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Phelister Masista Masheti & Wycliffe Amola Shimunaga v. Arnold Sitati Bwisa & National Hospital Insurance Fund

(2017) JELR 94092 (CA)

Court of Appeal  •  Civil Appeal 247 of 2014  •  16 Jun 2017  •  Kenya

Coram
Philip Nyamu Waki, Roselyn Naliaka Nambuye, Patrick Omwenga Kiage

Judgement

JUDGMENT OF THE COURT

1. The appeal before us calls for interference with the exercise of the discretion of the lower court. Such interference is well ring-fenced by the settled principle that it will not be done unless the appellate court is satisfied that the decision of the lower court was clearly wrong. Sir Charles Newbold P. in the old case of Mbogoh and Anor v. Shah [1968] EA 93:put it this way:-

"..a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercise his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”

2. Summarizing the same principles in a latter case, United India Insurance Co Ltd, Kenindia Insurance Co Ltd and Oriental Fire and General Insurance Co Ltd v. East African Underwrite…

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