[2017] KEHC 573 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIVASHA

CIVIL APPEAL NO. 62 OF 2015

(Being an appeal from Judgment of the Chief Magistrate’s Court at Naivasha Civil Case No. 302 of 2013, S. Muchungi - RM)

PETER KIARIE KERE…………….……………... 1ST APPELLANT

METRO LOGISTICS LIMITED………………… 2ND APPELLANT

-VERSUS-

SAMMY MBUGUA NJOROGE………..……… RESPONDENT

J U D G M E N T

1. This appeal emanates from the suit filed in the lower court by the Respondent (then Plaintiff) against the Appellants (then Defendants) for damages in respect of a road traffic accident in which the Respondent sustained injury. The accident involved the Appellants’ vehicleKBE 257Q and the Respondent’s motor vehicle KAN 884Q and occurred along Maai Mahiu road on 15th December, 2010.

2. The Respondent blamed the driver of the former vehicle for occasioning the accident through negligence. In their defence, the Appellants denied all the key averments in the plaint and disputed liability for the accident. The lower court in its judgment delivered on 26th June, 2015 found the Defendants liable and entered judgment for the Plaintiff in the sum of Shs 4,074,650/=.

3. Aggrieved by the outcome, the Appellants filed this appeal. The Memorandum of Appeal listed 12 grounds of appeal, majority of which challenge the quantum of damages. The appellants also challenge the finding of 100% liability against them.

4. The parties agreed to dispose of the appeal by way of written submissions. The Appellants abandoned their challenge on liability as contained in ground 11 of their Memorandum of Appeal. Their submissions are confined to two issues framed as follows:

“a) The loss of future earning must be specifically pleaded and proven.

b) The assessment of general damages was inordinate high and the appellate court can interfere with the courts awards for damages where it can be shown that the award was inordinately high” (sic)

5. The Appellants assert regarding the first issue that as a special damage, the loss of future earnings must be specifically pleaded and proved. Reliance was placed on several decisions for this proposition, including Daniel Kosgei Ngelechei -Vs- Catholic Diocese Registered Trustees of Eldoret & Another [2016] eLKR.

6. In the Appellants’ view the award of Shs 1. 2 million as lost future earnings was erroneous, the and loss not having been pleaded or proved by the Respondent. That in any event, the award was inordinately high. On the second issue, the Appellants cited the famous decision of Kemfro Africa Limited t/a Meru Express Services (1976) & Another -Vs- Lubia & Anor. (No. 2) [1985] eKLR in urging the court to find the award of general damages in the sum of Shs 2. 5 million for pain and suffering were so inordinately high as to be erroneous, and liable to be disturbed.

7. The Appellants urged that a sum of Shs 800,000/= was adequate damages in that regard. The Appellants’ invitation to the court to interfere with the award in general damages was buttressed through reliance on the decision of the Court of Appeal in Shah -Vs- Mbogo [1968] EA 1993.

8. The Respondent for his part citing the amended plaint contended that the loss of future earnings was specifically pleaded and that evidence in that regard was tendered at the trial. The Respondent asserts that the Appellants did not contest the claim in respect of future loss of earnings as contained in the amended plaint and proved in evidence and therefore the appeal is an afterthought. The Respondent urged the court to find that the award was properly made.

9. Reliance was placed on the persuasive authority of Job Kenyassa Muranji -Vs- Ezekiel Toshi & East African Breweries HCCC No. 221 of 2002. The Respondent perceived the Appellants’ submissions as confined to the future loss claim.

10. This being a first appeal, the court is obligated to review the evidence in the lower court and draw its own conclusions, as stated in Selle -Vs- Associated Motor Boat Co. [1968] EA 123that:-

“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.

An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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 this 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. (Abdul Hameed Saif -Vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”

11. Pleadings represent the case intended by a party, and point to the nature of evidence to be adduced. In Wareham t/a A.F. Wareham & 2 Others Kenya Post Office Savings Bank [2004] 2 KLR 91, the Court of Appeal stated in this regard that:-

“We have carefully considered the judgment of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or Court on the basis of those pleadings pursuant to the provisions of Order XIV of the Civil Procedure Rules. And the burden of proof is on the Plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non-existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail.”(emphasis added)

12. The court has perused the pleadings contained in the record of appeal and the lower court file. In the former the original plaint was included, as well as the Notice of Motion for leave to amend, but not the amended plaint file. However the record of the lower court contains the amended plaint and an amended defence. The anomaly in the record of appeal created some confusion as it seems that the Appellants did not look at the proceedings of the lower court, relying instead on the record of appeal, in preparing their submissions. There can be no doubt on a perusal of the lower court filed indeed an amended plaint was filed by the Respondent.

13. The facts in Ngelechei’s case were not too dissimilar to the facts of this case, wherein the Respondent had pleaded at paragraph 7 of the amended plaint filed on 11th July, 2014 the consequences of the computation of his leg following the accident:-

“7. The Plaintiff states that after the accident he was rendered jobless and further confined into a wheel claim most of the time needs to be aided by a helper and claims costs for hiring a maid.” (sic)

14. In his prayers, the Plaintiff did include a prayer for loss of future earnings and the cost of hiring a maid and the cost of future medication. The amended defence denied all the claims in respect of special damages by averring, particularly at paragraph 8 that:

“8. Contents of paragraph 5 under particulars of special damages are denied in toto, paragraph 6, 7 and 8 are further denied and the Plaintiff is put to strict proof thereof.”

15. The Plaintiff in Ngelecheihad similarly suffered an amputation of one of his legs following a road traffic accident. His claim in respect of lost future earnings had been dismissed at the trial in the High Court. He appealed. The Court of Appeal observed as follows:

“On the claim for loss of earnings and loss of future earnings, the learned Judge declined to make any award for the same for two reasons. The first reason was that the claim was not pleaded. The second reason was that the claim was not proved.

Under paragraph 7A of the amended plaint, the appellant pleaded that:

“As a result of the accident the Plaintiff suffered total disability and is unable to perform his duties as a driver and a businessman and as such the Plaintiff pleads for loss of future earnings.”

The appellant tendered in his evidence, Daily Worksheets, showing the income and expenses with respect to a matatu that he was operating prior to the accident. He also testified that after the accident giving rise to the suit, he employed a driver who continued to operate the matatu for six month before he decided to sell the matatu, as “the income was poor” and took up farming and the business of buying and selling livestock. However, the appellant did not plead, as he should have, the income he was earning prior to the accident, which was obviously known to him at the time he filed suit. He also did not produce any evidence of the income the matatu was generating whilst being operated by the hired driver and neither did he produce any evidence of the income he was generating from his new enterprise so as to demonstrate the loss of income that he claimed under the heads of loss of income and loss of future income. We are therefore in agreement with the learned trial Judge that there was no basis for making an award for loss of earnings or for loss of future earnings.

The result is that the appeal fails and is hereby dismissed. We think the appropriate order as regards costs is for each party to bear their own costs.”(emphasis added)

16. There is no doubt from the Respondent’s evidence at the trial that he lost one leg to amputation pursuant to injuries sustained in the accident. This is what the Respondent stated in part, in his evidence:

“My children are suffering. It is my son who pushes me round. I am not able to go to the toilet…….. I used to earn Kshs 13,000/= per month. I was born in 1954 and my wife is about 60 years. I was still healthy and hoped to work for a long time until I get old.”

17. His wife Jedidah Muthoni (PW3) supported the evidence of the Respondent as to the consequences of the injuries to the Respondent and his family. The fact that the Appellant did not object to this evidence cannot cure the failure by the Respondent to specifically plead the loss of future earnings in the plaint even after amendment.

18. As the Court of Appeal stated inNgelechei:

“Lord Donovan in Perestrello Paint United Paint Co. [1969] 1WLR 570 said that:

"If a plaintiff has suffered damage of a kind which is not the necessary and immediate consequence of the wrongful act, he must warn the defendant in the pleadings that the compensation claimed will extend to this damage, thus showing the defendant the case he has to meet and assisting him in computing a payment into court. The limits of requirement are not dictated by any preconceived notions of what is general or special damage but by the circumstances of the particular the case.”

And that:

"If the claim is one which cannot with justice be sprung upon the defendants at the trial it requires to be pleaded so that the nature of that claim is disclosed."

As Harvey McGregor, the author of McGregor on Damages, Sweet & Maxwell, 18th edition notes (see paras 44-007-024) stated, where the precise amount of a particular item of damage has become clear before the trial, either because it has already occurred and so become crystallized or because it can be measured with complete accuracy, this exact loss must be pleaded as special damage.”(emphasis added)

19. The Respondent in this case should have specifically pleaded his income prior to the accident which was known by the time of filing plaint. The requirement that a party pleads a claim specifically does not merely entail the insertion of a general claim but also known figures.

20. In his judgment the trial magistrate stated that:-

“It is clear that the Plaintiff is unable to fend for himself let alone provide for his family. Although he was born in 1954 and was 56 years when he was involved in the road traffic accident. The Plaintiff was gainfully employed. Although he never produced any payslip, I hold that a claim under this head should not be defeated. I accordingly adopt a minimum wage of Kshs 10,000/= and a multiplier of 10 years.”

21. Evidently, the trial magistrate did not consider the amended plaint before making this award. There was no specific averment thereon that the Respondent was earning Shs 13,000/= or the sum of Shs 10,000/= at the time of his employment as damages for lost future earnings. The sum of Shs 13,000/= was first stated at the trial. The award of Shs 1. 2 million has no basis therefore is indefensible and was made in error. I agree with the Appellants that this award is for setting aside.

22. Concerning the award of general damages for pain and suffering, the Appellants’ submissions were not answered by the Respondent who seemed to believe that only award of damages for lost earnings was being challenged on this appeal (see paragraph 2 of Respondent’s submissions).

23. On an appeal the court will only interfere with an award of damages in certain well-known circumstances as stated in Kemfro Africa Limited t/a Meru Express Services (1976) & Another -Vs- Lubia & Anor. (No. 2) [1985] eKLR:

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal

of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. This Court follows the same principles.”

24. In this case, the Respondent gave evidence in respect of his injuries. A medical report by Dr. Kiamba was tendered as an exhibit. From that report, the Respondent suffered several severe skeletal injuries, the most adverse being the traumatic crush of the right foot that led to amputation of the right lower limb, below the knee. He also sustained soft tissue injuries. He was admitted at PCEA Kikuyu Hospital for close to a month. Dr. Kiamba examined him on 10th May, 2013. He noted restricted movements of the left limb and knee joints that the left tibia which had fractured had healed with malunion and the ankle were movements restricted.

25. He observed that the function of the left limb was “markedly reduced”. The amputation stump on the right leg still bore tenderness. The Respondent’s prognosis is similarly poor, and Dr. Kiamba assessed permanent disability at 90%.

26. That the Respondent’s injuries were severe is not in doubt. The trial court considered the authorities tendered by the respective parties and properly justified its award by comparing the injuries sustained by Plaintiffs in the respective authorities and in this case and also factoring in inflation. The Appellant has not demonstrated how the award in general damages for pain and suffering is excessive or demonstrated that the suffering learned magistrate took into account irrelevant matters or failed to consider a relevant matter.

27. Equally, the Appellants proposition that the award in general damages for pain and suffering ought to be reduced to Shs 800,000/= has not been justified in the submissions. It is not enough that the sum proposed by the Appellants is what the Appellants consider reasonable. I find no reason to interfere with the award of Shs 2. 5 million as general damages for pain and suffering to the Respondent. In the result the court upholds that award.

28. The appeal has succeeded and is allowed in part, with regard to the award of damages for lost future earnings. To that extent, the judgment of the lower court is set aside. In the circumstances, each part will bear its own costs in the lower court suit and on this appeal.

Delivered and signed at Naivasha on this 7th day of December, 2017.

In the presence of:-

Mr. Owuor holding brief for Mr. Njuguna for the Appellants

Mr. Waigwa for the Respondent

Court Clerk - Barasa

C. MEOLI

JUDGE