[2022] KEHC 14763 (KLR)

Sang v Maritim & another (Civil Appeal 56 of 2019) [2022] KEHC 14763 (KLR) (7 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14763 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 56 of 2019

RN Nyakundi, J

November 7, 2022

Between

Cleophas Kibet Sang

Appellant

and

Eliud Maritim

1st Respondent

George Wachamba Ngugi

2nd Respondent

(Being an Appeal from judgment and decree of Hon. H.O. Barasa Senior Principal Magistrate in Eldoret CMCC NO. 45 OF 2017 delivered on the 26th day April, 2019)

Judgment

Coram: Hon. Justice R. NyakundiKimondo Gackoka & CO. Adv for the respondentsKeter Nyoile & CO. Adv for the appellant 1. This appeal is mainly on the issue of quantum. In the trial court, the appellant had sued the respondents claiming general and special damages arising from a road traffic accident which occurred on January 24, 2017 along the Eldoret- Webuye wherein the respondent was travelling as a lawful passenger aboard motor vehicle registration number KBJ 085G matatu lost control and veered into a river and as a result thereof the appellant sustained injuries.

2. In their joint statement of defence dated February 27, 2017 the respondents denied the occurrence of the accident. Alternatively, they blamed the appellant for the occurrence of the accident

3. After the hearing, the court entered judgement in favour of the respondents as follows: -Liability – 85:15 by consentGeneral damages – Kshs 1,000,000/=Special damages – Kshs 599,110/=Total – Kshs 1,599, 110/=Less 15% contributory negligence – Kshs 299, 866. 50/=Final award- Kshs 1,359,243. 50/=

4. Aggrieved by the findings both on quantum and liability, the appellant now seeks to overturn the judgment citing five (5) grounds which can be summarized into one, namely: - that the learned magistrate erred in law by failing to properly analyse the law on special damages and thereby failing to award special damages owed to the appellant to the hospital in which he was treated.

The Appellant’s Submissions 5. The appellant filed his submissions dated May 27, 2022 on June 2, 2022.

6. On the issue of special damages, the appellant argues that in his plaint, he pleaded special damages of Kshs 1,399,500/= being medical expenses incurred on treatment and the medical report. The appellant submitted that during the hearing at the trial court he told the court that he had been treated at St Luke Hospital in Eldoret and produced an invoice in respect of the treatment expense summing up to Kshs 1,399,500/=. He further submitted that he had paid Kshs 562,107/= and the sum owing to the hospital was Kshs 831,393/= and that the hospital had secured the said amount with a logbook and a title deed for parcel of land known as Nandi/kaptel/192 from a guarantor. The appellant submitted that there is an agreement dated November 2, 2016 and guarantee as proof of the sums outstanding. The appellant maintains that his averments were supported by Dr Paul Rono (PW2) who testified on behalf of the hospital.

7. The appellant argues that the trial magistrate erred in law by only awarding Kshs 599,110/= as special damages while leaving out the sum still of Kshs 831,393/= being the amount still owing to the hospital. The appellant contends that he had produced an invoicing showing the expenses that he had incurred for treatment. The appellant submitted that he had produced in evidence receipts for Kshs 562,107/= which he had since paid and evidence of an agreement dated November 24, 2016 and guarantee form as proof of the outstanding sum of Kshs 831,393/= being owed to the hospital. The appellant cited the case of Thomas Kabaya Ngaruiya & 2 others [2012] eKLR.

8. The appellant urged the court to allow the appeal.

The Respondents’ Submissions 9. The respondents opposed the appeal and filed their submissions dated June 10, 2022 on June 13, 2022.

10. On the issue off special damages the respondents argued that special damages must not only be specifically pleaded but must also be strictly proved. The respondent’s relied on the decisions in Capital Fish Kenya Limited vs The Kenya Power & Lighting Company Ltd Nairobi Civil Appeal No 43 of 1983 [1985] KLR and Ryce Motors Limited & another v Elias Muroki [1996] eKLR.

11. The respondents argue that the appellant herein pleaded damages for Kshs 1,393,500/= and only availed receipts of Kshs 599,110/=. The respondents maintain that appellant did not furnish the court with proof for the reminder of the amount owing to the hospital to warrant the court to issue the said amount.

12. As regards the agreement between the appellant and a third party, the respondents submitted that the said agreement can be equated to a money lending business and should be governed by the provisions of theMicrofinance Actof 2006 and that such transaction should be regulated by the Central Bank of Kenya. The respondents urged the court to dismiss the appeal for lack of merit.

Determination 13. 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.”

14. It is trite law that an appellate court can only interfere with an award of damages where the award was either based on wrong principles or is so inordinately high or low as to be a wholly an erroneous estimate (See Kemfro Limited t/a Meru Express Services v Lubia and another [1987] KLR30).

15. Award of damages is an exercise of discretion of the trial court but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment.

16. In Hahn v Singh, Civil Appeal No 42 of 1983 [1985] 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 decree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

17. In Ratcliffe vs Evans [1892] QB 524 Bowen LJ said:-“The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.

18. In present case, the appellant pleaded for Kshs 1,399,500/= being medical expenses incurred during his treatment at St Luke’s Orthopaedic and Trauma Hospital and for the medical report.

19. It therefore means that the balance which was owed to the hospital as at the date of filing of the suit was Kshs 831, 393/=. As such, the same is the amount which the trial court ought to have awarded as special damages to St Luke’s Orthopaedic and Trauma Hospital. The court in my opinion erred in awarding special damages as Kshs 599,110/= instead of Kshs 1,399,500/= as had been pleaded by the appellant. The evidence by the appellant is uncontroverted. The medical bill from the hospital with the accompanying invoices are in my view sufficient proof of expenses incurred in treatment of the appellant who was indeed admitted in the said hospital and underwent treatment in the said facility.

20. Considering all the foregoing, I am persuaded that payment is not condition precedent to claim special damages. In this regard, I am of the considered view that special damages of Kshs 1,399,500/= was specifically pleaded and proved before the trial court and that trial magistrate should have awarded the same. In light of the foregoing, this court is persuaded to disturb the award given by the trial court in terms of special damages.

21. In the end the appeal succeeds and I consequently enter judgment in favour of the appellant in the following terms: -Liability – 85%:15% by consentGeneral damages – Kshs 1,000,000/=Special damages – Kshs 1,399,500/=Total – Kshs 2,399,500/=Less 15% contributory negligence – Kshs 359,925/=Final award- Kshs 2,039,575/=Costs the appeal to the appellant.It is ordered so.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 7TH DAY OF NOVEMBER, 2022. ............................R. NYAKUNDIJUDGE