[2004] KEHC 2518 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO 535 OF 2002

KENYA BUS SERVICES LIMITED ……………..……… APPELLANT

VERSUS

FESTUS S. KIBE …………………….………………….. RESPONDENT

JUDGMENT

This appeal arises out of a motor vehicle accident which occurred on March 27, 1999 along Argwings Kodhek Road in Nairobi, when the Respondent traveling as a lawful passenger in the Appellant’s bus, suffered personal injury. The lower court (Hon. Nyakundi, Chief Magistrate) found the Appellant fully to blame for the accident and awarded the Respondent general damages of Kshs.350,000/=; loss of earning capacity Kshs.593,472/= and special damages Kshs.1,600/=.

Being dissatisfied with that Judgment, the Appellant appealed to this court, outlining the following seven grounds of appeal:

1. The Learned Magistrate had no jurisdiction to grant the sums that he had granted.

2. The Learned Magistrate erred in law and in fact in holding that the Appellant was 100% to blame for the accident contrary to the evidence before him.

3. The Learned Magistrate erred in law and in fact by finding that the Appellant was negligent when there was no evidence to support the same.

4. The Learned Magistrate erred in law and in fact b y arriving at a decision completely unsupported by the evidence.

5. The Learned Magistrate erred in law and in fact in awarding damages to the Plaintiff that were inordinately high when considering the injuries sustained by the Plaintiff and the law that is applicable.

6. The Learned Magistrate awarded loss of earning when the same had not been pleaded and therefore should not have been awarded.

7. The Learned Magistrate erred in law and in fact when he awarded the sum of Kshs.593,472/= in respect of loss o f earnings, which should have been pleaded as a special damage and this was not done.

At the hearing of this appeal, Counsel for the Appellant argued essentially three grounds relating to 1) Special Damages 2) Quantum and 3) Monetary jurisdiction of the lower court, and specifically abandoned the ground relating to liability. I will consider each of these grounds separately.

1. Special Damages

Ms Wanga, for the Appellant, argued that “loss of earnings”, being a special damage claim, was not pleaded and proved, nor was there a specific prayer in the Plaint for the same. She cited the following three authorities to support her case: Zahir Sheikh Said Transporters vs Charles Mugabo (C A 273 of 1998, Naku ru); Thuranira Karauri vs Ncheche (C A 192 of 1996, Nyeri) and Herbert Hahn vs Amrik Singh (1982 – 1988) 1 KAR 738.

Mr Kiugu, Counsel for the Respondent, while admitting that there was no specific prayer for this claim, argued that the claim was pleaded in paragraph 7 of the Plaint, which states as follows:

“By reason of the severe nature of injuries sustained by the Plaintiff, he is unable to continue with the normal duties of his life and he therefore also claims for loss of earnings and/or earning capacity.”

I agree with Counsel for the Appellant that the claim for “loss of earnings and/or earning capacity” had neither been pleaded sufficiently, nor had been prayed for, and cannot be allowed.

It is not clear to this court, from the pleading in paragraph 7 of the Plaint, whether the claim was for “loss of earnings”, which is a special damage claim, requiring specific pleading and proof, or whether the claim related to loss of “earning capacity” which can be classified as a claim for “general damages” but which also requires sufficient pleading details and a specific prayer for the same in the Plaint. Neither of this was done. All the three cases cited by learned counsel support this view. In addition, this court relies on the Court of Appeal decision inMbaka Nguru & Another vs James George Rakwar (C A 133 of 1998, Nairobi)– a case that was neither cited nor relied upon by counsels.

Quoting from its own decision in a previous case, the Court said:

“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of “loss of earning capacity” can be classified as general damages but those have also to be proved on a balance of probability.” The Court further said:

“It will suffice to say tha t the Plaintiffs who do not plead their damages properly and who then do not prove the same do so at their own risk. They will not get those damages however sympathetic the court may feel towards them. The rules of pleading and modes of proof must be adh ered to. In the absence of any pleading as to damages claimed under this head we are constrained to disallow the whole of that award and we set it aside wholly.”

The above can be said with equal eloquence in the case before this court. Here, before me, the Respondent has one more problem: there is no prayer in the Plaint for the damages claimed, and a court cannot award what has not been prayed for. Accordingly, the award for loss of earnings and/or earning capacity cannot be allowed to sustain.

2. Quantum

Counsel for the Appellant argued that the award of Kshs.350,000/= for general damages (pain and suffering) was inordinately high, and ought to be reduced to Kshs.200,000/=. She relied on the cases of David Munguti vs Combined Warehouses Limited (HCCC 308 of 1990, Mombasa) and Lily Bailey vs Kirima Kamau (HCCC No 2037 of 1988, Nairobi).

I agree with Mr Kiugu, counsel for the Respondent, that the Respondent suffered severe injuries to warrant the award of Kshs.350,000/=. Both the cases cited by the Appellant were decided some 15 years ago, and although relevant to some extent, do not offer a fair guide to the case before this court. I do not see any reason to interfere with the decision of the lower court on account of this award.

3. Jurisdiction

It was common ground that at the time of rendering the Judgment the Chief Magistrate indeed had the monetary jurisdiction to award the amount he awarded. Hence, this ground of appeal fails.

Accordingly, and for reasons outlined, the orders of this court in this appeal are as follows:

1. The award of Kshs.593,472/= for loss of earning capacity is set aside.

2. The award of Kshs.350,000/= for general damages remains undisturbed, as does the award of Kshs.1,600/= for special damages (which was not the subject of appeal).

3. As the Appellant has had almost 50% success in this appeal, it is awarded one-half of the costs of this appeal.

Those shall be the orders of this Court.

Dated and delivered at Nairobi this 22nd day of April, 2004.

ALNASHIR VISRAM

JUDGE