A v Muhozozo

Court of Appeal, at Mombasa July 22, 1983

Potter, Kneller JJA & Chesoni Ag JA

Civil Appeal No 9 of 1983

Damages - quantum of damages - assessment of - failure to consider other decisions with similar facts - failure to take into account the effect of inflation - whether such an error of principle - general damages - quantum of damages - personal injuries - pain and suffering - severe cuts on the forehead and eye, abrasions and bruises, wounds on right ankle, fracture of right leg, no permanent injury - adequacy of award.

The appellant was knocked down by a motorcycle ridden by the first respondent as a servant of the second respondent. The appellant, who was then eight years old, suffered severe cuts on the forehead and right eye, abrasions and bruises, wounds on the right ankle and a fracture of the right leg for which she was given treatment. She sued both respondents through her next friend for damages. Upon medical examination about eight months after the accident, it had been found that the appellant’s wounds had healed and that she had incurred no permanent or residual disability. After judgment was entered against both respondents, the trial judge granted the appellant Kshs 900 in special damages and Kshs 10,000 in general damages. She appealed against the quantum of damages.

Held:

1. It is an error in principle in determining the appropriate award of general damages, if the court’s decision does not take into account awards for similar injuries in previous cases and the effect of inflation.

2. The award of general damages was manifestly inadequate. The Court of Appeal will interfere with an award of general damages where it is manifestly inadequate. In this case, the award of general damages to the appellant was manifestly inadequate and therefore should be increased to Kshs 20,000.

3. (Obiter Chesoni Ag JA) “Assessment of damages in motor accident cases in this country still poses a great problem because there is hardly any well-maintained record of what the courts have done in such cases in the past. Indeed, no one case is the same as another on all facts and circumstances but previous decisions are of guidance.”

Appeal allowed.

Cases

1. Dedan Kamau v George Mungai Mombasa HCCC No 339 of 1978 (unreported)

2. Athman Mbwana v Kantilal Hirji and AD Pattni Mombasa HCCS No 293 of 1973 (unreported)

3. Kitila Chengo v Panju & Bros Ltd and Ysongo Mutu Mombasa HCCS No 137 of 1972 (unreported)

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 76(1)

Advocates

HYA Jiwaji & P Talati for Appellant

Ismail Adam Suleman & Gulam Rasul Mardat v Nawaz Transport Company

Court of Appeal, at Mombasa

April 6, 1983

Madan, Law JJA & Hancox Ag JA

Civil Appeal No 38 of 1982

Civil Practice and Procedure - service - proper and valid service - definition of - notice of capacity in which a person is being served - object of - effect of - setting aside service - factors to be considered - service under order XXIX rule 9 and rule 3 of the Civil Procedure Rules - meaning of person within order XXIX rule 9 - service upon business entity where proprietor is deceased - how such service effected - service in suits against deceased persons.

 Precedents - binding and persuasive precedents - application of - foreign authorities - absence of current authorities. Parties - parties to suits - sole proprietorship - suit against sole proprietorship for which proprietor died and administrators were appointed - administrators continuing with business of proprietor - suit arising out of debt incurred by proprietor during his lifetime - suit filed against proprietorship in its business name - whether suit improper for being a suit against a deceased person - whether service of summons on administrators proper - Civil Procedure Rules order XXIX rule 9.

The appellant filed a suit against the respondent, which was described in the plaint as a registered business, in respect of services rendered to the proprietor, who had since died. The summons were served upon two persons along with a notice stating that they were served in their capacity as partners or persons having control or management of the respondent entity. The two persons were administrators of the estate of the deceased, the original proprietor of the business entity. The administrators entered appearance under protest and made an application to set aside the summons and the subsequent decree on the ground that they were not partners in the firm and not liable and therefore could not be served. It was further deponed that the suit was improper as it had been filed against a dead person. The High Court allowed their application and against that decision, the appellant appealed.

Held:

1. The Civil Procedue Rules in order XXIX rule 9 enable a person to be sued in his assumed name. It makes it possible to sue persons who conceal their names in the name of which they carry on business. The object of this rule is to promote commerce, as it would not be possible for persons to know the real names of the owners of the business. If it were to be held that a decree obtained or a suit instituted against an assumed name is void, it would lead to manifest hardship, encourage fraud and sap the credit on which the commercial dealings largely rest. If the administrators’ contention was allowed in this case, it would open a wide door for fraud and injustice.

2. Order XXIX rule 9 of the Kenyan Civil Procedure Rules is taken verbatim from order XXX rule 10 of the Indian Civil Procedure Code. The English rule is similar also except the word “person” has been substituted with “individual”. Indian and English decisions can therefore be applied where there are similar facts. In this case the firm did not cease to exist, the two administrators continued to carry on business. It would be wrong in principle to allow them to claim protection from legal process against the firm by pretending that the firm ceased to exist.

3. As a matter of public policy, the service of process, in this case effected in accordance with the Civil Procedure Rules order XXIX rule 3(1) on a person having, at the time of service, the control or management of the firm, was good and valid service.

4. In legal terms, a person does not only mean a human being but a body corporate whereas the definition of an individual is a single human being. Therefore, a person can mean a group of individuals carrying on business, in this case two persons carrying on business in the name in which a deceased proprietor formerly did.

5. A suit can be brought against a firm of which the deceased was a sole proprietor which is afterwards continued by his successors.

 6. (Obiter Madan JA) “I do not consider myself bound by the English and Indian decisions, good law though they may be. As far as I can ascertain there is no local decision on this point, I feel free to make my own decision.”

7. (Obiter Law JA) “I consider that the question to be decided in this appeal is res integra in that it is governed by no Kenyan decision having effect as precedent and must therefore be decided on principle.”

8. (Obiter Hancox JA) The parties have a responsibility to provide legible documents to the court. Documents that are too faint and illegible will not be included in the court records. Any delay or adjournment caused by the parties’ failure to provide legible documents might result in an order for costs against the party responsible.

 9. (Obiter Law JA) “To my mind the reprehensible course of conduct by the administrators [in perpetrating the misconception that the previous sole proprietor was still alive while they carried on the business] is very close to coming within the doctrine of ‘holding out’ to which statutory expression is given in section 18 of the Partnership Act (cap 29).”

Appeal dismissed.

Cases

1. M’Iver v Burns (1895) 64 LJ Ch 681

2. Rampratab v Gavrishankar [1924] Bombay Law Reports 109

3. Hari Bhandhu Pal v Messrs. Hari Mohan Mohimchandra Kaihashchandra & Hiralal Saha [1930] AIR (Calcutta) 931

4. Hafiz Abdul Razzaq v Rauf Ahamed [1936] AIR 245

 5. Jamunaram Poddar Firm v Jamunaram Bhakat [1944] AIR 31 (Calcutta) 138

6. Davey v Shawcroft [1948] 1 All ER 827

7. Indian Red Lead Factories Co and Purshottamdas Narsingdas [1960] AIR (Calcutta) 32

8. Dawson (Bradford) Ltd v Dove [1971] 1 All ER 554

Texts

1. Shorter Oxford English Dictionary, Oxford: Oxford University Press

 2. Burke, J. (1977) Jowitt’s Dictionary of English Law, London: Sweet & Maxwell

3. Jacob, IH. et al, (Eds) (1973) The Supreme Court Practice, London: Sweet & Maxwell, p 1217

 Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order XXIX rules 3, 4, 6, 7(1), 9

2. Rules of the Supreme Court (UK) order 48A rules 1-10, 11; order 81 rule 9 (formerly order XLVIIA rule 11)

3. Code of Civil Procedure (India) order XXX rules 6, 10

4. Registration of Business Names Act (cap 499) section 9

5. Registration of Business Names Rules (1975) (cap 499 Sub Leg) rule 6

6. Interpretation and General Provisions Act (cap 2) section 3(4)

7. Partnership Act (cap 29) section 18

 8. Interpretation Act 1889 (UK) section 19

Advocates

 AT Anjarwalla & NM Doshi for Appellant

IT Inamdar for Respondents

Attorney General v Waiyera

Court of Appeal, at Mombasa

March 3, 1983

Simpson CJ, Law JA & Hancox Ag JA

 Civil Appeal No 45 of 1982

Damages - quantum of damages - assessment of damages - loss of earnings - meaning of - whether damages for loss of prospective promotion can be claimed - whether loss of promotion should be claimed separately or as part of loss of earnings - appropriate multiplier for lost years - assessment of injuries and damages - special damages - meaning of - whether loss of earnings on future promotion constitute special damages.

Damages - general damages - award of - personal injuries - pain, suffering and loss of amenities - award of damages for.

The plaintiff was injured in a collision between his employer’s vehicle which he was driving and one owned and driven by an employee of the Ministry of Education. The Attorney General was accordingly sued under the Government Proceedings Act. The trial judge found the driver of the Government vehicle to blame and awarded general damages totalling Kshs 662,800, including Kshs 532,800 for loss of future income and of promotion, and Kshs 130,000 for injury, pain and suffering. He also awarded Kshs 29,857 as special damages. The plaintiff appealed, contending the award was too low, and the Attorney General crossappealed.

Held:

1. The term “special damages” means out of pocket expenses and loss of actual earnings up to the date of trial. Loss of earnings on future promotion can never be part of an award of special damages because they are not quantifiable or ascertainable at the date of trial.

 2. While loss of promotion could be a factor to be taken into account in assessing general, not special damages, specific damages could not be given for it unless, it was proved that the plaintiff would have achieved promotion but for his injuries and consequently the general damages would be reduced accordingly.

3. There was a real likelihood of the plaintiff, by reason of his eye injury, being out of a job by age forty five, whereas the normal retiring age was fifty five. Accordingly the “lost years” should also be taken into account and would be assessed at ten. That would be the appropriate multiplier to assess his total loss of earnings.

4. The reduced pension the plaintiff would receive on early retirement should be taken into account in the assessment of his annual loss of earnings.

5. The award for injuries, pain and suffering was manifestly low and should be increased to Kshs 225,000.

Appeal and cross-appeal allowed.

Cases

1. Marali v Kenatco HCCC 1179 of 1971 (unreported)

2. Oluoch v Robinson [1973] EA 108

3. Smith v Manchester Corporation (1974) 17 KLR 1

4. Moeliker v Reyrolle [1977] 1 All ER 9

5. Butt v Khan [1981] KLR 349

6. Pickett v British Rail Engineering Ltd [1978] 3 WLR 955

7. Chambers v Karia [1979] (Kemp and Kemp) 5-020, 6-067, 7-002

8. Haji v Batweid HCCC 856 of 1979 (unreported)

9. Juma v Kenya Glass Works Civil Appeal 1 of 1980 (unreported)

10. Lalji v Toka [1981] KLR 325

11. Bishop [1981] CLY 604

12. Marsden [1981] CLY 605

13. Re McCloskey [1981] CLY 601

Texts

1. McGregor, H. (1980) McGregor on Damages, London: Sweet & Maxwell

2. Kemp, D.A. (Ed) (1982) The Quantum of Damages in Personal Injury and Fatal Accidents Claims: Recent Personal Injury Reports, London: Sweet & Maxwell, 4th Edn Vol II cases 1-107; 3-683/1/4; 3-682/1/3; 5-41

 Statutes

Government Proceedings Act (cap 40)

Advocates

CW Gatonye for Appellant

PS Talati for Respondent

Mzamil v Ansari

Court of Appeal, at Mombasa January 31, 1983

Madan, Law JJA & Hancox Ag JA

Civil Appeal No 44 of 1982

Appeal - record of appeal - application to strike out - copy of defence not included in the record - decree included in the record not approved by appellant or court - consequences thereof.

Appeal - extension of time - extension of time to file a supplementary record of appeal - grounds on which such extension may be granted.

The appellant failed to include a certified copy of the defence and an approved decree in the record of appeal. An application to strike out the appeal for having a defective record was filed. The appellant responded by making an application for extension of time to file a supplementary record.

Held:

1. An essential document such as a decree cannot be brought on record by means of a supplementary record of appeal (Kiboro v Posts & Telecommunications Corporation [1974] EA 155).

2. Extension of time can only be granted where sufficient reason is shown to the satisfaction of the court within the meaning of rule 4 of the Court of Appeal Rules.

3. The affidavit in support of the application to extend time cannot succeed in this case as sufficient reason cannot be established on the basis of an incorrect affidavit.

Application to strike out appeal allowed. Application for extension of time dismissed.

Editorial Note:

The Court of Appeal Rules (Revised Edition 1987 (1978)) now provide in rule 4 that “[t]he Court may, on such terms as it thinks just, by order extend the time limited by these Rules, or by any decision of the Court or of a superior court, for the doing of any act authorized or required by these Rules, whether before or after the doing of the act...”

Cases

Kiboro v Posts & Telecommunications Corporation [1974] EA 155

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rule 4

Advocates

Mr Mulwa for Appellant

Mr Magan for Respondent