[2023] KEHC 26059 (KLR)

Bake N Bite Limited v Kassam Hauliers Limited (Civil Appeal 69 of 2021) [2023] KEHC 26059 (KLR) (21 November 2023) (Ruling)

Neutral citation: [2023] KEHC 26059 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 69 of 2021

DKN Magare, J

November 21, 2023

Between

Bake N Bite Limited

Appellant

and

Kassam Hauliers Limited

Respondent

(This is an appeal form the Ruling and order of the Honourable E. Muchoki in Mombasa CMCC 1079 of 2018 given on 19/5/2021)

Ruling

1. This is an appeal form the Ruling and order of the Honourable E. Muchoki in Mombasa CMCC 1079 of 2018 given on 19/5/2021.

2. The Order relates to an issue of unconditional stay. The Memorandum of Appeal is a prolixious, lengthy and a waste of precious time.

3. Order 42 Rule 1 that requires that the memorandum of Appeal be concise. The same provides as doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

4. The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

5. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

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 [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

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 [1968] EA 123, where the law looks in their usual gusto, held by as follows:-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

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 [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

11. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

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. “In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of ……is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”

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: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

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: -“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

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 [1957] EA 336 is as follows:-“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”

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:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

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.

Pleadings 23. The Appellant filed suit on 23/5/2019 claiming the following: -Particulars of special damagesRepair Cost Kshs. 1,760,184. 00Assessment fees Kshs. 7,940. 00Re- inspection fees Kshs. 2,320. 00Towing charges Kshs. 50,000. 00Investigation fees Kshs. 29,300. 00Total Kshs. 1,849,744. 00

24. This is a claim for subrogation. There was a request for judgment filed on 23/8/2019. The Appellant went ahead and extracted a decree dated 5/9/2019. The Defendant filed an application dated 3/10/2019 to set aside the warrants. The Defendant prayed for the following: -i.That this Application be certified urgent and to be heard ex-parte in the first instance.ii.That this Honourable Court be pleased to grant a stay for execution of the decree that was passed on 5th September, 2019 and all other consequential orders emanating therefrom pendign the inter-parties hearing and determinations of this Application.iii.That this honourable Court be pleased to grant stay for execution of the decree that was entered on 27th September, 2019 and all other consequential orders emanating therefrom pendign the inter-parties herein and determination of this suit.iv.That this Honourable Court bee pleased to set aside the ex-parte judgment entered on 5th September, 2019 in default of appearance against the Defendant/Applicant herein and all other consequential, orders emanating therefrom and the Defendant herein be allowed to defended this suit as a matter of right.v.That the costs of this Application be provided for.

25. A replying affidavit was filed by George Mahuyu. It is along winded 14 paragraph Replying affidavit. A ruling was made on 3/10/2019 dismissing the motion dated 3/10/2019. An application was made on 29//11/2021 staying the matter pending hearing of a dispute between the defendant and Kenyan Alliance Insurance Limited. The Application was found merited and allowed.

Analysis 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 [1997] 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:[The] Plaintiffs must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.In Attorney General of Jamaica v Clerke (Tanya) (nee Tyrell), Cooke, J.A. delivering the judgment of the court stated that special damages must be strictly proved; the court should be very wary to relax this principle; that what amounts to strict proof is to be determined by the court in the particular circumstance of the case and the court may consider the concept of reasonableness.

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.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. KIZITO MAGAREJUDGERuling delivered through Microsoft Teams Online Platform.In the presence of:Mr. Mahugu for the Appellant