Kilo v Omar & another

Court of Appeal, at Mombasa October 21, 1986

Hancox, Nyarangi and Platt JJA

Civil Appeal No 49 of 1984

(Appeal from the High Court at Mombasa, Bhandari J)

Damages – general damages – for pain, suffering and loss of amenities – assessment of – when award for damages may be set aside - fracture of right upper arm, dislocation of right elbow – loss of movement and gripping power in arm – quantum of damages.

Damages – mitigation of damages – party on whom burden of proving mitigation rests – refusal by claimant to undergo surgery – whether such refusal constitutes failure to mitigate damages.

The appellant, who was a passenger in a motor vehicle owned by the second respondent and driven by the first respondent, was injured when the vehicle was involved in an accident. He suffered a fracture and dislocation of the right upper arm and elbow respectively which led to reduced arm movement and loss of gripping power. The injuries apparently worsened after the appellant failed to undergo a surgical operation.

The appellant, who was right-handed, 50 years old and due for retirement in another five years, remained employed after the accident. In his suit against the respondents for general damages, he was awarded Shs 30,000 as general damages for pain, suffering and loss of amenities. The appellant appealed contending that the award was so low as to be erroneous.

Held:

1. Before an award for general damages can be set aside, it must be shown that there was an error in assessing the award and it is not sufficient merely to show that the court would have made a somewhat higher award.

2. The burden of proof of damages is upon the plaintiff but if a defendant seeks to show that the plaintiff ought to have mitigated his loss, the burden may pass to the defendant and the normal measure of damages will not be cut down unless the defendant succeeds in showing that the plaintiff ought reasonably to have taken mitigating steps.

3. The refusal by a physically injured plaintiff to undergo a dangerous and risky surgical operation does not constitute a failure to mitigate damages but where the operation cannot be regarded by reasonable men to be a risky one, then a refusal to allow it would constitute such failure. There was no evidence to show that the plaintiff had taken the wrong decision in not having the surgical operation.

4. The court had not considered the appellant’s likely pain and suffering froms a future surgical operation.

5. The award for general damages was too low and would be reassessed at Shs 80,000.

Appeal allowed.

Cases

1. Ilanga (Henry Hidaya) v Manyoka (Manyema) [1961] EA 705 at P 713

2. Mcauley v London Transport Executive [1957] 2 Lloyds Rep 500

3. Steele v George (Robert) & Co Ltd [1942] AC 497; 1 All ER 447

4. Richardson v Redpath, Brown & Co Ltd [1944] AC 62; 1 All ER 110

5. Marcroft v Scruttons [1954] 2 Lloyds Rep 395

Texts

McGregor, H. McGregor on Damages London: Sweet & Maxwell 17^th Edn p 825

Statutes

No statutes referred.

Advocates

Mr Jiwaji for the Appellant

Mr Ghalia for the Respondent

Mnazi Moja Estates Ltd v Ambalal Mistry & 5 others

Court of Appeal, at Mombasa July 22, 1986

Hancox JA, Platt & Gachuhi Ag JJA

Civil Appeal No 47 of 1986

(Appeal from the High Court at Mombasa, Aragon J)

Civil Practice and Procedure – originating summons–– nature of actions

which may be commenced by procedure of originating summons – whether

such procedure proper where party seeks a declaration – Civil Procedure

Rules order XXXVI.

Landlord and Tenant – consent to sub-lease or assign – where consent is unreasonably refused – principles the court should consider.

The first respondent was a lessee of the appellant (lessor) under the terms of an indenture which provided that the lessee was not to assign or sub-let the premises without the consent of the lessor, which consent was not to be unreasonably withheld. The first respondent and three co-lessees who were desirous of assigning the unexpired portion of the lease to the fifth and sixth respondents wrote to the appellant seeking its consent to the transaction.

Failing to receive a reply, the respondents filed an originating summons in the High Court for an order that the appellant should sign the necessary consents to the transfer. It then emerged that the appellant’s reason for refusing the consent was that it wished to purchase the property concerned.

The appellant argued that in any case, the respondents had rushed to court without giving it an opportunity to decide whether to give the consent or not.

The High Court in granting the declarations sought by the respondents, observed that the desire of a reversioner to purchase the lease was not a valid reason in law to withhold the consent. The appellant appealed.

Held:

1. On the material on record and before the High Court judge, it was not shown that prior to the filing of the action in court, there was a clear refusal by the appellant to give its consent to the proposed transfer.

2. The procedure of originating summons is not an appropriate way to commence an action where the issues raise complex and contentious questions of fact.

3. The Civil Procedure Rules order XXXVI does not prescribe the filing of proceedings for a declaration by way of originating summons. The procedure followed in this case was wrong.

4. (Obiter) Per Platt Ag JA: In an action by a lessee against a lessor for the latter’s unreasonable refusal to give consent to a sub-lease or assignment, the legal principles to be considered are:

a) There must have been an application for consent by the lessee;

b) That application must have been made to the right person, ie, a person having authority to give or refuse the consent;

c) The lessor must be given full knowledge of the proposed assignment and reasonable time during which to consider the request;

d) The lessor’s failure or refusal to give any explanation of or reason for his refusal of the consent cannot avoid a declaration against him that the consent was unreasonably refused.

e) If the lessee considers that the lessor’s refusal of the consent or his silence to the application is unreasonable, it is open to the lessee to seek a court declaration instead of completing the assignment in defiance of the lessor;

f) The practice in England is to ask for a declaration that the lessor’s  refusal is unreasonable and that the tenant is entitled to make the proposed assignment or sub-letting notwithstanding such refusal.

Appeal allowed.

Cases

1. Bates v Donaldson (1896) 2 QB 241

2. Re Winfrey & Chatterton’s Agreement (1921) 2 Ch 7

3. Lovelock v Margo [1963] 2 All ER 13; (1963) 2 QB 786

4. Bromley Park Garden Estates v Moss [1982] 2 All ER 890

5. Kibutiri v Kibutiri [1983] KLR 62; (1982-88) 1 KAR 60

6. Wakf Commissioners v Mwijabu & another [1984] KLR 346

7. Kenya Commercial Bank v Osebe [1982] KLR 296; (1982-88) 1 KAR 48

Texts

1.Wellings, V G et al. Woodfall on Landlord and Tenant London: Sweet & Maxwell 26th Edn Vol I p 568 para 1344

2. Hailsham, Lord et al. (Eds) Halsbury’s Laws of England London: Butterworths 4th Edn para 368 p 287

3. Jacob, I.H et al. The Supreme Court Practice 1973 London: Sweet & Maxwell p 58

Statutes

1. Civil Procedure Act (cap 21) sections 3A, 97

2. Civil Procedure Rules (cap 21 Sub Leg) order XXXVI rules 1, 2, 3A, 4, 5, 5A, 9, 10

3. Rules of the Supreme Court [UK] order 54A

Advocates

Mr Gimaiyo for the Appellant.

Mr Satchu for the Respondents.

Maghenda v Republic

Court of Appeal, at Mombasa July 14, 1986

Madan Ag CJ, Nyarangi JA & Platt Ag JA

Criminal Appeal No 55 of 1986

(Appeal from the High Court at Mombasa, Bhandari J)

Evidence – of a hostile witness – how such evidence should be treated – whether proper to disregard such evidence without evaluating it.

Evidence – identification evidence – identification by voice – words uttered by accused at identification parade – evidence not showing that accused uttered the words at the time of the offence – witness not stating whether his identification of accused was based on the words – whether identification reliable.

The appellant was convicted and sentenced of the offences of robbery contrary to section 296(1) of the Penal Code (cap 63) and being in possession of a firearm without a certificate contrary to section 4(1) of the Firearms Act (cap 114).

During the trial, the magistrate observed that the evidence of the appellant’s lady friend, who was taken as a hostile witness, could be safely disregarded because she would in effect testify as a defence witness. He also observed that the appellant had been satisfactorily identified by his voice on account of certain words he had uttered before the identifying witness in an identification parade even though it had not been shown the appellant had spoken those words at the time of the alleged robbery or that the witness had identified him on account of those words.

The appellant’s first appeal to the High Court was summarily rejected and he lodged a second appeal.

Held:

1. The evidence of a hostile witness must be evaluated particularly if it tends to favour the accused though it may not necessarily be acted upon by the court.

2. The statement by the trial magistrate that the hostile witness’ evidence could be safely disregarded was a misdirection.

3. The alleged identification of the appellant through his voice was not reliable.

4. The appellant’s appeal to the High Court should not have been summarily rejected.

Appeal allowed.

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 296(1)

2. Firearms Act (cap 114) section 4(1)

3. Criminal Procedure Code (cap 75) section 352(2)

Hassan v Nathan Mwangi Kamau Transporters

& 4 others

Court of Appeal, at Mombasa February 14, 1986

Kneller, Hancox & Nyarangi JJA

Civil Appeal No 123 of 1985

(Appeal from the High Court at Mombasa, Aragon J)

Damages – general damages – for lost years – assessment of damages – factors the courts should take into consideration – whether damages for lost years may be awarded to a dead plaintiff – quantum of damages.

Customary law – custom - application of – custom of children providing for their parents later in their life – whether such custom recognized in Kenya – whether such custom repugnant to justice and morality – whether a parent entitled to compensation for the death of a child – Judicature Act (cap 8) section 3(1).

The appellant was the father and the administrator of the estate of one Ishtiaq who had died at the age of 17 years as result of a road accident for which the respondents accepted liability. The appellant claimed damages on the deceased’s behalf under the Law Reform Act (cap 26) under the heads of pain and suffering, loss of expectation of life and for lost years. The parties agreed on the awards for the first two heads and left the award for the lost years to be assessed by the High Court.

Evidence was given that the deceased had been an aspiring architect and two architects testified as to their own careers and what the deceased might have earned. The judge, however, considered that the deceased might have changed his career, that he (the judge) knew the testifying architects and the deceased was not as gifted as they were and he based his assessment of the deceased’s earnings on the salary of a High Court judge. He estimated that the deceased would have earned an average of Shs 60,000 a year which he reduced to Shs 20,000 after deducting his expenses. He then multiplied it by an agreed 16 years to arrive at an award of Shs 320,000.

The trial judge had described as outrageous and pernicious a submission that in Kenya parents expect their children to maintain them later in their life and rejected it as an incorrect approach to arriving at an award of damages for lost years.

The appellant appealed.

Held:

1. The Court of Appeal is only entitled to increase an award of damages by the High Court if it is so inordinately low as to represent an entirely erroneous estimate or if it is shown that in reaching that inordinately low figure the judge proceeded on a wrong principle or misapprehended the evidence in some material respect.

2. An award of damages should be in line with recent awards in cases with similar circumstances and appellate judges are entitled to their own views so that the figure arrived at by one of them is not necessarily wrong if it is not the same as those of the other judges.

3. Judges of both Courts should recall that inordinately high awards will lead to monstrously high premiums for insurance, which is a consequence that should be avoided.

4. The trial judge overlooked the fact that the deceased had begun well enough on his career by being accepted to university and the judge’s own views of the ability of the testifying architects should not have influenced his view of the value of the testimony which was relevant and unchallenged.

5. It is an established custom among various African and Asian communities in Kenya that children are expected to provide for their parents. The custom is not repugnant to justice and morality and the trial judge’s view that it was outrageous and pernicious was not well founded and should be rejected.

6. Both common law and its applicability must be tempered and adjusted to the circumstances, needs and generally held views of the people of Kenya.

7. The trial judge misdirected himself by misapprehending the application of the customary law in Kenya, and that misdirection affected his assessment of the award of damages.

8. The trial judge had proceeded on the wrong principles and in so doing, he had reached an inordinately low estimate on the award of damages for lost years.

9. The appropriate award in damages for the deceased’s lost years would be Shs 380,000.

Appeal allowed.

Cases

1. Howard v Refuge Friendly Society (1886) 54 LT 644

2. Harse v Pearl Life Assurance Company [1904] 1 KB 558

3. Elson v Crookes (1911) 106 LT 462

4. Rose v Ford [1937] AC 826; 3 All ER 357

5. Channan Singh & another v Chanan Singh & Handa (1955) 22 EACA 125

6. West (H) & Son v Shephard [1964] AC 326; [1963] 2 All ER 625

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

8. Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910

9. Pickett v British Rail Engineering Ltd [1980] AC 136; [1979] 1 All ER 774

10. Kandalla v British European Airways Corporation [1981] QB 158

11. Gammell v Wilson [1981] 1 All ER 578

12. White v London Transport Executive [1982] 1 QB 489; 1 All ER 410

13. Attorney-General v Waiyera [1983] KLR 97; (1982-88) 1 KAR 84

14. Adsett v West [1983] 2 All ER 985; 3 WLR 437

15. Mariga v Musila [1984] KLR 251; (1982-88) 1 KAR 507

16. West (H) & Son v Shephard Ltd [1964] AC 326

Texts

Davies, B.P.A. (1963) Houseman’s Law of Life Assurance London:Butterworths 8th Edn p 30

Statutes

1. Fatal Accidents Act (cap 52)

2. Law Reform Act (cap 26)

3. Law Reform (Miscellaneous Provisions) Act 1934 [UK]

4. Judicature Act (cap 8) section 3(1)

5. Civil Procedure Act (cap 21) section 87

Advocates

Mr S C Gautama and A Diniz for the Appellant

Mr S Guram and K Mwaura for the Respondent

Italframe Ltd v Mediterranean Shipping Company

Court of Appeal, at Mombasa February 7, 1986

Hancox JA, Platt & Gachuhi JJA

Civil Appeal No 18 of 1985

(Appeal from the High Court at Mombasa, Bhandari J)

Foreign judgment - execution – of decree from a foreign judgment - execution of by a foreign court - necessity of reciprocal arrangement – between states – object and purpose of reciprocity.

Foreign judgment - registration of decree – application for an order of registration of a foreign decree - respondent applying for the setting aside  of the order for registration – Tanzania registration in Kenya – judgment of the High Court of Tanzania - statute - referring to Tanganyika – whether enforceable – whether reference to Tanganyika in the statute instead of Tanzania is of essence – provisions of part III of the Foreign judgments Enforcement Act (cap 43) section 6 – object of Act.

Statutes - interpretation of - interpretation by courts – where there is an apparent mistake in the statute – duty of the court - remedy available.

The appellant obtained a judgment from the High Court of Tanzania which sent the decree to the Registrar of the High Court of Kenya, Mombasa for registration. The respondent applied to the High Court to set aside the registration. The High Court in its ruling set aside the registration, together with all orders made in pursuance of the application for execution. The appellant appealed arguing that the judge misdirected himself in law in holding that Part III of the Foreign Judgments Act (cap 43) section 6 did not apply to the decree of the High Court of Tanzania as it referred the High Court of Tanganyika.

Held:

1. The basic principle upon which neighbouring or other states provide for enforcement of foreign judgments is one of reciprocity and the advantage to be gained therefrom, hence the necessity for a reciprocal arrangement.

2. The Foreign Judgments Enforcement Act (cap 43) made provision forenforcement in Kenya of judgments obtained elsewhere and forfacilitating the enforcement elsewhere of judgments obtained in Kenya.

3. Where there has been a legal status change in a country creating new state, it is for those new states to establish such relations with their neighbours as they so desire, to enable reciprocity. In this instance, the constitutional structure giving authority to the High Court of Tanzania was the United Republic of Tanzania and was not simply the Republic of Tanganyika.

4. (Obiter) Transfer of decrees to another jurisdiction for execution may take place a long time after the decree is given.

5. The position in this case is that the relevant provisions were made for enforcement of the decrees of the High Court of Tanganyika, those provisions do not permit the enforcement of decrees in Kenya of the High Court of Tanzania.

6. (Obiter) It is not competent for any court to assume mistake in an Act of Parliament and to put sensible meaning to the words of a statute. The only remedy lies in the legislature to amend it.

Cases

1. Lowenthal and Air France, Re [1967] EA 75

2. Bristol Guardians v Bristol Waterworks Co [1914] AC 379

3. King-Emperor v Benoari Lal Sarma and Others [1945] 1 All ER 210

4. Richards v MacBride (1881) 8 QBD 119

Texts

1. Craies, W.F., Craies on Statute Law London: Sweet & Maxwell 7^th Edn cap 20

2. Simonds, V, et al (Eds) (1952-64) Halsbury’s Laws of England London: Butterworths 3rd Edn Vol XXXVI para 584

Statutes

1. Foreign Judgments Enforcement Act (cap 43) section 6 parts III, IV

2. Foreign Judgments (Reciprocal Enforcement) Act 1984

3. Statute Law (Miscellaneous Amendments) Act 1964

4. Civil Procedure Act (cap 21) sections 30,31,32,33

5. Fugitive Offenders Pursuit Act (cap 87)

6. Distress for Rent Act (cap 293)

6. Bristol Waterworks Act 1862 [UK]

7. Foreign Judgments (Reciprocal Enforcement) Ordinance (cap 8) [Tanzania]

8. Judgments Extension Ordinance (cap 7) [Tanzania] section 2

Advocates

Mr HJ Baraza for the Appellant.

Messrs Satish Gautama & J Muhuni for the Respondent.

Ondari & 17 others v Republic

Court of Appeal at Mombasa January 26, 1986

Madan Ag CJ, Kneller & Nyarangi JJA

Criminal Appeals Nos 89, 96, 106, 107, 108, 109, 127, 128, 129, 130, 134,

138, 139, 140, 141, 198 and 199 of 1985 (Consolidated)

(Appeals from the High Court at Mombasa, Bhandari J)

Court martial – appeal from a sentence by a court martial to the High Court – whether second appeal to the Court of Appeal lies – Armed Forces Act (cap 199) section 115(3).

Appeal – second appeal – from decision of High Court on an appeal from court martial – whether such appeal is competent – Armed Forces Act (cap 199) section 115(3).

Sentencing – remission of - dissimilar sentences – whether such sentences proper- Prisons Act section 46(4).

The appellants were charged separately before a court martial with mutiny contrary to section 25(2) of the Armed Forces Act (cap 199).

Each of them pleaded guilty and were handed sentences of imprisonment ranging from 4 to 10 years and all of them were dismissed from the armed forces.

Their appeals to the High Court were summarily dismissed and they appealed to the Court of Appeal.

Held:

1. The decision of the High Court on an appeal to it under the Armed Forces Act (cap 199) is final and not subject to a further appeal.

2. The appeals were therefore incompetent and had to be dismissed.

3. (Obiter) Courts aim at parity of sentences to obviate grievances of discrimination among prisoners. The sentences passed in these cases were greatly disparate and the Court would recommend them to the Commissioner of Prisons and the Minister for remission under section 46(4) of the Prisons Act.

Appeals dismissed.

Okang, Young Charles v Republic (1982-88) 1 KAR 276

Statutes

1. Armed Forces Act (cap 199) sections 25(2), 115(3)

2. Prisons Act (cap 90) section 46(4)

3. Criminal Procedure Code (cap 75) section 352(2)

Advocates

Mr Gachuhi for the 4th Appellant

15 Appellants Unrepresented

2 Appellants absent and unrepresented

Ouma v Republic

Court of Appeal, at Mombasa January 25, 1986

Madan Ag CJ, Nyarangi JA & Gachuhi Ag JA

Criminal Appeal No 91 of 1985

(Appeal from the High Court at Mombasa, Bhandari J)

Appeal – summary dismissal of – under section 352(2) of the Criminal Procedure Code (cap 75) – appellant convicted on identification evidence of single witness – appellant challenging identification on appeal – whether such appeal liable to summary dismissal.

Evidence – evaluation of – duty of court in evaluating prosecution evidence vis a vis the accused’s defence.

The appellant was convicted of stealing goods in transit contrary to section 279(c) of the Penal Code (cap 63). His conviction depended largely upon the identification evidence of a single witness. The witness, who had been kept in police custody as a suspect, had testified that police had previously told him that he would be allowed to go home if he identified someone. The trial magistrate admonished the police for what he termed as “underhand practice” but nevertheless convicted the accused.

The appellant appealed to the High Court arguing that his identification by the witness was questionable. The appeal was summarily rejected and he appealed to the Court of Appeal.

Held:

1. The appellant’s ground of appeal that his identification by the witness was questionable was a substantial ground of law which took his appeal out of the ambit of section 352(2) of the Criminal Procedure Code (cap 75) and it ought not to have been summarily rejected.

2. At the time of evaluating the prosecution’s evidence, the court must have in mind the accused person’s defence and must satisfy itself that the prosecution had by its evidence left no reasonable possibility of that defence being true. If there is doubt, the benefit of that doubt always goes to the accused person. That did not appear to have been done in this case.

3. As the trial magistrate was not altogether satisfied with the prosecution evidence, it was wrong to proceed to convict the appellant.

4. The Court could not say that the witness had honestly identified the appellant.

Appeal allowed

Cases

No cases referred to.

Statutes

1. Penal Code (cap 63) section 279(c)

2. Criminal Procedure Code (cap 75) section 352(2)

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