[2022] KEHC 16578 (KLR)

Transtrac Limited & another v Lokwait (Civil Appeal 156 of 2016) [2022] KEHC 16578 (KLR) (15 December 2022) (Ruling)

Neutral citation: [2022] KEHC 16578 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 156 of 2016

HK Chemitei, J

December 15, 2022

Between

Transtrac Limited

1st Appellant

Paul Mwanjuri

2nd Appellant

and

Nalangu Lokwait

Respondent

Ruling

1. The notice of motion by the appellants/applicants herein dated March 29, 2022 prays that the money Kshs 1,154,533. 10/= deposited by them in a joint fixed deposit bank account at Stanbic Bank Kenya Limited be released to the respondent in full and final settlement of his claim against the appellants and the balance sum in the said account be released to their insurer. That they also be awarded the cost of this application.

2. The application is supported by the grounds on the face thereof and the affidavit of Linus O. Kowiti a manager at the appellants’ Insurer sworn on the same date. He deposed that the appellants through their insurer complied with the orders of the court made in the ruling delivered on February 2, 2017. That they opened a joint fixed account at Stanbic Bank Kenya Limited in which the sum of Kshs 2,294,833/= was deposited as directed by the court.

3. Further, that the deputy registrar on October 13, 2020 taxed the appellants’ bill of costs at Kshs 66,979/= and upon computation of the sum payable to the respondent in terms of the judgment delivered on May 5, 2019 the appellant’s insurer arrived at the sum of Kshs 1,154,533. 10/= payable to the respondent. That the balance thereafter be released to the appellants’ Insurer.

4. The respondent in response to the application herein filed a replying affidavit dated April 22, 2022. He opposed the application and deponed that the same was bad in law, made in bad faith, inept, lacked merit, an afterthought and amounted to abuse of the court process. That the amount owed to him was not only Kshs 1,154,533. 10/= as the future medical expenses of Kshs 200,000/=, further interest and costs had not been included herein.

5. He deposed further that the trial court’s judgement was to the effect that the appellant pay costs and interest and the same had not been disturbed on appeal. That the amount which had been quoted in the application as being owed to him was erroneous and if the said application is allowed he would be prejudiced. He prayed that the same be dismissed with costs in his favour.

6. The application was disposed of by way of written submissions which all parties have complied.

Appellants/Applicants Submissions 7. The appellants/applicants in their submissions submitted that the trial court did not award any interest on the general damages or any sum. That the sum of Kshs 200,000/= being future medical expenses which was not part of the appeal should be added to the balance of Kshs 1,154,533. 10 to make a total sum of Kshs 1,354,533. 10/= payable to the respondent.

8. Further, that the sum of Kshs 2,893,235. 56 referred to in the respondent’s advocate letter of April 15, 2021 was not due and owing to the respondent since the said amount was inconsistent with the judgment of May 9, 2019. That the same contravened the provisions of order 21 rule 7 (1) of theCivil Procedure Rules.

9. The appellants/applicants submitted further that the computation consisted of costs which had neither been awarded under the judgment on May 9, 2019 nor assessed by the court as no certificate of costs referred to by the respondent. That on their part a bill of costs was taxed at Kshs 66,967/= in terms of the certificate of costs issued on November 27, 2020 and not Kshs 53,573. 00/= as was alleged under item 8 of the letter dated April 13, 2021.

10. The appellants/applicants submitted that the respondent could not subsequent to the judgment of May 9, 2019 embellish the amount payable under the judgment or decree through addition of amount which were not awarded by the court in the judgment. They placed reliance on the cases of Guardian Bank Limited v Book point Limited & Guilders International Bank Limited [Nairobi Civil Appeal No 1807 of 2002] eKLR andJustus Mutiga & 3 others v Law Society of Kenya & Another [2018] eKLR.

11. They urged the court to find that interest was not awarded on the general damages and that the sum payable to the respondent as per the judgment of May 9, 2019 was Kshs 1,354,533. 10/=.

Respondent’s Submissions 12. The respondent in his submissions reiterated the contents of his replying affidavit and submitted also that he was entitled to the interest on the general damages awarded by the trial court from the date of the judgment and on special damages from the date of filing the suit. He placed reliance on the cases of Heinz Broer v Buscar (K) Ltd & others [2019] eKLR and Total (Kenya) Limited formallyCaltex Oil (Kenya) Limited v Janevans Limited [2015] eKLR which made reference to the case of New Tyres Enterprises v Kenya Alliance Insurance [1988] KLR 380 where the court held that courts under section 26(1) of the Civil Procedure Act had a wide measure of discretion on the question of interest.

13. The respondent submitted that if the appellants’/applicants’ application was allowed he would be prejudiced as it had indicated an erroneous amount payable to him. That it was clear from their submissions at page 2 and 6 that he was entitled to an amount more than Kshs 1,154,533. 10/=. He urged the court to dismiss the present application with costs to him in the interest of justice so that he is given a chance to claim and recover all the amount that was rightfully owed to him.

Analysis and Determination 14. I have considered the pleadings and submissions by the parties and the issue arising for determination is what amount is due to the respondent as full and final settlement of his claim against the appellants. It is agreed of course by the parties that there is no other issue pending save for the said payments.

15. Although it was submitted that the issue of future medical expenses was dealt with by this court, I did not find it tampered by the judgement delivered. The only issue was special damages which was set aside by the court. The amount of Kshs 200,000/= remains intact as directed by the trial court and thus remains payable.

16. Upon perusal of the court records, I note that indeed the total amount awarded by this court on appeal for general damages was Kshs 2,700,000/=. Therefore, the tabulation for what is due to the respondent is as follows;i.General damages……………………..Kshs 2,700,000. 00ii.Less 20% contribution……………….Kshs 540,000. 00iii.Less costs of appeal………………….Kshs 66,967. 00iv.Less 30% deposit paid to the respondent………………………………………………Kshs 938,499. 90v.Plus, future medical expenses……...Kshs 200,000. 00Total sum Kshs 1,354,533. 10

17. In view of the above tabulation, I find that the amount the respondent is entitled from what was deposited in the bank that is Kshs 2,294,833/= is Kshs 1,354,533. 10/= together with the costs of the lower court suit plus interests at court rates awarded to the respondent by the lower court in its judgment dated November 16, 2016.

18. In view of this, the best suited court to assess the same is the deputy registrar who is hereby directed to tax the same and the amount arrived at should be deducted from Kshs 940,299. 90/= which is the remainder after deducting Kshs 1,354,533. 10/=. The balance thereafter should be released to the appellant’s insurer.

19. Costs of this application shall be in the cause.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 15TH DAY OF DECEMBER 2022. H K CHEMITEIJUDGE