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High CourtDismissedCivil Appeal No. 14 of 2017· [2020] KEHC 9179 (KLR)

Rama Maziko Rai & Another v NAS (Suing through father and next friend AS)

High Court of Kenya
17 January 2020
CKC. Kariuki
4,502 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Missing court deadlines or failing to appear can lead to your case being closed, and you must follow specific procedural rules to challenge that decision.

What this practically means

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Executive summary

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This is a first appeal from the Senior Principal Magistrate's Court at Mwingi, which had awarded the minor respondent 100% liability against the appellants, general damages of Kshs.450,000/- and special damages of Kshs.38,722/- for a road traffic accident on 2nd May 2015 along the Mwingi-Garissa road in which the minor, a four-year-old pedestrian, was hit by a pickup jointly owned by the 2nd and 3rd defendants and driven by the 1st appellant, who had been convicted of careless driving. The appellants raised three grounds: failure to ensure compliance with an order for the respondent's re-examination by their doctor, failure to allow reopening of the defence case for a second medical report and submissions, and an excessive award of general damages. The High Court held that the closure of the defence case on 12/4/2017 for want of prosecution was made under Order 12 rule 2, that there is no automatic right of appeal against a decision to proceed exparte, and that any challenge to that order required leave under Order 43 rule 2, which was never sought, rendering the challenge incompetent. The court found the appellants had been given at least six chances to have the respondent re-examined and that their conduct was an abuse of process. On quantum, the court applied the Gitobu Imanyara principles and found the trial magistrate relied on comparable injuries in Sila Tiren, so the award was neither on a wrong principle nor inordinately high. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the appellants were unfairly shut out from presenting their defence and having the respondent re-examined

Holding

The appeal could not challenge the closure order; the appellants were given at least six chances, failed to attend, and the case was properly closed for want of prosecution.

Reasoning

The court traced the chronology: adjournments on 18/5/2016, 13/7/2016, 31/8/2016, closure on 5/10/2016, reinstatement by ruling of 8/2/2017, a last chance on 8/3/2017, and non-attendance on 12/4/2017. Any challenge to the closure order required leave under Order 43 rule 2, which was never sought, making such a challenge incompetent.

p. 5
02

Whether the award of general damages of Kshs.450,000/- was manifestly excessive

Holding

The award was not excessive; the trial magistrate relied on comparable injuries in Sila Tiren and applied the correct principles.

Reasoning

The trial court took into account Dr. Wagura's medical report showing head injuries and symptoms indicative of brain damage, and was guided by Sila Tiren & Anor vs Solomon Ombati Odhiambo where comparable occipital fracture injuries attracted a reduced award of Kshs.360,000/-. The appellants' comparables of Kshs.300,000/- did not demonstrate a wrong principle or injustice.

p. 4

Legal principles established

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  • There is no automatic right of appeal against a decision to proceed exparte; the primary recourse is an application to set aside under Order 12 rule 7, and leave is required under Order 43 rule 2 to appeal directly.
  • An appellate court will not interfere with an award of damages unless the trial court proceeded on a wrong principle or the award is so inordinately high or low as to constitute an injustice.
  • The right to be heard does not extend ad infinitum; litigation must come to an end and parties should not abuse court process under the guise of being heard.

Court orders

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  1. 1.Appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Traffic ActSection 47
  • Civil Procedure RulesOrder 11
  • Civil Procedure RulesOrder 12 rule 2
  • Civil Procedure RulesOrder 12 rule 7
  • Civil Procedure RulesOrder 43 rule 1(h)
  • Civil Procedure RulesOrder 43 rule 2
  • Civil Procedure RulesOrder 42 rule 27

Cases cited (5)

  • China Wuyi Co. Ltd vs Ann Akale Akore
    Nakuru HCCA No. 193 of 2011

    Comparable occipital fracture injuries attracting Kshs.300,000/- general damages

  • Wilfred Okemwa Mwamba vs Total Security Surveillance
    Eldoret Civil Appeal No. 23 of 2015

    Crack skull fracture injuries attracting Kshs.300,000/- general damages

  • William Koross (Legal personal representative of Elijah C.A. Koross) vs Hezekiah Kiptoo Komen & 4 Others
    [2015] eKLR

    Court should not countenance a party blaming a court that accommodated its lethargy

  • Gitobu Imanyara & 2 Others vs Attorney General
    [2016] eKLR

    Principles for interfering with an award of damages

  • Sila Tiren & Anor vs Solomon Ombati Odhiambo
    [2014] eKLR

    Comparable occipital bone fracture injuries; award reduced from Kshs.560,000/- to Kshs.360,000/-

On appeal from
Senior Principal Magistrate's Court at Mwingi
Mwingi SPMCC No. 128 of 2015
Jurisdiction invoked
First appeal from the Senior Principal Magistrate's Court (Civil Procedure Act/Order 42 Civil Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Rama Maziko Rai & Another v NAS (Suing through father and next friend AS)", Case Analysis (2020). Civil Appeal No. 14 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9179/eng@2020-01-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.