Akamba Public Road Services Limited & 2 others v Peninah K. Kimengich

Court of Appeal, at Nakuru November 24, 1995

Akiwumi, Tunoi & Shah JJ A

Civil Appeal No 182 of 1993

(Appeal from the judgment and decree of the High Court of Kenya  at Nakuru (Lady Justice R N Nambuye) delivered on the  15th February, 1993 in Nakuru HCCC No 413 of 1989)

Damages - general damages - loss of dependency - where the judge gave a 19 years multiplier, in stages, as a method of calculating the loss of dependency figure-proper method for calculating loss of dependency.

The respondent’s husband was traveling in a bus owned by the first appellant when it was involved in a road accident along the Nakuru- Eldoret road as a result of which he died. Upon the respondent filing a claim against the appellants the trial court awarded general damages for loss of dependency totaling Kshs 1,576,624/88 and a sum of Kshs 57,610 as expenses. The appellants subsequently filed an appeal challenging the said figures as being manifestly excessive and not proven.

Held:

1. The learned judge used a tortuous and wrong mode of arriving at the loss of dependency figure.

2. The proper method to calculate loss of dependency is to deal with the issue on broad lines where the number of imponderables makes mathematical calculations inappropriate.

3. The difference between the figures arrived at by the trial judge and those arrived at by the appeal court not being substantial, the court would not disturb the award under the head of damages for loss of dependency.

4. As the appellant had succeeded in showing that the learned judge adopted a wrong method of calculating the loss of dependency figures the court would allow the respondent two-thirds of and not full costs of the appeal.

Appeal dismissed.

Cases

1. Kassam v Kampala Aerated Water Co Ltd [1965] EA 587

2. Kampala City Council v Nakaye [1972] EA 446

Statutes

Appellate Jurisdiction Act (cap 9) section 3(2)

Advocates

Mr Gaya for the Appellants

Criminal Practice and Procedure - appeal - summary rejection of an appeal - appeal against summary rejection - appellant having been convicted of stealing by a servant employed in the public service and sentenced to imprisonment for 4 years - one of the grounds stated in the first appeal to the High Court stating that the trial court had failed to properly evaluate certain evidence - whether such an appeal could be properly dismissed summarily  - power of the second appellate court to decide the merits of the appeal rather than remit it for re-hearing - whether the appellant's conviction was proper - Penal Code section 280 - Criminal Procedure Code section 352(2) - Appellate Jurisdiction Act section 3(2)

Samuel Osoro Nyamwaro & 2 others v Boniface Kamau & another

Court of Appeal, at Nakuru September 29, 1995

Gicheru, Akiwumi & Tunoi JJ A

Civil Appeal No 197 of 1994

(Appeal from the judgment of the High Court of Kenya at Nakuru  (Mr Justice D M Rimita) dated 22nd September, 1994 in  HCCC No 85 of 1986)

Damages - quantum of damages - enhancement of general damages- where the court had not taken into account the appellants’ submissions-validity of the amount of general damages awarded.

The appellants had suffered injuries as a result of a motor accident caused through the negligence of the respondents who admitted liability. The learned judge then issued orders to the effect that written submissions should be filed within 14 days, by August 1, 1994, however submissions for the appellants were filed late, on August 22, 1994. Judgment was delivered a month later, on September 22, 1994, but the learned judge refused to take into account the submissions filed on behalf of the appellants on the ground that no written submissions had been filed as agreed and went on to asses and award damages without also giving exhaustive consideration to the medical reports accepted in evidence by consent.

The appellants appealed against the quantum of general damages on the ground that they were manifestly low.

Held:

1. The quantum of general damages was inordinately low, as it had been arrived at without the benefit of full consideration of the unchallenged medical reports and in the absence of the appellants’ submissions that contained relevant decisions as to damages awarded for similar injuries.

2.The quantum of general damages must be enhanced based on the medical reports and authorities contained in the appellants’ submissions.

3.Where the general damages awarded are manifestly low that is a ground on which the Court of Appeal can interfere with the general damages awarded by the High Court.

Appeal allowed.

Cases

No cases referred to.

Statutes

No statutes referred.

Criminal law - burglary and stealing - accused persons convicted on a plea of guilty and sentenced to imprisonment for three years and 12 strokes of corporal punishment ( the cane ) - accused arraigned on a similar charge, convicted on his own plea of guilty and sentenced to imprisonment for 2 years and a 8 strokes - sentence of imprisonment in the first case ordered to run consecutively with the sentence in the second case - appellant's first appeal summarily rejected by the High Court - second appeal - summary rejection of the appeal by the High Court improper as the appeal was not confined to the two matters under section 352(2) of the Criminal Procedure Code -  second appeal under section 3(2) of the Appellate Jurisdiction Act - whether the appellant's pleas of guilty were unequivocal - Penal Code sections 304(2), 279(b)

Sentencing - concurrent and consecutive sentences - multiple offences - where a person commits more than one offence at the same time in the same transaction - accused person committing offences of burglary and stealing in a space of one month and within the same locality - accused person convicted on separate charges involving more than one count - whether it would be proper to order the sentences to run consecutively in such a case.