[2011] KEHC 4339 (KLR)
The court found that the compromise of the decretal sum was justified due to the defendant's inability to satisfy the full judgment as a result of going out of business. The discounted amount was reasonable and not substantially less than the original award. The proposed apportionment was deemed fair, as it provided...
Source-derived case information.
- Citation
- [2011] KEHC 4339 (KLR)
- Parties
- Plaintiff: M.M.W.N (Minor suing through Next Friend M.W.N); Defendant: Hill Top Primary & High School
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 221 of 2007
- Procedural Posture
- Civil Suit / Ruling on Application for Approval of Compromised Decretal Sum and Apportionment
- Outcome
- Application allowed; orders granted as prayed.
- Judges
- DW Mbuteti
- Legal Topics
- Personal Injury, Compromise of Decree, Minor Suing Through Next Friend, Apportionment of Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M.M.W.N (Minor suing through Next Friend M.W.N)
Plaintiff
Hill Top Primary & High School
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Approval of Compromised Decretal Sum and Apportionment
Legal Issues
- 1 Whether the court should approve the compromised or discounted decretal sum agreed upon by the parties.
- 2 Whether the proposed apportionment of the decretal sum for the benefit of the minor plaintiff is fair and just.
Ratio Decidendi
The court found that the compromise of the decretal sum was justified due to the defendant's inability to satisfy the full judgment as a result of going out of business. The discounted amount was reasonable and not substantially less than the original award. The proposed apportionment was deemed fair, as it provided for the minor's future by investing a portion in a fixed deposit account to be accessed upon attaining majority, while the remainder would be available for legal fees, medical care, and maintenance. The court emphasized its duty to protect the interests of minors in litigation and approved both the compromise and the apportionment as prayed.
Court Disposition
Application allowed; orders granted as prayed.
Orders
- The compromised or discounted decretal sum is approved by the court.
- The total compromised sum of KShs 1,639,639/00 is apportioned as follows: KShs 500,000/00 to be invested in a fixed deposit account in the minor's name until majority; KShs 1,139,639/00 to be released to the next friend for legal fees, future medical care, and maintenance.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL SUIT NO. 221 OF 2007
M.M.W.N(Minor suing through Next FriendM.W.N) ………PLAINTIFF
VERSUS
HILL TOP PRIMARY & HIGH SCHOOL.……...................................DEFENDANT
R U L I N G
On 4th September 2009 judgment was entered for the Plaintiff against the Defendant on account of injuries received in a road traffic accident. She was awarded special damages of KShs 35,906/00, general damages in the sum of KShs 1,600,000/00 and a further sum of KShs 600,000/00 for future medical treatment. The Plaintiff was also awarded costs and interest.
Execution of decree was difficult on account of the Defendant going out of business. So, the decree was negotiated and discounted. A consent order to that effect dated 25th October 2011 duly signed by both parties was filed on 26th October 2011. Under that consent, the decretal sum was discounted to KShs 1,500,000/00. The Defendant was also to pay to the Plaintiff certified costs of KShs 139,639/00. It was also agreed that the decretal sums be paid within 30 days from the date of execution of the consent order, and in default of payment the Plaintiff to be at liberty to execute for the entire outstanding sum.
As the Plaintiff is a minor who sued and obtained judgment through a next friend, approval by the court of the discounted decretal sum was required. The court would also make appropriate orders for apportionment and investment for the benefit of the minor Plaintiff. Hence, the application by notice of motion dated 7th November 2011 which is the subject of this ruling. The application seeks two specific orders: -
1. That the courts do approve the compromised or discounted decretal sum.
2. That the court do approve for apportionment of the total compromised or discounted decretal sum of KShs 1,639,639/00 as follows:
(i)KShs 500,000/00 to be invested in an interest-earning fixed deposit account with Chase Bank Ltd in the name of the minor Plaintiff, and the same to be released to her upon attaining the age of majority.
(ii)The balance of KShs 1,139,639/00 to be released to the next friend, M.W.N, for payment of legal fees, and also the minor Plaintiff’s future medical care and her maintenance and upkeep.
The application is supported by the annexed affidavit of the next friend. I have read the same.
The main reason for the compromise is that execution for the entire decretal sum was not possible on account of the Defendant having gone out of business. The compromise discounted the decretal sum by a certain amount, but not a very large one. The Defendant is willing and ready to pay the discounted amount.
There is nothing inherently wrong with negotiating and compromising a decree, particularly where this may result in quick satisfaction of the same.
The proposed apportionment of the discounted decretal sum is fair and just, and will ensure that the Plaintiff finds a tidy sum that will no doubt be useful to set her off on her adult life when she attains majority.The apportionment also ensures that the next friend pays legal fees and the Plaintiff’s future medical care, and also her upkeep.
In the circumstances, I will allow the application as prayed and grant the orders sought. There will be no order as to costs. Those will be the orders of the court.
DATED AT NAIROBI THIS 22ND DAY OF NOVEMBER 2011.
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 25TH DAY OF NOVEMBER 2011