[2005] KEHC 760 (KLR)
The court found that the appellant failed to demonstrate any misdirection or manifest error by the trial magistrate in the assessment of damages. The claim of epilepsy was not new and did not mislead the court. Furthermore, the appeal was found to be incompetent due to the appellant's failure to comply with Order...
Source-derived case information.
- Citation
- [2005] KEHC 760 (KLR)
- Parties
- Appellant: Roselyne Achieng Atengi; Respondent: Marko Odhiambo; Respondent: Raphael Omollo
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 198 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out as incompetent with costs
- Judges
- BK Tanui
- Legal Topics
- Quantum of Damages, Road Traffic Accidents, Judicial Discretion, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roselyne Achieng Atengi
Appellant
Marko Odhiambo
Respondent
Raphael Omollo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate misdirected herself in awarding Kshs 100,000 as general damages for injuries suffered by the appellant.
- 2 Whether the appeal is incompetent for failure to comply with Order XLI rule 1A of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellant failed to demonstrate any misdirection or manifest error by the trial magistrate in the assessment of damages. The claim of epilepsy was not new and did not mislead the court. Furthermore, the appeal was found to be incompetent due to the appellant's failure to comply with Order XLI rule 1A of the Civil Procedure Rules, as there was no certified copy of the decree appealed from in the record. Consequently, the appeal was struck out with costs.
Court Disposition
appeal struck out as incompetent with costs
Orders
- The appeal is struck out for incompetence due to non-compliance with Order XLI rule 1A of the Civil Procedure Rules.
- The appellant shall bear the costs of the appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
Civil Appeal 198 of 2003
ROSELYNE ACHIENG ATENGI.................................................................. APPELLANT
-VERSUS-
MARKO ODHIAMBO....................................................................... 1ST RESPONDENT
RAPHAEL OMOLLO....................................................................... 2ND RESPONDENT
(Appeal from the original conviction and sentence of Chief Magistrate’s Court Kisumu delivered on 14th November 2003
IN
CMCC NO. 218 OF 1997
JUDGMENT
This is an appeal by the successful plaintiff against the quantum of damages awarded her for injuries she suffered at a road accident by the Chief Magistrate's Court Kisumu in CMCC No. 218 of 1997 in a judgment delivered on 14th November 2003.
As this appeal is only against the quantum of damages awarded by the trial Court, I intend to limit my examination of the case to the injuries allegedly sustained by the appellant as a result of a road accident and the comparable injuries suffered by the plaintiffs in the authorities cited by the parties. It is settled principle of law that in assessing damages for injuries suffered at a road accident, the learned Magistrate is exercising an unfettered judicial discretion. In examining the said injuries in this appeal I have to bear in mind the circumstances in which an appellate Court may upset the exercise of such unfettered
discretion of the trial Court. In the case ofMbogo & Ano versus- Shah [1968] EA 93 EA,Sir Charles Newbold stated those circumstances as follows:-
".... ...... a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result, there has been misjutice ".
In his submission, Mr. Onyiso for the appellant contended that the learned Magistrate had erred in awarding the appellant Kshs 100,000/= as general damages for theinjuries she had suffered. He added that as confirmed by the report of Dr. Mubisi Swaro, the appellant had suffered severe injuries which included 2 broken upper teeth, and epilepsy fits. He admitted that there were no fractures disclosed by the report. Relying on theNairobiHCCC No. 71 of 1991 Abdallah Owino through Sainabu AchienA-vs-Patrick OluochNanda & Ano. Mr Chebiy for the respondent contended that the learned Magistrate had been too generous to the appellant especially as she had not suffered any fractures.He added that there was no proof of the alleged epilepsy fits. It was a further contention of Mr Chebiy that this appeal is incompetent in that Order XLI rule IA of Civil Procedure Rules was not complied with in that there is no certified copy of the decree appealed from in the record.
As indicated above this appeal is only against the award of Kshs 100,000/= as general damages in favour of the appellant for the injuries she had suffered. It was incumbent upon the appellant to show any misdirection of the Magistrate in some matter which cause her to arrive at a wrong decision or whether it is manifest from the case as a whole that the Magistrate was clearly wrong in the exercise of her discretion. The claim that the appellant had become epileptic is not new and it cannot be said it caused misdirection of the Court. On this issue this appeal should fail.
It was also contended by Mr. Chebiy that the appeal is incompetent for a failure to comply with order XLI rule IA of Civil Procedure Rules. I have perused the record and I agree with him that there is no such document on record. This appeal is therefore incompetent and accordingly, it is struck out with costs.
Dated and delivered this 10th Day of November 2005.
B. K. TANUI
JUDGE
In the presence of; Ouma for Macharia for applicant
Siganga for Kiarie for respondent
B. K. TANUI
JUDGE
BK/hao