[2017] KEHC 1254 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL MISC APPL. NO. 479 OF 2017

FAIRMILE SCHOOL LIMITED

CHARLES MUSALIMWA......................APPLICANTS/DEFENDANTS

-V E R S U S –

JACOB IMBALI IMBENZI..........................RESPONDENT/PLAINTIFF

RULING

1. The 1st and 2nd applicants herein namely Faimile School Ltd and Charles Musalima respectively took out the motion dated 3rd October 2017 in which they sought for the following orders interalia:

1. THAT the learned magistrate erred in fact and ended up misdirecting himself in awarding exorbitant quantum of damages by failing to appreciate and be guided by the prevailing range of comparable awards granted the injuries sustained by the plaintiff/respondent herein.

2. THAT the learned magistrate erred in law and fact by failing to subject the final award to 20% liability which had been agreed upon by the parties.

3. THAT the leaned magistrate’s award on general damages of ksh.1,300,000/= was so high as to entirely erroneous.

4. THAT the learned magistrate erred in law in making such a high award as to show that the magistrate acted on a wrong principle in law.

5. THAT the learned magistrate’s award was made without considering the medical evidence and respondent’s submission before the court and failed to appreciate the nature of injuries sustained by the plaintiff and failed to be guided by authorities on comparable awards and hence ended up making an excessive award in view of the medical evidence presented before he court.

6. THAT the assessment and award of general damages is manifestly excessive and inordinately high so as to amount to a miscarriage of justice.

7. THAT the award of kshs.120,000/= for future medical was made without considering the findings if the second medical report and court failed to give reasons or strike out a balance.

2. The motion is supported by the affidavit of Paul Kibet. When served with the motion, Jacob Imbali Imbenzi, the respondent filed grounds of opposition and a replying affidavit he swore to resist the motion.

3. When the motion came up for interpartes hearing, learned counsels made oral submissions. What emerged from the submissions of learned counsels is that there is a general consensus that prayers 3, 4, and 6 of the motion should be allowed. However learned counsels were unable to agree on the terms for the grant of the aforesaid orders. It is the submission of Mrs. Munyua learned advocates for the applicants, that the applicants are ready and willing to deposit the decretal sum as security for the due performance of the decree. On the other hand, Mr. Kaburu, learned advocate for the respondent urged this court to order the applicants to pay to the respondent half of the decretal sum and the balance be deposited in an interest earning account in the joint names of learned advocates.

4. The applicants aver that their advocate inadvertently failed to note in her diary the date given for delivery of judgment by the trial court and were therefore unaware of the date of delivery of judgement. The applicants submitted that they only came to know of the delivery of judgment after the period to appeal had lapsed when they were served with a proclamation notice. The applicants have urged this court not to penalise them for the mistake of their advocate. The respondent on the other hand opposed the application and averred that no good reasons were advanced to explain why the applicants’ advocate failed to attend court during the date of judgement. The respondent further argued that he is ready to offer a bank guarantee as security for the refund of the decretal sum if the same is paid to him.

5. There is no dispute that the time to file an appeal against the decision of the trial court on quantum lapsed. The applicants’ advocate has stated that she failed to attend court because the date for delivery of judgment was not diarized in her diary. I find the reason advanced to be plausible and sufficient. Consequently, I grant the applicants 10 days leave to file an appeal out of time.

6. The respondent has already taken steps to execute the decree to recover the decretal sum as evidenced by the proclamation notice served upon the applicants by Front Bench auctioneers, therefore, if the order for stay is not granted, the respondent will obviously execute the decree thus rendering the appeal superfluous. The applicants have stated that if the decretal sum is paid to the respondent there is no evidence that the respondent is in a position to repay if the appeal is successful. It is said that the award of ksh.1,300,000/= is exorbitant and high and needs to be impugned on appeal. The respondent merely offered to provide a bank guarantee instead of showing his ability to repay the decretal sum if paid. After considering the rival averments and submissions, I am convinced that a fair order is to allow the order for stay on condition that the decretal sum of kshs.1,722,657/=- is deposited in an interest earning account in the joint names of learned advocates and or firms of advocates within 30 days. The auctioneer charges to be agreed upon or in the alternative to be taxed after which the respondent should settle.

7. In the end the motion dated 3rd October 2017 is allowed as follows:

i. The applicants are granted leave of 10 days to file an appeal out of time from the date of this ruling.

ii. The applicants are granted an order for stay on condition that the applicants deposit the decretal sum of kshs.1,722,657/= in an interest earning account in the joint names of learned advocates and or firms of advocates appearing in this matter within 30 days. In default of (i) above the motion will be treated as having been dismissed.

iii. The auctioneers charges to be agreed upon or in the alternative the same be taxed and paid by the applicants.

iv. Costs of the motion to abide the outcome of the intended appeal.

Dated, Signed and Delivered in open court this 6th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Plaintiff

..................................................... for the Defendant