[2022] KEHC 1145 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 158 OF 2015

MZEHANDO DANSON…………………….APPELLANT/RESPONDENT

VERSUS

AHMED ABEID SAID……………………….RESPONDENT/APPLICANT

RULING

[1]The Notice of Motion dated10th March, 2020was filed by respondent/applicant pursuantto Sections 1A, 1B, 3A and 63 (e)of theCivil Procedure ActandOrder 51of theCivil Procedure Rules, 2010and all enabling provisions of the law, for the following orders:-

[a]THAT the Court be pleased to order that the sum ofKshs. 1, 143, 391. 16together with interest thereon be released toObara & Obara Advocates.

[b]THAT costs of this application be provided for.

[2]The application was premised on the following grounds:-

[a]That the sum ofKshs. 1,063,229/=was deposited in a joint fixed deposit account in the name of the Advocates herein as a condition for stay of execution pending the outcome of the appeal herein;

[b]That the appeal was heard and determined on3rd April, 2019;

[c]That Notice of the Judgment was served upon the firm ofKairu & McCourt Advocates;which firm has since neglected and refused to act accordingly.

[d]That it is therefore in the interest of justice that the orders sought by the applicant herein be granted and the said sum ofKshs. 1, 143,391. 16be released to the applicant.

[3] The application was premised on the Supporting Affidavit sworn on 10th March 2020 by Mr. J. O. Obara, Advocate; who has the personal conduct of this matter on behalf of the applicant. Mr. Obara averred that, as a condition for stay, the sum of Kshs. 1,063,229/= was deposited in a joint fixed deposit account in the names of the Advocates on record herein, pending the hearing and determination of the appeal. The appeal was thereafter heard and determined on 3rd April 2019 and a copy thereof served on counsel for the respondent, M/s Kairu & McCourt Advocates. Mr. Obara further averred that, to date, the judgment sum remains unpaid and his request for release of the funds has elicited no response. He therefore prayed that the sum of Kshs. 1,143,391. 16 be released forthwith to the applicant.

[4] The respondent/appellant opposed the application and had a Replying Affidavit sworn on 15th November, 2021 by Victor Ng’ang’a, Advocate; duly instructed by M/s Kimondo Gachoka & Company Advocates. While confirming that indeed judgment was delivered on 3rd April, 2019, Mr. Ng’ang’a pointed out that the respondent was partially successful, in that the general damages awarded to the applicant were reduced. He was also awarded costs of the appeal. Thus, it was the averment of the respondent that the amount asked for by counsel for the applicant is disputed; and therefore that the orders sought are premature. According to the respondent, the only amount due and payable to the applicant is Kshs. 123,449/=, as tabulated per annexure “VT 1”. Moreover, the respondent proposed that his costs on appeal be offset against the applicant’s costs in the lower court suit.

[5] I have given careful consideration to the application and the averments set out in the affidavits filed herein by the parties. I have likewise perused and considered the written submissions filed herein by learned counsel. The brief history of the matter is that the applicant sued the respondent before the subordinate court in PMCC No. 2633 of 2012 for compensation following a road traffic accident in which the applicant was injured. The suit was heard and judgment entered on 12th August, 2015 in favor of the applicant for general and special damages in the sum of Kshs. 1, 548, 891. 00together with interest. The applicant was also awarded costs of the suit.

[6] Being dissatisfied with the decision of the subordinate court, the respondent filed this appeal complaining that the award was excessive. The court record confirms that the appeal was heard and a determination made on 3rd April, 2021; whereby the Court (Hon. Chepkwony, J.) reduced the lower court’s award of general damages by half from Kshs. 1,000,000/= to Kshs. 550,000/=, with 10% contribution. Thus, the final award was a total amount of Kshs. 1,198,391. 16 made up as hereunder:

[a] General damages - Kshs. 550,000/=

[b] Special damages component was left undisturbed at Kshs. 648,391. 16

[c] Costs of the appeal were awarded to the respondent.

[7] The respondent’s computation, as set out in his Advocate’s letter dated 20th April, 2020,is largely in tandem with the Judgment dated 3rd April 2019. According to him, what is due and owing to the applicant is as hereunder: -

General damages - Kshs. 550,000. 00

Special damages - Kshs. 648, 391. 16

Total - Kshs. 1, 198,391. 16

Less 10% contribution - Kshs. 55,000. 00

Total - Kshs. 1, 143,391. 16

Less sum already paid - Kshs. 1,063,229. 00

Add interest and

unpaid general damages -Kshs. 43, 287. 00

Total - Kshs. 123,449. 00

[8] Thus, according to the respondent, the amount presently due to the applicant is no more than Kshs. 123,449. 00/=. It is clear then that, while the respondent considers the security deposit as payment towards the decretal sum, the applicant treated it as funds under the control of counsel for the parties, which are yet to be formally handed over to the applicant. No wonder then that, from the respondent’s standpoint, the instant application is unnecessary. There is also the issue of costs of the appeal which are yet to be agreed or taxed.

[9] Granted the foregoing, I am in agreement with the respondent that the instant application is premature. It is accordingly hereby struck out with an order that each party shall bear own costs of the application.

It is so ordered.

DATED SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 2ND DAY OF MARCH 2022.

OLGA SEWE

JUDGE