REPUBLIC OF KENYA

Losiamuro v Lochab Brothers & another

High Court, at Mombasa

December 30,1991

Wambilyangah, J

Damages - general damages - assessment of general damages for personal injuries - pain, suffering and loss of amenities - head injury, laceration of the forehead and crush injury of the right leg leading to amputation - quantum of damages.

Damages - special damages - assessment of special damages for loss of income - where there are no records to show the claimant’s earning - how damages can be assessed in such cases.

The plaintiff who sustained serious injuries as a result of a collision between the 1st and 2nd defendant’s lorry sued for compensation for the injuries sustained.

Liability not having been denied, by both defendants the court proceeded to assess damages.

According to a medical report of three surgeons who examined the plaintiff, he had sustained a head injury, laceration on the right forehead to the frontal area and crush injury to the right leg. The plaintiff remained comatose for 2 weeks and his right leg was amputated.

Although it was proved that the plaintiff was a cattle dealer, no records were available on his income to enable the Court to assess damages for loss of income.

Held:

1. A person is not compensated for physical injury; he is compensated for the loss which he suffers as a result of the injury.

2. The plaintiff will not be compensated for having serious injuries but for his inability to lead a full life.

3. In a case of this sort where actual evidence is not possible, justice cannot be done without some sort of amount of speculation.

Damages awarded at Kshs 824,000/-.

Cases

1. Ndiare, Janet (a minor by her next best friend Joshua) v Kenya Bus Service Ltd & another Civil Appeal 121 of 1987

2. West (H) & Son v Shephard [1964] AC 326; [1963] 2 All ER 625; [1963] 2 WLR 1359; 107 SJ 454

3. Fletcher  Autocar & Transporters Ltd [1968] 2 WLR; [1968] 1 All ER 726; [1968] 2 QB 322

4. Muka, SF v Vishram Ramji Halai & another High Court Civil Case No 1870 of 1984

Statutes

No statutes referred.

Advocates

Mrs Adogo for the Defendant.

[Ruling] Civil Practice and Procedure –court order-application for orders to have the respondent deposit the deficit owing on the fixed deposit together with interest thereon-where there was an order directing the parties to open a Joint Account in the names of the two firms of advocates with Barclays bank Limited –application on the ground that the defendant had delayed in opening the fixed deposit account and hence the amount fell short of the amount due-where the delay was due to the fault of the applicants- whether the application was merited-Order53 rule 6(a) Civil Procedure Rules and section 3 of the Civil Procedure Act

[Ruling] Civil Practice and Procedure –enlargement of time-application seeking enlargement of time within which to comply with the court’s order pending the hearing of the suit-where the defendants had threatened to exercise its statutory right of sale by advertising the property-where the plaintiff had breached the court order by not paying the amounts ordered on due dates--discretion of the court to enlarge time- whether the plaintiff was entitled to any further indulgence from the court –whether the interest of justice would be met if the orders were extended-

[Ruling]Civil Law-Injunction-an application for an injunction to restrain the defendants from exercising  their statutory right of sale under a charge made in its favor by the plaintiff pending the determination of the suit herein-where the applicant had granted a charge to the respondents over the suit premises on which the respondents now wished to exercise their rights of sale-where the respondent claimed that the applicant had breached the terms of the charge-guiding principles in such applications-where the respondent had proposed payment by installments but the applicant had failed to keep to the proposals –whether the applicant had satisfied the conditions for granting the orders sought

Civil Procedure-order-application that the Defendant do forthwith pay the anmount being the deficit owing on the fixed deposit together with interest thereon at 15% per annum-grounds that the defendant delayed in opening the fixed deposit account and that the amount falls short of the amount due-application opposed on the grounds that any delay in opening the account was caused by the defendant and or his advocates who had refused to comply with the requirements demanded by the Bank

REPUBLIC OF KENYA
Migot v Republic

Court of Appeal, at Kisumu  
December 3, 1991

Gachuhi, Cockar JJ A & Omolo Ag JA

Criminal Appeal No 67 of 1991

(Appeal from a Judgment of the High Court of Kenya at Kisumu (Khamoni J)

dated 14/6/1991 in Criminal Appeal No 162 of 1990)

Criminal Practice and Procedure – retrial – whether an order for retrial prejudicial to the appellant – section 200 (4) Criminal Procedure Code.

The appellant, whose trial was commenced by one magistrate but concluded by another under section 200 of the Criminal Procedure Code, was convicted of handling stolen property and jailed for six years. He appealed to the High Court which found that the last trial magistrate had contravened section 200 of the Criminal Procedure Code by failing to explain to the accused the import of the section. The learned judge thus proceeded to allow the appeal, quashed the conviction, set aside the sentence and ordered the release of the appellant. The Court further ordered the retrial of the appellant under section 204 of the Criminal Procedure Code.

The appellant lodged a second appeal on grounds inter alia that a retrial would prejudice him and that it would enable the prosecution to call further evidence .

Held:

1. Subsection 4 of section 200 of the Criminal Procedure Code empowers the High Court to order a re-trial

2. The appellants fear that a retrial would give the prosecution an opportunity to fill gaps left during the previous trial by calling further evidence could be countered during the retrial.

Appeal dismissed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 296 (2)

2. Criminal Procedure Code (cap 75) section 200(4)

REPUBLIC OF KENYA
Andhiro v Republic

Court of Appeal, at Kisumu  
December 2, 1991

Masime, Cockar JJ A & Omolo Ag JA

Criminal Appeal No 80 of 1990

(Appeal from a sentence of the High Court of Kenya at Kisii (Patel J)

dated 8/11/89 in Criminal Case No 49 of 1989)

Criminal Practice and Procedure - plea of guilty - prosecution witholding cautionary statement containing exculpatory facts - whether proper.

Criminal Practice and Procedure - pauper brief - accused person facing murder charge not represented - whether proper.

The appellant, who was initially charged with the offence of murder, pleaded guilty to the lesser offence of manslaughter. He was convicted and sentenced to 12 years imprisonment.

Before his sentencing in the High Court, the appellant expressed his remorse and promised to rehabilitate himself and become a useful member of the society. The appellant did not have legal representation. In his cautionary statement the appellant had given which was not brought to the attention of the trial judge, the appellant had given reasons for killing the deceased. He claimed the deceased had abused him.

Held:

1. If the nature of the abuse had come to the attention of the judge then he would not have passed the sentence that he had imposed.

2. It is the practice of the Court that an accused facing a charge of murder be provided with free legal aid. In this case the appellant was not represented by an advocate and yet the judge proceeded to take a plea. That was not a practice to be encouragd and it can lead to an order for retrial.

Appeal allowed sentence reduced.

Cases

No cases referred to.

Statutes

Penal Code (cap 63) section 205

REPUBLIC OF KENYA

Sire v Municipal Council of Mombasa

High Court, at Mombasa    
November 27, 1991

Wambilyangah J

Civil Case No 433 of 1990

Civil Practice and Procedure – Consent - circumstances in which the court may set aside a consent judgment or order.

Civil Practice and Procedure – advocate - change of advocate - notice of change - whether notice must be signed by the party.

The applicant, the Mombasa Municipal Council, sought to set aside a consent which had been entered between their external lawyer and the plaintiff’s lawyer in which the Council agreed to compensate the plaintiff for injuries he sustained as result of falling off it’s lorry.

It was the Council’s contention that the external lawyer had acted without their authority and that the Council’s officer who delegated the work to the external lawyer had no authority to do so. It was argued that it was only the Town Clerk who could give instructions to external lawyers.

It was further argued on behalf of the Council that the notice of change of advocate was invalid as the same was not signed by the Council itself but by their external lawyer.

Held:

1. A consent judgment or order has a contractual effect and can only be set aside on those grounds which would justify the setting aside of a contract.

2. Unless the conduct of the counsel in the case can be proved to have been fraudulent or mistaken or one which would be annulled on the ground of misrepresentation the compromise between him and the opponent must remain in place.

3. The Town Clerk’s assertion that he alone had the power to instruct outside advocates to act on behalf of the council was purely his own inhouse matter which an outsider was incapable of knowing.

4. There was nothing in the rules which rendered invalid a notice of change of advocate which was signed by its own advocate instead of the party itself.

Application dismissed.

Cases

Wasike v Wamboko [1988] KLR 429; [1982-88] KAR 625

Statutes

Civil Procedure Rules (cap 21 Sub Leg) order III rules 6, 7, 8; order

XLIV rule 1(1); order L rule 2

Advocates

Mr Obhrai for the Applicant.

[RULING] Company Law-winding-up-application for winding-up- application brought on the ground that the respondent company had been unable to pay its financial debts-where the application was unopposed- appointment of an interim liquidator power of the court to appoint-where there had been an official receiver who had been acting for close to 10 months-where the court  has no power to appoint a provisional liquidator other than the official receiver after an order for the winding up of a company has been made -whether the orders sought in the petition could be granted S.234 235 and 235of the companies Act

Atogo v Agricultural Finance Corporation & another

Court of Appeal at Nakuru  

  October 23, 1991

Hancox CJ, Masime JA & Omolo Ag JA

Civil Appeal No 165 of 1989

(Appeal from the judgment of the High Court at Eldoret (Aganyanya J)

dated 11th August 1989 in Civil case No 163 of 1987)

Civil Practice and Procedure – execution - attachment of debtor’s property – attachment of goods in default of payment - attachment done by brokers wrongfully instructed by person not entitled to attach – attachment done on the wrong party – consequence of wrongful attachment.

Tort – conversion – wrongful taking of another’s goods – motor vehicle - log-book conclusive evidence of ownership.

Under the instructions of the respondents, Regent Auctioneers seized a Datsun Pick-up vehicle belonging to the appellant. According to evidence tendered one Hawala said to be the step-brother to the appellant was a loaner to the respondents who had defaulted on his loans. A loans officer sent to inspect the stock on the loanee’s farm identified certain assets including the appellant’s pick-up. The appellant contended that it was the said Hawala who was the respondent’s loanee and not himself. It was argued on behalf of the respondent that both Hawala and the appellant knew that there was an impending attachment against Hawala and had cancelled the arrangement that the vehicle nominally belonged to the appellant so as to frustrate it.

Held:

1. The respondents were not in law entitled to attach the appellant’s vehicle and they were wrongfully instructed by the broker to do so.

2. The wrongful taking of another person’s goods constitutes the tort of conversion.

3. It is actionable trespass to wrongfully set in motion the law so that the wrong goods are seized or the wrong person is arrested.

4. It is actionable to set in motion a process of attachment without observing rules of ordinary prudence by ascertaining the true identity and ownership of the property to do seized with out the necessity for proof of express malice.

5. A log-book is evidence of ownership of the motor vehicle to which it relates unless the contrary is proved and ordinary prudence would dictate that the log book should at least be inspected.

6. Special damages are those ascertainable and quantifiable at the date of an action.

Appeal allowed.

Cases

1. Simiyu v Sinino [1985] KLR 683; [1982-88] 1 KAR 630

2. Sure & 9 others v Gesare Nyamaiko [1982-88] 1 KAR 1145

4. Mariga v Musila [1984] KLR 251; [1982-88] 1 KAR 507

4. Shabani v City Council of Nairobi [1985] KLR 516; [1982-88] 1 KAR 681

Statutes

1. Agricultural Finance Corporation Act (cap 323) sections 14(3), 19

2. Traffic Act (cap 403)

3. Judicature Act (cap 8) section 6