Case ID:165038

Kariuki Kimuli v David Munyoki [2020] eKLR

Case Metadata

Case Number:

Civil Appeal 25 of 2017

Parties:

Kariuki Kimuli v David Munyoki

Date Delivered:

19 Oct 2020

Case Class:

Civil

Court:

High Court at Kitui

Case Action:

Judgment

Judge(s):

Robert Kipkoech Limo

Citation:

Kariuki Kimuli v David Munyoki [2020] eKLR

Case History:

Being an appeal from the Judgement of Hon.R.Ombata Resident Magistrate in CIVIL SUIT NO.355 OF 2012 in the CHIEF MAGISTRATE’S COURT at KITUI delivered on 12h September, 2017

Court Division:

Civil

County:

Kitui

History Docket No:

CIVIL SUIT NO.355 OF 2012

History Magistrate:

Hon.R.Ombata Resident Magistrate

History County:

Kitui

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 KITUI

HIGH COURT CIVIL APPEAL NO.25 OF 2017

(Being an appeal from the Judgement of Hon.R.Ombata Resident Magistrate in CIVIL SUIT NO.355 OF 2012 in the CHIEF MAGISTRATE’S COURT at KITUI delivered on 12

h

September, 2017)

KARIUKI KIMULI...................................APPELLANT/APPLICANT

VERSUS

DAVID MUNYOKI.........................................................RESPONDENT

J U D G E M E N T

1.

Kariuki Kimuli

the

Appellant

herein has lodged this appeal against the Judgment of Hon.R.Ombata Resident Magistrate delivered on 12

th

September, 2017 in

Kitui Senior Principal

Magistrate’s Court Civil Suit No.355 of 2012

. In that suit, the

Appellant

had sued the

Respondent

for tort of negligence as a result of a road traffic accident that occurred on 28

th

July, 2012 that involved the

Appellant’s

Motor Cycle Registration No.

KMCT

413A

and Respondent’s Motor Vehicle Registration No.

KBP 367 R

. The question of liability was negotiated and agreed at the ratio 10%: 90% in favour of the

Appellant

.

2. The only question that was left for determination by the trial Court was the issue of quantum. The trial court in that respect found that the

Appellant

failed to specifically plead and prove the injuries suffered. It only found that the special damages of kshs.

2,190

/= had been specifically pleaded and proved.

3. The

Appellant

felt aggrieved and preferred this appeal raising the following namely:-

(i) That the learned Magistrate erred in law and in fact by holding that the particulars of injuries in the medical report were markedly different from the particulars of injuries in the pleadings.

(ii) That the learned Magistrate erred in law and in fact by directing herself on wrong principles and not addressing the correct issues from the pleadings filed.

(iii) That the learned Magistrate erred in law and in fact by failing to make a determination on the award on quantum.

(iv) That the learned Magistrate erred in law and fact by failing to consider contemporaneously the Appellant’s pleadings, the oral evidence and documentary evidence tendered.

4. In his written submissions, through his learned counsel

M/s

Mulu & Company Advocates,

the

Appellant

contends that he expressly pleaded in his Plain the nature and extent of injuries he sustained and has listed the same as follows:-

(a) Injuries to the head.

(b) Injuries to hand.

(c) Injuries to the right leg.

5. He insists that at the trial he tendered medical evidence (Treatment Card from Kitui General Hospital P Exh. 1a & 1b) P3 form (P Ex.2) and the medical report (P Ex.9) which in his view proved the injuries he had pleaded.

6. The

Appellant

urges this court to interfere with the decision made by the lower court and award him

ksh.900,000

/=. He cites the decision in

Ben Mengesa –VS- Edith Malangu Lande [2013] eklr

to support his prayer stating that the claimant in that decision suffered similar injuries to him and has listed the injuries as follows:

(a) Blunt injury to the head and both shoulders.

(b) Blunt injury to the back.

(c) Injury to both legs with numbness.

(d) Injury to the chest.

(e) Post traumatic osteoarthritis of lumber spine.

7. The

Respondent

has opposed this appeal through written submissions of his counsel

M/s. O.N. Makau

and

Mulei

Advocates. The

Respondent

has supported the finding by the trial court contending that the

Appellant

was not entitled to an award in damages because in his view, the Appellant’s pleaded injuries which were markedly different from the injuries exhibited through medical reports tendered in evidence. According to the

Respondent

the

Appellant

did not prove the specific nature and extent of the injuries pleaded. He has relied on the decision of

Treadsetters Tyres Ltd –VS- Wekesa Wepukhulu [2010] eklr

to buttress his contention. In that decision, the court held that in tortuous claims based on negligence injuries and special damages must be specifically pleaded and proved to be sustained in law.

8. The

Respondent

has further relied on the Provisions of

Order 2

Rule 4

which underpins the decision made Justice Ibrahim in Treadsetters Tyres Case (supra).

9. This Court has considered this appeal and the response made. This appeal relates to

Civil Appeal No.24 of 2017

where this court has given detailed legal requirements given under

Order 2 Rule 4

regarding tortuous claims based on negligence. The law requires in such claims injuries and special damages must be specifically pleaded and proved. The decision in Treadsetters has enunciated the principles clearly and for the interest of judicial time I will not go into details because the same has been elaborated in a related

Civil Appeal No.24 of 2017.

10. I will therefore go straight to the only issue for determination in this appeal which is the question of quantum given that the question of liability was, as observed, settled by consent.

11. The pleadings filed by the

Appellant

in the trial court and the Plaint in particular listed the following injuries

(a) Concussion of the brain.

(b) Swelling of the left side of the head.

(c) Haematoma formation in the head.

(d) Dislocation of the right wrist.

(e) Crush injury to the right knee.

(f) Crush injury to the right ankle joint medially.

12. The

Appellant

also pleaded that he suffered special damages of kshs.

5,780/=

and gave specific particulars as follows:-

(a) Medical and related expenses – 2,000/=

(b) Medical report - 2,000/=

(c) Police Abstract - 2,000/=

(d) Search Certificate - 1,500/=

________

Total 5,700/=

________

13. The medical evidence relied on by the

Appellant

comprised, Treatment chits, doctors evidence, and P3 form. The proceedings from the trial court shows that Dr. Judith Kimiyu testified as Pw2 and told the trial court she examined the

Appellant

and noted the following injuries:-

(i) Blunt injury to the head

(ii) Blunt injuries to right hand and leg.

(iii) Bruises on the knee and ankle joint.

14. She tendered medical report (P Ex.9) which indicates that the

Appellant

had suffered the following injuries:

(i) Blunt injury to the head (swellings)

(ii) Blunt injury to the right hand.

(iii) Blunt injury to the right leg.

(iv) Bruises and swelling to the knee and ankle.

15. The

Appellant

also tendered P3 form (P.Ex.2) which revealed the nature of the following injuries.

(i) Swelling on the left side of the head suggesting haematoma.

(ii) Wrist dislocation of the right hand.

(iii) Swelling of the right knee and ankle joint medially.

16. I have compared the nature of injuries described in the Plaint and those highlighted in the

P3

and looking at the two set of injuries apart from brain concussion all the other injuries are similar

Dr.Kimiyu

(

Pw2

) also clearly described the same injuries in her evidence in court and going through the medical report (

P.Exh.9

) she tendered, I am persuaded that oral evidence in court was in tandem with what the

Appellant

had pleaded. Had the trial court properly directed its mind to the said evidence, perhaps then its conclusion would have been different. I agree with the

Appellant

that given that the evidence adduced by the

Appellant

was not challenged or controverted in regard to what had been pleaded, it was erroneous for the trial to hold that because of one disparity which is in regard to brain concussion the entire claim could not be sustained.

17. This Court takes the view that if a party alleges say 5 types of injuries but at the trial he/she proves only 3 to the satisfaction of the court, then he or she is entitled to be awarded damages on the basis of proven injuries. In that sense since the

Appellant

proved all other injuries specifically pleaded save for brain concussion. He was therefore entitled to damages on the basis of the injuries specifically pleaded and proved.

18. This Court having re-evaluated the evidence adduced by the

Appellant

visa viz

what he had pleaded, I am satisfied that the

Appellant

was entitled to be awarded general damages for the following injuries:-

(i) Swelling of the left side of the head possible caused by haematoma.

(ii) Dislocation of the right wrist.

(iii) Blunt injury (swelling ) to the right knee and ankle joint medially.

19. The

Appellant

has submitted that an award of kshs.

900,000

/= is fair but looking at the nature of injuries suffered here, the injuries are soft tissue and the doctor (

Pw2

) testified that the injuries had satisfactorily recovered. In my view the authority cited by the

Appellant

in

Ben Mengesa –VS- Edith Makungu Lande

(

supra

) is not relevant to his claim because the injuries suffered in the cited case are far more serious. In my considered view a fair and just award to the

Appellant

in view of the injuries suffered is kshs.

200,000

/=.

In the premises and for the reasons advanced this appeal is allowed. The decision by the lower court which failed to give any award is set aside and in its place the

Appellant

is hereby award kshs.

200,000

/= less

10%

liability agreed which translates to kshs.

180,000

/=. He will also have the awarded special damages of kshs.

2,190

/= costs and interest in the lower court from date of judgment in the lower court and also costs of this appeal.

Dated, Signed

and

Delivered

at

Kitui

this

19th

day of

October, 2020.

R. K. LIMO

JUDGE