[2022] KEHC 16330 (KLR)

Dunda & 2 others v QAA (Minor suing thro' next friend FOO) (Civil Appeal 90 of 2019) [2022] KEHC 16330 (KLR) (13 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16330 (KLR)

Republic of Kenya

In the High Court at Migori

Civil Appeal 90 of 2019

RPV Wendoh, J

December 13, 2022

Between

Simon Dunda

1st Appellant

Ministry of Interior & Cordination of National Government

2nd Appellant

Hon. Attorney General

3rd Appellant

and

QAA

Respondent

Minor suing thro' next friend FOO

(An Appeal from the Judgement and Decree of the Senior Principal Magistrate’s Court at Migori in Migori CMCC Case No. 384 of 2017 by Hon. Richard Odenyo, Senior Principal Magistrate dated 26/6/2019)

Judgment

1. The Hon Attorney General, preferred the instant appeal dated July 19, 2019 against the judgement of Hon Richard Odenyo (SPM) dated and delivered on September 16, 2022. The respondent is represented by the firm of Mutuma Gichuru & Associates Advocates.

2. By a plaint dated September 18, 2017, the respondent filed a suit through a guardian and next of friend, FOO, against the appellants, for recovery of damages for injuries allegedly sustained from a gunshot wound. It was pleaded that the respondent was a form two student at [Particulars Withheld] Girls High School; that on or about May 27, 2016, while attending the regional games at Migori Boys High School, the respondent was hit by a live bullet, negligently and recklessly fired by a prison warden who was allegedly in pursuit of a prisoner who had allegedly escaped from the Migori GK Prison.

3. The respondent particularized the negligence and breach of common duty of care of the 1st defendant, the particulars of injuries suffered and the special damages. The respondent asked the trial court to award special damages, general damages, damages for pain and suffering and loss of future expectations of life and the cost of future medical expenses, costs, interests and any other relief the court deems just and fit to grant.

4. The 1st and 2nd appellants through the 3rd appellant entered appearance and filed a statement of defence dated November 15, 2017. The appellants denied the contents of the respondent’s plaint. In particular, the 1st appellant denied shooting the respondent with a live bullet while allegedly pursuing a prisoner who had allegedly escaped from Migori GK Prison. The appellants further denied the particulars of negligence and averred that if any shooting occurred the same was not occasioned by the 1st appellant.

5. The particulars of the injuries sustained by the respondent was also denied and the appellants averred that if any injuries occurred, the same were not occassioned by the appellants. The appellants denied the claim for special damages and denied any liability. The appellants asked the court to dismiss the respondent’s suit with costs.

6. The matter proceeded for hearing. The respondent presented 6 witnesses in support of her case while the appellants presented 5 witnesses in support of their case.

7. After the hearing, the trial magistrate found in favour of the respondent and awarded her a sum of Kshs 14,000,000/= as general damages, Kshs 73,000/= as special damages, interest on special damages from the date of filing suit, interest on general damages from the date of judgement and costs of the suit.

8. Aggrieved by the outcome, the appellants filed the instant appeal and preferred four (4) grounds of appeal as follows:-a.The learned magistrate erred in awarding general damages for injuries sustained without sufficient proof;b.That the damages of Kshs 14,000,000 awarded was erroneous, inordinately high and exaggerated;c.That the magistrate disregarded the pleadings of the appellants, their evidence and submissions in his judgement;d.That the magistrate erred in finding contrary to the evidence that the respondent proved his case on a balance of probabilities.

9. The appellants prayed:-a.The appeal be allowed and the court be pleased to set aside the judgement of the trial court;b.Costs of this appeal be awarded to the appellant.

10. Directions were taken that the appeal be canvassed by way of written submissions.

11. The appellants filed their submissions on December 30, 2021. On grounds 1 and 4, the appellants submitted that the trial court erred in finding that the respondent proved her case on a balance of probabilities; that neither of the witnesses who testified on behalf of the respondent saw any prison warden nearby and the respondent did not know who shot at her; that the respondent’s claim was that of negligence. However, there was no evidence adduced to show the court that there was something the officers could have done to prevent the occurrence; that there was no evidence adduced to show the court that the prison warders fired live bullets into the crowd; that the respondent was caught up in the situation and it was a coincidence that the remandee escaped the prison the same time when the games were going on. It was further submitted that the stray bullet was never recovered as it was not lodged in the eye of the respondent.

12. On the issue of special damages, it was submitted that they must not only be pleaded but proved; that the respondent pleaded Kshs 73,000/= but only proved Kshs 56,000/= thus the sum of Kshs 21,000/= was not proved; that there were no receipts to confirm purchase of the frames and no evidence of accommodation was tendered. The appellants also submitted that the report filed by Dr Akama and produced by Dr Thediues Ondijo estimated the procedure would cost Kshs 1,076,007/= but there was no list attached to prove how the estimates were arrived at. The appellants submitted that the respondent did not prove her case on a balance of probabilities as required by law; that the court in awarding Kshs 14,000,000/= as general damages, did not give reasons hence this court should set aside the judgment.

13. On ground number 2 on the damages awarded, it was submitted that the trial magistrate failed to state the degree of injuries sustained and the incapacity sustained by the respondent; that the trial magistrate relied on the authorities cited by the respondent yet the injuries therein were not comparable to the ones sustained by the respondent; that the medical report did not make a reference to the degree of the injuries sustained and the P3 form was filled two years later. The appellants proposed that the authorities which should have guided the trial magistrate as Amazon Energy Limited v Magdaline Nthenya Mathia & Another (2019) eKLR where the plaintiff suffered a total loss of one eye and on appeal, the High Court set aside the award of Kshs 3,500,000/=and substituted it with Kshs 2,500,000/=. The appellants also submitted that the Work Injuries Benefits Act 2007 enumerates the degree of disablement in the first schedule of the Act and an injury to the extent of a loss of one eye when the eye is normal is placed at 30%; that in the present case, the respondent was only injured in the eye leading to the loss of that eye and no other injury was sustained. The appellants submitted that the court ought to substitute the award with Kshs 1,500,000/= and may take into consideration the passage of time and inflation.

14. On ground number 3, the appellants submitted that the magistrate disregarded their pleadings, evidence and submissions; that the incident occurred in the midst of a security issue; that the escapee was arrested, charged and he served his time; that this was an indication that the shooting was not intentional; that the trial magistrate did not take into account the fact that the respondent did not see any prison warden before she was shot; that PW3 and PW4 both students did not also see the person who shot the respondent; that this is an indication that the 1st appellant did not shoot but it could have been any of the warders.

15. Further, it was submitted that there was a report clearing the 1st appellant from any wrongdoing and the ballistic report showing the shots fired but not with the aim of harming the respondent; DW2 another prison warden testified that he was ordered by his superiors to shoot in the air to disperse a crowd which was pelting stones to the warders who had arrested the escapee. The appellants submitted that the magistrate did not take into account the pleadings filed by the appellant and arrived at an erroneous decision that the appellants were 100 per cent liable for the injuries sustained by the respondent.

16. The appellants submitted that while the plaintiff can never regain her sight, a reasonable compensation can be awarded to help the respondent live with and manage the disability.

17. The respondent filed her submissions on March 18, 2022 and submitted on 4 issues. On thegeneral damages awarded, the respondent submitted that she proved her case on a balance of probabilities; that the injury resulted in permanent disability as a result of the 1st appellant’s negligent and reckless shooting in total ignorance of the school going children; that the covering report by Maurice Amwayi, the letter from the DPP dated December 5, 2018, the ballistic report by Alex Mdindi Mwandawiro dated August 25, 2017 and a letter by Stephen Mutua dated August 7, 2018 acknowledged that there was an escapee by the name of Rodgers Odhiambo; that there were term III games at Migori Boys involving many student. The 1st appellant fired shots while chasing the escapee and they recommended that the victim be compensated by the state through civil remedy. It was submitted that the appellants have not demonstrated how the court erred in awarding the general damages to the respondent, having found that the appellants were 100% liable.

18. On whether the damages of Kshs 14,000,000/= was inordinately high, it was submitted that as a result of the accident, the respondent lost the ability to read for long hours, experiences constant headaches, has uncontrolled tearing of her eyes and this has affected her performance in school; that the loss of her eye will affect her future career prospects which will negatively impact her earning capacity in the future. The respondent relied on the cases of Mumias Sugar Company Limited v Francis Wanalo civil appeal No 91 of 2003 and PKM (Suing on own behalf and as next friend of AJB) & GSM v Nairobi Women Hospital & Mutinda (2018) eKLR where the courts discussed loss of earning capacity. The respondent also urged this court to be guided by the decision in JOO & 2 Others v Praxedes P Mandu Okutoyi& 2 others (2018) eKLR where the court awarded Kshs 43,000,000/= as general damages.

19. The respondent also submitted that the young girl now feels ugly as a result of the disfiguration, she wonders if she will ever get married or do some things as the other girls her age do as was held in the case of Clara Nyaruma Oketch v Akamba Bus Service Nairobi HCCC No 3506 of 1985. It was also submitted that the medical report by Dr Mathew Akama dated December 13, 2016 as explained by Dr Thedius Odijo highlighted that the respondent would remain partially blind for the rest of her life; that the estimated surgical procedure costs approximately Kshs 1,076,077 exclusive of other hospital charges and the doctor recommended that she wears an artificial replacement of the eye which can enable her to see as she will never regain her vision. The respondent further submitted that the incidence has drained the family financially as they had to dispose of their assets for the medical expenses. The respondent relied on the case ofKenya Breweries Limited v Saro (1991) eKLR.

20. On whether the magistrate disregarded the pleadings, evidence and submissions of the appellants, it was submitted that the appellants failed to adduce evidence to convince the court but relied on their pleadings and submissions. The appellant submitted that the courts have ruled that submissions cannot take the place of evidence and referred to several case laws and urged the court to strike out the appeal.

21. On whether this appeal is valid and arguable, the respondent submitted that the appellants have not in their memorandum of appeal demonstrated that the appeal has a likelihood of success; that the appeal is an afterthought as the 1st appellant had admitted liability and felt sorry for shooting the respondent; that since it was recommended that the state compensates the respondent for the injuries, it is thus unclear how the appellant seeks to have this court set aside the trial court’s judgement.

22. The respondent concluded that it is in the best interest of justice that this court does not allow further delay of justice by the appellants and dismiss this appeal with costs to the respondent or even enhance the award of the trial court to one that is commensurate to the injuries sustained.

23. This being the first appellate court, the court has a duty to re-evaluate and analyse all the evidence tendered in the lower court and arrive at its own conclusions but bearing in mind that it neither saw nor heard the witnesses testify. It has to establish whether the decision of the lower court was well founded. See the decision in Selle &another v Associated Motor Boat Co Ltd (1968) EA 123.

24. It is also settled that an appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence at all, or on a misapprehension of it or on demonstrably wrong principles not supported by evidence or on wrong principles of the law. This was the finding of the Court of Appeal in Mbogua Kiruga v Mugecha Kiruga & another[1988] eKLR where the Court of Appeal held: -“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but his is a jurisdiction which should be exercised with caution.”

25. I have read, understood and considered the appeal, the proceedings in the trial court and the submissions by both parties. The issues for determination are:-1. Whether the respondent proved her case on a balance of probabilities.2. Whether the appellants were 100% liable.3. Whether the trial court followed the correct principles in assessment of damages.

26. The appellants submitted that the respondent did not prove her case on a balance of probabilities since she and her witnesses did not see any prison warders around before the incident and it was difficult to know who shot the respondent.

27. The respondent testified as PW2. PW2 testified that on May 27, 2016, she was in Migori Boys Secondary School participating in handball; that they went to watch the game and she heard some gunshots from the general direction of Migori Prison; that she saw some people lying down and just as she attempted to go down also, she was hit on the left eye and felt a sharp pain on her left head and told her team mate Lydia; that Lydia started screaming loudly. PW2 realized that she was immobilized and could not move and she lost consciousness PW2 woke up at Ombo Mission hospital and was later on transferred to Moi Teaching Referral Hospital where she was treated as an inpatient for 10 days. She later learnt that she was injured by a bullet that damaged her left eye. On cross examination, she testified that they were sitting, facing the general direction of the prison; that the first gunshot sound was about 5 minutes before the next gunshots were heard. She did not see any prison warden before she was shot.

28. PW3 EMO a form 2 student at [Particulars Withheld] Girls, testified that on May 27, 2016, she heard some sounds which she later learnt to be gunshot sounds; that she heard their coach wailing and when she rose to see what was happening, she saw their team mate, the respondent herein lying down with blood on her arms. She testified that she also saw a naked man running and two men in uniform having guns pursuing him. In cross – examination, she recalled that she had never seen a prison warden before and she could not tell if the men who came with guns were prison wardens or police officers; that the respondent was injured in the second round of gun shots; that she did not get to know who shot PW2. On re-examination, she testified that the uniform the officers were wearing was green.

29. PW4 is LIO, a student at [Particulars Withheld] Secondary School, testified that on May 27, 2016 she was at Migori Boys High School; that she was participating in handball alongside the respondent; that they heard some gunshots but they thought they were sounds from an electric fault; that the sounds were coming from the direction of the prison; that the 2nd sound made them to lie down and then the respondent called her in pain and when she turned to look, she saw a white eye out of its socket and PW2 was bleeding; that she started screaming and she collapsed. She denied seeing the person who fired the shot. On cross examination, she testified that she denied seeing any police or prison officer at the scene; that when the first round of shots were fired, the boys from Migori Boys told them those were rubber bullets and they are used to them coming from the prison; that when she saw the eye of the respondent is when she knew that what they head heard were gun shots; She did not know who shot the respondent. On re-examination, she testified that from the place where they , Migori Prison is about 200 meters. The gun shot sounds were from that direction.

30. PW6 is GOO, a teacher at [Particulars Withheld] Secondary School, testified that he led the school’s handball team to Migori Boys High School; that suddenly they heard sounds which they later realized were gunshots; that the sounds came from the general direction of Migori prison and they went prostrate to the ground; that when the shots ceased he got up and told the students to run; that he turned to where the respondent was and realized that there was a problem; that the respondent was lying on her belly and when he tried to lift her, he saw that her entire eye ball was hanging out of its socket. He further testified that as people gathered around the injured student, he saw two uniformed prison officers/warders; that as they took the respondent to the hospital, he saw other officers/warders capture a naked man whom he assumed was the escapee. On cross- examination, he stated that before the shooting, there was no prison warden in uniform in the school; that he saw prison wardens not police officers; that he did not see the person who shot the respondent and could not tell the number of prison officers at the scene but that those present were carrying guns.

31. Section 106 (1) of the Evidence Act provides: -“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

32. A person who wishes the court to find or establish a fact in his or her favour, bears the burden to prove that those facts exist. There is no dispute that there was a high school regional games happening on May 27, 2016 at Migori Boys High School. Ordinarily in such an event, there are several students participating. There is also no dispute that the respondent was injured and the cause of the injury was a bullet. The evidence of PW2, PW3, PW4 and PW6 generally point to the fact that none of the parties saw the person who pulled the trigger or fired the gunshot and/or shot in a manner, whether intentionally or not, was aimed at hitting the respondent. PW2, PW3, PW4 and PW6 could also not tell whether the bullet was from a police officer or a prison warder. The witnesses all agree that the gunshot sounds came from the general direction where the prisons is situated. PW3 and PW6 testified that after the alleged gunshot sounds subsided, they saw officers with guns escorting a naked man.

33. DW1 Vincent Ndunda Simon PC No 4xxxxxxxxK the prisons officer and the 1st appellant herein testified that on May 27, 2016 at around 10. 00 a.m he was saw a remandee who had already climbed the inner fence; that he started pursuing the prisoner and he jumped over the outer fence; that he fired three rounds but the man kept on running; that he fired six other rounds in the air; that he left the man midway since he feared other prisoners would escape. DW1’s colleagues continued pursuing the fleeing man; that the escape ran towards Migori Boys Secondary School and from the sentry, he could see that there were games going on in the school. DW1 testified: -“About five minutes, I heard some 3 gunshots sounds, fixed in the direction of Migori Muslim Primary School, After about 10 minutes the remandee was brough back into the prison.”

34. The above testimony of DW1 corroborates the testimony of PW3 who testifiedthat she heard about two shots, PW4 who testified that there were more gunshot sounds and PW6 who testified that there were several gunshots.

35. The standard of proof in civil cases is on a balance of probabilities. What constitutes a balance of probabilities was discussed in the Court of Appeal Case Palace Investment Ltd v Geoffrey Kariuki Mwenda & another (2015) eKLR, the Judges of held that:“Denning J inMiller v Minister of Pensions(1947) 2 ALL ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

36. This being a civil dispute, the burden of proof is on a balance of probabilities and not beyond reasonable doubt as defined in the above case i.e Palace Investment Ltd (supra). In this suit whoever was responsible for firing the shot was not on trial because the respondent was pursuing a civil claim and not a criminal case. There was no need for the respondent to specifically identify the officer who fired the gunshot, for her case to reach the required standard of proof in a civil case. From the foregone analysis and the evidence of PW2, PW3, PW4, the respondent was injured from a gunshot wound which emanated from the general direction where the Migori Prisons is located.

37. In Treadsetters Tyres Ltd v John Wekesa Wepukhulu (2010) eKLR where Ibrahim J allowed an appeal and quoted Charlesworth & Percy On Negligence, 9th edition at P 387 on the question of burden of proof thereof where it is stated:-“In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it to establish each element of the tort. Hence it is for the plaintiff to adduce evidence of the facts on which he bases his claim for damages. The evidence called on his behalf must consist of such, either proved or admitted and after it is concluded, two questions arise, (1) whether on that evidence, negligence may be reasonably inferred and (2) whether, assuming it may be reasonably inferred, negligence is in fact inferred.”

38. On the allegations of negligence of the prison wardens, DW1 admitted that it was negligent to fire at a crowd when pursuing a remandee. The undated covering report prepared by Maurice Amwayi does not mention any officer responsible for the shooting. The report states that there were other wardens who fired at the escapee. The report states: -“…but accidently the bullet head hit one Quinter Amondi on her left eye which was damaged extensively. The victim was innocent and the officer did not have an intention of harming her. It was a misadventure incident to occur.”

39. There was an admission of negligence by the 1st and 2nd appellants. They did not front a different explanation on who else, perhaps a third party other than, the 1st appellant or another officer in the employment of the 2nd appellant who had a gun and may have fired the shots that injured the respondent. Since it had been established that the escapee was a remandee being pursued, the gunshots would only have been fired by a prison warden or wardens. There is also no doubt that the escapee was running towards the general direction of Migori Boys High School where the regional games were being held. The participants of the games as it has been established were students, the respondent being one of them. There is no evidence which was produced by the appellants that they needed to use extra in order to pursue the remandee.

40. It was certainly negligent of the prison wardens to fire gunshots in the air with reckless abandon in the hope they would not cause any injuries or death to the members of public. The prison wardens had a duty of care towards the students and others members of public to take precautionary measures of alerting the public if possible, ask for reinforcement from other security agents to assist in chasing the escapee or even from the general public rather than firing gunshots. The wardens could not ignore the safety of the general public and put their lives at risk at a cost of one escaped convict. There is no other way to look at the present scenario but to find that the 1st and 2nd appellants are 100% liable for the injuries sustained by the respondent.

41. On the duty of the appellate court to assess and interfere with an award of damages, the principles are well settled. The Court of Appeal inBashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR set out the parameters within which an appellate court may interfere with an award in general damages when it held that: -“‘An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely 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...”Also see Kemfro Africa Ltd t/a Meru Express Service v A. M. M Lubia & Another (1982 – 88) 1KAR 777.

42. The medical reports produced in support of the injuries sustained by the respondent was the P3 Form dated May 27, 2016, discharge summary form from Moi Teaching and Referral Hospital dated June 6, 2016 and the medical report by Dr Akama dated December 13, 2016. The P3 Form does not specify the injuries suffered by the respondent. The medical reports from the Moi Teaching and Referral Hospital and the one from Dr Akama shows that the respondent suffered gunshot wounds as follows: -1. Multiple left facial fractures and absent left globe.2. Deviated nasal septum.3. Rhinosinusitis with Bilateral nasal turbinate hypertrophy.

Maxillary ethmoidal and sphenoidal sinusitis4. Blockage of left nasolacrimal duct.

43. Dr Akama in his report noted that the respondent would permanently lose eye sight of the left eye and she will need an eye prosthesis for the rest of her life.

44. The respondent relied on the findings of PKM (Suing on own behalf and as next friend of AJB) v Nairobi Women Hospital & Mutinda (2018) eKLR andJOO & 2 others v Praxedes P Mandu Okutoyi & 2 others (2018) eKLR and asked the trial court to award her a sum of 20,000,000/= as damages. The appellants relied on the findings of the court in Japheth Ngula Matingi v Attorney General (2016) eKLR and submitted that an award of Kshs 3,000,000/= for pain and suffering and Kshs 2,400,000/= would suffice for loss of earnings. Further, the appellants relied on the case of Mbaka Nguru & another v James Rakwar CA No 133 of 2019 where the Court of Appeal reduced an award of Kshs 2,500,000/= to Kshs 1,500,000/= where the injuries sustained were fractures and the plaintiff was confined in a wheelchair. The appellant submitted that the loss of future earnings and loss of capacity though pleaded was not proved.

45. On cost of future medical expenses, it was submitted that the doctor make an estimated cost of Kshs 1,076,077/= without including hospital charges and this means that the future medical expenses has not been fully computed and there is no evidence to show how the figure was arrived at. Hence the same is not proved. The appellant also relied on the case of William Wagura Maigua v Elbur Flora Limited (2012) eKLR where the plaintiff suffered spinal injuries and was confined in a hospital for 14 months but the court awarded Kshs 3,000,000/=. In Nancy Oseko v Board of Governors Masai Girls High School (2011) eKLR the plaintiff suffered fractures and disability was assessed at 100%. The plaintiff was awarded Kshs 2,500,000/= as damages. Relying on the aforementioned authorities, the appellants asked the trial court to award a sum of Kshs 1,500,000/=.

46. I have also taken the time to consider the authorities relied on by the appellants and the respondents. None of the authorities have comparable injuries to those suffered by the respondent herein. The respondent permanently lost her left eye and the medical report by Dr Akama opined that she would need to wear eye prosthesis.

47. In the case of Peter Oduor Shikuku v Magnum Engineering and General Contractors Limited & another (2021) eKLR, the respondent suffered chemical burns with compete visual loss of the left eye. The respondent suffered 30% disability. The appellate court enhanced the general damages from Kshs 1,200,000/= to Kshs 2,000,000/=. In the case of Pioneer Holdings (Africa) Limited v Francis Shitsukane Abakala & another (2017) the plaintiff sustained total chemical burns which led to total blindness and the court awarded Kshs 2,500,000/= as damages. In Leah Wambui Githuthu v The Attorney General and another (2005) eKLR the plaintiff suffered 100% visual capacity and the court awarded Kshs 2,000,000 as general damages in 2005.

48. The victim of the present suit was a high school student who had a whole future ahead of her. There was an admission by the 1st appellant that it was not proper to open fire in the presence of children and other and other members of public. The original photos on the condition of the eye paint a grim picture and the situation which the respondent will be forced to deal with for the rest of her life. The respondent has been denied the enjoyment opportunities and future prospects which were available to her as a young girl. She has to live with a disability which she had not anticipated or foreseen to get through negligence of a third party. The respondent will be forced to give up her career ambitions and, in her adulthood, strenuously begin to train herself in new areas in order to adjust to society (by even taking up braille classes). The appellants cosmetic appearance was also affected. Awarding damages is a discretion of the court which has to be exercised judiciously. Guided by the persuasive and comparable authorities and the circumstances considered herein, it is my view that the trial court’s award was on the higher side. I hereby set aside the trial courts award and hereby make an award of a sum of Kshs 5,000,000/= as general damages.

49. On the issue of special damages, it is trite law that it must be pleaded and strictly proved. The respondents pleaded Kshs 73,000/= as special damages. The receipts produced by the respondent amounted to Kshs 60,000/= and she is awarded the same as special damages.

50. On the award of cost of future medical expenses, the appellants submitted that the report filed by Dr Akama did not include hospital charges and therefore not complete. In Forwarding Company Limited & another v Kisilu; Gladwell (third party) (2022) eKLR the Court of Appeal held that: -“In the instant case, we do not agree with the finding of the learned judge that failure to plead future medical expenses would fatally affect this specific claim. To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment, among other things. It is not always clear at the time of filing a case what these future costs may be. The prognosis could change for better or for worse depending on various circumstances.”

51. In proposing the surgical procedure for the respondent to wear an eye prosthesis, the doctor listed the anticipated surgeon fees which amount to Kshs 1,076,077/=. It is not fatal that the hospital charges were not specifically outlined because they may vary most probably upwards, depending on where the surgery will be done. I therefore allow the cost of future medical expenses amounting to Kshs 1,076,077/= be awarded to the respondent.

52. The respondent also asked the trial court to make an award for loss of future expectation of life. The respondent did not clearly plead which aspect or loss of future expectation of life, be it future earnings or just the general aesthetic appearance they wanted the trial court to consider. The court cannot second guess and award what is not properly pleaded.

53. In the end, I find that the appeal has merit and partly succeeds. I hereby set aside the judgement and decree of the trial magistrate dated and delivered on June 26, 2019 and enter judgement in favour of the respondent as follows: -Pain and suffering 5,000,000/=Special damages 60,000/=Future medical expenses 1,076,077/=Total 6,136,077/=

54. The appellant will have half the costs of appeal.

DATED, DELIVERED AND SIGNED AT MIGORI THIS 13TH DAY OF DECEMBER, 2022. R. WENDOHJUDGEJudgement delivered in the presence of;No appearance for the Appellant.Ms. Kimathi holding Mr. Mutuma for the Respondent.Nyauke Court Assistant.