[2023] KEHC 25407 (KLR)

Solanki v Pandya (Civil Appeal E082 of 2021) [2023] KEHC 25407 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25407 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E082 of 2021

RE Aburili, J

November 17, 2023

Between

Narendra Chaganlal Solanki

Appellant

and

Dhaneswar Monji Pandya

Respondent

(An appeal arising out of the ruling of the Honourable W.K. Okunya in the Chief Magistrate’s Court at Kisumu delivered on the 16th June 2021 in Kisumu CMCC No. 44 of 2011)

Judgment

Introduction 1. The appellant herein sued the respondent vide a plaint dated 17. 2.2011 and filed on the 15. 3.2011 seeking general, exemplary and aggregated damages for false imprisonment and malicious imprisonment.

2. In its judgement delivered on the 23. 10. 2019, the trial court found that the appellant had failed to prove his case on a balance of probabilities and dismissed the suit with costs to the respondent.

3. Vide a Notice of Motion dated 29. 10. 2019, the respondent sought review of the trial court’s judgement on the ground that the trial court failed to assess the quantum of damages it could have awarded had it found in favour of the appellant.

4. The trial court in its ruling dated 16. 6.2021 found that had it found in favour of the appellant, it would have awarded him Kshs. 1,500,000 as damages for malicious prosecution.

5. Aggrieved by the said decision, the appellant preferred this appeal vide a memorandum of appeal dated 28th June 2021 in which it raised the following grounds for appeal:a.The learned magistrate erred in law in making the award without stipulating what if any evidence and case law supports the awarding of general, exemplary and aggravated damages.b.The learned magistrate erred in law by making an award whimsically and capriciously with no regard to the evidence or lack thereof and with no regard to decisions on quantum of damages.c.The pronouncement of the award is intended soley to impact on the costs the defendant seeks wherefore it is being used to oppress the plaintiff by imposing upon him at exorbitant burden of exaggerated costs, which is contrary to the interests of justice and public policy.

6. The parties filed submissions to canvass the appeal.

The Appellants’ Submissions 7. The appellant’s Counsel submitted that although the making of an award of damages was in the discretion of a judicial officer as was held in the case of Mursal & Another v Manese [2022] KEHC 282 KLR, that the exercise of the discretion ought to be judicious and not whimsical or capricious so that the award can be made on the basis of evidence. Reliance was placed on the case of George Kimotho Ilewe v Joseph Mathuku Ngewa & Another [2022] eKLR.

8. It was submitted that it was therefore incumbent upon the learned trial magistrate when determining the respondent’s application for review of her judgement to include a pronouncement of the quantum of damages she would have awarded had she found for the appellant but base her decision in the exercise of her discretion on settled principles for the assessment of damages, in the absence of which her decision is impeachable as having been whimsical.

9. The appellant’s counsel submitted that the application of the principles for awarding damages should have been self-evident in the ruling of the learned trial magistrate on the review application and yet nothing in her ruling indicates that she applied her mind to these fixed principles in arriving at her assessment of the quantum of the award made which left open her decision to being impeached as the pronouncement of an award of KShs.1. 5 million in damages had no apparent basis in law demonstrating no anchor in precedent or in any evidence adduced at the trial.

10. It was further submitted that no material of evidence or legal precedent was placed before the trial court by the respondent to enable the learned magistrate to exercise her discretion judiciously on the assessment of quantum.

11. It was submitted that the responsibility to provide this material on the court fell upon the respondent making the application who was deficient in this respect, and not upon the appellant as was held in the case of George Kimotho Ilewe case (supra).

12. The appellant’s counsel submitted that to leave untouched the pronouncement of quantum would be to leave in place a declaration of an award that appeared to have been the result of guesswork, the only consequence being to guarantee, by the sheer magnitude of the quantum award pronounced, substantial costs to the respondent assessed on the basis thereof that was not in the wider interests of justice.

13. The appellant submitted that this court ought to allow the appeal and set aside the ruling and order of the 16th June 2021 pronouncing an award of Kshs. 1,500,000 in general, exemplary and aggravated damages and replace it with a finding that there was no evidence to support the finding of any monetary award and accordingly no monetary award is made.

The Respondent’s Submissions 14. The respondent’s counsel submitted that in his submissions before the trial court, the appellant failed to cite any authorities on quantum of damages and so it was open to the trial court to assess and award such amounts as it found appropriate.

15. Counsel for the respondent further submitted that it was settled law that the trial court was enjoined to assess damages even where the plaintiff’s case was dismissed as was held by the Court of Appeal in the case of Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR and reiterated in the cases of Pamela Misiga Okelo v Odero O. Alfred [2011] eKLR, Lei Masaku v Kalpama Builders Ltd [2014] eKLR and Gladys Wanjiru Njaramba v Globe Pharmacy & Another [2014] eKLR.

16. It was submitted that in order for the appellant to succeed in his quest to have this court interfere with the exercise of discretion by the trial court in award of damages, he had to convince the court that either the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgement of the court, an entirely erroneous estimate of the damage as was held in the cases of Butt v Khan [1922 -88] KAR, Loice Wanjiku Kagunda v Julius Gachau Mwangi CA 142/2003 (UR) and the cases of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR.

17. The respondent’s counsel further submitted that the instant appeal lacked merit as the appellant had not made out a case as to warrant disturbance of the trial court’s award of damages.

Analysis and Determination 18. I have considered the grounds of appeal, the submissions and the authorities cited by both parties’ counsel. The issue for determination is whether this appeal has merit and what orders should the court make?

19. The appellant is impugning the trial court’s award of Kshs. 1,500,000 as quantum of damages had the appellant’s case before the trial court been successful. The appellant is asking this court to interfere with the trial court’s decision to award quantum of damages because in his view, there was absolutely no basis upon which the award was made as it was not grounded on the settled principles on award of damages and that neither did the respondent nor the trial court rely on any judicial precedents on award of damages.

20. I observe that the appellant’s suit against the respondent for malicious prosecution was dismissed for reasons that the appellant failed to prove his case on a balance of probabilities. In the said judgment which was not challenged by the appellant herein, the trial court did not quantify the damages that she could have awarded the appellant had he proved his case on a balance of probabilities. The trial court only arrived at the impugned amount of Kshs 1,500,000 general damages after a review application by the respondent.

21. Additionally, I observe that none of the parties herein submitted before the trial court on what award ought to be made to the appellant in case he was successful. No authorities were cited to inform the trial court of what was expected to be the estimated damages awardable.

22. The question is whether, even in the absence of any submission on an estimated award of damages, the trial magistrate could as she did, simply pluck a figure from the air and make it an award of damages in favour of the appellant assuming he had been successful in proving the limb of liability against the respondent for the tort of malicious prosecution. I will answer this question in due course.

23. As this appeal in essence challenges the lower court’s exercise of its unfettered discretion in awarding damages, I am mindful of the functions of a first appellate court in respect of how and when the discretion of the trial court in regarding awarding of damages may be interfered with on appeal.

24. This is a first appeal and the provisions of section 78 of the Civil Procedure Act come into play. The powers of this court on a first appeal are stipulated as follows:“78. Powers of appellate court

(1)Subject to such conditions and limitations as may be prescribed, an appellate court shall have power—(a)to determine a case finally;(b)to remand a case;(c)to frame issues and refer them for trial;(d)to take additional evidence or to require the evidence to be taken;(e)to order a new trial.(2)Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.”

25. The above provisions espousing the role of the first appellate court have been interpreted in various decisions. In Francis Ndahebwa Twala vs Ben Nganyi, Siaya Civil Appeal No. 5 of 2017, I had this to say, citing the settled jurisprudence:“This being a first appeal, this Court is mandated by Section 78 of the Civil Procedure Act and as was espoused in the case of Kenya Ports Authority Vs Kushton (K) Ltd (2009) 2 EA, 212 wherein the Court of Appeal stated; inter alia: -“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

26. The principle was reiterated in Williamson Diamonds Ltd and another v Brown [1970] EA 1, where the court stated that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”

27. I am aware that this appeal emanates from a ruling hence the idea of hearing or seeing witnesses as they testified in the lower court does not arise. The appeal challenges the power of the trial court in the exercise of judicial discretion and therefore my role is to examine how that discretion was exercised and establish whether it was so exercised in accordance with the established legal principles.

28. It is trite law that an appellate court ought not to interfere with a trial court’s assessment of damages unless it is persuaded that the award was made on the wrong principles of law or that the same is either inordinately high or inordinately low as to make an entirely erroneous estimate of the damages. This is a principle established in the age old case of Butt v Khan [1981] KLR 349 which has been replicated in so many cases on first appeals and where it was held that:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”

29. The appellant’s case is that the award of Kshs. 1,500,000 as damages for malicious prosecution that the trial court would have awarded had the appellant been successful in proving his case against the respondent was manifestly high and meant to oppress the appellant by imposing an exorbitant burden of exaggerated costs, which was contrary to the interests of justice and public policy and further that the said decision was made with no regard to the evidence or lack thereof and with no regard to decisions on quantum of damages.

30. I have perused the ruling on review of judgment application filed by the respondent herein. I find that none of the parties submitted on what quantum if any, that the trial court ought to have awarded. The same was the position prior to the trial court dismissing the appellant’s case. That being the case, Iam indeed wholly in agreement with the appellant that the award of damages ought to be based on established and sound judicial legal principles as set out in the Court of Appeal case of Henry Hidaya Ilanga v Manyema Manyioka [1961] 1 EA 705 (CAD) citing with approval the rule laid down by the Privy Council in Nance v British Columbia Electric Railway Company Ltd (4) (1951) A.C 601 at p.613 where it was stated that:“The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell,[1935] 1 K.B.354), approved by the House of Lords in Davies v. Powell Duffryn associated Collieries Ltd., [1942] A. C.601. ”

31. The trial court in the impugned ruling stated that it would have awarded the appellant Kshs. 1,500,000 in damages had he been successful. That award was not based on any legal principle and comparable authorities or evidence. This was in my view and the view of the law, obviously erroneous and out rightly wrong. Whether the parties proposed any amount of award or not, it was the duty of the trial court to play its role and apply the settled principles and make an award that was supported by such principles. Short of that, the award was no doubt unsupported as it was simply plucked from the air. I say so because a court of law acts within the law and it is upon the court seized of a matter to look up the law and apply it and not rely on what parties submit before it. In fresh trials, with or without submissions, the court must assess the evidence and apply the law and make a decision that is supported.

32. To that extent, I find and hold that the award made in the ruling of 16th June 2021 was erroneous and the same must be set aside. It is so set aside.

33. Having set aside the award made by the trial court on account that the same was not based on any the settled sound legal and judicial principles, the question is whether the matter rests there. As earlier stated, the powers of this court as a first appellate court are clearly spelt out in section 78 of the Civil Procedure Act. this Court has the power to:(a)to determine a case finally;(b)to remand a case;(c)to frame issues and refer them for trial;(d)to take additional evidence or to require the evidence to be taken;(e)to order a new trial.

34. With the above powers, can this court therefore pen off and do nothing else? My answer is no. This court has the power to further and determine the case finally on what quantum of damages if any, would have been sufficient award to the appellant had he been successful in his suit against the respondent and I am guided by not only the provisions of section 78 of the Civil Procedure Act as cited above but judicial pronouncements on this aspect.

35. This is because it is the duty of the trial court to assess damages that it would have awarded a party who nonetheless loses the claim on liability. This position was aptly stated by the Court of Appeal in the cases below rregarding assessment of damages due, where the trial court did not assess any damages, for the reason that it had dismissed the suit and the courts have held that that was manifestly erroneous.

36. The courts on appeal have gone ahead and assessed the damages that would have been awarded by the trial court. In this case, had the respondent appealed seeking for the pronouncement on an award, although he chose to apply for review, what the trial court did on review is exactly what this court would have done on appeal.

37. In Frida Agwanda & Ezekiel Onduru Okech v Titus Kagichu Mbugua [2015] eKLR, the Court of Appeal held that:“Indeed even when the learned trial magistrate dismissed the claim, in such a case, he should have assessed damages, notwithstanding the dismissal. That now will be done by this court, for convenience, instead of returning the file to the lower court for assessment.”

38. Similarly, in Lei Masaku versus Kalpama Builders Ltd [2014] eKLR, it was observed thus:“It has been held time and again by the Court of Appeal that the court of first instance assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issue of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know the view by the Court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behooves this court to assess quantum.”

39. Further in Gladys Wanjiru Njaramba v Globe Pharmacy & Another [2014]eKLR the Court stated that:“It is trite law that the trial Court was under duty to assess the general damages payable to the Plaintiff even after dismissing the suit. This position is confirmed by the Court of Appeal in the case of MORDEKAI MWANGI NANDWA v BHOGALS GARAGE LTD CA NO. 124 OF 1993 report in [1993]KLR 4448 where the Court held that the practice that damages be assessed even if the case is dismissed does not imply writing an alternative judgment and in the case of MATIYA BYABALOMA & OTHERS v UGANDA TRANSPORT CO. LTD UGANDA SUPREME COURT CIVIL APPEAL NO. 10 OF 1993 IV KALR 138 where the Court held that the Judge erred in not assessing the damage he would have awarded had the appellant been successful in her claim. From the above authorities it is clear that the trial Court fell into error by not assessing the award of general damages he would have awarded to the Appellant had she been successful in proving her case.”

40. In other words, albeit the trial court erred in deciding on the amount of damages awardable without applying the principles laid down in law on how to assess general damages, it was for the trial court to assess the damages payable to the plaintiff had the liability been proved to the required standard.

41. This Court will therefore proceed to assess the damages applying the relevant established judicial principles, taking into account comparable and recent awards of damages for the tort of malicious prosecution.

42. I will now consider comparable decisions on award of damages in cases of malicious prosecution.

43. In the case of Zahida Yasin v Barclays Bank of Kenya Limited [2012] eKLR where the plaintiff sued for malicious prosecution in a case where they were accused of fraud for manipulating bank rates during foreign exchange transactions, the court upheld the plaintiff’s claim for malicious prosecution and awarded the plaintiff Kshs. 1,500,000 being damages for wrongful arrest, false imprisonment and malicious prosecution.

44. In the case of Daniel Njuguna Muchiri v Barclays Bank Of Kenya Ltd & another [2016] eKLR where the plaintiff was charged with the offence of stealing Contrary to Section 275 of the Penal Code; obtaining money by false pretences contrary to Section 313 of the Penal Code; attempting to obtain by false pretences contrary to Section 313 as read with Section 389 of the Penal Code; uttering false document contrary to Section 353 of the Penal Code; and handling stolen goods contrary to Section 322 of the Penal Code, this court awarded the plaintiff general damages of Kshs. 2,000,000 for malicious prosecution.

45. In a more recent case of Attorney General v Peter Kirimi Mbogo & another [2021] eKLR where the 1st respondent was charged with 2 counts of speeding and having a cracked windscreen and subsequently he sued the appellant for malicious prosecution and was awarded Kshs. 7. 7 Million in damages, on appeal, the award was reduced to Kshs. 2. 7 million.

46. Taking all the above into account, and having found reason to interfere with the trial court’s award of damages for malicious prosecution made on 16/6/2021 to the extent that the award declared by the trial court was not based on any known legal principles and comparable decisions, and having set aside that award, and based on the authorities cited above, I am satisfied that an award of Kshs. 1,500,000 would have been sufficient general damages in favour of the appellant /plaintiff proved his case before the trial.

47. In the end, this appeal is partially successful to the extent stated above.

48. Costs are in the discretion of the trial court. However, as the appeal is only partially successful and balancing out the interests of each party in this appeal, I order that each party bear their own costs of this appeal.

49. This file is now closed and the lower court trial record to be returned forthwith with a copy of this judgment to be served upon the trial court, upon extraction of the decree herein.

50. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 17TH DAY OF NOVEMBER, 2023R.E. ABURILIJUDGE