[2022] KEHC 16425 (KLR)

Multiple Hauliers Limited v Musyoki (Civil Appeal 13 of 2020) [2022] KEHC 16425 (KLR) (8 November 2022) (Judgment)

Neutral citation: [2022] KEHC 16425 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 13 of 2020

MW Muigai, J

November 8, 2022

Between

Multiple Hauliers Limited

Appellant

and

Benedetta Mwelu Musyoki

Respondent

(An Appeal From The Judgement And Decree of the Senior Resident Magistrate’s Court At Mavoko, Hon A. Agonda Delivered on the 3th Day of July 2019 In PMCC 97 Of 2017)

Judgment

Lower Court Record 1. This suit was commenced by a Plaint dated January 31, 2017 seeking the following orders;a.General damagesb.Special damages Kshs 55,900/-c.Cost of the suitd.Intereste.Any other relief deemed fit to grant by this Honourable Court

2. The cause of action arose on December 18, 2016 when the Plaintiff, a lawful pedestrian along Nairobi – Mombasa road at Lukenya when motor vehicle registration number xxxx, Prime Mover (hereinafter referred to as 'the motor vehicle) owned by the Defendant was negligently, recklessly and/ or carelessly driven by the Defendant’s driver, servant , agent or employee at a high speed and without regard to other road users that it lost control, veered off the road and knocked down the Plaintiff. As a result of which she sustained serious injuries.

3. The particulars of the injuries were;a.Un-diplaced nasal bone fractureb.Blunt trauma on the foreheadc.Blunt trauma on the anterior chest

4. The Plaintiff averred that the accident was solely caused by the defendant’s negligence. The negligence alluded to was particularized as follows;a.Driving motor vehicle registration number xxxx man Prime mover in a careless mannerb.Driving in an excessive speed in the circumstances of the road.c.Failure to slow down, brake, swerve or act in any other reasonable manner to avoid the said accident.d.Failure to keep proper look out of other road users.e.Driving in a zig zag manner in the circumstancesf.Driving on the wrong side of the road.g.Failure to prevent the said accidenth.Driving without due care and attentioni.Driving a defective motor vehicle registration number xxxx Man Prime mover

5. Special damages was particularized as;a.Medical report Kshs 3,000b.Motor Vehicle search Kshs 500c.Medical Expenses Kshs 52,400

Defence 6. In response, the Defendant filed a statement of defence dated March 2, 2017 in which he averred that save that the accident took place on December 18, 2016 but denied any negligence on his part and averred that it occurred as a result of the Plaintiff’s negligence. The Plaintiff’s negligence was particularized as follows;a.Failing to keep any proper lookout as a pedestrianb.Failing to pay attention or take heed of the presence of motor vehicle registration number xxxx on the said road.c.Failing to have die regard of her own safetyd.Carelessly and recklessly dashing across the said road when not safe to do so.e.Failing to have due regard to the proximity of traffic and in particular motor vehicle registration number xxxxf.Absent mindedly dashing across a busy public road.

7. The Defendant denied the rest of the contents of the Plaint and asked to have the Plaintiff’s suit dismissed with costs.

8. In the Reply to Defence dated March 8, 2017, the Plaintiff denied the particulars of negligence and reiterated the contents of the Plaint.

Hearing 9. Benedette Mwelu Musyoki was PW1. She adapted her witness statement in which she said she was a pedestrian beside the road along Nairobi- Mombasa road at Lukenya when motor vehicle Registration number xxxx which was heading from Nairobi heading to Mombasa was overtaking driven so carelessly and/or negligently without any regard to other road users that it lost control veered off the road and knocked me down. Due to that impact, she sustained injuries, her forehead, chest, front teeth came out, right leg at the ankle. She was rushed to hospital by good Samaritans. She indicated she still had complications on my right hand, chest and head and was still under medication.

10. She further testified that she was travelling from Lukenya going towards Machakos. She was crossing at a yellow line and when she was about to finish crossing the road, she could see other motor vehicles but could not see this one motor vehicle coming from Nairobi to Machakos that was overtaking. She had injuries on the head, upper, lower teeth and a broken right hand. She was admitted at Shalom Centre for one week. She went to Machakos Imaging where X-rays were done. She produced the following documents;a.Discharge summary from Athi River Shalomb.Medical summary dated January 27, 2017c.Radiologist Report of Machakos Imaging Centred.A bundle of receipte.Medical report by Dr Ndibo Mwende dated January 17, 2017f.Medical report by Dr Ashwin Madhiwalag.Mail dated November 21, 2017h.P3 form of Athi River Police Stationi.Police Abstractj.A copy of recordsk.Demand Letter

11. She blamed the driver of the motor vehicle who overtook carelessly and hit her. She prayed for compensation for injuries, costs of suit and injuries.

12. Upon cross examination, she testified that there was one road with two different lanes and she had carefully confirmed that the road was clear and while crossing, she saw a motor vehicle overtaking and it hit her. There was no zebra crossing. She said that she knew it was a busy road, that she was alone crossing and there were other pedestrians by her side. She said she did not wait for the other pedestrians to cross then she abruptly crossed.

13. She reported at the police station but the driver was not blamed for the accident. She confirmed that the x-ray was done at Machakos Imaging centre. She denied adding injuries to the hospital documents. It was her testimony that she had not seen the motor vehicle that overtook that came at a high speed and hit her but she saw oncoming motor vehicles which were at some distance that would have enabled her cross.

14. In Re-examination, she testified that she went to the insurance doctor with the discharge summary and she was told that it did not indicate proper injuries. It was her testimony that the discharge summary emanated from the same hospital she had been treated. She said there was no document disputing the discharge summary and the doctor confirmed that he received the documents on November 28, 2019.

15. PW2 was Dr Mwende K Ndibo based at Athi River Level 2. She testified that on January 17, 2017 she examined the Plaintiff was involved in an accident. Had a displaced spin on right wrist, blunt trauma in forehead and fracture of nasal. She said the Plaintiff was admitted and managed as a patient for 6 days and X-ray/ CT scan was done. She contended that at the time of examination, she complained of pain on the injured site, had a hard time chewing food and was unable to lift objects using left hand, missing teeth on upper and lower incisor. She concluded that the Plaintiff suffered grievous harm and prepared a medical report which she charged Kshs 3,000 and court attendance for Kshs 5,000. She produced a medical report and two receipts.

16. Upon cross examination, she opined that in the 1st medical report there are no lose teeth and the 2nd medical report has different injuries. She stated that the discharge summary is not a treatment note. She testified that the treatment notes were not produced in court and that the treatment notes may mean discharge summary. She stated that she did not examine the patient immediately after the accident but a month after. It was her testimony that she did not examine the patient immediately after the accident but examined her a month after the accident.

17. She testified that there was no permanent incapacitation and that the CT scan and X-ray were done at Machakos Level 5. She stated that she referred to the documents.

18. In re- examination, she stated that Shalom hospital is big and sometimes does not supply the patient with treatment notes. She also stated that it is not possible to make a report on fracture without referring to X rays and CT scan

19. The Defendant did not call any witness.

Trial Court Judgment 20. Vide a judgment dated July 5, 2019, the Trial Court noted that the Defendant neither tendered any evidence nor called any witness and found that the evidence of the Plaintiff remained uncontroverted and unchallenged. The Plaintiff was injured while walking off the road by the subject motor vehicle when the Defendant or his driver carelessly, recklessly and negligently drove the vehicle and it knocked the plaintiff who was a lawful pedestrian and sustained injuries as supported by the medical evidence tendered through the treatment notes and medical report of Dr Mwende.

21. On the issue of liability, the Trial Court found that based on the evidence, the Defendant’s driver’s carelessness, recklessness caused the accident leading to the Plaintiff sustaining severe injuries. The Defendant or its driver would have reduced the severity of the injuries sustained if he was more careful while driving without overtaking and at a higher speed. The trial court found the Defendant 100% liable for the occurrence of the accident.

22. On quantum, the Trial court found that based on the evidence on record, the documentation produced and the testimony of the Plaintiff and the doctor, she had proven her case on a balance of probabilities. The Trial court adopted the finding in the case of Samson Macharia Mwangi & Another vs Abdifatah Mohamed Khalif [2017] eKLR and was also guided by the case of Caleb Onyangi Uyogi vs PA ( a minor suing through WRK as next friend) [2014] eKLR. After taking into account the inflationary trends, nature of the injuries and general trends of awards based in such similar injuries, awarded Kshs 600,000 as general damages for pain and suffering. Special damages was awarded at Kshs 50,400 as per the bundle of receipts produced. Costs were awarded to the Plaintiff together with interest thereon at court rates.

The Appeal 23. Dissatisfied by this judgment, the Appellant appealed to this court vide a memorandum of Appeal dated February 6, 2020 seeking the following orders, THAT;a.Spentb.The whole judgment and decree on liability and quantum of the Magistrate’s court delivered in Mavoko PMCC No 96 of 2017, Benedetta Mwelu Musyoki vs Multiple Hauliers limited against the Appellant be set aside.c.The award on liability and Quantum of damages awarded by the Trial Court be quashed in its entirety.d.The finding of the trial court on liability and quantum of damages awarded by the Trial Court be adjusted accordingly to reflect fair amounts justifiable by the law and evidence in accordance with conventional awards in previous similar cases.e.The Appellant do have the costs in the lower court and of the Appeal.

24. The Appeal was premised on the following grounds;a.The Honorable Trial Court erred in law and fact in failing to consider material evidence clearly demonstrating that the Respondent had not proved her claim on a balance of probabilities.b.The Honorable Trial Court erred in law and fact and misdirected herself by finding the Appellant 100% liable and disregarding evidence on record demonstrating that the Respondent caused the said accident.c.The Honorable Trial Court erred in law and fact in failing to apportion liability on the Respondent given the fact and circumstances surrounding the accident in question.d.The Honorable Learned Magistrate erred in law by giving an inordinately high and manifestly excessive award unsupported by law so as to amount to an erroneous awards in circumstances of the case.e.The Honorable Learned Magistrate erred in law and in fact in her assessment of quantum of damages and thus arrived at an erroneous award that was manifestly excessive in the circumstances.f.The Honorable Learned Magistrate erred in law and in fact in proceeding on the wrong principles vis- a –vis the evidence before her and laid down principles of law in awarding general and special damages.g.The Honorable Learned Magistrate erred in law and in fact by failing to take into account irrelevant considerations/factors while awarding general and special damages.h.The Honorable Learned Magistrate erred in law and in fact by failing to appreciate, consider and take into account the Appellant’s submissions on liability and the quantum of damages awardable.i.The Honorable Learned Magistrate erred by making a decision on liability and quantum that was erroneous, without proper basis and against the weight of evidence.

25. Directions were taken and the Appeal was canvassed by way of written submissions

Submissions Appellant Submissions 26. The Appellant filed submissions dated July 4, 2022 in which he submitted on two grounds. As to whether the trial court erred in holding the Appellant 100% liable given the facts and circumstances of the accident, it was submitted that the Plaintiff ought to prove all the allegations of negligence as contained in his plaint as this is a requirement codified under Section 107 and 108 of the Evidence Act. It was submitted that PW1 indicated in her witness statement that she was a pedestrian beside the road along Mombasa road when the motor vehicle veered off the road and knocked her down while during the hearing, she testified that she was crossing the road and was hit by the motor vehicle which was overtaking while during cross examination, she confirmed that there were other pedestrians by her side who did not cross with her and that she crossed abruptly.

27. Further she confirmed that there was no zebra crossing. The court was urged to find that since there was no mention of the vehicle veering of the road as pleaded, the Respondent did not establish the facts upon which the claim is based. Reliance was placed on the cases of Galaxy Paints Company Limited vs Falcon Guards Limited [2000] eKLR, Patrick Mutie Kimau & Another vs Judy Wambui Ndurumo [1997] eKLR.

28. The Appellants submitted that from the record, the Respondent failed to adhere to the requirements of the Highway Code and was the author of her own misfortune. That she should be found to be 100% liable as she crossed the road without due regard to her own safety and that of others as she did not have a clear view of the road both ways. Further, she did not take extra caution in view of the obstruction to her view as she would have been able to see the Appellant’s motor vehicle. The Appellant relied on the cases of Julius Omolo Ochanda & Another vs Samson Nyaga Kinyua [2010] eKLR.

29. The second issue was whether the Trial Court erred in awarding an inordinately high award for general damages. While relying on the case of IG Transporters Limited & Another vs Moses Theuri Ndumia (2018) eKLR, it was submitted that the Respondent pleaded that she sustained the following injuries; undisplaced nasal bone fracture, loss of one upper incisor teeth, loss of one lower incisor teeth, displaced metacarpal bone of the right wrist joint, blunt trauma on the right anterior chest confirmed by the medical report of Dr Mwende K Ndido dated January 17, 2017.

30. It was submitted that in cross examination, PW2 testified that she prepared two medical reports both dated January 17, 2017 and the difference between them was that one had included loss of two incisor teeth and displaced metacarpal bone of the right wrist joint. Which were not included in the treatment notes. The medical report by Dr Ashwin Madhiwala dated November 11, 2017 noted that the loss of teeth and severe injury over the right hand were not noted in any of the treatment notes and neither does the discharge summary dated December 24, 2016. It was submitted that the documents that ought to relied upon in determining the injuries are the discharge summary and the P3 form as they are the primary documents. This point was buttressed by the case of Ndungu Dennis vs Ann Wangari Ndirangu & Another [2018].

31. The Appellant contended that an award of Kshs 200,000 is sufficient while relying on the case of Samson Macharia Mwangi & Another vs Abdifatah Mohamed Khalif [2017] eKLR and Timsales Limited vs Robert Mutuku Kyengo & 3 others [2016] eKLR.

Respondent Submissions 32. The Respondent filed submissions dated July 22, 2022 in which counsel submitted on two grounds. On the issue of liability, it was submitted that the Defendant did not adduce any evidence to give an account of how the accident occurred and as such the Appellant should be found 100% liable for the accident. Reliance was placed on the case of North End Trading Company Limited (Carrying on the business under the registered name of Kenya Refuse Handlers Limited vs City Council of Nairobi (2019) to buttress this point.

33. As regards quantum, it was submitted that PW2 , Dr Mwende K Ndibo confirmed the injuries that that the Plaintiff sustained were undisplaced nasal bone fracture, blunt trauma on the forehead, blunt trauma on the anterior chest, loss of one upper incisor teeth , loss of one lower incisor teeth and displaced metacarpal bone of the right wrist joint and that during his testimony, he indicated that though the injury of the teeth was not captured in the initial treatment notes, he noted that during her examination.

34. It was submitted that the Trial court did not err in awarding general damages of Kshs 600,000. Reliance was placed on the case of Samson Macharia Mwangi & Another vs Abdifatah Mohamed Khalif (2017) eKLR where the Plaintiff sustained nasal bone fracture and multiple soft tissues and was awarded Kshs 550,000. Further reliance was placed on the cases of Butt vs Khan (1977) eKLR, Selle vs Associated Motor Boat Company Limited [1968] EA 123, Peters vs Sunday post limited [1985] EA 424 and Kemfro Africa Limited t/a Meru Express Services & Another vs AM Lubia & Another [1985] eKLR. The court was urged to dismiss the Appeal as it lacks merit and the Respondent be awarded the costs.

Determination 35. This Court have considered the Appeal, the lower court record and the submissions of parties.

36. This being a 1st Appeal, in the case of Selle vs Associated Motor Boat Co [1968] EA 123 it states that:'The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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, in particular the court is not bound to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.'

Liability 37. It is undisputed that an accident took place on December 18, 2016 where the Respondent was hit by the Appellants motor vehicle Registration number xxxx (hereinafter referred to as 'the subject motor vehicle') which was heading from Nairobi heading to Mombasa. As a result of which the Respondent sustained injuries.

38. The burden of proof as per Section 107 (1), 109 and 112 of the Evidence Act, Cap 80 Laws of Kenya is outlines as;'Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.'109. 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 the fact shall lie on any particular person.112. in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving the fact is upon him.

39. The burden of proof is on the Appellant in this case. The Appellant contends that he should not have been found 100% liable for the accident as the Respondent also caused the accident by joining the road when it was not clear. The Appellant has reiterated that the Respondent was the author of her own misfortune and she should be found 100% liable.

40. This Court notes that the Appellant did not call any witness and especially the driver of the subject motor vehicle who was a key witness, an eye witness who would have been able to elucidate the circumstances of the accident. the Appellant did not explain why this did not happen as incase there were any challenges, summons would have been issued. It is thus not fair to shift the blame 100% to the Respondent who was a pedestrian and who has presented her evidence that the road was clear.

41. The Court of Appeal in Daniel Toroitich Arap Moi vs Mwangi Stephen Muriithi & Another [2014] eKLR where the Court expressed itself as hereunder:'It is a firmly settled procedure that even where a defendant has not denied the claim by filing a 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 rebuttal by the other side.'

42. In determining liability and apportionment thereto, if any, the question of who is to blame for the accident is key. PW1 told the court that she was crossing at a yellow line and when she was about to finish, a vehicle coming from Nairobi to Machakos that was overtaking hit her. She indicated that she did not see the motor vehicle. In her plaint and witness statement she indicated that she as a pedestrian along the road when the subject motor vehicle that was negligently and carelessly driven by the Appellant lost control, veered of the road and knocked down the Respondent. The Respondent was the only eye witness and the fact remains that she was knocked down by the subject motor vehicle. This evidence has not been controverted. PW1 also stated that she was crossing at a yellow line. It is not clear whether this was a broken line or a straight line.

43. According to the police abstract dated January 17, 2017, the case is pending under investigation. The accident was reported vide OB 16/18/12/16. It is however not clear why the police never charged him with any traffic offence and this court is alive to the fact that the standard of proof in traffic offences, like other criminal cases is higher than that standard of proof expected in civil cases. The Appellant in his defence stated particulars of the Respondent’s evidence but did not provide any evidence to prove any of the allegations.

44. In the case of Mary Njeri Murigi v Peter Macharia & another [2016] eKLR the court stated as follows;'On whether the deceased should shoulder any blame, I find that he should not for reasons that there is no general rule that a pedestrian who is knocked while crossing the road at a designated place by a speeding reckless driver must have contributed to the occurrence of the accident just because he was to be found on the road at that material time. Roads are for use by motorists and pedestrians as well. It is the duty of motorists to drive with due care and attention and observe all the traffic rules and regulations regarding road signs and right of way for pedestrians who have equal rights to use the roads as designated.41. A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon and due care is expected of the driver who is in control thereof.Apportionment of liability in my view would only be plausible if there was some material evidence to show how the deceased would have contributed to the occurrence of the accident.

45. In the case of Motex Knitwear Mills Limited Milimani HCC 834/2002the court citing Autar Singh Bahra & Another Vs Raju Govindji HCC 548 of 1998 stated:'Although the defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence and counterclaim are unsubstantiated, in the circumstances the counterclaim must fail.'Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in co doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged.'

46. There being no evidence to controvert the Respondent’s evidence, this Court finds that the Trial Court did not err in apportioning liability in the judgment on liability at 100/% against the Appellant.

Quantum 47. On the issue of quantum, the Respondent evidence is that she sustained the following injuries; she had injuries on the head, upper and lower teeth and a broken right hand. On the Plaint and in the medical report dated January 17, 2017, the particulars of the injuries are;a.Un-diplaced nasal bone fractureb.Blunt trauma on the foreheadc.Blunt trauma on the anterior chest

48. PW2’s opinion in that report was that the respondent suffered Skeletal injury and the injury sustained caused her pain and suffering. It was indicated that she is still in the process of recovering from the injury and no long term disability is anticipated.

49. According to the substituted report of PW2 dated December 18, 2016, the injuries sustained were;a.Un-diplaced nasal bone fractureb.Loss of one upper incisor teethc.Loss of one lower incisor teethd.Displaced metacarpal bone on the right wrist jointe.Blunt trauma on the foreheadf.Blunt trauma on the anterior chest

50. The conclusion in this report was indicated as follows;'Benedetta suffered grievous harm. The injury sustained caused her pain and suffering. She is still in the process of recovering from the injury'

51. PW2 did not explain the reason for these discrepancies. She only indicated in re-examination that she would rely on the medical report that applies all injuries but was not clear as to which medical report it is and why this report.

52. According to Dr Ashwin Madhiwala’s medical report dated November 21, 2017, the observation inter alia that there was loss of one upper and lower tooth. The Doctor’s opinion was as follows;'The above named suffered from the above injury which has healed well (Loss of teeth and severe injury over the right hand is noted in any treatment or at Shalom Hospital Machakos) Needs more investigation.'

53. InParvin Singh Dhalay vs Republic [1997] eKLR; [1995-1998] 1EA 29, it was held that:'It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs George Matata Ndolo, Civil Appeal No 128 of 1995. There the Court said with regard to the evidence of experts:-'The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- 'Because this is the evidence of an expert, I believe it.'

54. From the record, the only doubt that has been raised is when the teeth were lost. It appears as if the Respondent sustained this particular injury after the accident in a separate incident as the medical reports which were written later on indicate different injuries from the discharge notes. As such the court is forced to the particulars in the plaint as parties are bound by their pleading. In this case; Un-diplaced nasal bone fracture, blunt trauma on the forehead and blunt trauma on the anterior chest. Thereafter the court considers whether the quantum apportioned was commensurate to it.

55. The principles guiding the appellate court’s power to interfere with the trial court’s finding on liability are well settled. In Khambi & Another vs Mahithi and Another [1968] EA 70, it was held that:'It is well settled that where a Trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge'

56. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil 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.'

57. In the case of King Developers Limited v Samuel Kavai & Another [2020]where the court set aside an award of Kshs 1,500,000 and substituted it with an award of Kshs 500,000 for injuries of multiple wounds and bruises on the forehead, loss of 12 teeth, blunt injuries to the chest and facial fracture.

58. The award of the Trial Court was Kshs 600,000 which I find to be on the higher side and I substitute it with an award of Kshs 400,000

59. As regard Special damages, the Respondent pleaded for Kshs 55,900 and was awarded Kshs 50,400 by the Trial Court. It is trite law that special damages must be specifically pleaded and proved. From perusal of the record, this Court finds that the receipts produced amount to Kshs 50,400. This Court therefore, find no reason to disturb the Trial Court finding.

60. Costs of the Appeal will be borne by each party as the Appeal was partly successful. Costs and interest of the lower Court are not interfered with.

61. In the end, the Appeal partly succeeds and judgment is entered as follows;1. General damages Kshs 400,000/-2. Special damages Kshs 50,400/-3. Costs4. Interest

It is so ordered.DELIVERED SIGNED & DATED IN OPEN COURT IN MACHAKOS ON 8THNOVEMBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE).M.W. MUIGAIJUDGEIN THE PRESENCE OF:SIENDI H/B MAINGI - FOR THE APPELLANTNO APPEARANCE - FOR THE RESPONDENTGEOFFREY/PATRICK - COURT ASSISTANT(S)