[2023] KEHC 25600 (KLR)

Nduati v Aspendos Dairy Ltd (Civil Appeal 33 of 2020) [2023] KEHC 25600 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25600 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Appeal 33 of 2020

J Wakiaga, J

November 21, 2023

Between

Stanley Chege Nduati

Appellant

and

Aspendos Dairy Ltd

Respondent

(Being an appeal against the Judgement and Decree of the Principal Magistrate Hon. E. N. Muriuki in Murang’a CMCC NO 27 of 2018)

Judgment

1. The Appellant was sued the Respondent for general and special damages arising out of a road traffic accident on the 1st day of June 2017 involving the Respondent’s motor vehicle registration number KCD 625 L wherein the Appellant was travelling as a fare paying passenger.

2. By a judgement dated 3rd November 2020, the Court awarded the Appellant a sum of Kshs.1,500,000 in general damages and special damages of Kshs. 3,500 less 15% contribution.

3. Being aggrieved by the said determination, the Appellant filed this appeal and raised the following grounds of appeal:a.The learned Magistrate erred in law in failing to consider the Appellants submissions and the Respondent’s submission on special damages.b.The learned Magistrate erred in law and in fast in finding that the Appellant had not proved special damages.c.The learned Magistrate erred in law in failing to award special damages of Kshs.600,200/=

Submissions 4. Directions were issued on the disposal of the appeal by way of written submissions. On behalf of the Appellant it was submitted toast the appeal was on special damages and that the Appellant at paragraph 7 of the plaint had pleaded special damages as follows:a.Medical expenses Kshs 565,400b.Helper charges Kshs 31,250c.Medical report Kshs 3,000d.Copy of records Kshs 550

5. It was submitted that the said expenses were supported by list of documents and that the Respondent did not dispute the same. It concedes to a sum of Kshs.484,900 in its submissions and that the Court did not consider the medical receipts at all in its finding. It was contended that the helper charges were supported by petty cash vouchers in the name of the Appellant and therefore the appeal should be allowed.

6. In support of the submissions reliance was placed on the case of John Richard Okuku Oloo v South Nyanza Sugar Co Ltd where the Court stated that special damages must in deed be specifically pleaded and proved with the degree of certainty and particularity depending on the circumstances and the nature of the act complained of.

7. On behalf of the Respondent it was submitted that special damages must be pleaded and strictly proved by production of original receipts and that invoices issued by an institution is not proof of payment and therefore the Appellant failed to prove his claim for medical expenses. It was contended that the petty cash vouchers did not include the name of the recipient and therefore the appeal fails.

Determination 8. This being a first appeal the Court is under a duty to re-evaluate the evidence tendered before the lower Court and to come to its own conclusion thereon. In this matter the Appellant testified and confirmed that he had filed his witness statements and list of documents which he adopted. In cross examination he stated that the petty cash vouchers did not indicate who was paid.

9. In dismissing the Appellant’s claim herein, the trial Court erroneously stated that the recipients of the monies were not called as witnesses. The Appellant had pleaded the specials herein and produced receipts in support thereof. The same was only expected to prove on as balance of probability and not beyond reasonable doubt.

10. In dismissing the Appellant’s claim in special damages, the lower Court as submitted by the Appellant did not take into account the submissions by the parties and the general principle’s in assessment of special damages thereby reaching an erroneous award which is amenable for interference with by the Appellant Court which I hereby do.

11. The appeal herein is allowed and judgement entered for the Appellant on the special damages as pleaded and proved with cost.

12. In the final analysis I enter judgement in favour of the Appellant as follows;a.General damages Kshs 1,500,000b.Special damages Kshs 600,2002,100,000c.Less 15% contribution 315,000d.Grand total Kshs 1,785,000e.Cost and interest thereon

13. And it is ordered.

DATED SIGNED AND DELIVERED AT MURANGA THIS 21st DAY OF NOVEMBER 2023J. WAKIAGAJUDGEIn the presence of :Mr. Chege for Mukururi for AppellantMs Kariuki for the RespondentJackline – Court Assistant