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.

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.

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.

Civil Practice and Procedure – setting aside – application for setting aside judgment – defendant proposing to settle the decretal sum by instalments – whether application for setting aside can be allowed in such circumstances.

Evidence – identification evidence – accused momentarily encountering his attacker who later blindfolds him – whether circumstances conducive for proper identification - whether known foot marks can be used to support allegation of the presence of an accused at scene of crime.

Employment law – master and servant relationship – applicable test for determining existence of relationship. Employment law – delegation of work to a sub-contractor – whether delegation absolves the main contractor from liability. Damages - general damages - assessment of damages for personal injuries - pain,suffering and loss of the amenities of life - compression fracture of lumbar vertebra,compound fracture of alcaneum and colles fracture.

Criminal Practice and Procedure – judgment – different magistrate writing judgment in a trial conducted by another magistrate - cases depending on the demeanour of witnesses – whether such procedure proper – section 200 Criminal Procedure Code - whether procedure proper. Evidence – suspicion - whether suspicion alone can suffice as evidence.

Civil Practice and Procedure - security for costs – court’s discretion in making an order for security – order XXV rule 1 of the Civil Procedure Rules - section 401 Companies Act - onus of proof in an applicaton for security for costs.

Criminal Practice and Procedure - plea - procedure in taking a plea - charge of stealing livestock - duty of a trial court to be careful and vigilant in recording a plea where the offence is of a technical nature and a plea of guilty by a lay person may be unequivocal.