[2025] KEHC 6164 (KLR)

[2025] KEHC 6164 (KLR)

The court found that it had erred by enhancing the award of special damages to include future medical expenses, an issue that was neither properly pleaded nor made subject to the appeal, and which had not been raised by the respondent through a cross-appeal. The trial court had dismissed the claim for future medical expenses for lack of proof, and the respondent did not challenge this finding. The appellate court's intervention on this issue, therefore, amounted to adjudicating on a matter not before it, constituting an error apparent on the face of the record and a sufficient ground for review under Order 45 of the Civil Procedure Rules. Consequently, the court reviewed its earlier...

Citation
[2025] KEHC 6164 (KLR)
Parties
Appellant: David Murage Ikinya; Respondent: Wilson Mwangi Gatere
Court
High Court
Court Station
High Court at Kiambu
Jurisdiction
Kenya
Judgment Date
28 March 2025
Case Number
Civil Appeal E258 of 2022
Procedural Posture
Civil Appeal / Ruling on Application for Review of Judgment
Outcome
Application allowed. Judgment reviewed in respect of special damages; award reverted to trial court's figure. Each party to bear own costs.
Judges
DO Chepkwony
Legal Topics
Review of Judgment, Special Damages, Error on Face of Record
Source Language
English
Civil Procedure Review of Judgment Special Damages Error on Face of Record

Case Brief

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Parties

David Murage Ikinya

Appellant

Wilson Mwangi Gatere

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Review of Judgment

Legal Issues

  1. 1 Whether the court erred in enhancing special damages in the absence of a cross-appeal by the respondent.
  2. 2 Whether the applicant has established sufficient grounds for review of the judgment under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules.

Ratio Decidendi

The court found that it had erred by enhancing the award of special damages to include future medical expenses, an issue that was neither properly pleaded nor made subject to the appeal, and which had not been raised by the respondent through a cross-appeal. The trial court had dismissed the claim for future medical expenses for lack of proof, and the respondent did not challenge this finding. The appellate court's intervention on this issue, therefore, amounted to adjudicating on a matter not before it, constituting an error apparent on the face of the record and a sufficient ground for review under Order 45 of the Civil Procedure Rules. Consequently, the court reviewed its earlier...

Court Disposition

Application allowed. Judgment reviewed in respect of special damages; award reverted to trial court's figure. Each party to bear own costs.

Orders

  • The judgment delivered on 12th April, 2024 is reviewed in respect of special damages awarded.
  • The special damages award of Kshs. 417,095 is substituted with the award of Kshs. 342,050 as awarded by the learned trial magistrate.