[2023] KEHC 25339 (KLR)

Maisha (Suing as administrator and personal representative of the Estate of Said Masha Nyamani) v Directline Assurance Co Limited (Civil Appeal 15 of 2022) [2023] KEHC 25339 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25339 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 15 of 2022

DKN Magare, J

November 7, 2023

Between

Rhofus Furaha Maisha

Appellant

Suing as administrator and personal representative of the Estate of Said Masha Nyamani

and

Directline Assurance Co Limited

Respondent

Judgment

1. This Appeal arises from the Judgement and Decree of Trial Court delivered on 22nd February 2020 in Mariakani SPMCC No. 70 of 2020.

2. The Trial Court entered Judgement for the Appellant for Kshs. 171,572/-.

3. The Appellant being aggrieved by the Award filed this Appeal and preferred 5 grounds in the Memorandum of Appeal amended on 14th March 2022 as follows:i.The Trial Court erred in law and fact in finding that the Plaintiff’s claim was not fully successful.ii.The Trial Court erred in law and fact in failing to award costs of the suit to the Plaintiff.iii.The Trial Court erred in law and fact in failing to award interest to the Plaintiff.

4. I have perused the 5 paragraph Memorandum of Appeal. It is prolixious, repetitive, and unseemly. The proper way of filing an Appeal is to file a concise Memorandum of Appeal without arguments, cavil or evidence. The rest of the King’s language should be left to submissions and academia. Order 42 Rule, 1 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.

5. The Court of Appeal had this to say in regard to Rule 86 (which is pari materia 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 The Appellant 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 The Appellant 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 The Appellant 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…”

6. 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 The Appellant. In this regard, precise, concise and brief is wiser and better.”

7. The Memorandum of Appeal only raises 2 issues, that is:a.Whether the Trial Court erred in law and fact in reducing the award to the Appellant by the amount settled by the Respondent of Kshs. 2,824,490. b.Whether the Trial Court erred in law and fact in failing to award costs and interest of the suit to the Appellant.

The Appellant’s Submissions 8. The Appellant filed submissions dated 17th August 2023 in support of the Appeal.

9. The Appellant submitted that the Respondent failed to pay Ksh. 3,062,933 after 9 years after entry of judgment hence the declaratory suit and so the Appellant was entitled to the award of costs and interest for moving the court to have the Respondent pay the decretal sum.

10. The Appellant relied on Section 27 of the Civil Procedure Act that interest is at the discretion of Court and should be follow the event.

11. The Appellant relied on Election Petition No. 6 of 2013 Party of Independent Candidate of Kenya & another v Mutula Kilonzo & 2 others [2013] eKLR, to support the submission that the costs are awarded to a successful party. In that case, Justice, L.N. Mutende, stated as doth: -“37. The main reason why this Petition should be withdrawn is due to the demise of the 1st Respondent. This would call upon the Court considering ordering each party to bear their own costs. In the case of Nedbank Swaziland Ltd verses SandileDlamini No. (144/2010) [2013] SZHC30 (2013) Maphalala J. referred to the holding of Murray C J in the case of Levben Products VS Alexander Films (SA) (PTY)Ltd 1957 (4) SA 225 (SR) at 227, who stated as follows:“It is clear from authorities that the fundamental principle underlying the award of costs is two-fold. In the first place the award of costs is matter in which the trial Judge is given discretion (FrippvsGibbon & Co., 1913 AD D 354). But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could have come to the conclusion arrived at…. In the second place the general rule that costs should be awarded to the successful party, a rule which should not be departed from without the exercise of good grounds for doing so.”

12. Directions were issued for the filing of written submissions, in the presence of both parties. I have not had sight of the Respondent’s submissions.

Analysis 13. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy.

14. Except however, that it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

15. In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

16. 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.

17. 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.”

18. 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.”

19. 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.

20. 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…”

21. The issue in this case is whether the court should set aside the Judgement and Decree of the Trial Court.

Whether the Trial Court erred in law and fact in reducing the Appellant’s claimed Ksh. 3,000,000/ by an amount of Kshs. 2,828,428 22. The burden of prove in civil cases is set out under the Evidence Act and has been propounded by Courts in numerous cases. The burden is on whosoever alleges. The Appellant in this case had the burden of proof to demonstrate the amount claimed in the declaratory suit based on the primary decree of Ksh. 3,000,000/= wholly due and owing and had not been settled by the Respondent

23. It is contended that the Respondent did not prove their case on a balance of probabilities as required under Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya which provides that:Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

24. The legal burden of prove under Section 107 of the Evidence Act lies upon a party who asserts the affirmative of the issue. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”

25. The initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. For instance, in Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail fi no evidence at all were given as either side.”

26. This is called the legal burden of proof. There is however evidential burden of proof which is captured in sections 109 and 112 of the same Act as follows:“109. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.112. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

27. However, flowing from this Record of Appeal filed to this court, the Appellant did not dispute that the Respondent had settled the decretal sum and the award of Kshs. 3,000,000 in decretal sum was not fully available to the Appellant.

28. Like observed elsewhere herein, the Appellant made no submission on this point and only submitted on costs and interest.

29. The burden of prove was thus not discharged and the Appellant cannot fault the learned trial magistrate. The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

30. Therefore, I find no error on the part of the trial court for reducing the award of Kshs. 3,000,000/- by the amount the Respondent has settled. The Appeal on this ground fails.

31. The fact that insurance companies’ liability is limited has been recognized in various decisions of the court. A case in point is George Wangari Mwangi v David Mwangi Muteti (2014) eKLR where the judge stated:“21. The Appellant for the defendant raised issue with the Insurance (Motor vehicle Third Party Risks) (Amendment) Act 2013 saying it limited the courts from awarding the plaintiff over Shs. 3 million. My understating of these provisions is that the limitation is on the amount the insurance pays in respect of 'Third Party Risks”. The party who has been sued here is not the Insurance Company but the defendant. Whatever the award will be the Insurance company would only pay upto Shs. 3 million. The curb is therefore not on the courts but on the payment by the Insurance company.”

32. In the case of the Law Society of Kenya v Attorney General & 3 Others (2016) eKLR. The High Court in that case found that that Section was not unconstitutional and in making that finding the court stated as doth:-“72. I am of the considered view that, where a dispute has been lodged in court, and the facts of the case have been presented before the court, nothing stops the court from coming up with an adequate remedy. In any event, the courts are in the business of dispute resolution. Where the court, awards damages to a party, it is with regards to the facts of a case and what the justice of the case demands. Therefore, I am of the view that, the judgments being rendered by the court are not in any way being legislated by Section 5(b)(iv) of the Principal Act.73. What the Principal Act has done is cap the amount of money that the insurer pays to the injured person. Nothing in the Principal Act stops a litigant or the injured person from pursuing a claim against the insured individual where an award in excess of the amount recoverable from the insurer is made.

33. Notably therefore, the provision as to the mandatory insurance cover of the amount of Kshs. 3,000,000/= does not in any way prohibit any insured who may be minded to source and seek a higher cover from agreeing with the insurer on such cover, subject of course to a higher premium and other agreement on the terms of the policy. There was no such agreement between the parties herein.

34. Similarly, it remains available to the Appellant to seek damages, if any that are over and above the maximum limit of Kshs. 3,000,000/ from the owner of the insured motor vehicle.

35. I say so because Section 5 (b) and the proviso of Section 10 of Cap 405 is the position in law. Insurance Companies are entitled to limit their liability as set out there. The equitable maxim “equity follows the law” will apply. In the case N-Krypt International Corp. v. LeVasseur, 2018 BCCA 20 (CanLII) the court stated:“The relationship between equity and the common law is sometimes described by the maxim “equity follows the law”: J. McGhee, ed., Snell’s Equity, 31st ed. (Toronto: Carswell, 2005). The author of Snell’s Equity elaborates on the meaning of the maxim at 95:Where a rule, either of the common or the statute law, is direct, and governs the case with all its circumstances, or the particular point, a court of equity is as much bound by it as a court of law, and can as little justify a departure from it

36. I therefore find that the Respondent is not obligated to pay more than Kshs. 3 million toward the judgment in Mariakani SPMCC No. 5 of 2019. However, the 3,000,000/= relates to the primary liability to settle the claim. The lower court had awarded a sum of Ksh. 2,805,778 made up as hereunder: -i.General damages Kshs. 2,637,985/-ii.Special damages Ksh. 68,550/-iii.Costs Ksh. 257,155/-

37. The Amount included This amount was below the statutory amount of Ksh. 3,000,000/=. This means the Respondent was bound to settle the entire decree, together with costs and interest. The statute did not envisage brief case insurance companies that cannot settle the judgment immediately. The Respondent cannot dilly dally in settling the claim in a way that it attracts interest and then leaves the insured with a huge bill. Interest is not liability under the act but the cost of delaying to pay. They must bear the same. It cannot be that due to either Slovenes, laziness or lack of funds, the amount payable increases while the liability to pay remains stuck at Ksh.3,000,000/=. While the amount payable is capped at Ksh.3,000,000/=, interest thereon is still applicable till payment in full.

38. I cannot imagine a scenario, where two identical judgment, for Ksh. 2,500,000 are ordered. A Sound insurance company pays its share pronto with the insured paying nothing. Some basket case of an insurance waits for 5 years before paying. By that time the amount will be Ksh. 4,250,000. Then the insurance decides to pay only Ksh. 3,000,000/= and leaves Ksh. 1,250,000/= to the insured to pay. It will be unfair and unconscionable both to the insured and the insurance companies that paid diligently.

39. The law was not meant to cushion broke insurance companies but limit claims that can legitimately be paid. Interest is a cost upon the liability and cannot be limited. By section 5 of cap 405. Section 26 of the civil procedure Act cannot be amended by implication. The said section provides as doth: -“26. Interests(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum”

40. Liability to pay is settled on the date of judgment. Each of the parties proceed with their liability. If the court enters judgment for 3,200,000/=. The insured will pay the insured sum of Ksh 200,000/= and clear their indebted. If the insurance fails to pay the sum of 3,000,000/=, it will continue attracting interest pursuant to section 26 of the civil procedure act till payment in full. It cannot be that if the insurance fails to pay, the insured will foot the bill of such failure.

41. The court thus erred by capping the interest and only ordering for Ksh. 171,572/=. Since the decree was less than 3,000,000/=, the Respondent was bound to settle the entire amount together with interest that has accrued to date less any payment made, in this case less Kshs. 2,828,428.

42. Costs are the cost of litigation. Parties who are forced to spend money to force people do what which is their duty to carry out, then the most appropriate order is an order for costs. This is not part of the Ksh. 3,000,000/=. It is the costs of the unnecessary suit. I have always wondered why only certain insurance companies are sued while other pay without prompting. There is no prohibition under section 5 of payment of costs. Costs will always follow the event.

43. In the circumstances I hold and find that the insurance companies are bound to settle the entire amounts below Ksh. 3,000,000/= together with costs and interest arising from the primary suit. It is important to reckon that costs do not count when reaching or calculating Ksh. 3,000,000/= principle sum payable. This is because costs are not a liability arising out of the accident. Costs are provided for under section 27 of the civil procedure act and not section 5 of cap 405. The costs of a declaratory suit are equally costs of bad manners, failure to pay when it is due.

44. In the circumstances, I set aside the entire judgment of the court below and order that the respondent is bound to settle the entire judgment sum in the primary suit together with accrued interest and costs of the primary suit and interest thereon, less any payment made.

45. I further declare that interest and costs do not form part of the cap on the amounts payable but are the costs of litigation and delay in payment of the decretal sum respectively.

46. The Appellant is entitled to costs of this Appeal and the costs in the court below together with costs of the primary suit.

Determination 47. In the circumstances, I make the following Orders.a.The Appeal herein is allowed.b.I set aside the entire judgment of the Court below and order that the respondent is bound to settle the entire judgment sum in the primary suit together with all accrued interest and costs of the primary suit and interest thereon, less any payments made.c.I further declare that interest and costs do not form part of the cap on the amounts payable but are the costs of litigation and delay in payment of the decretal sum respectively.d.The Appellant is entitled to costs of this Appeal and the costs in the court below together with costs of the primary suit.e.The Appellant is awarded costs of this appeal of Ksh 135,000/=.f.The interest applicable on the primary judgment sum shall be as follows: -a.Interest on special damages from the date of filing of suit in the primary case.b.Interest on general damages from the date of judgment in the primary suit.c.Any prior payment is deemed to be payment of interest first as at the date of paymentg.The payments so declared and costs shall be made within 30 days from today.h.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 7TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Nduta for the RespondentNo appearance for AppellantCourt clerk – Brian