[2012] KEHC 1329 (KLR)
The court found that the Lower Court's award of general damages was not inordinately high given the nature of the respondent's injuries and the medical evidence presented. The court emphasized that the presence of a pre-existing condition (allergic dermatitis) did not absolve the appellant of liability for the full...
Source-derived case information.
- Citation
- [2012] KEHC 1329 (KLR)
- Parties
- Appellant: Malindi Management Strategy T/A Malindi Casino; Respondent: Stefano Shciappacase
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 20 of 2006
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- CW Meoli
- Legal Topics
- Personal Injury, Assessment of Damages, Liability Apportionment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malindi Management Strategy T/A Malindi Casino
Appellant
Stefano Shciappacase
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the award of general damages by the Lower Court was inordinately high and warranted appellate interference.
- 2 Whether the appellant is liable to pay interest on the decretal sum given the respondent's advocate's failure to deposit the cheque as ordered.
Ratio Decidendi
The court found that the Lower Court's award of general damages was not inordinately high given the nature of the respondent's injuries and the medical evidence presented. The court emphasized that the presence of a pre-existing condition (allergic dermatitis) did not absolve the appellant of liability for the full extent of the harm caused. The appellate court reiterated that it would only interfere with a damages award if there was a clear misapplication of legal principles or if the award was manifestly excessive or inadequate, neither of which was established in this case. On the issue of interest, the court held that the appellant was not liable for interest from the date of delivery...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- No interest is payable by the appellant on the decretal sum from the date of delivery of the cheque payment to date.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Malindi
Civil Appeal 20 of 2006 [if gte mso 9]><xml>
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MALINDI MANAGEMENT STRATEGY T/A MALINDI CASINO …........PLAINTIFF
VERSUS
STEFANO SHCIAPPACASE..................................................................DEFENDANT
JUDGMENT
1. This appeal arose from an award of general damages in the Lower Court in respect of injuries sustained by the Respondent on 16th January, 2005 while on the appellant's property. Liability was agreed upon at 70:30 in favor of the Respondent. The Lower Court awarded a sum of shs. 200,000/- as general damages for the respondent's injuries consisting of:
two vertical lacerations of the left shin “3 x ½” and 2” x ½”
The lacerations healed without incident although the process was retarded by the respondents pre-existing allergic dermatitis.
2. The appellant complains the award is excessive. For this part the respondent asserts that it was fair. The respondents have cited the case of Kukenya Y. A. Ranching & Farming Co-operative Society Ltd vs Karoloto 1920)EA 414in support of the proposition that the appellate court will only interfere with such that an award where
“the judge or magistrate in assessing the damages applied a wrong principle of the law (as by taking into account irrelevant factors or leaving out of account some relevant one) or ...the amount awarded was so inordinately low on ...high that it must be a wholly erroneous estimate of damages...”
3. Reviewing the medical evidence tendered in the Lower Court, the submissions made, as well as authorities relied on, I am not persuaded that the award in this case was inordinately high. True the respondents chronic dermatitis may have slowed the healing process but a tort reason must take his victim as he finds him. There is no proper basis demonstrated upon which this court can interfere with the award of the Lower Court and the appeal must therefore fail. It is dismissed with costs.
4. On the question of interest, it is admitted that the appellants duly sent out a cheque for the entire decretal sum to the respondent's advocates, which however was not deposited in interest earning account as ordered by the Lower Court. The respondent's advocate it seems is now deceased. Surely, the appellant is not to blame for the default on the part of the respondent's advocate.
No interest is therefore payable by the appellant on the decretal sum from the date of delivery of the cheque payment to date. However the decretal sum will continue to earn interest from the date of this judgment until the date of full payment.
Delivered and signed this24th day of October, 2012 in the presence of Ms Njebiu for the Respondent.
Appellant absent.
Court clerks – Leah and Evans.
C. W. Meoli
JUDGE