Case ID:162879

Octagon Self Help Group & another v Nicholas Kipng’etich Bett [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 54 of 2018

Parties:

Octagon Self Help Group & Eldoret Shuttle SACCO v Nicholas Kipng’etich Bett

Date Delivered:

05 Jun 2020

Case Class:

Civil

Court:

High Court at Eldoret

Case Action:

Judgment

Judge(s):

Olga Akech Sewe

Citation:

Octagon Self Help Group & another v Nicholas Kipng’etich Bett [2020] eKLR

Case History:

Being an appeal from the Judgment and Decree of Hon. C. Obulutsa, Chief Magistrate, delivered on 13 April 2018 in Eldoret CMCC No. 147 of 2017

Court Division:

Civil

County:

Uasin Gishu

History Docket No:

CMCC 147 of 2017

History Magistrate:

Hon. C. Obulutsa, Chief Magistrate

History County:

Uasin Gishu

Case Outcome:

Appeal partially successful

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 54 OF 2018

THE OCTAGON SELF HELP GROUP.........1

ST

APPELLANT

ELDORET SHUTTLE SACCO....................2

ND

APPELLANT

-VERSUS-

NICHOLAS KIPNG’ETICH BETT..................RESPONDENT

(Being an appeal from the Judgment and Decree of Hon. C. Obulutsa, Chief Magistrate, delivered on 13 April 2018 in Eldoret CMCC No. 147 of 2017)

JUDGMENT

[1]

This appeal arises from the Judgment delivered on

13 April 2018

by the Chief Magistrate, Hon. C. Obulutsa, in

Eldoret Chief Magistrate’s Civil Case No. 147 of 2017: Nicholas Kipng’etich Bett vs. The Octagons Self Help Group & Another

. The respondent had sued the two appellants vide his Plaint dated

10 February 2017

claiming general and special damages for pain, suffering and loss of amenities in respect of injuries sustained by him on

17 December 2016

while travelling as a lawful fare paying passenger in

Motor Vehicle Registration No. KBZ 833X, Toyota Hiace.

[2]

It was the contention of the respondent that the accident was attributable solely to the negligence of the appellants’ driver in that he caused the subject motor vehicle to ram onto

Motor Vehicle Registration No. KBQ 397J, Mercedes Benz Lorry-Trailer,

while it was descending a steep section of the Eldoret-Nakuru Highway. The respondent furnished the particulars of negligence at paragraph 6 of his Plaint and set out the particulars of his injuries at paragraph 7 of the Plaint thus:

[a]

Deep cut wound on the occipital scalp;

[b]

Fracture of the posterior column of the right pelvis; and,

[c]

Open fracture of the right tibia.

[3]

It was on account of the foregoing injuries that the respondent asked for general damages for his pain and suffering. He also asked for special damages in the sum of

Kshs. 138,667/=

as particularized in paragraph 7 of the Plaint. In addition, the respondent prayed for

Kshs. 200,000/=,

being the cost of future operation on the right leg to remove the implants

in situ

; as well as interest and costs.

[4]

In their Defence filed on

10 April 2017

, the appellants denied that they were the owners of

Motor Vehicle Registration No. KBZ 833X

or that an accident occurred as was alleged by the respondent in which he was injured. In the alternative, the defendants averred, at paragraph 8 of their Defence that, if an accident occurred as alleged then the same was due to negligence on the part of the respondent and the owners or driver of

Motor Vehicle Registration No. KBQ 397J.

To that end, the defendants supplied particulars of the negligence alleged by them in paragraphs 8 of their Defence. They otherwise put the respondent to strict proof of his allegations.

[5]

At the hearing, evidence was adduced by the respondent as

PW3.

He also called

Dr. Sokobe

of

Eldoret Hospital

(PW1)

and

IP Peter Barno

of

Timboroa Traffic Base

as

PW2

to prove his assertions. On their part, the defendants opted to adduce no evidence, save for the medical report dated

4 May 2017

by

Dr. Leah Wainaina,

which was admitted by consent. On the basis of the respondent’s uncontroverted evidence, the lower court found the appellants 100% liable and entered judgment in the respondent’s favour for

Kshs. 3,028,667/=

made up as hereunder:

[a]

General damages -

Kshs. 1,200,000/=

[b]

Loss of earnings -

Kshs. 1,440,000/=

[c]

Further medication -

Kshs. 250,000/=

[d]

Special damages -

Kshs. 138,667/=

[6]

Being dissatisfied with the decision of the learned trial magistrate, the appellants lodged the instant appeal on

8 May 2018

on the following grounds:

[a]

That the learned trial magistrate grossly misdirected himself in treating the evidence and submissions on quantum before him superficially and consequently came to a wrong conclusion on the same;

[b]

That the learned trial magistrate erred in law in failing to critically analyze the authorities submitted by the appellants vis-à-vis their similarity to the respondent’s injuries thereby awarding quantum of damages which was inordinately high;

[c]

That the learned trial magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the appellants relating to the damages awardable;

[d]

That the learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent, if any, and failed to apply the applicable precedents and tenets of law;

[e]

That the learned trial magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim;

[f]

That the learned trial magistrate erred in awarding a sum of

Kshs. 250,000/=

under the head of Future Expenses when the claimant had only pleaded for

Kshs. 200,000/=.

[7]

Accordingly, the appellants prayed that their appeal be allowed with costs and that the Judgment of the trial magistrate on quantum be set aside and be substituted with an award that the court deems fit.

[8]

The appeal was canvassed by way of written submissions. Thus, in the written submissions filed on

18 October 2019

, counsel for the appellants,

M/s Kairu & McCourt Advocates

, proposed two issues for determination, namely:

[a]

Whether the learned trial magistrate left out relevant factors or took into account extraneous circumstances while assessing damages.

[b]

Whether the learned trial magistrate’s award was inordinately high and an erroneous estimate of damages.

[9]

Relying on

Ndungu Dennis vs. Ann Wangari Ndirangu & Another

[2018] counsel for the appellants urged the Court to make a wholesome scrutiny of the evidence adduced before the lower court and make its own conclusion. In their submission, an amount of

Kshs. 350,000/=

as general damages would suffice. They urged the Court to note that the learned trial magistrate totally ignored the

Dr. Wainaina’s

report, wherein an amount of

Kshs. 40,000/=

was proposed as a reasonable amount for the respondent’s future surgery; and that had this report been taken into account, the lower court would have arrived at a much lower figure on quantum. Thus, the appellants urged the Court to find that the sum awarded by the learned trial magistrate was so high as to amount to unjust enrichment on the part of the respondent, and therefore ought to be set aside.

[10]

Counsel for the Respondent, on the other hand, was of the view that the award was a fair assessment; and that the Trial Magistrate took into account the severity of the injuries that the Respondent suffered and the seriousness of the complications likely to arise from the injuries in the future. He urged the Court to note that, as at the time of testifying, the respondent was still using crutches and could not walk unaided. He therefore submitted that an award of

Kshs. 1,200,000/=

would be reasonable in the circumstances. He relied on

Nairobi HCCC No. 723 of 1998: Simon Githaiga Wachira vs. Timothy Ndirangu Mwangi

, in which the plaintiff was awarded

Kshs. 800,000/=

for comparable injuries on

29 February 2000

.

[11]

Counsel further urged the Court to keep in mind such factors as effluxion of time and the inflationary trends, and find that the award of

Kshs. 1,200,000/=

is indeed reasonable. He also pointed out that the figure of

Kshs. 250,000/=

for future medical treatment was based on sound evidence, particularly

Dr. Sokobe’s

medical report. Counsel discounted

Dr. Wainaina’s

proposal of

Kshs. 40,000/=

contending that the rate is only applicable in a government hospital. He drew the Court’s attention to the fact that

Dr. Wainaina

is a private medical practitioner and therefore could not authoritatively testify about the applicable rates in government facilities. Counsel, likewise, defended the awards for special damages and loss of earnings, terming them as reasonable and evidence-based.

[12]

It is manifest from the foregoing that the appeal is not on liability but is confined to the issue of quantum. This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions and findings on the basis thereof, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses. In

Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123

,

this principle was enunciated thus:

"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

[13]

What, then, was the evidence adduced by the respondent before the lower court? The respondent testified on

18 October 2017

as

PW3

. He adopted his witness statement dated

10 February 2017

wherein he stated that he used to work for

Ratrace Logistics Limited

as a driver of heavy commercial trucks. He further stated that, on

16 December 2016

, he boarded

Motor Vehicle Registration No. KBZ 833X, Toyota Hiace,

from Nairobi with the intention of travelling to Eldoret; but that he did not reach his destination safely as the said motor vehicle in which he was travelling was involved in a road traffic accident at Timboroa area along the Nakuru-Eldoret road.

PW3’s

account of the incident was that the driver of

Motor Vehicle Registration No. KBZ 833X

lost control while descending a steep section of the road and swerved onto the opposite climbing lane while facing the Eldoret general direction and thereby collided with an oncoming

Mercedes Benz Prime Mover Lorry/Trailer Registration No. KBQ 397J

. According to

PW3

, the driver of the

matatu

was over-speeding downhill, and was therefore to blame for the accident.

[14]

PW3

further testified that, as a result of the collision, he sustained a deep cut on the occipital scalp, a fracture of the right tibia and a fracture on the right pelvis; and that he was taken along with other victims to

Moi Teaching and Referral Hospital

for treatment; but that, on account of the doctors’ strike he remained unattended to until 6.00 a.m. when his family members transferred him to

Eldoret Hospital

. He was admitted at

Eldoret Hospital

for four days and thereafter continued with treatment on outpatient basis.

PW3

explained that, being a driver by profession, he depended on both his legs to effectively perform his duties, which he could not perform on account of the accident. He added that he was advised by his doctor that he would require an operation, at a cost of

Kshs. 200,000/=,

to remove the metal plate that was implanted to secure the fracture on his right leg. He also stated that he was examined by

Dr. Sokobe

and a medical report prepared him for purposes of this suit.

[15] IP Peter Barno (PW2)

confirmed that the accident in question occurred along Eldoret-Nakuru Road; that it involved the two motor vehicles,

Motor Vehicle Registration No. KBZ 833K

and

Lorry/Trailer Registration No. KBQ 397J

; and that the respondent,

Nicholas Bett

was injured in the said accident.

[16]

Dr. Sokobe

, on his part, testified as

PW1

and confirmed that he examined the respondent and prepared a medical report on his behalf for which he charged him

Kshs. 6,000/=.

He produced both the report and the receipt for his fees as

the Plaintiff’s Exhibit 1a and 1b

. He pointed out that in his opinion, the respondent had suffered a measure of permanent disability, which he assessed at 10%; and added that the respondent’s implants would require removal at about

Kshs. 200,000/=.

He also produced the P3 Form that he filled in respect of the respondent as

the Plaintiff’s Exhibit 3

along with the other documents given to the respondent at

Eldoret Hospital

in connection with his treatment (marked

the Plaintiff’s Exhibit 4-6).

[17]

I have also perused the medical report prepared by

Dr. Leah Wainaina,

dated

4 May 2017.

Her opinion was that the respondent was in good general condition at the time, though he was walking with the aid of one crutch. He still experienced pain on the right hip and right leg on exertion. She however concluded that the respondent suffered no permanent physical disability from the injuries. She otherwise confirmed that the respondent would require surgery to remove the implants aforementioned. To this end she proposed a figure of

Kshs. 40,000/=

as being the rough estimate of the cost of such an operation at a government facility.

[18]

In the light of the foregoing, the key issue for determination is on quantum and in particular whether the different elements, comprising the

Kshs. 3,028,667/=

award, are justified. It is instructive to bear in mind the expressions in

H. West & Son Ltd vs. Shephard [1964] AC 326

, that:

"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."

[19]

I have similarly taken into consideration the principle that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award unless sufficient cause be shown. Hence, in

Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited

[2015] eKLR, the Court of Appeal held that:

"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages."

(Also see

Butt vs. Khan [1981] KLR 349

)

[20]

The approach taken by

Hon.

Wambilyanga, J.

in

HCCC No. 752 of 1993: Mutinda Matheka vs. Gulam Yusuf

, and which I find useful, was thus:

"The Court will essentially take into account the nature of the injuries suffered, the period of recuperation, the extent of the injuries whether full or partial, and if partial what are the residual disabilities: When dealing with the issue of residual disabilities the age when suffered and hence the expected life span during which they are to be borne. The inconveniences or deprivation or curtailments brought about by the disability must be considered. Then the factor of inflation must also be accounted for if the award has to constitute reasonable compensation."

[21]

And in

Stanley Maore vs. Geoffrey Mwenda [2004] eKLR,

the Court of Appeal suggested thus:

“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

[22]

There is no dispute herein as to the injuries suffered by the Respondent. The two medical reports along with the P3 Form presented before the lower court all advert to the fact that the respondent suffered a deep cut on the back of his head as well as fractures of the right pelvic bone and the right tibia. In the opinion and prognosis of

Dr. Sokobe,

the respondent sustained severe soft tissue and bony injuries from which he had not recovered as of

30 January 2017

when the report was prepared. In

Dr. Sokobe’s

view, the respondent was likely to develop early osteoarthritis of the hip joint; and therefore would have to live with 10% disability for the rest of his life. He also advised for the surgical removal of the implants used to fix the fractures.

[23]

As has been pointed out herein above, the findings of

Dr. Wainaina

were largely in tandem with those of

Dr. Sokobe

; the only points of departure being the 10% disability and the cost of future surgery. In

Dr. Wainaina’s

view, the fractures were healing well; and therefore she anticipated full recovery in due course. I note that

Dr. Wainana’s

examination was done about 5 months after

Dr. Sokobe’s

; and in proposing

Kshs 40,000/=

for future surgery, she had in mind rates applicable in government facilities as opposed to

Dr. Sokobe’s

proposal, which was hinged on the going rates at

Eldoret Hospital

, where the initial treatment of the respondent occurred. It is therefore a question of perspectives, and therefore not much turns on the difference in outlook in the circumstances.

[24]

Hence, to determine whether or not the lower court’s assessment was reasonable and not inordinately high as posited by counsel for the appellants, I have given due consideration to the authorities relied on by the parties as well as others on the subject and note that:

[a]

In

Zachary Kariithi vs. Jashon Otieno Ochola [2016] eKLR

, Kshs. 1,500,000

was awarded in

2016

for compound fractures of the right femur, and tibia/fibula and the left femur bone. The Plaintiff in that case had also suffered fractures in the 3

rd

, 4

th

and 5

th

ribs along with soft tissue injuries. Hence, it is apparent that the injuries were of a more serious nature than those of the respondent herein.

[b]

In

Wilson Okoko Makucha vs. Teita Estate Ltd

an amount of

Kshs. 800,000/=

was awarded in

1998

for dislocation of the left hip, fracture of both left and right femur, fracture of the pelvis.

[b]

In

Catholic Diocese of Meru (Registered Trustees) vs. Munaine Mutinda Civil Appeal No. 19 of 2003 (Meru)

the Respondent sustained a fracture of the pelvic bone and a ruptured liver, among other injuries. An award of

Kshs. 800,000/=

was made in

2009.

[c]

In

Simon Githaiga Wachira vs. Timothy Ndirangu Mwangi

Nairobi HCCC No. 723 of 1998

, an amount of

Kshs. 800,000/=

was awarded for a fracture of the rib, blunt injury to the abdomen and a fracture of the pelvic bone.

[25]

In this matter, the Respondent suffered fractures of both legs and dislocation of the hip bone as well as soft tissue injuries to the upper lip and lower limbs. Hence, from the foregoing comparison, the award of

Kshs. 1,200,000

as General Damages by the Learned Trial Magistrate cannot be said to be so excessive as to amount to a wrong assessment, given the age of some of the authorities aforementioned. Accordingly, there is no sufficient cause, in my view, for disturbing the award made by the Learned Trial Magistrate under the general damages head.

[26]

Under the special damages component, the Respondent had asked for

Kshs. 138,667/=

in his Plaint. It is a cardinal principle that special damages must not only be pleaded with particularity but also specifically proved if they are to be awarded. This principle was restated thus in

Hahn vs. Singh

[1985] KLR 716:

“

Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

[27]

The learned trial magistrate found that sum specifically proved and awarded the respondent that sum. No particular issue was taken by the appellant in that regard. There are also receipts in support of that component of the claim at pages 20 – 27 of the Record of Appeal. I therefore have no reason to disturb that aspect of the award.

[28]

As for the award of

Kshs. 250,000/=

for future operation to remove the implants used to fix the respondent’s fractures, there seems to be no justification at all for it, granted that the respondent asked for

Kshs. 200,000/=

only, which is what was supported by the respondent’s and

Dr. Sokobe’s

respective testimonies. Needless to say that there is a certain measure of strictness with which such a claim ought to be pursued. Thus, in the case of

Kenya Bus Services Ltd vs. Gituma

[2004] EA 91

it was held that:

“…

as regards future medication (physiotherapy) the law is also well established that, although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damages and is a fact that must be pleaded, if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal rights should be pleaded”.

[29]

Accordingly, the learned trial magistrate erred in making an award of

Kshs. 250,000/=

under the head of future operation which sum was neither pleaded nor supported by the evidence on record. As to what would be a reasonable amount in the circumstances, I have given due consideration to the evidence adduced before the lower court and the submissions on this aspect; as well as the authorities cited. The respondent had asked for

Kshs. 200,000/=

in his plaint and relied on the evidence of

Dr. Sokobe

to buttress his own testimony. In his report dated

30 January 2017

(at page 29 of the Record of Appeal),

Dr. Sokobe

posited that the respondent would require surgical removal of the implants at an estimated cost of

Kshs. 200,000/=

(erroneously reflected in the typed proceedings at page 47 of the Record of Appeal as

Kshs. 2,000,000/=).

[30]

The appellant, on the other hand, urged the Court to be guided by the

Dr. Wainaina’s

medical report, at pages 39 and 40 of the Record of Appeal. It is noteworthy that one of the arguments pitched by counsel for the appellant was that the learned trial magistrate completely ignored

Dr. Wainaina’s

report in his Judgment; and therefore arrived at an erroneous decision in this respect. Thus, having perused and considered that report, in which a sum of

Kshs. 40,000/=

was proposed as the estimated cost of future treatment, two things stand out. One, is that the proposal was both an estimate and supposition. Secondly,

Dr. Wainaina

was not called to testify and therefore the respondent had no opportunity to interrogate her postulation. This is pertinent, considering the indubitable fact that she was a private medical practitioner at the time; and therefore not attached to a government health facility. It would have been useful for the lower court to get some insights as to her basis for such a conclusion, had she testified.

[31]

Thus, it is manifest that

Dr. Sokobe’s

estimate would be the more reliable one. He was then working at

Eldoret Hospital

where the respondent had been treated and the implants inserted. Accordingly, it is my view and finding that the respondent is entitled to the sum of

Kshs. 200,000/=,

being the justified cost of future surgery to remove implants.

[32]

The last item to reconsider is the award of

Kshs. 1,440,000/=

by the lower court for loss of earnings. In this regard, the Judgment of the trial court reads:

“The letter from the employer states that the plaintiff was earning a salary of Kshs. 30,000/- and couldn’t work anymore after the accident. The claim for loss of further earnings is fortified as the claim for further medication. The court has considered the submissions and authorities and will grant judgment as follows:

1. General damages 1,200,000/-

2. Loss of earnings 1,440,000/-

3. Further medication 250,000/-

4. Special damages 138,667/-

3,028,667/-

The plaintiff will have costs of the suit and interest.”

[33]

There is therefore no elucidation as to how that figure was arrived at, aside from the mention that the respondent’s salary at the time was

Kshs. 30,000/=.

This brings to mind the case of

Bonham Carter vs. Hyde Park Hotel Ltd.

[1948] 64 T.R. 177, wherein it was held that:

“The plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down particulars and, so to speak, throw them at the head of the Court, saying, this is what I have lost, I ask you to give me these damages. They have to prove it.

(See Ouma – v- Nairobi City Council (1976) KLR 297, 304)”.

[34]

Hence, in

Mumias Sugar Company Limited vs. Francis Wanalo

[2007] eKLR, the Court of Appeal proffered the following view as to the justification for such awards:

The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

[35]

In this case, although the respondent made reference to loss of earning capacity in paragraph 8 of the Plaint dated

10 February 2017

, there was no specific prayer for the sum of

Kshs.

1,440,000/=

as being the amount claimed under loss of earnings. However, a perusal of the written submissions filed by counsel for the respondent before the lower court shows that that figure was proposed on the basis that the respondent would suffer temporary incapacity for about 4 years until he could fully recover from the anticipated surgery to remove the implants. Thus, counsel proposed the multiplier approach in computing the aforesaid sum, which the lower court accepted and applied.

[36]

The foregoing being the basis of the award, it was imperative, in the interests of justice, that the claim for loss of earning capacity be specifically pleaded to afford the appellant an opportunity to answer it. It is all about fair play. Indeed, in

Kantilal Khimji Patel & Another vs. Joseph Mutunga Wambua

[1994] eKLR, the Court of Appeal held thus:

It follows that the necessity of pleading “damage” (meaning injury) or “damages” (meaning the amount claimed to be recoverable), if it arises at all, does so as an example of the general requirement of any statement of claim that it shall “put the defendants on their guard and tell them what they have to meet when the case comes on for trial” (per Cotton LJ in Phillipps v Phillipps [1878] 4 QBD 127, 139). Accordingly, if a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into Court. The limits of this requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular case “The question to be decided does not depend on words, but is one of substance” (per Bowen LJ in Ratcliffe v Evans [1892] 2 QB 524, 529). The same principle gives rise to a plaintiff’s undoubted obligation to plead and particularise any item of damage which represents out-of-pocket expenses, or loss of earnings, incurred prior to the trial, and which is capable of substantially exact calculation. Such damage is commonly referred to as special damage or special damages but is no more than an example of damage which is “special” in the sense that fairness to the defendant requires that it be pleaded. The obligation to particularise in this latter case arises not because the nature of the loss is necessarily unusual, but because a plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the defendant access to the facts which make such calculation possible.”

[37]

The same viewpoint was reiterated by the Court of Appeal in

Cecilia W. Mwangi & Another vs. Ruth W. Mwangi

[1997] eKLR. Thus, I take the view that there was no sufficient basis for the lower court to make the award it made for loss of earning capacity. I would thus disallow the entire sum of

Kshs. 1,440,000/=

that was awarded to the respondent on this account.

[38]

In the result, the appeal succeeds in part and Judgment of the lower court dated

13 April 2018

in

Eldoret CMCC No. 147 of 2017

is hereby set aside and substituted with Judgment in the respondent’s favour in the sum of

Kshs. 1,538,667/=

only, computed as hereunder:

[a]

Kshs. 1,200,000/=

being general damages for pain, suffering and loss of amenities;

[b]

Kshs. 138,667/=

being special damages; and

[c] Kshs. 200,000/=

being the cost of future medical expenses.

[39]

As the appeal is only partially successful, it is hereby ordered that each party shall bear their own costs of the appeal. The respondent will however have interest and costs of the lower court suit. Interest shall accrue at court rates on the aforesaid sum of

Kshs. 1,538,667/=

from the date of the lower court’s Judgment until payment in full.

It is so ordered.

DATED, SIGNED AND DELIVERED AT ELDORET THIS 5

TH

DAY OF JUNE 2020

OLGA SEWE

JUDGE