Duty Of The First Appellate Court
6.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
7.In the case of Mbogo and Another vs. Shah  EA 93 where the Court stated:
8.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others  EA 123, where the law looks in their usual gusto, held by as follows:-
9.The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.
10.In the case of Peters vs Sunday Post Limited  EA 424, court therein rendered itself as follows:-
11.In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, Justice D.S Majanja held as doth:
12.The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.
13.The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appealed held as follows as paragraph 8.
14.Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.
15.The High Court, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -
16.The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: -
17.Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.
18.So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence.
19.To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.
20.Similarly in the duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic  EA 336 is as follows:-
21.The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-
22.For the appellate court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.
26.I have had difficulty forthcoming the extent of discomfiture malaise and lack of diligence exhibited in this matter. There are glaring issues that should have been done but were never done. The fight is over the application dated 29/1/2021 which was allowed. The appeal is based on a Secondary premise that assumes certain kind of primary premises. The Appellant thinks that he has a decree that they ought to execute therefore the court should not have stayed the Decree. I am unable to find the decree. Not that I am visually impaired. I note that the claim is or special damages. For special damages they must be specifically proved after being particularised. The other aspect of that liability has not been settled.
27.Consequently, though exparte judgment was entered for Kshs. 1,849,744 as a liquidated claim, it is a highly irregular Judgment that is incapable of execution. The Appellant placed the cart before the horse. Whereas the Application to set aside the interlocutory judgment was dismissed since there was proper service, the plaintiff ought to have proceeded to formal proof. Formal proof was not done. Therefore, there is no judgment on record capable of being stayed. It is a wrong request for judgment for a liquidated claim.
28.In David Bagine v Martin Bundi  eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he that:
29.Though the order for stay of execution was validly given, in the circumstances, there was nothing to execute. As and when the matter is to proceed, it will have to go to formal proof. However, given that a wrong request for judgement had been made and erroneously endorsed, without formal proof, then through the application to filed reference was dismissed, the request on record is irregular and untenable. The matter is still fresh and unheard.
30.The Appeal herein has not been shown to have merit as the plaintiff does not have a judgment for which stay is holding. In any case the Appellant was the first one to drop the ball. Secondly auctioneer to execute a non – existence judgment. In the circumstances, I find no merit in the matter.
31.In exercise of my supervisory powers, I make the following orders: -
a.The liquidated Judgment for Kshs. 1,849,744 entered in the lower court is vacated as the claim is for special damages.b.There is nothing to stay as there is on final Decree in the matter. The decree and certificate of costs set out at page 66 of the record of Appeal are irregular and are hereby recalled and cancelled.c.The Appellant shall pay the auctioneers all charges in the matter so far. If any have been paid by the Respondent, then the Respondent is entitled to refund from the Appellant.d.Given that there is no decree, the stay granted does not serve any purpose. However, to enable the respondent settle the dispute with the insurance, there shall be stay of proceedings (Except filing of Defence and other pleadings) for a period of one year. This order be served on the Court hearing Mombasa CMCC)13 of 2021.e.Thereafter the Court shall give direction on hearing of the main suit herein.f.The lower court matter shall be mentioned on 24/2/2024 before any court other than Hon. E. Muchoki for directions and confirming status of Mombasa CMCC 13 of 2021.g.The Appeal is accordingly dismissed with costs of Kshs. 76,000/= to the Respondent payable within 30 days in default execution do issue.h.This file is closed.