[2008] KEHC 2201 (KLR)
The court found that the plaintiff failed to provide documentary evidence, such as payslips or employer letters, to substantiate his claim for loss of earning and loss of future earning. The claims were based solely on verbal evidence, which did not meet the strict proof required for special damages. The court...
Source-derived case information.
- Citation
- [2008] KEHC 2201 (KLR)
- Parties
- Plaintiff: Althumani Ramadhani Mkomwa; Defendant: Scandinavia Express Services Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1473 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Review of Judgment
- Outcome
- application for review dismissed
- Legal Topics
- Personal Injury, Special Damages, Loss of Earnings, Review of Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Althumani Ramadhani Mkomwa
Plaintiff
Scandinavia Express Services Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Judgment
Legal Issues
- 1 Whether the plaintiff is entitled to a review of the judgment to include awards for loss of earning and loss of future earning.
- 2 Whether the plaintiff sufficiently proved special damages for loss of earning and loss of future earning.
Ratio Decidendi
The court found that the plaintiff failed to provide documentary evidence, such as payslips or employer letters, to substantiate his claim for loss of earning and loss of future earning. The claims were based solely on verbal evidence, which did not meet the strict proof required for special damages. The court reiterated that special damages must be specifically pleaded and strictly proved. As the plaintiff did not discharge this burden, the application for review was rejected. The court also noted currency discrepancies and found the nominal damages previously awarded sufficient in the absence of proof for the additional claims.
Court Disposition
application for review dismissed
Orders
- The application for review is rejected.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1473 of 2005
ALTHUMANI RAMADHANI MKOMWA ……………… PLAINTIFF
VERSUS
SCANDINAVIA EXPRESS SERVICES LTD …………… DEFENDANTS
RULING
ON REVIEW OF COURTS JUDGMENT
APPLICATION NOTICE OF MOTION 4. 4.2008
1. Background
1. The applicant is a paraplegic, a victim of a self road traffic accident as a passenger in his employer’s vehicle.
2. The court gave judgment in favour of the plaintiff against the defendant who failed to enter appearance or file defence at Ksh.1. 853,000/-.
3. The court rejected the award claim of Loss of earning and Loss of further earning that amounted to Ksh.144,000/- and Ksh.720,000/- respectively.
4. The plaintiff decree holder filed application dated 4 April 2007 seeking prayers to Review this court judgment on the two claims not awarded by court.
5. The defendant having now entered appearance after judgment, were served with the application but failed to attend court. The application was heard exparte
II: Application 4 April 2008
6. It is the applicant’s view that this court erred in not awarding the loss of future earning and loss of earning. This is due to the proceedings that did not bring out the fact that currently the plaintiff was not at all employed after the accident. He had no employment and thus the award be given to him.
III: Opinion
7. The reasons why this court did not grant the award and claim made was explained in the judgment namely, the plaintiff was to have produced his payslip and a further letter to prove that he was on half pay then finally termination of his employment. No pay slip or letter was produced to prove the actual sum being paid as salary. This was merely a verbal evidence given to court.
8. The plaintiff is Tanzanian and his earnings must have been in a different currency and country. I in fact used the Kenya currency of Ksh.6,000/- which is Tanzanian Ksh.60,000/- and not the Ksh.11,000/- he may have been seeking.
Special Damages must not only be pleaded but must be particularized and proved strictly. I believe the norminal damages I proposed was sufficient but this claim was never proved.
I accordingly reject this application. The defendants were absent there will be no orders as to costs.
DATED THIS 17TH DAY OF JUNE 2008 AT NAIROBI.
M.A. ANG’AWA
JUDGE
G.O. Jaoko instructed by Jaoko & Co. Advocates for the plaintiff/applicant – present
Defendant is unrepresented - absent