[2023] KEHC 27295 (KLR)

Nkoyoto & another (Suing as the legal representative of Shadrack Kian) v Kenya Power and Lighting Limited (Civil Suit E010 of 2020) [2023] KEHC 27295 (KLR) (11 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27295 (KLR)

Republic of Kenya

In the High Court at Kajiado

Civil Suit E010 of 2020

SN Mutuku, J

December 11, 2023

Between

Loiman Ole Nkoyoto and Musekia Ene Loiman (Suing As The Legal Representative Of Shadrack Kian)

Plaintiff

and

Kenya Power And Lighting Limited

Defendant

Judgment

The Plaint 1. The Plaintiff, suing through his legal representatives, was aged 16 years at the time of the accident giving rise to this case. He filed this claim through a Plaint dated 1st December, 2020 and amended on 24th April, 2021. It is his claim that on 8th December, 2019 he was walking back home from visiting his relatives in Oloishobor sub-location, when he stepped into a pool of water that was charged with live electric current and he got electrocuted; that it had rained heavily which caused erosion leading to the toppling of the electric poles; that the electric poles had fallen two weeks prior to the said accident and that the nearest Kenya Power station had been informed but had failed to take any action thereby endangering his life and that of other residents in the area.

2. The Plaintiff holds the Defendant liable for negligence and breach of duty as it is the one in charge of electricity supply in the area and is the owner of the electricity poles hence responsible for their mounting. The Plaintiff has particularized negligence on the part of the Defendant as follows:a.Failing to adhere to the proper laws required in electricity installation within the area in issue.b.Erecting the high voltage power lines at a risky distance from residents without due regards to the presence of children in the area.c.Failing to ensure that the high voltage power lines which was a danger zone were firmly mounted so as to avoid toppling or being eroded by floods.d.Using cheap and un-electricity worth poles for the supply of high voltage electric power cables thus endangering the minor.e.Failing to take proper statistic of the area so as to know the strength of the ground/soil and its liability to hold electricity poles.f.Haphazardly mounting electricity poles in areas which the same should not have been mounted without taking proper precaution.g.Failing to alarm or put signs alarming the minor and generally members of the public of the danger involved with electricity poles especially after the same had toppled.h.Exposing the minor to risk of danger of which they knew or sought to have known.

3. The Plaintiff also pleaded breach of duty by the Defendant as follows:a.Intentionally failing to respond to the notification about the toppled poles hence putting the life of the minor and members of the public at risk.b.Intentionally mounting the poles in a hollow and unsecure manner despite knowing the risk involved.c.Failing to check up on the state of the poles after the heavy down pour and thus risking the life of the minor.

4. The Plaintiff asserts that as a result of the accident he suffered grievous injuries as follows:a.Severe electricity burns and gangrene on the right hand and thumb.b.Severe electricity burns on the left hand.c.Electricity burns from the abdomen down to his feet.d.Loss of consciousness.e.Burns on the abdomen, chest, and perineum.f.Scrotum bust.

5. The Plaintiff further claimed that due to the accident he has undergone excruciating pain during dressing of the wounds that has resulted in him contemplating suicide, several multiple surgeries, physiotherapy and has been in occupational therapy and suffers from decreased eyesight operation.

6. He stated that at the time of the accident he was in form 2 and missed school for a whole year; that his family has gone through heavy burden to get treatment for him and had to sell land, cattle and sought assistance from friends and relatives. He also claims damages under Section 28 of the Basic Education Act for time lost in attending school.

7. He prays for judgment against the Defendant for:i.Special damages of Kshs. 9,000,000. ii.Future medical expenses.iii.Loss of future earning capacity.iv.Loss of future earnings.v.Loss of academic time.vi.General damages.vii.Cost of this suit and interest thereon at the existing court rates.viii.Any other or further relief that this Honourable Court may deem fit and just to grant.

The Defence 8. The Defendant, through a statement of Defence dated 13th January 2021, denied all the allegations made by the Plaintiff in regard to the accident occurred, the injuries and special damages as set out in the Plaint. It denied any negligence on its part and blames the Plaintiff for being negligent. The Defendant set out the particulars of negligence against the minor as follows:a.Exposing himself to the risk of danger and damage not expected of a prudent person in the circumstances.b.Failing to heed to the presence and proximity of the electricity line to the road.c.Crossing an area designated for Kenya Power and Lighting Company.

9. The Defendant further denied that the accident was caused by its breach of statutory duty; that the Plaintiff missed school for a whole year and that schooling in the entire country was interrupted by Covid 19 and puts the Plaintiff to strict proof of his allegations.

Plaintiff’s evidence 10. On 8th December, 2019 Joseph Kimakon Karinja (PW1) testified in court. He adopted his witness statement dated 23rd February, 2022 and stated that on 8th December, 2019 he had gone to visit his grandmother and at around 3:00pm on his way home he met the Plaintiff having fallen down and screaming. That it had rained heavily on that day. That on moving closer he found that the Plaintiff had been electrocuted and could not talk. That he called an elder and the area Chief to assist. That together with the elder they assisted the Plaintiff by carrying him using sheets to a place where vehicles could access him from where he was taken to Ngong Hospital.

11. He testified that there were 4 electric poles fallen at the scene of electrocution and that the wires were in the water; that the Plaintiff had walked on the water and got electrocuted. On cross - examination he stated that he witnessed the Plaintiff falling and that he knew him before this date.

12. Dr Cyprianus Okoth Okere (PW2) testified that on 19th October, 2021 he examined the Plaintiff, a 16 year old boy, and found that he had sustained 40% burns and severe harm; that the Plaintiff required physiotherapy; that he prepared and signed a report dated 19th October, 2021 for which he charged Kshs. 3,000; that he relied on the medical notes from St Mary’s Hospital Nairobi, a P3 form, case summary of Kenyatta National Hospital and referral letter from Kajiado Hospital to prepare the report; that he also charged court attendance fees of Kshs. 10,000.

13. The doctor produced his medical report and receipts of his charges as Ex.1 and Ex. 2. On cross examination he stated that by the time he was examining the minor the burns had healed leaving scars.

14. Joseph Panin (PW3) told the court that he was the Assistant Chief in Endashart Location and Olosho–Oibor Sub Location. He adopted his witness statement and testified that he received a call on 8th December, 2019 at 7:30 from an elder who informed him about the case of electric posts with electric live wires on the ground. That he called someone from Kenya Power Limited who promised to be on site at 8:00am to switch off power. That he was assured that electricity had been switched off. That at around 2:00pm he received another call that the Plaintiff had been electrocuted at the site and that he was taken to hospital. That the matter was reported at Ongata Rongai police station.

15. He told the court, further, that the family of the minor had gone through a lot of challenges in getting finances for the minor’s treatment including selling 3 acres of land, cattle and conducting fund raisers (harambees). On cross- examination he stated that he was not present at the time of the accident. That what he recorded was from what he was told. He reiterated that the family of the minor sold cattle and goats for the minors treatment.

16. Simon Setek Parkesian (PW4) testified that he is the Plaintiff’s neighbour, and he was involved in transporting the Plaintiff to various places, using his motor vehicle registration No. KBS 572B Probox, including St Mary’s Hospital, Kiserian and Ngong and other Hospitals. That he would charge Kshs. 5,000 Kshs and 3,000 to Kiserian. He produced the receipts Nos 1 -18, all marked as Ex. 3.

17. Loiman Ole Nkoyoto (PW5), the Plaintiff’s father, told the court that the minor was his 4th born. He adopted his witness statement dated 24th February, 2022 and his supplementary statement as evidence and testified that on 8th December, 2021 his son was electrocuted and they took him to St Mary’s hospital. He attached a bundle of receipts to the Plaint and the Supplementary bundle dated 20th September, 2021 as well as receipts in the list dated 23rd November, 2021 to support his evidence.

18. He testified that he did not know the exact amount used to pay for the Plaintiff’s medical expenses but that he sold cattle and goats to meet the cost of treatment. That he did not have documentary evidence to support his evidence on the amount he spent. He produced a bundle of medical receipts as Ex. 4. He told the court that he also sold land through a sale agreement dated 6th October, 2020 and another one dated 3rd February, 2021 marked as Ex. 5 (a)(b)(c) to meet medical expenses for the Plaintiff. On cross examination he stated that the minor was 18 years old. That he was not present when the minor was electrocuted and therefore did not witness the accident.

19. Shadrack Kiyian Loiman (PW6), the Plaintiff, told the court that he now 18 years old at the time of testifying. That on 8th December, 2019 it had rained heavily and he was herding cattle. That when he was walking the cows home at around 3:00pm he stepped on a live wire and got electrocuted. That he regained his memory a week later at Kenyatta National Hospital. That he found he had severe burn injuries. That he had taken photos of the injuries with his phone and produced them as Ex. 6. He stated that the burns have healed however he uses crutches as his left leg cannot support his body. He stated that he could not sit or stand for long, a condition that has affected his life and schooling.

20. He further stated that at one time he contemplated suicide as the pain was too severe. That he liked playing football and was a dorm captain. He also stated that he wanted to join the army after completing school. It was his testimony that due to the injuries he has been away from school for 2 years. He produced further bundle of documents consisting of 24 documents which were marked Ex. 7.

21. The Defence closed its case without calling any witnesses.

22. Parties filed written submissions after oral evidence.

Plaintiff’s submissions 23. The Plaintiff’s submissions are dated 23rd February, 2023, and raise three issues for determination:a.Who was liable for the accident?b.Whether the Plaintiff is entitled to the orders sought?c.Who should bear the costs.

24. On the issue of liability, it is submitted that the Defendant was 100% liable for the accident and that the Defendant did not call any witnesses nor place any supporting documents before this Court and therefore its case must fail as it was held in Motex Knitwear Limited- vs- Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No 834 of 2002, where the court while citing Autar Singh Bahra and another- vs- Raju Govindji HCCC No 548 of 1998 stated that:“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 in support of the Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”

25. It was submitted that the Defendant being the sole installer, distributor and supplier of electric energy in Kenya has a statutory duty to supervise and maintain its electric installations under section 52 of the Energy Act. That the Plaintiff had no way of knowing that the installments were faulty for whatever reason and that he was never warned of any danger from the Defendant’s property.

26. On the issue of general damages, it was submitted that the Plaintiff produced various documents showing the injuries sustained by the minor. That the doctor produced a report dated 19th October, 2021 stating that the minor had suffered electric burns on the left hand and forearm, electric burns on the left lower chest wall and upper abdomen, electric burn on both lower limbs and electric burn on the right hand and classified the injuries as severe and graded the degree of burn tat 40%.

27. It was submitted that there were further reports including a report by Doctor Margaret Njihia, a clinical psychologist, dated 18th November, 2021, who upon assessing the minor concluded that he was undergoing post-traumatic stress which were accompanied by feelings of depression, anxiety and low self -esteem. That these sentiments were also shared by Doctor Ian Kanyanya, a trauma and recovery consultant, through his report dated 9th October 2021, who recommended that the minor be put on Post Traumatic Stress Disorder medication for one year. That there is also the evidence of the minor who testified to how his life has changed and the challenges he has faced since the accident including dropping out of school. The minor’s father also gave testimony of the challenges in paying for the minor’s medical expenses which forced him to sell land and cattle.

28. For future medical expenses, the Plaintiff relied on the reports by Doctors Margaret Njihia and Ian Kanyanya who recommended for psychotherapy sessions to help the minor deal with his anxiety and Post Traumatic Stress Disorder.

29. For loss of future earning capacity and loss of future earnings, they relied on the case of Mwaura Muriuki -vs- Suera Flowers Limited and Benson Maunde(2014)eKLR where it was stated that:“Damages for loss of amenities are therefore awarded when the ability of the Plaintiff to enjoy certain aspects of his life as a result of the accident are diminished. Essentially the quality of life of the Plaintiff is reduced due to the inability to do the things he would otherwise have done had it not been for the injuries.”

30. They further relied on P.I. – versus- Zena Roses Ltd & Another (2015)eKLR where it was held that:“In my view, it is true to say that the future of a minor is unknown as opposed to that of an adult who is engaged in an occupation that earns him or her a living. It can also be contrasted with that of a middle aged person who may be in college or in whose life there is indication of what kind of livelihood he would engage himself/herself in when he grew up. For the case of minors, it is my view that tabulation for damages for loss of future earnings and lost years can be gauged depending on what evidence is brought before the court. For instance, a good case can be argued where evidence is shown that the minor is in school, well performing and that it is hoped, based on his or her performance, would engage himself or herself in this or that occupation. That is why evidence before a trial court must not be led in a casual manner thinking that the court would make an assumption of what earnings the minor may get in future or what he would become once he grew up. It is not sufficient to just state that the minor was either in kindergarten, primary or secondary school. A good case would be argued when evidence is brought to show or persuade the court that despite the fact that the minor was in the tender years of school, it was hoped that he would have a good future when he grew up. In the present case unfortunately, no iota of evidence was tendered to demonstrate what the performance of the deceased was both in school and in life. The plaintiff did not also lead evidence stating what he expected the future of the deceased to be.”

31. It was submitted that the Plaintiff has demonstrated through the letter dated 3rd November, 2020 that he had highly passed his exams and qualified to gain a position at Namgile Boys High School where he had qualified to occupy a position of a dorm captain and was highly ranked in football. That the minor had desired to join the army which he could no longer do. The Plaintiff cited HCCC No 28 of 2019 where the court in AMK (Suing as the mother and next friend of Kin of JMK) versus Kenya Power and Lighting Company limited awarded general damages of Kshs. 4,000,000 where the minor suffered electric burns slightly similar to those suffered by the minor herein and submitted that the court be guided by the said authority but do consider difference in economic times and award Kshs. 12,000,000.

32. On the issue of special damages the Plaintiff relied on Maritim & Another -vs- Anjere(1990 -1194) EA 312, where it was stated that,“It is now trite law that special damages must not only be pleaded but must also be specifically proved and those damages awarded as special damages but which were not pleaded in the plaint must be disallowed.”

33. On this heading, the Plaintiffs have pleaded Kshs. 9,000,000 in special damages and supported the same with documents.

Defendant’s Submissions 34. The Defendant’s submissions are dated 13th April, 2023. It is submitted on the issue of liability and quantum that under section 107 of the Evidence Act it is trite law that he who alleges must proof. That the evidence brought before court by the Plaintiff is not sufficient to sustain the allegations of negligence as pleaded in the Plaint, hence the case has failed on a balance of probability. That though the Defendant did not call any witnesses the Plaintiffs were still under obligation to prove their case as held in Shamakame Adam Mbui -vs- Kyoga Hauliers(k) Ltd (2013)eKLR, where the court stated that:“…..Causes are determined on the basis of pleadings and evidence placed before the Court. This applies even in undefended Causes and the parties should not assume that because a Cause is undefended the obligation to discharge the statutory obligation upon the party is lowered.”

35. It was the Defendant’s case that the Plaintiff alleges he was electrocuted but has not shown the causal link between his injuries and the Defendant’s negligence. That in the pleadings the Plaintiff has stated that the toppling of electricity poles was due to the erosion caused by the heavy rains that the country was experiencing and therefore this could not be faulted upon the Defendant and was strictly an Act of God and cited Kiema Mutuku -vs- Kenya Cargo Hauling Services Ltd (1991) 2KAR 258 where it was held that:“There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

36. Further, the Defendant cited Timsale Ltd – vs- Stephen Gachie (2005) eKLR where it was held that:“A court of law will not just award damages to a litigant because it is sympathetic to him due to an injury which he may have received in his place of work and in the course of duty if he was under an obligation to prove negligence and/or breach of statutory duty and he failed to do so.”

37. The Defendant argued that the evidence adduced by the Plaintiff is not enough to hold it 100% liable. That the evidence of PW2 shows that the Plaintiff was negligent in his actions and failed to take precautions over his safety and therefore the liability should be apportioned in the ration of 50:50%.

38. As regards general damages, the Defendant submitted that though the Plaintiff produced medical reports showing the injuries sustained, Doctor Okere assessed the degree of incapacitation at 40% while Dr Wambugu assessed the same at 30% hence it is not clear the permanent incapacitation. That an award of Kshs. 1,200,000 would be adequate compensation and relied on China Zhongxing Construction Company Ltd-vs- Ann Akuru Sophia(2020)eKLR where the court upheld an award of Kshs. 1,200,000 as awarded by the trial court where the Plaintiff had sustained electrical burns and suffered permanent incapacity of 40%.

39. On future medical expenses, it was submitted that this should be specifically pleaded and argued that the Plaintiffs have not done so, nor have they provided evidence of the amount of future medical expenses. The Defendant cited Kenya Bus Services Ltd -vs- Gituma (2004) E.A 91 where the court held that:“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.”

40. On loss of future earnings, it was submitted that the Plaintiff was a minor and in form one at the time of the accident, his future therefore could not be predicted. That the Plaintiff has not provided the court with evidence to show that the Plaintiff’s future would have been bright for instance a standard report indicating his performance before the accident. The Defendant proposed a sum of Kshs. 300,000 as adequate compensation for loss of future earnings and cited Benuel Bosire -vs- Lydia Kemunto Mokora (2019) eKLR, where an award of Kshs. 300,000/- was made where the minor suffered 40% disability.

41. For loss of future earning capacity, the Defendant submitted that this can only be awarded where evidence has been provided in support of the claim as was the position in S J -vs- Francessco Di Nello & another (2015) eKLR where the court held that loss of earning capacity is compensated by an award in general damages once proved. That the minor herein was a school going person with no proof of earnings and a global sum of Kshs. 1,000,000 would suffice and supported that argument by citing AMK (Suing as the mother and next friend of Kin of JMK) versus Kenya Power and Lighting Company [2020] eKLR where court awarded 1,000,000 where the minor aged 13 had suffered 100% permanent disability.

42. On loss of academic time, the Defendant submitted that the Plaintiff has put reliance on section 28 of the Basic Education Act which does not provide for a remedy under negligence and hence the claim is unsubstantiated.

43. It is submitted on the issue of special damages that it is trite law that special damages must be pleaded and proven. That the Plaintiff pleaded for 9,000,000 under this head, however the same is not itemized on how the amount was arrived at. That the Plaintiff has produced duplicate and triplicate receipts before the court, in particular receipt No 705005 amounting to Kshs. 700,000/- has been produced in triplicate as can be seen on pages 39,40 and 41 of the Plaintiff’s list of documents dated 1st December, 2020) and receipt No 202844 amounting to Kshs. 82,000 has been produced in duplicate. The Defendant urged the court to award only Kshs. 2,181,970 that has been proved strictly by way of receipts.

Analysis and Determination 44. I have read the pleadings of the parties, oral evidence in court and submissions. In my view, the following are the issues that require my determination:i.Liability.ii.Quantum.iii.Costs of the suit.

45. That the Plaintiff was electrocuted is not in dispute. The Plaintiff blames the Defendant for that accident while the Defendant blames the Plaintiff. The Defendant did not adduce evidence to challenge the Plaintiff’s case that electricity posts had fallen and that they had live wire. Evidence shows that the issue of fallen electric posts was reported to the Defendant but no action was taken to ensure that the place was safe for the public. This evidence was not challenged.

46. I agree with the Defendant in its assertion that the burden of proof remains with the Plaintiff even when the Defence has failed to adduce evidence. The burden of proof in civil cases is on a balance of probabilities. The Plaintiff has called evidence to show that there was fallen electricity posts; this information was relayed to the officers of the Defendant in the area but nothing was done. The posts had live wire which has fallen in pools of water. The Plaintiff, minding his own business, was not aware that the water was charged with electricity and got electrocuted. It is the duty of the Defendant to ensure that all electricity posts are maintained in a way that does not pose danger to anyone. Fallen posts with live wire poses danger to the public and given that this was reported, and no action was taken, I find the Defendant 100% liable. I fail to see how I can apportion that liability given that there was no warning to the public that the wires lying in water were live. I therefore find the evidence of the Plaintiff uncontroverted.

47. I have also considered that the Defendant is the sole installer, distributor and supplier of electric energy in Kenya and therefore it has a statutory duty of supervising, inspecting and maintaining its electric installations.

48. Section 9 of the Energy Act establishes the Energy and Petroleum Regulation Authority (EPRA) whose functions under section 10 (a) (i) generation, importation, exportation, transmission, distribution, supply and use of electrical energy with the exception of licensing of nuclear facilities. Section 19 of the Act provides that:This Act shall not relieve the Authority of the liability to pay compensation or damages to any person for any injury to that person, that person’s property or any of that person’s interests caused by the exercise of any power conferred by this Act or by the failure, whether wholly or partially, of any works.

49. On the issue of quantum of damages payable, I have considered the injuries suffered by the Plaintiff. I have read the medical reports and the recommendations from the doctors who attended to the Plaintiff. The Plaintiff asked this court to award Kshs 12,000,000 as general damages while the Defendant is asking for Kshs 1,200,000. The Defendant is basing its claim on a 50-50% liability. However, I have held the Defendant 100% liable.

50. In awarding damages to the Plaintiff, I am reminded of H. West & Son Ltd. v. Shephard (1964) AC 326, 345 where it was stated that:“But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the 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 and done, it still must be that amounts which are awarded are to a reasonable extent conventional.”

51. And also Kigaragari v. Aya (1985) KLR 273, where the court held that:“In awarding damages for personal injury, the courts should consider that there is need to develop consistency in the awards and that the awards should be within the limits of decided cases and avoid the effect of making insurance cover and fees unaffordable for the public.”

52. The injuries suffered by the minor as outlined herein were grave and resulted in him being hospitalized for a long period as testified. From the evidence adduced, the Plaintiff was in and out of hospital and had undergone numerous surgeries including skin grafting. As pointed out, money cannot renew the physical frame of the Plaintiff. However, the damages ought to be reasonable in the circumstances. For general damages, this court will, and does hereby award the Plaintiff Kshs 12, 000,000 (Kenya Shillings Twelve Million) as general damages.

53. I have considered the submissions on future medical expenses and the arguments of the parties for and against this issue. I have noted the reports from Dr. Margaret Njihia and Dr. Kanyanya who have recommended psychotherapy sessions to help the minor manage his anxiety and PTSD. In Tracom Limited & v Hasssan Mohamed Adan [2009] eKLR it was held as follows:“…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 v Gituma (2004) 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.” We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

54. The Plaintiff has pleaded future medical expenses and has supported this with evidence from the medical reports. I am satisfied on a balance of probabilities that the Plaintiff’s claim for future medical expenses is merited. I note that the Plaintiff has not proposed how much he seeks under this heading. For this reason, it is my considered view that Kshs 5,000,000 (Kenya Shillings Five Million) would adequately cover his future medical expenses.

55. For future earning capacity and loss of future earnings it is the Plaintiff’s case that he was performing well at school. That he had enjoyed good health and that he desired to join the army which he could no longer do due to the accident. From the attached documents, I have noted that the Plaintiff was doing well in school. However, there is nothing to show that he would have been employed in the Kenya Defence Forces were it not for the accident. Further despite the serious injuries he experienced and the trauma involved, there is no evidence to prove that the Plaintiff cannot engage in future earnings or that he has lost that chance. His mental capacity is intact. At least there is no evidence to show that his mental capacity is impaired. For this heading, I decline to award any damages.

56. The same case pertains to loss of academic time. I believe this has been adequately covered under general damages.

57. In respect to special damages, the Plaintiff seeks Kshs.9,000,000 as special damages. It is trite law that special damages must be specifically pleaded and proved. The plaintiff pleaded special damages for which he produced receipts in support thereof. The Defendant however submitted that the Plaintiff has not itemized how he has arrived at the amount. Further that some of the receipts before this court have been produced in duplicate and triplicate. It is therefore the duty of this court to ascertain the correct amount proved herein.

58. I checked all the receipts provided by the Plaintiff taking into consideration the ones produced in duplicate and triplicate and arrived at a total of Kshs. 4,341,350. There are two receipts which I did not find evidence to show that the money reflected in them was used for the purposes of this case. These are the receipt from Survlands Services for Kshs 97,500 and from R.O Nyamweya & Co Advocates for Kshs 18,000.

59. For this reason, I award the Plaintiff Kshs 4,341,350 as special damages.

60. Consequently, this court finds in favour of the Plaintiff and award his damages as follows:a.General damages Kshs 12,000,000. b.Special damages Kshs 4,341,350. c.Future Medical expenses Kshs 5,000,000d.Costs of the suite.Interest on (a), (b), (c) and (d) above at current court rates.

61. Orders shall issue accordingly.

DATED, SIGNED AND DELIVERED THIS 11TH DECEMBER, 2023. S. N. MUTUKUJUDGE