[2022] KEHC 16346 (KLR)

Kithi v Trustees of the Presbyterian Church of East Africa (Civil Appeal E023 of 2021) [2022] KEHC 16346 (KLR) (14 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16346 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E023 of 2021

OA Sewe, J

November 14, 2022

Between

Kahindi Kithi

Appellant

and

The Trustees of the Presbyterian Church of East Africa

Respondent

(Being an appeal from the Judgment and Decree of Hon. Gideon Kiage, Senior Resident Magistrate, in Mombasa CMCC No. 1466 of 2019 dated 26th February 2021)

Judgment

1The appellant was the plaintiff in Mombasa CMCC No 1466 of 2019: Kahindi Kithi v The Trustees of the Presbyterian Church of East Africa. He had sued the respondent claiming general and special damages for negligence. His cause of action was that, on the night of January 30, 2017, as he was escaping from thugs within Kambi Kikuyu area, he fell into a pit which had been dug by the respondent and left uncovered. He averred that he suffered severe injuries as a result, for which he blamed the respondent. The appellant supplied particulars of negligence as well as particulars of his injuries and special damages at paragraphs 5 and 6 of his Plaint dated July 12, 2019.

2Though served with the Plaint and Summons to Enter Appearance, the respondent did not enter appearance or file a Defence to the lower court suit. Consequently, interlocutory judgment was entered against it on the October 22, 2019. The matter was thereafter fixed for formal proof on January 19, 2021; whereupon the appellant testified and adopted his witness statement dated July 12, 2019. He also produced his List and Bundle of Documents, which were marked the Plaintiff’s Exhibit No 1 before the lower court.

3The lower court thereafter considered the appellant’s evidence and came to the conclusion that he had not proved his case to the requisite standard, notwithstanding that the respondent had opted not to defend the suit. The appellant’s suit was accordingly dismissed with an order that each party bears own costs. The learned magistrate relied on Charterhouse Bank Limited (Under Statutory Management) v Frank N Kamau [2016] eKLR, in which the Court of Appeal held that:“The suggestion, however, implicit in some of the decisions quoted above, that in all and sundry civil cases the failure by the defendant to adduce evidence in support of his defence means that the plaintiff’s case is proved on a balance of probabilities cannot possibly be correct. It is also obvious to us that in some of those decisions the question whether the plaintiff has, in the absence of evidence from the defendant, proved his case on a balance of probabilities, was conflated and confused with the distinct issue of the effect of the defendant’s failure to testify when he had filed a defence and a counterclaim. While the defendant’s failure to testify has fatal consequences for the counterclaim because the onus is on him to prove it on a balance of probabilities, it does not necessarily have the same consequence for the defence where the onus is on the plaintiff to prove his claim on a balance of probabilities...”

4Being aggrieved by the decision of the lower court, the appellant filed this appeal on March 3, 2021, citing the following grounds:(a)That the learned magistrate erred in law and fact by making a finding that the suit was not proved on a balance of probability and proceeding to dismiss the same;(b)That the learned magistrate erred in law and fact by making a finding that the respondent did not owe a duty of care to the appellant and thus the appellant was not entitled to any compensation;(c)That the learned magistrate erred in law and fact by failing to make a finding regarding quantum of damages which the appellant would have been entitled to;(d)That the learned magistrate erred in law and fact by making a finding that the respondent was not negligent in the manner of handling of the 40 feet pit which was dug by the respondent.

5. Accordingly, the appellant prayed that the judgment and decree of the lower court be set aside; and that an award in damages be made in favour of the appellant by this Court. He also prayed for costs of the appeal together with interest.

6. Pursuant to the directions given herein on April 28, 2022, the appeal was canvassed by way of written submissions. Hence, Mr Okanga for the appellant filed his written submissions on May 10, 2022. He faulted the learned magistrate for holding that the appellant did not discharge the burden of proving his case, yet it was not in doubt that the 40 feet hold existed and had been dug by the respondent. To augment his arguments, counsel drew the Court’s attention to the letter dated March 4, 2019 by the respondent’s Advocates in response to the appellant’s demand notice. The letter was produced before the lower court and marked the Plaintiff’s Exhibit No 2 and appears at page 11 of the Record of Appeal. On the basis thereof, Mr Okanga urged the Court to find that the respondent did, in fact, owe the appellant a duty of care of covering the pit to prevent accidents such as the one that befell him.

7. Counsel further submitted that the learned magistrate erred in failing to take into account the exhibits tendered before him; particularly the Mombasa County Fire and Ambulance Report, marked the Plaintiff’s Exhibit No 11 (at page 25 of the Record of Appeal), in which it was confirmed that the appellant was found in a newly dug pit of about 40 feet deep and was rescued and taken to Jocham Hospital by ambulance for treatment of his injuries. He urged the Court to find that this was additional corroborative evidence stating where the 40 feet pit was situated.

8. In respect of the 2nd Ground of Appeal, Mr. Okanga submitted that the actions of the respondent, by leaving the pit uncovered, unfenced and unbarricaded were enough proof of negligence. He placed reliance on Section 3(2) of the Occupiers Liability Act, Chapter 34 of the Laws of Kenya, which provides for a common duty of care by occupiers of any premises. In addition, counsel made reference to Salim Mecha Nyandoro v Nyangema Hospital Ltd in urging the Court to find that, in the circumstances, the learned magistrate earned in not finding the respondent liable to the appellant.

9. In his 3rd Ground of Appeal, the appellant faulted the lower court for not making a finding regarding the quantum of damages which the appellant would have been entitled to. In this regard, Mr. Okanga submitted that the appellant demonstrated that he sustained serious injuries involving both his lower and upper limbs; and that he was still on crutches when he attended the lower court for the hearing of his suit. Counsel, likewise, made reference to pages 12 and 49 of the Record of Appeal for proof that the appellant had not fully recovered and needed to undergo further surgery to remove metal implants and grafting at a cost of Kshs 150,000/=. He relied on HCCA No 12 of 2016:Christine Mwagina Akonya v Samuel Kairu Chege in which the appellant was awarded Kshs 4,000,000/= for similar injuries to support his proposal that an award be made in favour of the appellant herein in the sum of Kshs 10,000,000/= as general damages for his injuries as well as Kshs 157,290/= in special damages and Kshs 150,000/= for future medical expenses.

10. On his part, Mr Otieno for the respondent submitted that the appellant’s four Grounds of Appeal lack merit and are misplaced in law. He took the view that, since the appellant did not plead any facts or make submissions on the respondent’s liability in so far as the Occupier’s Liability Act is concerned, he is precluded from raising the same for the first time in this appeal. In his submission, to do so would be to introduce extraneous and new matters that were never dealt with by the trial court. Mr Otieno also endeavoured to distinguish the facts of Salim Mecha Nyandoro v Nyangena Hospital Ltd(supra) and pointed out that it involved a patient who got injured within the respondent’s facility while lawfully within the premises of the hospital.

11. In response to the appellant’s assertion that the existence of the pit was admitted by the respondent vide a letter dated March 4, 2019, Mr Otieno urged the Court to find that admissions, properly so called, can only be made through the pleadings. He questioned the veracity of that letter as no evidence was presented to prove that the respondent issued instructions to the firm of Muraya & Wachira Advocates to make that response. He relied on Nation Newspaper Limited v Simon Muruchi Thinga [2016] eKLR in which it was held that producing a partial statement without any oral evidence as to the source or mode of creation can only be of limited evidential value. He urged the Court to note that the appellant never called the makers of the reports he produced before the lower court; and that no explanation was given for the omission, yet they were listed in the appellant’s List of Witnesses.

12At paragraph 12 of his written submissions, Mr. Otieno submitted that the appellant was under obligation to prove his claim on a balance of probabilities, notwithstanding that the suit was undefended. He cited Insta Products (EPZ) Limited v Chase Bank (KY) Limited (In Receivership) & Another[2021] eKLR and Monica Wangu Wamwere v Attorney General [2019] eKLR and wholly supported the conclusion reached by the learned magistrate.

13. On quantum, Mr Otieno relied onLucy Njoki Chege v James Macharia Kungu t/a Marsh Transporters & Another [2005] eKLR and Pestony Limited & Another v Samuel Itonye Kagoko [2022] eKLR to support his proposal that an award of Kshs 500,000/= would suffice. He otherwise prayed that the appeal be dismissed with costs to the respondent.

14. This being a first appeal, it is the duty of the Court to evaluate the evidence adduced before the lower court with a view of drawing its own conclusions on the basis of the material that was presented before the lower court, while making allowance for the fact that it did not have the advantage of seeing or hearing the witnesses. This principle was aptly expressed in Selle & Another v Associated Motor Boat Co Ltd & Others [1968] EA 123, thus:“...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 retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

15. In the premises, I have perused the record of the lower court and noted that the matter proceeded by way of formal proof on January 19, 2021 after the respondent failed to enter appearance or file defence. The only witness was the appellant, Kahindi Kithi Kombe. He adopted his witness statement dated July 12, 2019, in which he reiterated his assertion that, on the night of January 29, 2017 at around 11. 40 pm, he was going home from work in the company of his friend, Baya Changawa, when, upon reaching Kambi Kikuyu in Leisure area, they were confronted by robbers. He added that, the robbers demanded for money from them and, on seeing them cut his friend with a panga, he fled from the scene only to fall into a 40 feet pit that had been freshly dug by the respondent. He added that the pit was left uncovered and that it was very dark on that night; and therefore he could not have seen it because there were no lights at the scene.

16. It was further the testimony of the appellant that he suffered multiple fractures and had to spend the night in the pit in spite of his pleas for help. He further stated that, in the morning, even when the neighbours got to learn of what had befallen him, they were unable to pull him out as he was unable to hold the rope they offered him to use. In the end, the neighbours called the County fire and ambulance service with whose help he was pulled out and rushed to Jocham Hospital for treatment. He mentioned too that he was thereafter transferred to Alfarooq Hospital where he underwent surgery before being discharged after 10 days of confinement. He blamed the respondent for his injuries, accusing them of negligence in leaving the pit uncovered. He concluded his statement by stating that he spent Kshs 154,790/= on medical expenses and therefore should be awarded that sum as special damages.

17. From the foregoing summary, there is no dispute that the appellant was, indeed injured on the night of January 30, 2017 at around 11. 40 pm as he was walking home from work. His evidence that he and his companion, one Baya Changawa, were attacked by robbers who demanded money from them, appears credible enough as to be relied upon. The appellant further told the lower court that, upon sensing that they had been overpowered by the robbers when his companion was cut with a panga, he took to flight, only to fall into a 40 feet deep pit. It is further evident from the report submitted by the Chief Fire Officer, Mombasa County Fire and Ambulance Services (at page 25 of the Record of Appeal) that the appellant was rescued from a newly dug pit of about 40 feet; that he had sustained injuries on both lower and upper extremities and was conveyed to Jocham Hospital by ambulance.

18. Then there is the medical report prepared by Dr. Ajoni Adede dated April 12, 2019, which confirms that the appellant suffered the following injuries:(a)Fracture of the left femur thigh bone(b)Displaced fracture of the left radius forearm bone;(c)Fracture of the left clavicle shoulder blade bone;(d)Fracture of the left 6th rib;(e)Degloving tissue loss injury to the right foot;(f)Multiple friction burns on the back, buttocks (gluteal), head (scalp) and right thigh.

19. The report also confirms that, two and a half years later, the appellant was still using crutches. The doctor also noted the following upon examining the appellant:(a)The right thigh had a 30 cm surgical scar while the right knee was stiff;(b)The left forearm was curved while the left wrist and left shoulder were stiff, whereas the fracture site along the 6th rib could be felt as a bony protrusion;(c)The injuries above-mentioned had left scars ranging from 2cm to 4 cm.

20. Thus, the doctor’s conclusion and prognosis was that the appellant had suffered multiple upper limb, lower limb, left clavicle and left rib fractures, with resultant 20% permanent partial disability. His femur metal implant had a non-union and the fracture sites remained weak points for life with the possibility of re-fracture upon impact. Dr Adede also opined that the femur metal implant was due for removal along with a further procedure of bone grafting due to implant failure. He estimated the future medical costs to be Kshs 150,000/=. I am therefore convinced that sufficient evidence was adduced by the appellant to demonstrate that he was injured as alleged by him.

21. It is noteworthy too that the learned magistrate did no express any doubts as to the occurrence and the ensuing injuries. This must be why he straightaway proceeded to deal with the issue of liability. Consequently, I find as a matter of fact that the appellant sustained serious injuries after falling into a pit. Hence, the two main issues for determination are:(a)Whether the learned magistrate erred in law and fact in finding that the appellant had failed to prove his case against the respondent on a balance of probabilities; and,(b)Whether the learned magistrate erred in law and fact by failing to make a finding regarding quantum of damages which the appellant would have been entitled to had he found in his favour.

22. The appellant’s claim was founded on the tort of negligence. Consequently, in addition to pleading the doctrine of res ipsa loquitor, the appellant alleged that the respondent was negligent in:(a)Failing to place a cover over the 40 feet pit to prevent anybody from falling into the pit;(b)Failing to fence the pit to prevent any accidental fall into the pit;(c)Failing to barricade the pit when works were not on-going;

23. According to Black’s Law Dictionary, Tenth Edition, negligence is defined to mean:“The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights; the doing of what a reasonable and prudent person would not do under the particular circumstances. The elements necessary to recover damages for negligence are (1) the existence of a duty on the part of the defendant to protect the plaintiff from the injury complained of, and (2) an injury to the plaintiff from the defendant’s failure. The term denotes culpable carelessness...”

24. Needless to repeat that the respondent opted not to defend the suit and therefore that upon entry of interlocutory judgment on October 22, 2019, this matter proceeded to formal proof. An issue has arisen herein as to whether, under those circumstances the lower court was obliged to find in favour of the appellant no matter the quality of his evidence. There are a number of authorities to support the position that where no evidence is tendered by the defence, an inference ought to be drawn that the facts as presented by the plaintiff are true. One such decision is Safarilink Aviation Limited vs. Trident Aviation Kenya Limited & Another[2015] eKLR, in which it was held that:“...failure to rebut evidence tendered by one party leaves the court with no option but to draw an inference that the facts as presented are true..."

25. Similarly, Hon Rawal, J (as she then was) in Drappery Empire v Attorney General (supra) held that:“...where the circumstances leading to the deliveries of goods are not challenged and stand uncontroverted due to the failure by the defendants to adduce evidence the standard of proof in civil cases (on the balance of probabilities) has been attained by the plaintiff.”

26. The Court of Appeal has however provided guidance in Charterhouse Bank Limited (Under Statutory Management) v Frank N Kamau[2016] eKLR in which the main issue for determination was whether the learned judge erred by holding that the appellant had failed to prove its case on a balance of probabilities, notwithstanding the fact that the respondent had not called any evidence to rebut the appellant’s case. The Court of Appeal pronounced itself thus:“The appellant relies on a number of decisions to press the view that in the absence of rebuttal evidence by the respondent, its case must automatically be taken as proved. We have already alluded to some of those cases in this judgment... First and foremost, there can be no quarrel with the statements in the above judgments that averments by the parties do not constitute evidence. Madan, JA (as he then was) made this abundantly clear in CMC Aviation Ltd v Crusair Ltd (No1) [1987] KLR 103 when he stated:“The pleadings contain the averments of the three parties concerned. Until they are proved or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded on them. Proof is the foundation of evidence. As stated in the definition of “evidence” in section 3 of the Evidence Act, evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved. Averments are matters the truth of which is submitted for investigation. Until their truth has been established or otherwise they remain unproven... The pleadings in a suit are not normally evidence. They may become evidence if they are expressly or impliedly admitted as then the admission itself is evidence. Evidence is usually given on oath. Averments are not made on oath. Averments depend upon evidence for proof of their contents.”The suggestion, however, implicit in some of the decisions quoted above, that in all and sundry civil cases the failure by the defendant to adduce evidence in support of his defence means that the plaintiff’s case is proved on a balance of probabilities cannot possibly be correct. It is also obvious to us that in some of those decisions the question whether the plaintiff has, in the absence of evidence from the defendant, proved his case on a balance of probabilities, was conflated and confused with the distinct issue of the effect of the defendant’s failure to testify when he had filed a defence and a counterclaim. While the defendant’s failure to testify has fatal consequences for the counterclaim because the onus is on him to prove it on a balance of probabilities, it does not necessarily have the same consequence for the defence where the onus is on the plaintiff to prove his claim on a balance of probabilities.

27. The question to pose then is whether the above position is confined to situations where the defendant entered appearance and filed a defence but failed to tender evidence in proof of the averments set out in the defence; and whether matters of formal proof ought to be differently treated. In Samson S Maitai & Another v African Safari Club Ltd & Another[2010] eKLR, Emukule J observed: -“……. I have not seen a judicial definition of the phrase "Formal Proof". "Formal" in its ordinary Dictionary meaning - refers to being "methodical" according to rules (of evidence). On the other hand, according to Halsbury's Laws of England, Vol 15, para, 260, "proof" is that which leads to a conviction as to the truth or falsity of alleged facts which are the subject of inquiry. Proof refers to evidence which satisfies the court as to the truth or falsity of a fact. Generally, as we well know, the burden of proof lies on the party who asserts the truth of the issue in dispute. If that party adduces sufficient evidence to raise a presumption that what is claimed is true, the burden passes to the other party who will fail unless sufficient evidence is adduced to rebut the presumption.”

28. Hence, in Rosaline Mary Kahumbu v National Bank of Kenya Ltd [2014] eKLR, the Court held: -“In contrast, at a formal proof hearing, if the party with the onus of adducing evidence fails to satisfy the truth threshold, the matter would stand to be dismissed on the basis that it was unmeritorious and did not raise sufficient proof of any issues of fact or law. It would be heard and determined on its merits.

29. The Court of Appeal took the same posturing in Gitobu Imanyara & 2 others v Attorney General[2016] eKLR thus:“…The fact that the respondent admitted liability ab initio does not in any way shift the burden of proof from the appellants. 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. see Mwangi Muriithi (supra) and Mumbi M'Nabea v David Wachira Civil Appeal No 299 of 2012. In Romauld James v AGT [2010] UKPC Lord Kerr at paragraph 13 cited a passage from the judgment of Kangaloo JA in the same case. It has some bearing both on the present issue and the next, to which we will turn directly. Kangaloo JA said:28. In my view, it does not lie in the mouth of the appellant to say that he is not obliged to place evidence of damage suffered before the constitutional court before liability is determined. I say so because it must first be shown that there has been damage suffered as a result of the breach of the constitutional right before the court can exercise its discretion to award damages in the nature of compensatory damages to be assessed. If there is damage shown, the second stage of the award is not available as a matter of course. It is only if some damage has been shown that the court can exercise its discretion whether or not to award compensatory damages. The practice has developed in constitutional matters in this jurisdiction of having a separate hearing for the assessment of the damages, but it cannot be overemphasized that this is after there is evidence of the damage. In the instant case there is no evidence of damage suffered as a result of the breaches for which the appellant can be compensated....”

30. Accordingly, the burden of proof was on the appellant to prove his allegations of negligence on a balance of probabilities. As was aptly stated in Statpack Industries v James Mbithi Munyao[2005] eKLR:“It is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone's negligence and his injury. The Plaintiff must adduce evidence from which on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily as a result of someone's negligence. An injury per se is not sufficient to hold someone liable."

31. By alleging that the respondent was negligent in failing to place a cover over the 40 feet pit to prevent anybody from falling into the pit; in failing to fence the pit to prevent any accidental fall into the pit; and in failing to barricade the pit when works were not on-going; he presupposed not only that the pit was dug by the respondent; but also that it was dug on a public thorough-fare or space within Kambi Kikuyu area. It was therefore incumbent on the appellant to make a direct connection between the pit and the respondent. In my re-evaluation of the evidence adduced before the lower court, I find no evidence whatsoever to show the exact location of the pit vis-a-viz the road on which the appellant’s chosen path on the night of January 30, 2017.

32. I note, for example, that in Salim Mecha Nyandoro v Nyangema Hospital Ltd (supra) which learned counsel for the appellant relied on, in which the appellant fell from a balcony at the Hospital and suffered injuries, the court visited the locus in quo and was shown the scene of the accident, which was within the hospital premises. In the circumstances, the learned magistrate’s decision cannot be faulted, granted the clear provisions of Sections 107, 109 and 112 of the Evidence Act, Chapter 80 of the Laws of Kenya. Section 107(1) of the Evidence Act, is states that: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.

33. Likewise, Sections 109 and 112 of the Evidence Act provide that: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....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.

34. On quantum, it is evident that the lower court failed to assess the quantum of damages he would have otherwise awarded, had he found for the appellant. That was a misdirection. The obligation by a court of first instance to assess damages that would have otherwise been payable, even where liability is not established, cannot be overemphasized. This obligation was restated by the Court of Appeal in Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR thus:“…the rationale or otherwise of assessing damages even where they are withheld by the trial court was succinctly set out by the court in Mordekai Mwangi Nandwa versus Ms. Bhogals Garage Ltd Civil Appeal No 124 of 1993 (UR). The court made the following observations on this issue:“The judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he (judge) had found for him. That was in compliance with this court’s then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment”This principle has religiously been followed by the courts below…”

35. In the premises, I reiterate the expressions of Hon Mabeya, J in Lei Masaku v Kalpama Builders Ltd [2014] eKLR, that:“It has been held time and again by the Court of Appeal that the court of first instance must assess damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address that issue of damages in this case is a serious indictment on the part of the trial court. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know the view by the Court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behooves this court to assess quantum.”

36. Thus, the starting point in assessment of damages would be to bear in mind the observation in H West & Son Ltd v Shephard [1964] AC 326, that:“...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."

37. The key factors to take into account in assessment of damages are the nature of injuries suffered and their impact on the victim’s life. This was well explicated by Hon. Wambilyanga, J. in HCCC No 752 of 1993: Mutinda Matheka vs. Gulam Yusuf, thus:“The Court will essentially take into account the nature of the injuries suffered, the period of recuperation, the extent of the injuries whether full or partial, and if partial what are the residual disabilities: When dealing with the issue of residual disabilities the age when suffered and hence the expected life span during which they are to be borne. The inconveniences or deprivation or curtailments brought about by the disability must be considered. Then the factor of inflation must also be accounted for if the award has to constitute reasonable compensation."

38. And in Stanley Maore vs. Geoffrey Mwenda[2004] eKLR, the Court of Appeal suggested thus:“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

39. As is evident from the summary of the Respondent’s evidence herein above, there is no dispute that the injuries suffered by him were the medical report prepared by Dr Ajoni Adede dated April 12, 2019, which confirms that the appellant suffered the following injuries:(a)Fracture of the left femur thigh bone(b)Displaced fracture of the left radius forearm bone;(c)Fracture of the left clavicle shoulder blade bone;(d)Fracture of the left 6th rib;(e)Degloving tissue loss injury to the right foot;(f)Multiple friction burns on the back, buttocks (gluteal), head (scalp) and right thigh.

40. The report also confirms that, two and a half years later, the appellant was still using crutches. The doctor also noted the following upon examining the appellant:(a)The right thigh had a 30 cm surgical scar while the right knee was stiff;(b)The left forearm was curved while the left wrist and left shoulder were stiff, whereas the fracture site along the 6th rib could be felt as a bony protrusion;(c)The injuries above-mentioned had left scars ranging from 2cm to 4 cm.

41. Thus, the doctor’s conclusion and prognosis was that the appellant had suffered multiple upper limb, lower limb, left clavicle and left rib fractures, with resultant 20% permanent partial disability. His femur metal implant had a non-union and the fracture sites remained weak points for life with the possibility of re-fracture upon impact. Dr Adede also opined that the femur metal implant was due for removal along with a further procedure of bone grafting due to implant failure. He estimated the future medical costs to be Kshs 150,000/=. I am therefore convinced that sufficient evidence was adduced by the appellant to demonstrate that he was injured as alleged by him.

42. Although counsel for the appellant urged that the appellant ought to have been awarded Kshs 150,000/= for future medical expenses on the basis of Dr Adede’s report and prognosis, that item was not pleaded or prayed for by the appellant in the Plaint dated July 12, 2019. In the premises, there was no basis for the plaintiff to be awarded that amount by the lower court. The Court of Appeal restated this position in Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR thus:“…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…”

43. In the premises, I would have awarded the appellant Kshs 500,000/= as general damages had he succeeded before the lower court based on the comparable authorities cited by counsel for the respondent. Having found that the appellant did not prove his case, and that the judgment of the lower court was well founded, this appeal lacks merit and is hereby dismissed. Considering the plight of the appellant it is hereby ordered that each party shall bear own costs of this appeal and the lower court suit.It is so ordered.

DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 14TH DAY OF NOVEMBER, 2022. OLGA SEWEJUDGE