[2022] KEHC 10084 (KLR)

Mutwti v Peter & 3 others (Civil Appeal 41 of 2018) [2022] KEHC 10084 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10084 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 41 of 2018

GV Odunga, J

July 14, 2022

Between

Johnstone Makasa Mutwti

Appellant

and

Nyingi Peter

1st Respondent

Francis Mboya

2nd Respondent

R K Sangani

3rd Respondent

Njoroge Zipporah alias Zipporah Wairimu

4th Respondent

(Being an Appeal from the Judgment of the Learned Honourable C. K. Kisiangani delivered on the 4th day of April 2018 in Machakos Resident Magistrate’s Court Civil Case No. 859 of 2011)

Judgment

1. The genesis of this appeal was the decision made in Machakos Civil Case Number 859 of 2011. In that case, the Plaintiff, now Appellant, by an amended plaint filed on 13th of December 2012 sought special damages of Kshs. 33,050. 00, general damages for pain and suffering and loss of amenities, future medical expenses, costs and interest of the suit.

2. According to the said Plaint, the 1st Respondent was the registered owner of Motor Vehicle registration number KBJ 775 R while the 2nd Respondent was the beneficial owner as the driver, servant agent and/ or employee. The 3rd Respondent was the registered owner of Motor Vehicle registration number KAV 132D while the 4th Respondent was the registered owner of Motor Vehicle registration number KAS 543T.

3. It was pleaded that the Appellant was a fare paying passenger in the 1st Respondent’s motor vehicle which was negligently and/or carelessly driven, managed and/or controlled by the 2nd Respondent causing it to veer off the road and collide with the 3rd and 4th Respondent’s Motor vehicles which were also being carelessly and negligently driven by their authorized driver, agent, employee and or agent. As a result, Plaintiff sustained segmental fracture of his femur and deep scalp laceration

4. The 1st Respondent did not file a defence.

5. The 2nd Respondent filed a statement of defence dated 28th November 2011 denying the contents of the Plaint and blamed the Plaintiff for causing the accident through his negligence and that of the driver of motor vehicle registration number KAV 132D ZC 3623. He urged the court to dismiss the suit with costs.

6. On his part, the 3rd Respondent in his written statement of defence dated 24th November 2011, admitted being the owner of motor vehicle registration number KAV 132D/ZC 3623 but averred that it was the 1st and 2nd Respondents motor vehicle that was negligently and/or carelessly driven, managed and/or controlled by its agents, servants and/driver causing it to collide with its motor vehicle. He denied the other contents of the Plaint and asked that the suit be dismissed with costs.

7. The 4th Respondent by an amended defence dated 14th January 2013 denied the contents of the Plaint and contended that the accident was caused by the negligence of the plaintiff and sought for the dismissal of the suit with costs.

8. The Plaintiff filed a reply to the 4th Respondent’s defence dated 19th April 2013 reiterating the contents of the Plaint and in addition denied any negligence on his part.

9. At the hearing, the Plaintiff called one witness, Dr. John Mutunga from Machakos Level 5 Hospital. He produced the medical report and stated that the Plaintiff sustained segmental fracture right femur, deep scar laceration following an accident that occurred on 11th February 2011. A metal plate was inserted and he was given calcium supplements. As a result of the accident, he developed a walking gait with an elbow fracture and had surgical scar on the right thigh. He was managed well but had not fully recovered and needed to attend physiotherapy twice a month for 6 months to gain full use of his right limb and the implants need to be removed with time at an approximate cost of Kshs 100,000. 00

10. Upon cross examination by the advocate for the 1st and 2nd Respondent, he stated that the Plaintiff must be fully recovered by the time of his testimony. Upon cross-examination by the advocate for the 3rd Respondent, he stated that the Plaintiff was examined 2 months after the accident and the medical report did not indicate deformity on the limb neither did it indicate future medical expenses. He was using a single crutch at the time of examination which according to him he would have used for 6 weeks.

11. The Respondents did not call any witness and parties proceeded to file submissions save for the 4th Respondent who did not file submissions.

12. In her Judgement, the learned trial magistrate noted that liability had been settled at 85:15 against the 1st and 2nd Respondents and the 3rd Party and on quantum found that the plaintiff succeeded in proving the injuries sustained which were fracture of his right femur and soft tissue injuries and that he had not provided any other medical records to show that he was still undergoing treatment leading to the conclusion that he had completely healed. The trial court proceeded to award general damages of Kshs 400,000. 00 and special damages of Kshs 33,050. 00 together with costs and interest.

13. Aggrieved by this judgement, the Appellant lodged this appeal dated in which he sought to have the judgement set aside and the damages assessed at Kshs 1,000,000. 00, a finding that he is entitled to future medical expenses of Kshs 150,000. 00 and costs of the Appeal. The appeal is grounded on the contention that:a.The trial magistrate erred in law and in fact by failing to consider the very serious injuries suffered by the Appellant hereinb.The trial magistrate erred in law and in fact in failing to appreciate and take into account the medical evidence tendered by the Appellant and his witnesses thus arriving at the wrong decision.c.The trial magistrate erred in law and in fact in awarding General damages for pain and suffering of Kshs 400,000. 00 to the Appellant which are inordinately low considering the serious injuries suffered.d.The trial magistrate erred in law and in fact in failing to appreciate in totality the evidence tendered in court by the Appellant.e.The trial magistrate erred in law and in fact by disregarding the Appellants submissions and authorities thus arriving at a wrong decision.f.The trial magistrate erred in law and in fact by failing to consider the complications suffered as a result of the injuries thus arriving at the wrong finding.g.The trial magistrate erred in law and in fact by disregarding the evidence tendered and the fact that the Appellant will require future medical expenses for removal of implants located in his limbs thus arriving at the wrong figure under this head.

14. In this appeal, it was submitted of behalf of the appellant that from the evidence of Dr. John Mutunga, the appellant sustained a segmental fracture of right femur and a deep scalp laceration. He further stated that a metal plate had been inserted on the right leg of the appellant and he was given calcium supplementary. He further noted that the appellant had difficulty in walking and had pain on the fractured side. It was further noted that the appellant had a surgical scar on the right thigh and due to the fracture on his femur, he did not have the use of his right limb. Though he testified that the appellant had been managed well but had not fully recovered, it was the appellant’s submission that the trial court did not appreciate this fact and the fact that the appellant needed to attend physiotherapy to gain full use of his right limb.

15. It was submitted that from the evidence on record, the appellant herein had not only been hospitalized and/or bedridden for a period of 13 days, but had also been taken to theatre for surgery and the nail inserted. All these facts, according to the appellant, point out to the fact that he had sustained serious injuries which the learned trial magistrate erred completely in fact in failing to appreciate and take into account.

16. The appellant submitted that before the trial court, he pointed out the serious nature of the injuries and submitted that a sum of Kshs. 700,000/= would be adequate compensation for the appellant taking into account the serious nature of the said injuries based on the authorities cited but the learned trial magistrate did not appreciate them.

17. Before this Court, the appellant pointed out that this being the first appellate court, it has a duty based on the case of Abok James Odera T/A A.J Odera & Associates vs. John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR as considered by the court in the case of Jackson Kaio Kivuva vs. Penina Wanjiru Munene [2019] eKLR to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.

18. The appellant appreciated the holding of this Court in the case of Joseph Mutua Nthia vs. Fredrick Moses M. Katuva [2019] eKLR in which the court considered the case of Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457.

19. In this appeal it was submitted that the amount of general damages awarded by the trial court was inordinately low considering the serious injuries sustained by the appellant herein which warrants this court to disturb the said award for being an erroneous estimate of the damages. In support of the submissions, the appellant cited the case of Godfrey Wamalwa Wambua & Ano vs. Kyalo Wambua [2018] eKLR where the plaintiff sustained compound fracture of the right distal tibia/fibula; cut wound on the scalp; cut wound on the chest; and cut wound on the lower lip. The court, it was submitted proceeded to award the plaintiff therein general damages being the sum of Kshs. 700,000/=. Reference was also made to the case ofJohn Kuria Mbure vs. Magari Hire Purchaser Limited [2019] eKLR, where the court considered the case of Charles Mathenge Wahome vs. Mark Mboya Likanga [2011] eKLR and observed that the plaintiff suffered a fracture of the left femur and soft tissue injuries which led to 25% disability and proceeded to award the plaintiff therein a sum of Kshs. 1,500,000/=. Also cited was the case of John Kuria Mbure vs. Magari Hire Purchase Limited [2019] eKLR, where the appellant had sustained compound fracture of the right tibia; compound fracture of the right medial and lateral malleolus with dislocation of right ankle and damages were assessed in the sum of Kshs. 2,000,000/=. The appellant however conceded that the appellant in that case had sustained more serious injuries than the appellant herein. It was therefore the appellant’s view that a sum of Kshs. 1,000,000/= ought to suffice as general damages for the pain & suffering experienced by him and it was sought that this court does substitute the award of Kshs. 400,000/= which was inordinately low with a sum of Kshs. 1,000,000/= as general damages for the pain and suffering.

20. As regards the award for future medical expenses, it was submitted the plaint was amended to include Paragraph 8A which states as hereunder:“That further to the foregoing, the Plaintiff shall require a sum of Kshs. 150,000/= for the removal of implants located in his limbs and thus claims future medical expenses from the defendants.”

21. The prayers in the plaint were also amended to include prayer ‘bb’ which sought for future medical expenses. It was therefore submitted that the future medical expenses were specifically pleaded in the amended plaint and this was supported by the evidence of PW 1 However, trial court while acknowledging the testimony of PW 1 with regards to future medical expenses did not deal with the issue any further. It was therefore submitted that the trial magistrate greatly erred in her failure to examine whether the appellant herein was entitled to the future medical expenses as the same had been raised both in the pleadings and during testimony. In this regard reliance was placed on Machakos High Court Civil Appeal No. 23 of 2018 – Angela Katunge Musau vs. China Wu Yi Limited & Wilson Githu, where the court expressed itself as hereunder:“Future medical expenses are therefore, though based on medical opinion, is an 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. In this case, the Appellant treated future medical expenses as general damages with the result that the same was not expressly pleaded.”

22. While it was noted that PW1’s evidence was that the appellant would require he removal of the implants at a cost of approximately Kshs. 100,000/=, it was submitted that since the opinion of the doctor was on the 13th February 2018 which is about 4 years earlier, the same must have inflated considering the inflation of the economy. Accordingly, the Court was urged to make a finding that the appellant herein is entitled to future medical expenses in the sum of Kshs. 150,000/= which had been specifically pleaded and proven during testimony.

23. It was therefore urged that this court should find merit in this appeal and grant the orders sought.

24. In opposition to the appeal, the 3rd Respondent submitted that the sum awarded by the Court was justified given the injuries sustained by the Appellant. In his view, the amount awarded by the trial magistrate was sufficient compensation considering the injuries sustained by the Appellant. He relied onOdinga Jackton Ouma vs. Moureen Achieng Odera (2016) eKLR Kisumu HCCA No. 1 of 2014, where the Court awarded Kshs. 180,000. 00 for fractures of the first and second ribs, fracture on the left metatarsal, shoulder dislocation on the left, loss of consciousness and multiple soft injuries in the upper limb and neck. He also cited Simon Mutisya Kavii vs. Simon Kigutu Mwangi (2013) eKLR Mombasa HCCA No. 197 of 2007 where the court awarded Kshs. 200,000. 00 where the medical report indicated permanent incapacity, several fractures and shortening of one leg by 1cm. In support of the submissions, the 3rd Respondent relied on the Court of Appeal decision in Mbaka Nguru and Another vs. James George Rakwar [1998] eKLR.

25. Given that the accident occurred in 2011, it was submitted that the amount awarded by the trial court was sufficient.

26. As regards the award for future medical expenses, it was submitted that the medical report by Dr Mutuku P N shows no prognosis for the need of removal of metal implants. This should have been observed by the doctor during the medical assessment and not at trial which shows that it was an afterthought. Accordingly, it was submitted that the Appellant is not entitled to the claim for future medical expenses.

27. Based on our submissions above, it was contended that the Appeal lacks merit and ought to be dismissed with costs to the 3rd Respondent.

Determination 28. I have considered the foregoing.

29. I have considered the foregoing. This being a first appellate court, it was held in Selle vs. Associated Motor Boat Co. [1968] EA 123 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 from a trial by the High Court is by way of a retrial and the principles upon which 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 necessarily 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.”

30. Therefore, this Court is under a duty to delve at some length into factual details and revisit the facts as presented in the trial Court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial Court had the advantage of hearing the parties.

31. However, in Peters vs. Sunday Post Limited [1958] EA 424, it was held that:“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstances that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgement of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.”

32. Nevertheless, inEphantus Mwangi and Another vs. Duncan MwangiCivil Appeal No. 77 of 1982 [1982-1988] 1KAR 278 the Court of Appeal held that:“A member of an appellate court is not bound to accept the learned Judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

33. As indicated the appeal only challenges the award of damages. The general law, when it comes to compensation for personal injuries, is that money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts, which are awarded, are to a considerable extent be conventional. See Tayab vs. Kinanu [1983] KLR 114; West (H) & Son Ltd vs. Shephard [1964] AC 326 at 345.

34. I therefore associate myself with the holding of the Court of Appeal decision in Mbaka Nguru and Another vs. James George Rakwar[1998] eKLR where it held that:“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”

35. 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.”

36. It was therefore held by the same Court inSheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others[1986] KLR 457 that:“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect…A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own…”

37. 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.”

38. It was therefore held by the same Court in Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect…A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own…The Judges of both courts should recall that inordinately high awards in such cases will lead to monstrously high premiums for insurance of all sorts and that is to be avoided for the sake of everyone in the country.”

39. Before making a decision either way, it is important to keep in mind the principles which guide a court in awarding damages. These principles were set out by the Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730 where it was held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. 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 and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably 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…It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that Courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”

40. Before me only the appellant and the 3rd Respondent submitted. The other Respondents did not. The failure by a party to submit where directions have been given that the matter be prosecuted by way of written submissions has been the subject of judicial pronouncements both locally and in other jurisdictions. The rationale for written submissions was explained in the case of Ali Ngumbao Baya & 2 others vs. Director of Public Prosecution [2016] eKLR where the court stated that;“Submissions can either be oral or written. Submissions simply put means an evaluation of the evidence by each party and analysis of the law. This can be done either orally or in writing. At times parties make oral submissions in furtherance or addition to their written submissions. The idea of filing written submissions is intended to save on judicial time and also to enable the parties or their advocates to condense their thoughts on the matter at their own and in good time. This gives the parties enough time to evaluate the case and put down their view in writing. Written submissions gives parties latitude to explain their respective cases with ease as opposed to oral submissions which can be limited inform of time.”

41. As for the failure to file submissions it was held in the South African case of Ndebele vs. South African Police Service and Another (JR2395/14) [2017] ZALCJHB 251 as follows;“to decide a leave to appeal application in chambers based on written submissions, the failure to file written submissions in these instances may be viewed to be similar to a party failing to appear in Court to argue the case, and all the consequences associated with it, which may include dismissing the application on this basis alone. But at the very least, this failure by the applicant leaves the leave to appeal application unmotivated.”

42. In other words, the Court may direct the manner in which an application or an appeal is to be prosecuted. Such hearing may either be orally or by way of written submissions. Where the Court directs that the matter be prosecuted by way of written submissions, that would be the mode of prosecution of the matter. Where a party fails to comply with such directions, the Court may then proceed as if the matter has not been prosecuted or defended and may then allow the matter or dismiss the same as the case may be. However, the mere fact that a matter is not defended does not necessarily mean that the same is merited. An undefended matter does not give merit to an otherwise unmerited claim or prayer. On the other hand, a party may decide not to submit and leave the matter to the Court in which case, the Court would be at liberty to consider the material on the record and arrive at its own decision without necessarily deeming the matter as undefended or un-prosecuted. Where therefore there is material on record on the basis of which the Court may arrive at a decision, the Court would not necessarily determine the matter on the basis that submissions were not made.

43. In this appeal, the appellant has faulted the trial court for not considering the award for future medical expenses when the same was pleaded and proved. In respect of these kinds of awards, authorities are agreed that an award for future medical expenses must stand on its own as a specific prayer to be specifically established. Ringera, J (as he then was) in Jackson Wanyoike vs. Kenya Bus Services Ltd & Another Nairobi (Milimani) HCCC NO. 297 of 2002 held that costs of future medical care must be pleaded, as they are special damages. Similarly, the Court of Appeal in Sheikh Omar Dahmant/aMalindi Bus vs. Denis Jones Kisomo Civil Appeal No. 154 of 1993, held that cost of future medical operation is special damages, which must be pleaded. See also Mbaka Nguru & Another vs. James George Rakwar Civil Appeal No. 133 of 1998 [1995-1998] 1 EA 246.

44. 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.”

45. In Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003, Kimaru, J held that:“In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non-pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…Special damages and general damages are used in corresponding senses. Thus in personal injury claims, ‘special damages’ refers to past expenses and lost earnings, whilst ‘general damages’ will include anticipated loss as well as damages for pain and suffering and loss of amenities…Special damage is in the nature of past pecuniary losses or expenses while general damage is futuristic pecuniary loss or expenses. Therefore in the instant case the loss of income as a direct consequence of this fraud would be both a general damage as well as a special damage. General damages particularly extent thereof would be unknown at the time of the trial and must await the conclusion of the case so that they may be assessed. Special damages on the other hand consist of those losses that could be calculated at the time of the trial. Special damages must be pleaded, but so must future pecuniary loss if it may lead to surprise. Non-pecuniary damage must not be quantified in a pleading…There ought to be a distinction between past pecuniary losses or expenses already incurred and could easily be calculated by say reference to receipts obtained and anticipated future pecuniary loss or expenses which is continuing and which though one may know the multiplicand you will not normally know how long the loss will take. Such an anticipated loss is general damage, which must of necessity await the completion of the suit to be assessed by the Court. Special damages on the other hand is calculable at the date of the trial out of which a round figure will be obtained. 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 but are exceptional in their character and, therefore, they must be claimed specifically and proved strictly…Specific loss of profits consequential upon the loss of use of an article for a specific period to the date of the plaint is special damage, which must be pleaded. However, in certain circumstances loss of profits could be included within a claim for general damages…General damages consist of the nature of prospective loss of income while special damages consist of out of pocket expenses and loss of earnings or income incurred down to the date of trial and is generally capable of substantially exact calculation. Where damages has become crystallised and concrete since the wrong the defendant could be surprised at the trial by the detail of its amount.”

46. Regarding proof of loss, while it is true that that it is trite law that special damages must not only be specifically pleaded but also strictly proved, what amounts to strict proof must depend on the circumstances that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. See Nizar Viranit/aKisumu Beach Resort vs. Phoenix of East Africa Assurance Company Limited Civil Appeal No. 88 of 2002 [2004] 2 KLR 269, Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company LimitedCivil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98, Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992.

47. It was therefore held by the Court of Appeal in Jackson K Kiptoo vs. The Hon Attorney General [2009] KLR 657 that:“The court is conscious that the degree of certainty and particularity of proof required depends on the circumstances and the nature of acts complained of.”

48. Similarly, in Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, the Court of Appeal held as follows;“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

49. That was the position in Woodruff vs. Dupont[1964] EA 404 where it was held by the East African Court of Appeal that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided cases are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them…The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonably be considered as a rising according to the usual course of things, from the breach of the contract itself”. The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

50. Future medical expenses are therefore, though based on medical opinion, an 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. In this case, it was clearly pleaded in the amended plaint that the Plaintiff would require a sum of Kshs. 150,000/= for the removal of implants located in his limbs and thus claimed future medical expenses from the defendants. In the reliefs sought there was a specific prayer for future medical expenses. In his evidence, Dr. John Mutunga testified that though the Plaintiff was managed well he had not fully recovered and needed to attend physiotherapy twice a month for 6 months to gain full use of his right limb while the implants would need to be removed with time at an approximate cost of Kshs 100,000. 00. He however admitted that this aspect was not mentioned in his medical report.

51. In her judgement, though the learned trial magistrate clearly acknowledged that there was evidence from PW1 that the appellant would require to have the implants removed at approximate cost of Kshs 100,000. 00 she did not deal with this aspect at all. In my view it was an error on the part of the learned trial magistrate to have failed to do so. The said claim was expressly pleaded and though PW1 did not mention it in his report, it was his evidence on oath that the said sum would be required for further medical procedure. The same ought to have been awarded. I however, find no basis for awarding more than the sum which, in the opinion of PW1, was required for the said purpose.

52. In arriving at the award of damages, the learned trial magistrate relied on the case of Mwavita Jonatan vs. Silvia Onunga[2017] in which case the plaintiff sustained more serious injuries than in the present case. The Court seems to have been of the view that since the injuries therein were more serious than in the present case, the award in the present case ought to be lower than in that case. With due respect, what is expected of the court is to consider similar injuries and not to compare the injuries in the case at hand with more serious ones.

53. In this case, the appellant sustained segmental fracture right femur and deep scar laceration. A metal plate was inserted and he was given calcium supplements. As a result of the accident, he developed a walking gait with an elbow fracture and had surgical scar on the right thigh. He was managed well but had not fully recovered. In Francis Maina Kahura vs. Nahashon Wanjau Muriithi [2015] eKLR, the plaintiff suffered a segmental fracture of the mid shaft right femur and a cut wound on the right knee and was admitted for almost three months. The fracture united leaving a surgical scar on the right leg which was shortened by 2cm. On 23rd April, 2015, he was awarded Kshs 500,000. 00 genera; damages and Kshs 100,000. 00 for future medical expenses. In the present case judgement was delivered on 4th April, 2018, about some three years later.

54. In my view an award of Kshs 400,000. 00 was clearly so inordinately low as to represent an entirely erroneous estimate.

55. Accordingly, I find merit in this appeal and I allow the same. I set aside the award of Kshs 400,000. 00 made in respect of general damages and substitute therefor Kshs 600,000. 00. I also award the appellant Kshs 100,000. 00 being the cost of future medical expenses. The rest of the awards the remain the same. The costs of this appeal are awarded to the Appellant. Judgement accordingly.

JUDGEMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MACHAKOS THIS 14THDAY OF JULY, 2022. G V ODUNGAJUDGEDelivered the presence of:Mr Musya for the AppellantCA Susan