[2003] KEHC 618 (KLR)
The court held that it had overlooked its earlier order extending the time for filing the plaint, which had not been challenged by the defendant. As there was no objection or argument from the defendant regarding the extension of time or the lawfulness of the shooting, the court found that the defendant was...
Source-derived case information.
- Citation
- [2003] KEHC 618 (KLR)
- Parties
- Plaintiff: Ben Kamara; Defendant: The Hon. The Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 621 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Review of Judgment
- Outcome
- Plaintiff's application for review allowed; judgment reviewed; defendant found liable; damages awarded to plaintiff.
- Judges
- PJ Ransley
- Legal Topics
- Negligence, Personal Injury, Extension of Time, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ben Kamara
Plaintiff
The Hon. The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the court should review its earlier judgment in light of a prior order extending time for filing the plaint.
- 2 Whether the defendant was liable for the shooting of the plaintiff in the absence of an explanation for the lawfulness of the shooting.
- 3 Whether the plaintiff is entitled to damages for injuries sustained as a result of the shooting.
Ratio Decidendi
The court held that it had overlooked its earlier order extending the time for filing the plaint, which had not been challenged by the defendant. As there was no objection or argument from the defendant regarding the extension of time or the lawfulness of the shooting, the court found that the defendant was negligent and liable for the shooting of the plaintiff. The court awarded exemplary, general, and special damages to the plaintiff, as well as costs and interest, based on the evidence of injuries and losses suffered.
Court Disposition
Plaintiff's application for review allowed; judgment reviewed; defendant found liable; damages awarded to plaintiff.
Orders
- Judgment reviewed to take into account the order extending time for filing the plaint.
- Defendant found liable for the shooting of the plaintiff.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 621 OF 2001
BEN KAMARA …………………………………………..PLAINTIFF
VERSUS
THE HON. THE ATTORNEY GENERAL ………………..DEFENDANT
R U L I N G
T he Plaintiff applies for me to review my judgment of the 27/11/2002 on the ground that I failed to take into account that by my Order of the 19/6/2002 I allowed the application of the Plaintiff of the 25/3/2002 extending the time for filing of the plaint out of time, but subject to further argument at the hearing. When the matter came for hearing counsel for the AG did not appear and as such no objection was taken to my order extending time.
In the case of Mary Wambui Kabugu V Kenya Bus Service Ltd. C.A. No. 195 of 1995. Mr. Justice of Appeal Shah at page 7 of his judgment when dealing with the criteria to be addressed when a trial Judge has to decide whether leave to file a suit out of time was properly granted or not, said
His jobs would primarily be to decide if the leave was factually and legally properly obtai ned. There may be cases where medical evidence may be misleading enough to enable one judge to grant such leave but when correct medical data may be brought forward by the defendant, the picture may drastically change. There may be clear cases where the applicant may swear to facts which are not true, which can only be challenged at the trial. There may even be cases where a judge, because of the work -load in the superior court, may not have time to apply his mind to the strict requirements of the Act wh ich of course limits the granting of such leave in respect of personal injury, Fatal Accidents Act, and the Law Reform Act claims only. Often the interpretation of Section 27, 28 and 29 of the Act, as explained in Section 30 of the Act may not have been b rought to the attention of the judge.
What is the position here where the question of extension of time was not raised by the AG. In my view if the AG wished to challenge the correctness of my order of the 19/5/2002 the AG should have attended to argue the matter. In the absence of any challenge to my order, my order stands and I do not consider that I can suo moto enquire into the correctness of my order.
It appears therefore that I wrongly overlooked the order of the 19/5/2002 and I therefore review my judgment.
I hold that in the absence of any explanation by the defendant as to the lawfulness of the shooting of the plaintiff the defendant was negligent by shooting the plaintiff and find the defendant liable for such shooting.
The plaintiff suffered from multiple punctures Of the stomach Mr. Munene thoracic surgeon gave evidence of an emergency operation he undertook on the plaintiff. After a year from the operation the plaintiff was not yet well.
There is no doubt the shooting caused the plaintiff severe injuries. I award by way of exemplary damages Kshs.50,000/= and by way of general damages Shs.150,000/=.
The plaintiff proved special damages of Shs.543,931/= and I also allow this sum.
The plaintiff will have the costs of the suit and interest on the specials at court rates from the date of the filing of the suit and on the general damages from the date of this judgment.
Delivered on this 16th day of January, 2003 at Nairobi.
P.J. RANSLEY
JUDGE