Ismael Lonkishu Kobei v David Kariuki Gichangi & Thomas Magare [2017] KEHC 2600 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAROK

CIVIL APPEAL  NO 7 OF 2015

[Being  an appeal from the judgement/decree of 15/4/2015 in the Senior Principal Magistrate’s court at Narok in Civil Suit No. 47 of 2014, Ismael Longishu Kobei v. 1. David Kariuki gichangi and 2. Thomas magare]

ISMAEL LONKISHU KOBEI..............................APPELLANT

VERSUS

DAVID KARIUKI GICHANGI....................1ST RESPONDENT

THOMAS MAGARE................................2ND RESPONDENT

RULING

1. This ruling is in respect of the respondents’ application to dismiss this  appeal on the ground that the appellant has been paid the decretal amount together with costs.

2. The appellant has opposed the application on the ground that the award of damages in his favour  was grossly inadequate.

3. The respondents have brought their application by way of notice of motion under Order 51 Rule 1 of the 2010 Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) Laws of Kenya.  The respondents’ application is supported by 5 grounds set out on the face of the motion.  In ground 1, they have stated that the appellant is not allowed in law to approbate and reprobate at the same time.  In grounds 2 and 3,  they have stated that the appellant sought and was paid the entire decretal sum together with costs.  In ground 4, the respondents’  have stated that the appellant  has not come to court with clean hands.  And in ground 5, they have stated that this application is made in the interests of justice.  The respondents have expanded on their grounds, set out on the face of motion through the supporting affidavit of Faith Gichui, who is their counsel.

4. The appellant has filed a 13 paragraphs replying affidavit in opposition to the application.  The major matters that he has deponed to are as follows. That he sustained severe injuries following a motor vehicular accident on 18/6/2013, in regard to which he was awarded Shs.980,889 as damages.  He has also stated that he was dissatisfied with the award  of damages which he has stated are grossly inadequate.

5. In the light of the affidavit evidence, and the applicable law, I find the following to be  the issues for determination.

1. Whether  or not the appellant’s statutory right of appeal in section 65 (1)(b) of the Civil Procedure Act is extinguished by his reception of the decretal sum of money together with costs.

2. Whether or not the inherent powers of the court as expressed in section 3A of the Civil Procedure Act can be resorted to, to defeat the  appellate  statutory provisions in section 65 of the Civil Procedure Act.

3. Whether or not the equitable rule of clean hands can override the appellants’ statutory right of appeal.

Issue number 1

Section 65 (1) (b) confers a right of appeal on an aggrieved party to challenge a judgement of a magisterial  court.  The appeal of the appellant  was admitted into hearing by this court on 28/6/2017 pursuant to section 79 of the Civil Procedure Act.  The effect of such an admission is that the appeal is not frivolous.   It is also not an abuse of the court process.  A statutory right of appeal guarantees a fair trial.  If the trial court committed errors of law or fact, the appeal court is at liberty to review and correct those errors.  The right of appeal which is conferred upon the appellant can only be taken away by another statute.

6. Furthermore, the invocation of section 3A of Civil Procedure Act which saves the inherent powers of the court cannot defeat the express provisions of section 65 (1) (b) of the Civil Procedure Act.  In the circumstances, I find that the provisions of section 3A cannot defeat the provisions of section 65 (1) (b) of Civil Procedure Act.  Additionally, the provisions of section 1A and 1B of the Civil Procedure Act are not applicable to the instant appeal.  Those provisions are in relation to the just determination and efficient disposal of court cases in terms of section 1B of the Civil Procedure Act whose main objective is to require the courts to facilitate the just, expeditious, proportional and affordable resolution of civil dispute.  It  is therefore clear that those provisions are of no assistance  to the respondents.

7. The equitable doctrine of “clean hands” and the rule that one cannot approbate and reprobate at the same time cannot override the appellant’s statutory right of appeal.

8. As regards costs, the law in terms of section 27 of the Civil Procedure Act is that costs follow the event.  In other words, a successful party should not be deprived of its costs unless he has misconducted himself.

9. In the light of the foregoing considerations, the respondents’ application is hereby dismissed with costs to the appellant.

Ruling delivered in open court this 11th day of October, 2017 in the absence of both the appellants and respondents.

J. M. Bwonwonga

Judge

11/10/2017