[2024] KEHC 3249 (KLR)

Murai v Mwangi & another (Civil Appeal E056 of 2022) [2024] KEHC 3249 (KLR) (8 April 2024) (Judgment)

Neutral citation: [2024] KEHC 3249 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E056 of 2022

GL Nzioka, J

April 8, 2024

Between

Grace Wambui Murai

Appellant

and

Esther Wairimu Mwangi

1st Respondent

Coopholding Cooperative Society Ltd

2nd Respondent

(Being an appeal against the decision of Honourable J. Karanja Senior Principal Magistrate (SPM) delivered vide Civil Case No.448 of 2017 on 6{{^th}} November 2022 at the Chief Magistrate’s Court at Naivasha)

Judgment

1. By a plaint dated 11th July 2017, the plaintiff (herein “the appellant”) sued the defendant (herein “the respondents”) seeking judgment for:a.General damagesb.Special damages Kshs 20,727c.Cost of the suitd.Costs of future medical expenses

2. The appellant’s case was that on 24th January 2017, she was travelling as a lawful passenger in motor vehicle registration No. KBU 289B, along the Naivasha – Maai Mahiu road. That the vehicle is owned by the respondents.

3. That on reaching Kihoto area, the respondents authorized driver negligently and/or carelessly drove the said motor vehicle causing it to lose control, veer off the road and land in a ditch.

4. That, as a result of the accident, she sustained the following bodily injuries:a.Fractures of left femur;b.Fracture of the right tibia,c.Blunt injury to the head leading to head injury with loss of consciousness for 3 hours,d.Fracture of right clavicle,e.Blunt injury to the neck leading to severe soft tissue injuries,f.Severe soft tissue injuries of both hands,g.Severe soft tissue injuries of the left thigh.

5. However, the respondents denied liability vide their statement of defence dated, 2nd August 2017 and averred that, the appellant was not a passenger in the subject motor vehicle and neither was motor vehicle involved in accident, and/or driven negligently. Further that, if there was an accident the appellant substantially contributed to the same.

6. Subsequent to the closure of the pleadings and after the plaintiff had testified, on 21st August 2020, the parties entered a consent settlement on liability in the ratio of 85:15% in favour of the appellant as against the respondents.

7. That by a judgment dated, 6th November 2020, the trial court entered judgment as follows:a.General damages -------------------- Kshs 2,800,000b.Special damages--------------------- Kshs 147,247. 84c.Sub-total-----------------------------Kshs. 2,947,247. 84d.Less 15% contributory---------------(Kshs 442,087. 18)e.Total-------------------------------- Kshs 2,505,160. 66. f.The plaintiff was awarded costs plus interest at court rates

8. However, the appellant is aggrieved by the decision of the court on the fact that the trial court did not award her costs of future medical expenses and by a memorandum of appeal dated, 4th August 2022, and amended on 8th February 2023, appeals on the following grounds:a.That the learned Magistrate erred in law and in fact by failing in his awarding judgment to award cost of future medical expenses when there was overwhelming evidence to support the appellant’s case.b.That the learned Magistrate erred in law and in fact by failing to consider the plaintiff/appellant’s submissions and therefore failed to award cost of future medical expenses on cost of artificial limb of Kshs 900,000.

9. The appeal was disposed of by filing of submission. The appellant in submissions dated, 2nd February 2023, cited the case of Mkube vs Nyamuro (1983) KLR and Butt vs Khan (1981) KLR 349 where the Appellate Court discussed the factors the Appellate Court should consider to consider before it can interfere with an award of damages. The factors were stated to be where the damages are inordinately high or low to represent an erroneous estimate, or the Judge misapprehends the evidence or acts on wrong principles and arrives at a figure that is inordinately high or low.

10. The appellant submitted that, in the trial court she sought for an award of Kshs 2,100,000 as future medical costs based on an estimate cost of Kshs 300,000 for an artificial limb with a multiplier of seven (7) years taking into account that she was amputated at the age of twenty-eight (28) years and would therefore require at least seven (7) replacements of the artificial limb.

11. Further, the estimate cost of Kshs. 300,000 was the only cost placed before the trial court and thus the trial court erred in not awarding the costs. She relied on the case of; Julius Kiplimo Too vs Mombasa Maize Millers (Kisumu) Ltd & Another (2021) eKLR where the High Court held that the respondent having failed to adduce alternative evidence that would cast doubt on the evidence of the appellant, the evidence of the appellant was uncontested, cogent and sufficient and therefore the trial court erred in failing to award future medical expenses.

12. Further that in the case of; Geoffrey Kamuki & Another vs RKN (minor suing thro’ her father and next friend) ZKN (2020) eKLR the High Court held that the plaintiff was required to plead the fact of future medical expenses to lay the basis of tendering evidence upon which the court would base its decision.

13. However, the respondents in their submissions dated, 31st January 2023, opposed the appeal and argued that, although the appellant sought for future medical expenses in the plaint she did not specifically plead for the same. That the cost of Kshs 300,000 was only brought up in the medical report of Dr. Omuyoma which is just an opinion.

14. Further, the trial Magistrate in his judgment considered the issue of future medical expenses but held that the appellant had not specifically pleaded for it in the award and therefore it could not be awarded. The respondents relied on the case of; Tracom Limited & Another vs Hassan Mohammed Adan [2009] eKLR where the Court of Appeal held that future medical expenses is a special claim within general damages whereby the approximate sum of the future medical expenses needs to be specifically pleaded and proved before it is awarded.

15. The respondent further submitted that, the appellant threw the figure of Kshs 900,000 at the trial court expecting the same to be awarded, yet the medical report by Dr. Omuyoma only proposed future medical expenses of Kshs 300,000. That in the circumstances the trial Magistrate did not err in failing to award the same.

16. Having considered the appeal in the light of the material placed before the court and the arguments advanced vide submissions, I find that, the main issue to determine is whether the learned trial magistrate erred in failing to make an award for future medical expenses.

17. The law is settled that, the 1st appellate court will not interfere with the trial court’s discretion in assessing damages unless in exercising that discretion the court misdirected itself in some matters and arrived at an erroneous decision, or was clearly wrong in the exercise of that judicial discretion which resulted into injustice as held in the cases of; Mbogo & another Vs Shah (1968)EA and Mkube -vs - Nyamuro 1983 KLR 403.

18. In the same vein the Court of Appeal in Loice Wanjiku Kagunda vs. Julius Gachau Mwangi CA 142/2003 (unreported) stated that: -“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (see Manga vs Musila [1984] KLR 257).”

19. To revert the issue herein is whether the claim for future medical expenses should have been specifically pleaded and strictly proved. The issue of future medical expenses considered in the case of Tracom Lim ited & another v Hassan Mohamed Adan [2009] eKLR where the Court of Appeal pronounced stated as follows: -“The award for future medical expenses is challenged on two fronts. First, that it was not specifically pleaded and strictly proved. Second, that the multiplier of 25 years was inflated. 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 thereon 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 the 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.”

20. However, the Court of Appeal in Kenya Power & Lighting Company Limited v AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR) (8 October 2021) (Judgment) in reference to the decision in Tracom Limited & another v Hassan Mohamed Adan (supra) stated as follows:“28. As has been held above, in as much as future medical expenses are in the realm of special damages, it may not be practical for the parties to be able to fully ascertain the exact amount that will be required in the future, it therefore suffices to give an estimate as the respondents did during their testimony.

32. On the challenge to the award on future medical expenses which the appellant says had not been specifically pleaded and proved, this does not turn on much as the respondent had in their plaint stated that the minor requires additional and medical care. In our view, the functional prosthesis (artificial limbs) and their maintenance costs are covered under that prayer and as held in Tracom Limited & another v Hasssan Mohamed Adan (supra) it was not mandatory for the respondent to delve into detail of the future expenses at that stage thus that ground of appeal fails.

21. Similarly, in the case of, Forwarding Company Limited & another v Kisilu; Gladwell (Third party) (Civil Appeal 344 of 2018) [2022] KECA 96 (KLR) (4 February 2022) (Judgment) the Court of Appeal in overturning the decision of the High Court not to award future medical expenses on the ground that the plaintiff had pleaded generally on the same but had failed to attach a specific figure thus lacked specificity stated as follows: -“62. In the instant case, we do not agree with the finding of the learned judge that failure to plead future medical expenses would fatally affect this specific claim. To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment, among other things. It is not always clear at the time of filing a case what these future costs may be. The prognosis could change for better or for worse depending on various circumstances.”

22. Pursuant to the afore decisions the argument that the future medical expenses were not specifically pleaded and proved is neither here nor there, it is not a correct argument under the law and the learned trial magistrate erred in holding as such and the respondents’ submissions in that regard fail.

23. In the instant matter the plaintiff stated in the plaint that, she was claiming for costs of future medical expenses and therefore put the defendants on knowledge thereof. Secondly the medical report of Dr Obed Omuyoma clearly indicated the plaintiff would require replacement of the artificial limb at an estimated cost of Kshs 300, 000. That report was admitted in evidence and not challenged.

24. In the same vein the medical report by the defendant supported the plaintiff’s medical report that, she would require replacement of the limb after every 5-7 years, although the cost was not indicated but the cost suggested by the plaintiff’s medical report was not challenged.

25. It is therefore an undisputed fact that the plaintiff will require the artificial limb replacement. The question is for how long and at what cost. I find that she was 30 years and will consider a further 30 years and after a period of 6 years therefore 5 times and at the suggested figure of Kshs 300,000, she requires Kshs 1, 500, 000.

26. The upshot of the aforesaid is that the appeal is allowed by awarding the appellant a sum of Kshs 1, 5000, 000 as future medical expenses in addition to the other award made. The appellant will also have costs and interest from the date of judgment in the trial court.

27. It is so ordered

DATED, DELIVERED AND SIGNED ON THIS 8TH DAY OF APRIL 2024GRACE L. NZIOKAJUDGEIn the presence of:Mr Owour for the AppellantMs Kimancha for the RespondentMs Ogutu: Court Assistant