[2022] KEHC 13556 (KLR)

Jutla v Loreto Convent Msongari School & another (Civil Suit 167 of 2014) [2022] KEHC 13556 (KLR) (Civ) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13556 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Suit 167 of 2014

JK Sergon, J

October 7, 2022

Between

Prabjot Kaur Jutla

Plaintiff

and

Loreto Convent Msongari School

1st Defendant

Ahmed Saleh

2nd Defendant

Judgment

1. Prabjot Kaur Jutla who is the plaintiff herein instituted a suit against the 1st and 2nd defendants by way of the plaint dated 9th June, 2014 and amended on 31st August, 2021 and sought for general damages, special damages in the sums of Kshs.1,243,429/=; USD 2,561 and INR 1,363,686. 80, future medical expenses in the sum of Kshs.15,000,000/=, costs of the suit and interest thereon.

2. The 1st defendant is sued in its capacity as the beneficial owner of the motor vehicle registration number KAM 180V (“the subject vehicle”) at all material times while the 2nd defendant is sued in his capacity as the registered owner of the subject vehicle at all material times.

3. The plaintiff pleaded in the amended plaint that sometime on or about the 29th day of July, 2011 she was travelling aboard the subject motor vehicle along Nanyuki-Meru road at Subuiga area when the driver/agent of the 1st defendant negligently drove the subject motor vehicle, thereby causing it to collide with another vehicle, causing the plaintiff to sustain severe bodily injuries. The particulars of negligence and the injuries sustained are set out under paragraphs 6 and 7 of the amended plaint respectively.

4. Upon service of summons, the 1st defendant entered appearance and filed the joint statement of defence dated 24th July, 2014 to deny the plaintiff’s claim. It is apparent that the 2nd defendant did not put in a statement of defence.

5. Going by the record, the parties recorded the consent dated 13th September, 2021 wherein they settled the issue of liability at 100% in favour of the plaintiff and against the defendants, jointly and severally. The parties also settled the issue of general damages at the sum of Kshs.3,000,000/=.

6. At the hearing, the plaintiff testified and summoned two (2) other witnesses while the defendants closed their case without calling any evidence.

7. The plaintiff who was PW1 adopted her signed witness statements as her evidence-in-chief and produced her list and bundle of documents as P. Exhibits 1 to 33.

8. In cross-examination, the plaintiff stated that she was in primary school when the accident occurred and that he received special medical treatment at Aga Khan University Hospital in Kenya and Apollo Hospital in India.

9. According to her testimony, the plaintiff suffered extensive injuries which she is yet to completely heal from and hence requires further treatment including reconstruction of the right upper lid and also continues with hospital visits.

10. The plaintiff also testified that she is not claiming the sums paid out by the insurance company.

11. In re-examination, it was the evidence of the plaintiff that she has been seen by various doctors and reiterated that she still requires further treatment.

12. Dr. Wanjiru Kabiru who was PW2 adopted her signed witness statement and testified that she specializes in plastic surgery and that she had attended to the plaintiff, who had presented with scars on the right eye side; difficulty shutting and moving her right eye. The doctor testified that the plaintiff will require a further procedure to repair her eyelid, at a cost of Kshs.1,500,000/=.

13. In cross-examination, the doctor stated that by the time she attended to the plaintiff, she had undergone several surgeries but still requires a further medical procedure.

14. Dr. Bernard Githae who was PW3 testified that he is a reconstructive surgeon having worked at Aga Khan Hospital since the year 2004 and that he specializes in plastic and reconstructive surgery.

15. The doctor gave evidence that he treated the plaintiff who had life threatening injuries on the scalp, chest and arm, adding that the plaintiff developed complications which require further procedures.

16. It is also the evidence of the doctor that the plaintiff requires a reconstruction of the right eye and that a colleague of his, Dr. Boca, recommended a visit to Czech Republic for that purpose, at an estimate cost of Kshs.1,500,000/=.

17. The doctor stated in his evidence that a correction of the right upper limb will cost the sum of Kshs.6,000,000/=.

18. In cross-examination, the doctor gave evidence that the sum of Kshs.1,500,000/= (15,000 USD) was arrived at by Dr. Boca upon consultation with a colleague in the Czech Republic and that the estimated figures could change depending on the procedures to be undertaken.

19. The doctor also gave evidence that given the complexity of the injuries suffered by the plaintiff, the Czech Republic is the most suitable and recommendable country for her to undergo the future reconstructive procedures.

20. In re-examination, the doctor stated that even if the cost estimates could possibly change, the difference in figures is not likely to be significant in nature.

21. Upon close of the hearing, this court issued directions for the parties to put in written submissions.

22. On her part, the plaintiff submits that the special damages pleaded in the plaint consist of the medical expenses incurred in Kenyan currency as well as US dollars and Indian Rupees (INR), the cost of the motor vehicle search and the medical report receipts.

23. On the cost of future medical expenses, the plaintiff submits that according to the medical reports produced, she requires a lense implantation surgery to cost Kshs.1,700,000/=; eyelid reconstruction surgery to cost of USD 15,000/=; surgeries on the right upper limb and chest at a cost of Kshs.9,200,000/=; graft surgeries on the eye which would cost the sum of Kshs.500,000/=; psychological treatment to cost the sum of Kshs.193,200/=; cost of travel to the Czech Republic and accommodation therein. In total, the plaintiff contends that she will require a total of Kshs.15,000,000/= to cater for future medical expenses and cites inter alia, the case of Board of Governors Ongata Academy v Gabriel Ngaiyaiya Rumoi[2021] eKLR where the court asserted itself as follows:“The law on future medical expenses is well settled. The Court of Appeal in the case of Tracom Limited & Another –vs-Hassan Mohamed Adan [2009] eKLR stated: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

24. The plaintiff has also submitted on costs of the suit and interest on the damages to be awarded.

25. In response, the 1st defendant submits that the consented award in the sum of Kshs.3,000,000/= on general damages has been settled in full.

26. The 1st defendant also submits that some of the receipts provided either do not relate to the plaintiff or cannot be ascertained, and therefore urges this court to only award the special damages pleaded and proved in relation to the case, namely the total sums of Kshs.1,005,118/=; USD 2,561; and INR 278,929. 50.

27. In respect to the future medical expenses, it is the submission by the 1st defendant that the same has not been specifically pleaded and proved and ought not to be awarded on that premise. However, the 1st defendant submits that should this court be inclined to make an award under this head, that the same be awarded under the category of general damages consented upon between the parties.

28. I have considered the pleadings and evidence on record, the submissions and authorities relied upon by the parties.

29. As earlier mentioned, the parties recorded a consent on liability and general damages, which leaves the pending issue of awards under the two (2) heads hereunder.

a) Special damages 30. It is trite law that special damages must both be specifically pleaded and strictly proved. This legal position is reaffirmed by various authorities, including the case of Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR quoted in the submissions by the plaintiff, and the case of Delta Haulage Services Ltd v Complast Industries Limited & another [2015] eKLR cited in the 1st defendant’s submissions.

31. Upon my examination of the pleadings and evidence tendered, I note that some of the documentation tendered was illegible and hence I was unable to consider the same in my assessment of damages.

32. Suffice it to say that, in my view, the plaintiff would only be entitled to the expenses incurred in relation to the medical attention and treatment received or in the pursuit of the present case, such as obtaining the subject motor vehicle records. I will therefore not make any award for food, shopping and clothing related expenses incurred. I will also restrict myself to awards in respect to receipts tendered, and not in respect to bills, invoices and vouchers.

33. Upon considering the evidence tendered, the proposal by the 1st defendant on the damages awardable and upon taking into account the sums paid by the plaintiff’s insurer as mentioned in her evidence and for which she would not be seeking a refund, I am satisfied that the plaintiff pleaded and proved the special damages in the sum of Kshs.1,005,094/= inclusive of the copy of records receipt; the medical consultation receipt; hospital and other medical related receipts; and the visa application/processing fees.

34. I also find that the plaintiff is entitled to the undisputed sums of USD 2561 (Kshs.309,624/=) and INR 278,929. 50 (Kshs.411,975/=) under this head, and I will award the same.

35. Consequently, the total award under this head shall amount to the sum of Kshs.1,726,693/=.

b) Cost of future medical expenses 36. Upon my examination of the pleadings and evidence tendered in pursuant of damages under this head, I am satisfied that the plaintiff brought credible evidence by way of medical and related reports to demonstrate her need for further medical treatment in respect to her injuries.

37. I also appreciate that in one of the medical reports tendered, the doctor pointed out that owing to the complexity of some of the surgical procedures, the plaintiff would be required to travel outside of the country for advanced treatment, and hence the recommendation to have the same performed at the Czech Republic.

38. I note from the reports tendered that the plaintiff will require to undergo advanced eye surgery estimated to cost the sum of Kshs.1,700,000/=; reconstructive surgery of the right eyelid at an estimated cost of USD 15,000 (Kshs.1,812,750/); surgeries on the right and left limbs and chest area, to cost an estimate sum of Ksh.9,200,000/= and counseling/psychotherapy (2 sessions per month for 12 months, at a cost of Kshs.8,050/ per session, totaling the sum of Kshs. 193,200/=. These come to a total figure of Kshs.12,905,950/= which I will award.

39. Concerning the accommodation costs set out in the plaintiff’s submissions, however, I am not convinced to grant the same under this head.

40. Before I conclude, I observed from its submissions that the 1st defendant contends that the consented award of Kshs.3,000,000/= in respect to general damages has been settled in full. There is nothing on the record to indicate that the plaintiff disputes this position and I will therefore take this into consideration while assessing the damages.

41. Consequently, I hereby enter judgment in favour of the plaintiff as against the 1st and 2nd defendants jointly and severally and award as follows:i.General damages Kshs. 3,000,000/=ii.Special damages Kshs. 1,726,693/=iii.Future medical expenses Kshs.12,905,950/=Gross Total Kshs.17,632,643/=Less general damages paid Kshs. 3,000,000/=Net Total Kshs.14,632,643/=iv.Costs of the suit are awarded to the plaintiff. The plaintiff shall also have interest on the special damages at court rates from the date of filing suit until payment in full. General damages to attract interest at court rates from the date of judgment until the date of full payment.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7TH DAY OF OCTOBER, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiffs……………………………. for the 1st and 2nd Defendants