Nairobi Bus Union v Dexter Ireri Imanene

Court of Appeal, at Nakuru November 22, 1993

Apaloo CJ, Gachuhi & Omolo JJ A

Civil Appeal No 75 of 1991

(Appeal from the judgment of the High Court of Kenya at Eldoret

(Mr Justice KKS Aganyanya) dated 24th May, 1989

in HCCC NO 74 OF 1987)

Damages - general damages - pain and suffering arising from personal injuries substained in a road traffic accident - head injury with post-traumatic headaches, loss of concentration and memory, disturbed hearing and reduced visual acuity, compression fracture of the lumbar vertebrae - assessment of damages - award of Kshs 763,050 - whether the award was inordinately high - circumstances in which an appellate court will interfere with an award of damages.

Dexter Ireri Imanene, the respondent, was on 27th January 1983 seriously injured when the appellant’s motor Omnibus in which he (the respondent) was travelling as a fare-paying passenger veered off the Nakuru-Kericho Road and overturned.

He thereafter instituted a suit against the appellant claiming general and special damages for injuries he sustained during the accident. Judgment on liability was entered for the respondent in the sum of Shs 763,050/= with interests and costs.

On appeal, it was contended on behalf of the appellant that the award was manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss sustained by the respondent and that the judge erred in law and in fact in basing his assessment of damages on arithmetics which were not material and relevant to injuries complained of by the respondent. Counsel for respondent on the other hand contended that the trial judge did not proceed on any wrong principle and that he had arrived at a correct assessment which the appellate court ought not to interfere with.

Held:

1. There can never be a mathematical formula for assessment of damages in running down matters and the Courts have over the years recognised the position that the assessment of damages is essentially an exercise of the trial judge’s discretion.

2. An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.

3. The Court of Appeal was not convinced that the trial judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was inordinately high.

Appeal dismissed.

Cases

1. Butt v Khan [1981] KLR 349; [1982-88] 1 KAR 1

2. Patel Harshid Fakirbhai v Agembo Dulo & another High Court Case No 1408 of 1980

Statutes

No statutes referred

Advocates

Mr Mungai for the Appellant

Mr Nyairo for the Respondent

Jatani v Republic

Court of Appeal, at Nakuru October 1, 1993

Gicheru, Muli & Omolo JJ A

Criminal Appeal No 68 of 1993

(Appeal from a conviction and sentence of the High Court of Kenya

at Nakuru (Lady Justice R Nambuye) dated 26th November, 1992

in HC CR A No 387 of 1992)

Criminal Practice and Procedure- identification parade - suspect appearing at parade as the only person in handcuffs - whether subsequent identification proper.

The appellant who, was convicted of robbery, appealed against his conviction contending that the identification parade organised by the police was conducted in a manner that the identifying witnesses could easily pick him out because he appeared at the parade handcuffed and that most members of the parade were Asian. This he argued, distinctly isolated him, as the only odd man in the parade and this was therefore prejudicial to him.

Held:

1. The possibility of the members of this parade being conspicuously dissimilar to the appellant, the probative value of the appellants’ identification at this parade was nil.

2. This had the effect of rendering suspect the entire identification evidence against the appelant.

Appeal allowed.

Cases

No cases referred to.

Statutes

No statutes referred.

William K. Mibei & 3 others v Republic

Court of Appeal, at Nakuru February 26, 1993

Gicheru, Kwach & Cockar JJ A

Criminal Appeal No 77 of 1992

(Appeal from conviction and sentence of the High Court of Kenya

at Eldoret (Aganyanya J) dated 26th September, 1990

in HC CR C No 11 of 1989)

Criminal Practice and Procedure – trial within a trial - procedure for conducting a trial within a trial to determine the admissibility of retracted confessionary statements – where the trial court is faced with several statements from several accused persons – whether the court should conduct a separate trial within a trial for each statement or an omnibus trial for all the statements.

Evidence - circumstantial evidence - where a case depends exclusively on circumstantial evidence - test which such evidence should meet in order for it to form a basis for a conviction.

The appellants who were initially charged with murder were convicted of the lesser offence of manslaughter when the prosecution failed to establish malice aforethought.

The convictions of the second, third and fourth appellants were based solely on the confessionary statements made to the police by the first appellant implicating them in the killing of the deceased.

The first, third and fourth appellants retracted their statements to the police and the judge held two trials within a trial in order to determine their admissibility. One of these trials within a trial was an omnibus one in that it was held to determine the admissibility of the statements of three of the appellants. The appellants alleged that they had been tortured by the police to procure the statements. The judge found that both statements had been voluntarily obtained and were therefore admissible.

The first appellant was examined by a doctor and found to have a swelling on the left back of his head with an accumulation of blood below it. He told the doctor he had been assaulted by police in the course of their interrogation.

The trial judge had directed the assessors that there was no direct evidence linking the first appellant with the killing of the deceased and that the evidence against him was purely circumstantial.

Held:

1. A trial within a trial should always be held for a statement made by each accused person separately and under no circumstances is an omnibus procedure to be used.

2. The first appellant sustained injuries while in the custody of the police and therefore the burden of proving that they were not caused by the police in the course of the interrogation of the first appellant lay with the prosecution. The prosecution did not discharge this burden and it was therefore not an unreasonable inference to make that the first appellant was assaulted by the police.

3. Once the statement under inquiry and the charge and caution statement of the first appellant are excluded, there was no other evidence left upon which the convictions of second, the third and fourth appellants could be sustained.

4. In a case depending exclusively upon circumstantial evidence, the Court must, before deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis than that of guilt.

5. The inculpatory facts against the first appellant were the blood – stained clothes found in his house, the leading of the police by the 1st appellant and the discovery of the panga hidden in the grass near the first appellant’s house stained with the deceased’s blood and the discovery of the deceased’s head in the well at the direction of the first appellant.

Appeal in respect of 1st appellant dismissed, 2nd, 3rd and 4th appellant’s appeals allowed.

Cases

1. Simoni Musoke v R [1958] EA 715

2. Rex v Kipkering Arap Koske (1949) 16 EACA 135

Statutes

No statutes referred.

Advocates

Mr Murgor for the 4th Appellant

Mr Bwonwonga for the Republic

Criminal practice and procedure-appeal-dismissal of-where the appellant had been served with hearing notice but did not appear-orders of the court-High Court Rules, rule 70 (4)

Marshall’s East Africa Limited v Wilson Osoro

Court of Appeal, at Nakuru January 22,1993

Masime, Gicheru & Muli JJ A

Civil Appeal No 52 of 1990

(Appeal from the judgment and decree of the High Court of Kenya

at Eldoret (Aganyanya J) dated 14/7/89

in HCCC No 30 1988)

Lien – chattels lien - unpaid repairer’s lien over a chattel for the costs of its repairs – how the lien is created and how it may be lost – owner delivering a chattel for repair but the repair charges are not settled –whether the lien arises where the repairer looks to a party other than the chattel owner for the payment of the repair charges – where the third party fails to pay the charges – chattel having been released to the owner – whether any lien arising was lost once the chattel was released and the lien could not be recalled– whether the repairer could properly repossess the chattel and seek to assert his lien in such circumstances.

Insurance – insurance claim – insured vehicle damaged in accident – insurer instructing the insured to deliver the vehicle to a designated repairer – insurer failing to meet the cost of repairs after vehicle had been repaired and released to the insured – vehicle repossessed and detained by the repairer – whether the repairer had a lien over the vehicle – suit by insured against repairer for loss of user of the vehicle – repairer counterclaiming for the repair charges – whether the insured was entitled to damages – whether the repairer was entitled to the repair charges.

Damages – special and general damages – damages for loss of user of a motor vehicle – whether such damages are special damages or general damages.

The respondent was the owner of a motor vehicle which was covered under a comprehensive policy of insurance with Delta Insurance Company. In June 1987, the vehicle was involved in an accident as a result of which the respondent suffered serious injuries and the vehicle was extensively damaged. In due course, the respondent filed a claim for the cost of repairing the vehicle with the insurance company, which directed him to deliver the vehicle to the appellant for repair.

Although it was the respondent who had delivered the vehicle to the appellant, the estimate of the cost of repairs and the instructions to proceed with the repair were done by an assessor appointed by the insurance company. All the vouchers relating to the repair were on the account of the company and upon the completion of the repair work, the appellant handed over the vehicle to the respondent without requiring him to settle the repair bill.

Shortly afterwards, the insurance company ceased to be in business after it was denied registration to conduct insurance business. After the appellant’s attempt to have the company settle the repair bill failed, it took the vehicle from the respondent and detained it.

The respondent sued the appellant claiming general damages for loss of user of his vehicle, though he did not give an indication of the loss he had suffered. For its part, the appellant filed a defence and couterclaimed for the cost of the repairs. In its judgment, the High Court (Aganyanya J) observed that the respondent’s work involved travelling and that he must have suffered great inconvenience and awarded him Kshs 30,000 in general damages. The court, however, did not consider the appellant’s counterclaim.

The appellant brought this appeal against the decision. The issues on the appeal were whether the appellant had a repairer’s lien over the vehicle at the time it repossessed it; whether and to what measure the respondent was entitled to the award of general damages and whether the appellant’s counterclaim should have been allowed.

Held:

1. If a chattel is in repair, the repairer acquires a lien on the chattel for the cost of repairs against the owner. Such lien, however, is lost on loss of possession by delivery of the chattel to the owner and it cannot be recalled.

2. Where the repairer does not look to the owner for payment of the charges the lien may not attach to the chattel in the first place. In this case, any lien that the appellant had on the respondent’s vehicle was lost upon the delivery of the vehicle and it could not be recalled. The appellant’s seizure of the vehicle was therefore unlawful.

3. Loss of user is an ascertainable item of loss. It is a special damage. As the trial court had held that it could not award special damages in the absence of evidence to support such a claim, the court could not substitute general damages for it. The trial court had misdirected itself in its decision on that issue.

4. However, the trial court was in the circumstances entitled to award nominal damages to the respondent. Such damages would be assessed at Kshs 100 per day for the 85 days that the vehicle was detained, totalling to Kshs 8,500.

5. Regarding the appellant’s counterclaim, the fact that the insurers did not meet the repair charges did not alter the fact that the respondent obtained value from the appellant in the repair of his vehicle. In these circumstances, the appellant’s counterclaim ought to have been allowed.

Appeal allowed, judgment of the High Court set aside, judgment entered for the appellant on the counterclaim.

Cases

No cases referred to.

Texts

Hailsham, Lord et al (Eds) (1979) Halsbury’s Laws of England; London: Butterworths & Co 4th Edn Vol XXVIII p 3 paras 537, 540, 550

Statutes

No statutes referred.