[2023] KEHC 26016 (KLR)

Glajoes Limited & another v Nzaka (Civil Appeal E186 of 2021) [2023] KEHC 26016 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26016 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E186 of 2021

DKN Magare, J

November 21, 2023

Between

Glajoes Limited

1st Appellant

Joseph Mwaniki Perminus Njagi

2nd Appellant

and

Nzigo Muta Nzaka

Respondent

Judgment

1. This is an appeal from the Judgment of the Hon. Francis N. Kyambia given on 8/10/2021 in Mombasa CMCCC 1785 of 2019. They filed 6 grounds of Appeal namely: -a.The learned magistrate erred in law and in fact in finding the 1st and 2nd Appellant liable to the tune of 100%.b.The learned magistrate erred in law and in fact in awarding general damages of 500,000/=c.The learned magistrate erred in law and in fact in awarding special damages of 6,000. d.The learned magistrate erred in law and in fact in awarding quantum that are excessive.e.Failing to consider submissionsf.The learned magistrate erred in law and in fact in RELYING ON Extraneous evidence at evidence in arriving at the decision on general damages.

2. The 6 grounds are actual set out in grounds (a), (c) and (d). The rest are repetitive, prolixious and unseemly. The Appellant should file concise Memorandum of Appeal. Under Order 42 Rule, 1 provides are doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.2. The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

3. The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR:-“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

4. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

5. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. The question this court will have to deal with is whether the magistrate’s court had jurisdiction to hear and determine this dispute. This is the only issue addressed in submissions before the court below and before this court.

Duty of the first Appellate court 6. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

7. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

8. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows; -“.. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

9. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

10. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

11. In Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

12. The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.

13. The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appealed held as follows as paragraph 8. “In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of uniformity is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies should be taken into consideration.”

Pleadings 14. The Respondent filed suit on 11/10/2019 claiming for damages over an accident on 31/8/2019 at 9:00 am at Jomvu area along Mombasa Nairobi road when the Appellant, who were owners of motor vehicle registration No. KTCB 115 P Sonalika wheel /Tractor hit him and he suffered damages. Particulars of negligence were set out.

15. The plaintiff suffered the following injuries: -a.Cut on the lower lipb.Blunt object injury to the jawc.Bruises on the right jaw.d.bruises on the right elbows (sic).e.Loosening of the teeth (sic).

16. The particulars of special damages were set out in the amended Plaint are as follows: -a.Police Abstract 500b.Medical Report 2,500c.P3 Form 2000d.Stitching 1000Total 6000

17. The plaintiff filed a witness statement where he said that he said tractor was recklessly driven. It is not indicated what was there in the recklessness. The Respondent was given abstract indicating he suffered harm. P3 filled in August shows: -a.Cut wound on lower hip.b.On the Upper limbs- old bruises ow the elbow.

18. The degree of injury was harm. The P3 was paid for Kshs. 2,000/= Port Reitz hospital paid 100/= for the treatment book. The story given on 21/8/19 is lose teeth, cut wound. He was examined by Dr. Ajoni Adede. The teeth were to regain firmness in 3 months. He did not expect permanent disability.

19. A search showed that the said motor vehicle was registered in the name of Joseph Mwangi Pernimus Njagi. The Appellants filed defence on 12/11/1999. They denied the occurrence of accident. The defence on the record is incomplete. The witness statement blamed the respondent.

Appellant’s Submissions. 20. The appellant filed submission dated 31/7/2023 they stated that the fact that the appellants failed to call witnesses, does not necessarily mean that scales tilt against them. I agree. The scales do not tilt against them. The remains stack against them. They rely on the decision of Hon. Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, where the Court stated.“It is a firmly settled procedure that even where a defendant has not denied the claim by filing of defence or an affidavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.”

21. The above is not authority on non-appearance. It is an authority that the burden of proof still lies with the plaintiff to proof their case, even in cases of non appearance it does not cover contributory negligence which must be proved through testimony.

22. They rely on the locus classicus case of Selle vs Associated Motor Boat Co. Ltd [1968] EA 123 where it was stated that:“An appeal from the High Court is by way of a re-trial and the Court of Appeal is not bound to follow the trial judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.”

23. The Appellant relied on the case of Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 for the issue of burden of proof, which decided the question as to what amounts to proof on a balance of probabilities was discussed as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

Burden of proof 24. They stated that the Respondent was walking at some stage and crossing in another stage. These were contradictions are said to have made the case untenable. They placed reliance on the case of Sally Kibii & another v Francis Ogaro [2012] eKLR, where the Court stated as doth:-“The Plaintiff in the trial court only produced two witnesses who admitted they did not witness the accident and could not tell how it happened. The Police Abstract showed that the accident was by collusion of two vehicles and investigations were underway. The failure of the police to determine from the scene of the accident which motor vehicle was to be blamed and the absence of an eye witness evidence diminishes the Appellant’s chance to prove a case for negligence against the Defendant.”

25. The Appellant relied on the case of Florence Rebecca Kalume v. Coastline Safaris & Anor [1996] eKLR, where, it was held that particulars of negligence must be proved before the court is called upon to find fault upon the defendant. that particulars of negligence must be proved.

26. They state that there is a disconnect between the injury in P3 and the evidence Reliance is placed on the case of Statpack Industries =vs= James Mbithi Munyao (2005) eKLR where Justice Visram as he then was stated that not every injury is as a result of someone’s negligence.

27. They state that in the case of NZOIA SUGAR COMPANY LIMITED v DAVID NALYANYA [2008] eKLR, the Court found that the evidence adduced did not show the manner in which the accident occurred.

28. They relied on Section 107 of the Evidence Act and the case of in the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, there is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. on the issue that there can be no liability without fault.

29. On the duty of the court they relied on Butt =vs= Khan (1981) eKLR 349, Gitobu Imanyara & 2 Others =vs= Attorney General (2016) eKLR, Odinga Jacktone Ouma =vs= Maureen Achieng Odera (2016) eKRL. The line of reasoning was that comparable injuries attract comparable awards. They submitted that an award of 150,000/= will be sufficient.

30. They relied on the case of Joseph Muleen Njihia =vs= Fredrick Moses Mutua HCCC 122 of 2017 – Machakos. They also relied on the case of Hamed Wanjeri Njuguna versus Anestar Secondary School (2020) eKLR, the Court awarded 180,000.

Respondents submissions 31. The Respondent filed submission dated 10/8/2023. They state that the Record of appeal was lodged on 3/4/2023, being 1 year and 10 months contrary to the Court of Appeal Rules. I need to disabuse the Respondents on this line of reasoning. It is fallacious and brings litigation to public odium.

32. They state that the submission are based on the original plaint as opposed to the amended plaint. They argue that the submissions around crossing the road are otiose – she was walking on the road as per the Amended plaint. They relied on the case of Masambe =vs=Sugar Corporation and Another (2002) 2 EA 434.

33. It was their evidence do not apply to the appeals to this court. There is no request for filing a record of Appeal to the high court. It is a practice developed but it is not anchored on any statutory of regulatory framework. The nearest to the record is Order 42 Rule 13 which provides as follows:-“Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—a.the memorandum of appeal;b.the pleadings;c.the notes of the trial magistrate made at the hearing;d.the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;e.all affidavits, maps and other documents whatsoever put in evidence before the magistrate; yf.the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:

34. The court is therefore entailed to ensure those documents are on record. They state that the Civil Procedure Section 79G provides for filing of the Appeal. The only useful document to found on appeal to this court is the memorandum of appeal. This is buttressed by order 42 Rule 1 (supra). I shall therefore ignore all fallacious submission on the Court of Appeal Rules. I shall start with the issue of liability that the defence gave no evidence. They were rightly held 100% liable.

35. On quantum Respondent submitted 800,000/= and a sum of 500,000/= was in the courts discretion. They relied on the cases of Patrick Muriithi Mukala =vs= Edwin Wamau and 5 others. They raised issue that authorities referred were omitted. The same were correctly omitted. Authorities do not form part of the record, as per order 43 Rule 13. There is therefore no wind in those submission on special damages they stated that the same was proved.

36. They pray that the Appeal be dismissed.

Analysis 37. The Court of Appeal Rules relate to the appeals to the Court of Appeal. Filing of the Record of Appeal is not a legal requirement for Appeals to the High court. It is a practice developed to further the requirements of Order 42 Rule 13 of the Civil Procedure Rules.

38. The Court of Appeal Rules are not relevant for appeals from the subordinate court. There is no place of a notice of Appeal from the lower court.

39. It is a practice that should be encouraged but there are no statutory imperatives for its filing. Once the original court file with certified copy of the court’s notes are filed, Order 42 Rule 13 is fully complied with. I dismiss the attack on the competence of the Appeal. The appeal was filed on 7/9/2021 through a memorandum of appeal dated 1/9/2021. The impugned decision was delivered on 13/8/2021. The same was within 30 days set out in Section 79G of the Civil Procedure Act. The said section provides as follows: -“79G.Time for filing appeals from subordinate courts Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.”

40. An appeal is fully filed by complying with order 42 Rule 1 of the Civil Procedure Rules. Once a memorandum of Appeal is filed there are no other time lines to be complied with. I dismiss all submissions related to filing out of time.

41. Secondly, on liability, the plaintiff was amended to read that the Respondent was walking. There is no basis for relying on the issue of walking. If there are any contradictions in the evidence by the Respondent, they are not contracted with the evidence of the Appellants. I have read the evidence on the record and note that the Respondent tendered cogent evidence on how the accident occurred. The appellant’s driver knew how the accident occurred. He chose not to tender evidence.

42. Indeed, they had special knowledge under Section 112 of the Evidence Act they ought to have testified on special knowledge whether they were driving carefully, it is within the driver’s knowledge and no one else. The said Section states as doth: -“112. Proof of special knowledge in civil proceedings. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”

43. Failure to testify means that had the driver testified his evidence could have been adverse to the appellants. In the case of Nesco Services Limited v CM Construction [EA] Limited [2021] eKLR, Justice G V Odunga stated as follows: -“41. Since the said author was for reasons unknown to the Court not called to testify and dispute its authenticity, adverse inference could be made thereon. In Kenya Akiba Micro Financing Limited vs. Ezekiel Chebii & 14 others [2012] eKLR the court stated as follows:“Section 112 of the Evidence Act Chapter 80 of the laws of Kenya provides:‘In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proofing of disproving that fact is upon him.’Where a party has custody or is in control of evidence which that party fails or refuses to tender or produce, the court is entitled to make adverse inference that if such evidence was produced, it would be adverse, to such a party. In the case of Kimotho –vs- KCB (2003) 1 EA 108 the court held that adverse inference should be drawn upon a party who fails to call evidence in his possession.”

44. Further, the duty was on the plaintiff to proof particulars of negligence. Sections 107, 108 and 109 of the Evidence Act states as doth: -“107. Burden of proof.(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.(2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.108. Incidence of burden.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.109. Proof of particular fact.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”

45. The Respondent was under no duty to disprove the particulars of contributory negligence. By failing to testify, the defence because mere papers. They are not evidence submissions, however, good they are, are not evidence. There must be cogent evidence tendered against the Respondent. By not tendering evidence, particulars of contributory negligence were not proved.

46. The Court has no jurisdiction to find contributory negligence proved in absence of evidence.

47. In the case of Billiah Matiangi v Kisii Bottlers Limited & another [2021] eKLR, Justice A. K. Ndung’u, stated as doth: -“11. Where a plaintiff gives evidence in support of her case but the defendant fails to call any witness in support of its allegations then the plaintiff’s evidence is uncontroverted and the statement of defence remains mere allegations. In Janet Kaphiphe Ouma & Another vs. Marie Stopes International (Kenya) Kisumu HCCC No. 68 of 2007 Ali-Aroni, J. citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 held that:“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”. 12. The fact that a defence is held as mere allegations in no way lessens the burden on the plaintiff to prove her case. The court in the case of Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR the court stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.

48. In the circumstances the Appeal on liability is untenable. It is accordingly dismissed.

49. On quantum, the plaintiff pleaded the following injuries.a.Cut wound on the lower up.b.Blunt object injury to the jaws.c.Bruises on the right elbow.d.Loosening of the teeth (sic).

50. Dr. Ajoni Adede stated that the teeth were to firm up in 3 months. The bruises to the elbow were old wounds. There were not related to his accident. The nature of injury was harm. The treatment showed injury to the right side of the jaw/cheek and lose canine and incisor. The Respondent was treated with analgesics. There were minor soft tissue injuries.

51. These were minor soft tissue injuries. The Respondent relied on cases where Teeth were lost. Both parties proceed on the premise that there was injury to the elbow. It is not indicated in the treatment notes. I note that the notes indicate that the respondent was crossing the road. Nevertheless, the appellant did not rebut the evidence. It is not wrong to cross the road.

52. The appellant relied on the authority of Hannah Wanjeri Njuguna v Anestar Secondary School [2020] eKLR where the claimant suffered trauma to the chest as evidenced by pain, cut would to the lower lip, Trauma to the fore teeth as evidenced by movement in the sockets, Cut wounds to the forehead and Blood loss

53. In the case of Patrick v Ajak (Civil Appeal E07 of 2020) [2022] KEHC 612 (KLR) (31 March 2022) (Judgment) the court awarded a sum of 150,000/= for soft tissue injuries.

54. The court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.

55. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

56. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

57. So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence.

58. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

59. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards. The comparable awards may not be in all fours as not all injuries are the same. The circumstances and levels of injury will differ as will the individuality of the claimants. This also goes with the perception of the courts. This is what gives rise to discretion.

60. For a discretion to be exercised judiciously, it must be such that a reasonable person properly informed will accept the damages to relate to the injuries pleaded. Our own perceptions of the injuries must be reflected. Such that an amputation of a finger and a leg above the knee cannot be treated equally. Even a village wag will tell which one calls for higher awards. However, for the appellate court, to interfere with the award it is not enough to show that the award is high or low or even that had I handled the case in the subordinate court, I would have awarded a different figure.

61. The Court in exercising its discretion erred and relied on irrelevant decision. The injury suffered were minor without permanent disability. An award of Ksh. 150,000. Though as suggest by the Appellant, though high will suffice. In the circumstances, I set aside the entire award on general damages of Kshs. 500,000/=. In lieu thereof, I award a sum of Kshs. 150,000. On special damages a sum of Kshs. 6000 was pleaded. However, a sum of 5,500/= was proved.

62. In the case of in the case of David Bagine Vs Martin Bundi [1997] eKLR, the court of Appeal stated as follows: -“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:"....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus:“Plaintiffs must understand that if they bring actions for damages it is for thm to prove damage, it is not enough to write down the 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"

63. The prayer for Kshs. 5,000/= for police abstract cannot be sustained. It is set aside. The amount of Kshs. 2000/= for P3 was proved. The medical report was paid for a sum of Kshs. 2500/=. A receipt for Kshs. 1000/= for stitching was produced. This amounts to Kshs. 5,500/. Therefore, a sum of Kshs. 5,500/= was proved.

64. In the end I allow the Appeal partly as aforesaid.

65. Given that the paella is partly successful, each party will bear their own costs

Determination 66. The upshot of the foregoing I make the following orders: -a.The appeal on liability has no merit and is accordingly dismissedb.The Appeal on general damages succeeds. I set aside the award of 500,000/=. and in lieu thereof, I award a sum of Kshs. 150,000/=.c.It shall attract interest from the date of judgment in the lower court.d.The Award of 6,000/= special damages are set aside and in lieu thereof, I substitute with a sum of Kshs. 5,500/=e.Each party to bear their own costs.f.The Respondent to have costs in the court below.g.30 days stay of execution.h.This file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Ms Memia for Okwapo for RespondentNo appearance for the AppellantCourt Assistant - Brian