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

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

REPUBLIC OF KENYA

Provincial Construction Company Ltd & another v Attorney General

High Court, at Nairobi  
October 15, 1991

Mbito J

Civil Case No 165 of 1991

Contract – privity of contract - agency – third party cannot benefit from contract unless made by his agent – sub-contract – rights created by a sub-contract – whether such rights necessarily bind the principal.

Agency – principal and agent - how the relationship is created - one is deemed an agent if he acts for another or by operation of the law

The applicants contractors entered into a building contract with the government for the construction of certain facilities at Nyeri Provincial Hospital. Pursuant to the main contract the parties thereto were entitled to refer all disputes arising therefrom to arbitration. Acting in pursuance to the provisions of the main contract the contractors appointed a subcontractor and duly entered into a standard form contract with the same.

A dispute thereafter arose between the contractors and the sub-contractors and the respondent contended that the two were not entitled to bring that dispute to arbitration.

Held:

1. It is a cardinal principle of the applicable common law that a third party cannot benefit from a contract unless such a contract is for his benefit or was made on his behalf by his agent.

2. It is a cardinal principle of construction that in construing a document, it should be interpreted in accordance with the clear expression of the documents in question.

3. One is said to be an agent if he acts for another with the consent of that other. One can also be deemed to be an agent of another by operation of law or by an agreement.

4. The contractors (applicants) were entitled to appoint a sub-contractor who would definitely be deemed to be their agents and if a dispute arose as between the employer and the sub-contractor the contractors would be responsible for such actions, or would be entitled to make a claim arising from services performed on their behalf by such subcontractors.

5. The sub-contractor claim could therefore be referred to arbitration by the contractors one or jointly with the sub-contractors to avoid the necessity of third party proceedings.

6. Clause 20(f) of the main contract clarifies that a sub-contractor is an employee or agent of the contractor and not the employer. Consequently the government could not be responsible for actions of such nominated sub-contractor that the government could not pay for services rendered through such nominated sub-contractor.

7. Rights created by a sub-contract need not necessarily bind the employer unless the employer would have been bound if the act had been done by the contractor himself or if the employer can be said to have impliedly authorised or approved the specific actions upon which the claim under the sub-contract is founded more especially if the sub-contract was entered into at the instigation of the employer.

Application allowed.

Cases

Northern Regional Health Authority v Derek Crouch Construction Co Ltd [1984] QB 644; [1984] 2 All ER 175; [1984] 2 WLR 676

Statutes

1. Arbitration Rules (cap 49 Sub Leg) rule 3

2. Arbitration Act (cap 49) section 22(a)

Advocates

Mr Le Pelley for the Applicants.

Mrs Manyasi for the Respondent.

Civil Practice and Procedure – setting aside - default judgment – judgment in default of defence – discretion to set aside such judgment – principles on which this discretion is exercised – where delay in filing defence was out of the defendant’s advocate’s mistake – whether justice required that default judgment be set aside in such a case.

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