personal injury, if a plaintiff, who has otherwise proved his case, is deprived of his remedy due to the niceties of pleading.

6. The court has a duty to arrive at a finding on the facts, however difficult the circumstances may be, if at all possible. That duty does not extend to supplying a theory as to what happens when the inferences from the primary facts do not inevitably point that way.

7. It is not permissible for a court of first instance to speculate or to insert a finding unless it is supported by evidence or unless it is a necessary inference from the primary facts, in the sense that it is inevitable, particularly in criminal cases.

8. Generally, fraudulent conduct must be distinctly alleged and distinctly proved. It is not permissible to leave fraud to be inferred from the facts.

9. This court was hesitant to apply the rigours of the universal rule of pleading regarding fraud to a case of industrial injury which is an action of a wholly different character.

10. In personal injury cases there is frequently an element of delay in the trial of an action. It is often not possible for those in medical charge of the case to assess the degree of disability, if it exists, for several months or even years.

11. The inclusion of unnecessary grounds as a makeweight in a petition or Memorandum of Appeal lengthens the appeal and tends to distract the mind of the Court from the essential issues.

Appeal dismissed.

Cases

1. Blay v Pollard and Morris [1930] All ER 609

2. Kanti & Co Ltd v British Traders’ Insurance Co Ltd [1965] EA 108

3. Plotti v Acacia Co Ltd [1959] EA 248

4. Jabane v Olenja [1986] KLR 661

5. Mungai v Republic [1984] KLR 85; [1982-88] 1 KAR 611

6. Abbay Abubakar Haji v Marair Freight Agencies Limited & another [1982-88] 1 KAR 474

Statutes

Workmen’s Compensation Act (cap 234)

Advocates

Mr Jiwaji for the Respondent.

Mr Inamdar for the Appellant.

Jiwa v Jiwa & another

Court of Appeal, at Mombasa January 9, 1990

Nyarangi, Gachuhi & Masime JJ A

Civil Appeal No 59 of 1986

(Appeal from the Ruling/Order of the High Court of Kenya at Nairobi (Rauf J) dated 15th July, 1985 in Civil Case No 851 of 1985)

Civil Practice and Procedure – substitution of parties – discretion of the court in substituting a party - exercise of discretion - whether court can order order substitution on is own motion without a formal application - Civil Procedure Rules order I rule 10(2).

The appellant as an attorney of one Mohamed Jiwa, sued the respondents claiming that on or about December 23rd 1976 the plaintiff and the defendants became registered as absolute proprietors of a certain parcel of land and the defendants had fraudulently caused the register to be altered and the name of his principal to be removed from the register.

The appellant therefore sought in the High Court a temporary injunction restraining the defendants from alienating, disposing of the said land or registering an instrument or transaction over the land. He further sought a declaration that the rectification of the register was fraudulent and that it be restored to the original condition.

The defendants in their defence refuted the plaintiff’s allegation claiming the plaint disclosed no cause of action in that either during the period stated or at any other time, Mohamed Jiwa was a proprietor of the land and that by a deed of settlement a Mrs Kulsumbai Nazerali, the registered proprietor of this parcel of land, created a trust in respect of it and appointed a principal, the first defendant, and one Nazerali Jiwa as joint trustees. Nazerali Jiwa died and his interest in the land became vested in the two surviving trustees. The defendants therefore claimed that the plaintiff ceased to have any right in the parcel of land.

The defendants therefore moved the court under order VI rule 13 seeking an order that the plaintiff had no cause of action against the defendants and hence the plaint should be dismissed with costs. The trial judge dismissed the suit as prayed hence the appeal.

Held:

1. The first and real question for the judge was whether in the circumstances it was in the interest of justice for him to exercise his discretion and order the appellant/ plaintiff to be substituted.

2. The plaintiff could not sue the defendants in his own name. The suit had therefore been instituted in the name of the wrong person as plaintiff.

3. The court could only effectually and completely adjudicate upon and settle all questions involved in the suit after the substitution of the plaintiff by Mohamedali Nazerali Jiwa.

4. This case was clearly covered by Order I rule 10(2) of the Civil Procedure Rules under which the judge could at any stage of the proceedings either upon or without the application of either party exercise his discretion and order the substitution of the proper party.

5. The judge misapprehended sub rule (2) of rule 10 in the exercise of his discretion and as a result reached a wrong conclusion.

Appeal allowed.

Cases

Mbogo v Shah [1968] EA 93

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order I rules 10, 10(2); order VI rule 13

Advocates

Mr Kivuitu for the Appellant.

Mr Sampson for the Respondents.