Mantage and Chacha v. Mwita Civ. App. 16-M-70; El-Kindy Ag. J.

Mantage and Chacha v. Mwita Civ. App. 16-M-70; El-Kindy Ag. J.

The appellants were ordered to pay Shs. 3,500/- general damages for assault resulting in fracture of the arm of the respondent. They had been prosecuted and convicted for causing grievous harm and assault causing actual bodily harm and ordered to pay to the respondent as compensation Shs. 300/- and 100/- respectively. Both appellants denied that they had assaulted the respondent and argued that it was unfair that they should be tried twice and suffer twice. They also attached the award as excessive and unreasonable arguing that they should not pay more than what was already ordered in the criminal case trial.

Held: (1) “For the benefit of the appellants, I would, say this that when an unlawful attack is made upon a person, two legal wrongs are committed. Firstly, there would be a criminal offence and secondly a civil wrong. The person attacked could start criminal proceedings, by reporting the attack tot eh relevant authorities, as it was originally done in respect of the facts of this case or prosecute the case personally as private prosecution or he could start civil proceedings to recover damages for personal injuries if any or for mere assault as there is such a thing as trespass to the person known in law. Therefore, where the respondent commenced civil proceedings relating to the same facts on which the appellants were convicted in a criminal trial, he was exercising his right to recover damages in respect of

            trespass to his person. Therefore, there was no question of the appellants being sought out and “punished twice” for the same Act. They were punished once only, during the criminal trial, and now they are asked to recompense the respondent for severe harm they did to him. Therefore, the claim instituted, by the respondent, was valid in law. This disposes of large part of the appellants grounds of appeal. These grounds arose out of ignorance of the process of law. (2) There was sufficient evidence to show that the appellants had assaulted the respondent. (3) “The fact that they (appellants) were ordered to pay compensation …. In a criminal trial, is not a bar against the respondent suing them in a civil court if he felt that the amount of compensation was inadequate ………. The learned magistrate was entitled to weight the evidence afresh as it was produced before him and award a reasonable amount in damages.” (4) Distinguishing PAULO CAVINATO v. VIYTO ANTONIA DI FILIPPO [1957] EA 535. “In this case, the respondent suffered the fracture of the left arm but this fracture was fully healed although the alignment of the arm itself was affected. There was no evidence that the respondent could not make use of his arm or would for ever be unable to use it. The other blows do not seem to have left him with any permanent or trouble-some defects. On the whole, it appeared that the respondent had fully recovered from these injuries.” (5) Damages reduced to Shs. 1,600/- first appellant to pay Shs. 1,000/- and second appellant to pay Shs. 600/-. (6) Appeal dismissed.