[2023] KEHC 19192 (KLR)

Kenya Wildlife Service v Galoro (Civil Appeal E009 of 2021) [2023] KEHC 19192 (KLR) (22 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19192 (KLR)

Republic of Kenya

In the High Court at Marsabit

Civil Appeal E009 of 2021

JN Njagi, J

June 22, 2023

Between

Kenya Wildlife Service

Appellant

and

Ibrahim Jama Galoro

Respondent

(Being an appeal from the judgment and decree of Hon. Collins Ombija, Resident Magistrate, in Marsabit PM`s Court Civil Suit No.2 of 2019 delivered on 16/9/2021)

Judgment

1. The Respondent brought suit against the Appellant at the lower court seeking to recover special damages of Ksh 25,000 after the Respondent`s cow was killed by a hyena at Karare area near Marsabit National Park. The parties recorded a consent on liability at the ratio of 80: 20 in favour of the Respondent. The matter proceeded for assessment of damages. The trial court awarded Ksh 180,000/= in general damages and Ksh 25,000/= in special damages. The Appellant was aggrieved by the award on general damages and filed the instant appeal.

2. The grounds of appeal are that:(1)That the learned trial magistrate erred in law and fact by awarding general damages which were not pleaded and whereas the Respondent’s claim was purely a special damage claim.(2)That the judgement of the learned trial magistrate is against the law and weight of evidence on record.

3. The appeal was canvasses by way of written submissions. The advocates for the Appellant, M/S Mithega & Kariuki Advocates, submitted that the Respondent in his plaint only pleaded for special damages of Ksh 25,000/= and did not make any pleading on general damages. That in the circumstances there was no basis for the trial court in making an award under the heading of general damages when the same was not pleaded.

4. The Appellant submitted that parties are bound by their pleadings. They cited the case of Daniel Otieno Migore v South Nyanza Sugar Co Ltd (2018) eKLR where it was held that:"It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from."

5. The Appellants also relied on the Court of Appeal decision in the case ofIndependent Electoral and boundaries Commission & another v Stephen Mutinda Mule & 3 others (2014) eKLR in which the court cited with approval the Nigerian Supreme Court decision in Adetoun Oladeji v Nigeria Breweries PLCSC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded………In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

6. The Appellant thus urged the court to find that the trial court erred in awarding general damages when the same were not pleaded and as a result arrived at an erroneous award that had no basis in law.

7. The advocates for the Respondent, M/S Khan & Associates, on the other hand submitted that the Respondent in prayer (d) of paragraph 10 of the plaint sought for prayers that:"Any other or further relief that the honourable court may deem fit and just to grant."

8. The Respondent consequently submitted that the award for general damages fell within the scope of the said prayer. The Respondent relied on the decision in the case of Kenya Tea Development Authority v Augustine Gori Makori (2014) eKLR where the court adopted the decision in the case of Kipkebe Ltd v Moses Kauni Masaka HCAP 127/2004 where it was held that:"It is trite law that award of general damages is an exercise of discretion by a trial court and the award depends on the peculiar facts of each case. The award must however, be reasonable and neither extravagant nor oppressive. The trial court has to be guided by such factors as previous awards for similar injuries and such other relevant factors."

9. The Respondent therefore argued that the trial court did not err in awarding general damages in the case as it fell within the discretion of the court to make the award.

10. I have considered the grounds adduced in support of the appeal, the grounds in opposition thereto, the pleadings, the submissions by the advocates for the parties and the law pertinent to the matter at hand. The appeal is on quantum of damages awarded by the lower court.

11. The principles on which an appellate court will interfere with the trial court’s findings on award of damages are settled. In the case of Butt v Khan 1982 -1988 1 KAR the court pronounced itself as follows: -An appellate court will not disturb an award of 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.

12. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng TeteCivil Appeal No 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:"It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate."

13. Similarly, in Jane Chelagat Bor vs Andrew Otieno Onduu [1988-92] 2 KAR 288[1990-1994] EA 47, the Court of Appeal held that:"In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."

14. The Appellant argues that the trial court erred in law by making an award of damages which were not pleaded. The Respondent on the other hand argued that general damages lie at the discretion of the trial court and therefore the court applied its discretion correctly in making the award.

15. The Respondent in his plaint pleaded that the Appellant was negligent in failing to ensure that the hyena was kept within the confines of Marsabit National Park and in allowing the animal to attack the respondent`s cow. He consequently sought in his final prayers for special damages of Ksh 25,000/=.

16. The trial magistrate in his judgment found that the Appellant was negligent which led to the respondent incurring loss to which the respondent was entitled to compensation in general damages. He awarded Ksh 180,000/= in general damages in addition to special damages of Ksh 25,000/= for the loss of the cow.

17. It is trite law that parties are bound by their pleadings – see Independent Electoral and boundaries Commission & another v Stephen Mutinda Mule & 3 others (2014) (supra). Though the respondent in the body of the plaint alleged negligence on the part of the appellant, he in his final prayers asked for special damages of Ksh 25,000/=, interest on the special damages and costs of the suit. The question is whether the Respondent was entitled to the award of general damages.

18. The Respondent was seeking for compensation from the Appellant arising from the loss of his cow that was killed by a hyena. The object of compensation in damages is meant to place the claimant to the position he was before the loss. This was the view taken by the Court of Appeal in the case of John Wambugu Njoroge vs KCB Ltd, CA No 179 of 1992 (Kisumu) where it stated that:"There are a number of decisions of this Court as to the nature and measure of damages. Broadly, they are to the effect that whether it be contract or whether it be tort, damages are to be compensatory, save in exceptional circumstances. They are compensatory when they restore or give back to the injured party what he had lost. In other words, the injured party, so far as immediately prior to the wrongdoing which gave rise to his complaint or injury."

19. Damages are awarded either as general or special damages. The distinction between the two was shown by Mulwa J in the case of Abiero v Thabiti Finance Company Ltd & another [2001] eKLR where she stated as follows:"Halsbury’s Laws of England Vol 12 4th Edition at paragraph 1113 on page 416 sheds some light as to what are special damages as follows:“In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of trial, whilst ‘general damages’ relates to all other items of damage whether pecuniary or non-pecuniary.”…The difference between special and general damages was explained by Lord Macnagten in Stoms Broks Aktie Bolag v Hutchinson [1905] AC 51 J where he said:“General damages are such as the law will presume to be the direct natural or probable consequences of the action complained of. Special damages on the other hand, are such as the law will infer from the nature of the act. They do not follow in the ordinary course. They are exceptional in their character and, therefore, they must be claimed specially and proved strictly."

20. In China Wu Yi Limited & another v Irene Leah Musau [2022] eKLR, Odunga J (as he then was) highlighted the difference between the two and said that:"31. Special damages are those damages which are ascertainable and quantifiable at the date of the action. The distinction between general and special damages was explained by the Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 where it was stated that:"The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”

21. General damages are basically damages that are at large and are not quantifiable at the time of filing suit. They have to await to be assessed by the court at the time of hearing. Where the damages are quantifiable they are claimed as special damages.

22. The Respondent herein quantified the value of his cow at Ksh 25,000/= and claimed the loss as special damages. In the particulars of loss stated in the plaint the Respondent did not mention anything consequent to the loss of the cow that called for an award of general damages. Neither did he raise any such issue in his evidence in court. It is then clear that the claim for the respondent was purely for special damages for the loss of the cow. The trial court awarded the Respondent the value of the cow that placed the Respondent at the position he was before the loss. It was therefore not legally tenable for the trial court to award general damages in addition to the pleaded special damages when the same was not pleaded and there was no evince to show consequential loss that could be compensated in general damages. The fact that the court has discretion to award damages does not mean that it can grant the same even where they are not deserved.

23. The upshot is that the trial court wrongly awarded general damages of Ksh 180,000/=. The appeal is thus merited and the award of Ksh180,000/= is hereby set aside with costs to the appellant.

DELIVERED, DATED AND SIGNED AT MARSABIT THIS 22ND JUNE 2022J. N. NJAGIJUDGEIn the presence of:Miss Masamba for AppellantN/A for RespondentCourt Assistant - Jarso30 days R/A.