[2019] KEHC 5399 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KABARNET

HCCCA NO. 28 OF 2017

SUSAN KIPTURU............................................................APPELLANT

VERSUS

SUSAN CHEPKATAM LIMARUS.............................RESPONDENT

[An appeal from the Judgment and Decree of the Principal Magistrate’s Court

at KabarnetCivil suit No. 13 of 2012 delivered on the 8th day of August, 2012

by Hon. S.M. Soita, SPM]

JUDGMENT

1. Following proceedings exparte, the trial Court in a short Judgment dated 21/8/2012, found for the plaintiff in a personal injury case as follows:

“The plaintiff Susan Chepkatam Limaris has sued the defendant Susan Kipturu seeking general damages of Kshs.55,375/= costs of suit and interest for injuries she sustained on or about the 1st May 2011 when the defendant without any colour of right unlawfully assaulted her. The plaintiff served the defendant with the plaint and summons. The defendant failed to enter appearance or file defence within the prescribed period. On 24th May 2012 judgment was entered against the defendant pacing way for the matter to proceed to formal proof.

It was the testimony of the plaintiff that she was coming from church when she was confronted by the defendant who is the wife of her brother in law and was attacked.

The defendant was arrested for the assault and was arraigned in Court. The defendant pleaded guilty and was fined Kshs.25,000/=. The plaintiff was injured on the left hand and on the finger. She was examined by Dr. Lelei who found that she had sustained an open fracture of the left distal inter phalange joints a deep wound of left anterior eminence and a deep cut wound on the left hypochoe eminence. At the time of examination the wounds had healed with deformities. He awarded a permanent disability of 15 percent.

I have carefully appraised the evidence on record. The plaintiff produced proceedings in Kabarnet criminal case no. 312 of 2011 wherein the defendant was the accused was fined Kshs.25,000/= or 6 months imprisonment. The admission in the criminal case clearly shows that the plaintiff was assaulted by none other than the defendant. I do find the defendant liable.

In view of the injuries sustained and considering also the doctor’s assessment that Kshs.100,000/= is required for surgery I am minded to assess general damages at Kshs.250,000/=.

The plaintiff exhibited receipts amounting to Kshs.55,375/= in support of the special I will award this sum.

There shall therefore be judgment for the plaintiff against the defendant for Kshs.250,000 being general damages and Kshs.55,375/= being special damages plus costs of the suit and interest.

Dated and delivered this 8th August 2012.

S.M. SOITA [SPM]

21. 8.12”

2. Being dissatisfied with the Judgment, the appellant who was defeated in the trial Court, filed an application the grounds whereof were set out in the Memorandum of Appeal dated 9/12/2014, as follows:

1. The learned trial Magistrate erred in law and fact by allowing the plaintiff to produce evidence in form of medical report without calling the maker of the document to justify the decree of the alleged injury.

2. The learned trial Magistrate erred in law and fact by proceeding on the wrong principle when assessing the general damages to be awarded to the plaintiff and failed to apply precedents and tenets of law applicable in similar injuries.

3. The learned trial Magistrate erred in law and fact in awarding a sum of damages which was so inordinately high in the circumstance that it represented an entirely erroneous estimate vis-à-vis the Respondent’s claim.

4. The learned trial Magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.

5. The learned trial Magistrate erred in law and fact by failing to find that the Respondent had not proved her case on a balance of probability and/or specifically proved the special damages.

3. Counsel for the parties filed respective written submissions on the appeal, respectively dated 5/11/2018 and 15th January 2019. The issues arising for determination from the submissions are:-

(a) whether the Respondent/Plaintiff had proved the injuries on a balance of probabilities having failed to call the maker of the medical evidence report;

(b) whether the cost of future medical operation was recoverable in the circumstances of the case; and

(c) whether the special damages of Ksh.55,375/= pleaded were proved.

4. The principles upon which an appellate Court will interfere with the award of damages by a trial Court are settled:

1. That the trial Court acted on wrong principles.

2. That the trial took into consideration matters that it ought not have considered or not taken to consideration matters that it ought to have considered, and

3. The trial Court considered an account that was so excessive or so little as to be on unreasonable estimate.

See Butler v. Butler C.A 49 of 1983 (1984) KLR 225; Bhutt v. Khan [1982 – 88] KAR 5, (1981) KLR 348 and Shabani v. City Council of Nairobi (1985) KLR 516.

5. The only evidence adduced before the trial Court was by the plaintiff herself as follows:

“PW1

I am Susan Chepkatam Limaris. Is stay at Chemalingot. I am a business woman. I know Susan Kipturu. She was the wife of my brother in law. On 1. 5.11. I was injured. I reported the matter to Nginyang police station. She was arrested and charged with the offence of assault. She pleaded guilty to the charge and was fined Kshs.25,000/=. I have the proceedings relating to the case. I wish to produce them [PEX 1] I was injured on the left hand on the finger and the finger now requires an operation. I was examined by Dr. Lelei who prepared a report. I wish to produce it [PEX 2] the doctor assessed the operation charges at Kshs.100,000/=. I used a sum of Kshs.55,375/=

It was for treatment and transport. I attached the receipts to my plaint. I want the Court to look at them. I am now praying for general damages and special damages. That is all.”

6. The burden of proof in a formal proof upon a default Judgment is the same as that required in any civil case. See Bachu v. Wanaina (1982) KLR 108. The Court must, therefore, consider whether the Plaintiff/Respondent in this case discharged the Plaintiff’s burden in a civil suit for damages for personal injury claim, as held in Bachu, supra:

“The Court cannot be expected to act on allegations in the Plaintiff when evidence adduced was contrary. In the same vein, allegation in the plaint was that sufficient without proof by evidence to establish the claim.”

7. As observed in Phipson on Evidence, 16th ed. (2005) at page 154 paragraph 6 – 53:

“The standard of proof in civil cases is generally proof on a balance of probabilities. If, therefore, the evidence is such that the tribunal can say “we think it more probable than not”, then the burden is discharged, but of the probabilities are equal it is not.”

The learned authors of Phipson, ibid at paragraph 6 – 54 point out that:

“However, if a serious allegation is made, then more cogent evidence may be required to overcome the unlikelihood of what is alleged, and thus prove the allegation.”

8. It is in this context of serious allegation requiring more cogent evidence to prove that I appreciate the holding of the Court of Appeal in Mohamed Hassan Musa & Anor v. Peter M. Mailanyi(2000) EKLR where (Tunoi, Owour, Keiwua JJA) that:

“We believe that in motor accidents such as the one which presented itself before the learned Judge and where the injured person himself sues as the Plaintiff alleging that the hand or other limbs though not amputated were completely dysfunctional, medical evidence must be led to show the degree and severity of the injuries and their resultant effects on the life of the injured person.”

The Court concluded as follows:

“The Plaintiff cannot expect the Court to make an award without any basis. The Court can only award a sum of money and, in justice to the defendants as well as to the Plaintiffs, that sum must be commensurate with the injuries suffered.”

9. In the Musa case, the Court of Appeal faulted the trial Judge’s finding on the Plaintiff injury without medical evidence thereon, which may have been given under section 48 Evidence Act, as follows:

“The Plaintiff in this case had, as a matter of prudence, to offer the opinion of physicians and surgeons to show his physical condition, the nature of the injury whether temporary or permanent, the effect of physical injuries upon the body or mind and the probable future consequences. Though doctors are experts in their own right, their evidence is mainly of an advisory character given on the facts submitted to them……

The testimony of an expert is likely to carry more weight, and more reading relate to an ultimate issue that of an underway witness. The learned Judge might only have been carried away or shocked by the sight of the seemingly shattered hand. He could not, therefore, tell its effectiveness by were observation. He needed the aid of medical evidence. His opinion in this respect in our view, might be fallible, limited and imperfect. With due respect to the learned Judge there was no basis for him to hold that the Plaintiff’s hand had been completely shattered and was useless.”

10. The Court, therefore, interfered with the trial Judge’s award saying that:

“We are satisfied that the learned Judge acted on the wrong principle of law and he made a wholly erroneous award of damages for unproven injuries. There was no evidence whatsoever to enable the Court to make calculations or reach a conclusion thereon. Clearly, the onus on this lay on the Plaintiff and that onus has not been discharged. The award cannot therefore stand and must be set aside.”

11. From the proceedings of the Criminal Court in KBT PMCCR. Case No. 312 of 2011 produced as exhibit Pex.No 1 by the Plaintiff, the facts which the accused (Respondent herein) accepted were that she “did bite the complainant on her 2nd index finger injuring her and the degree of injury was assessed as harm.” It is clear that the Respondent did suffer some injury the extent of which was reported on by the examining Dr. Lelei but who was not called as a witness in the civil suit. The said doctor also assessed future operation costs at Ksh.100,000/=.

12. In accordance with the Court of Appeal authority in Musa, supra, and the requirement of more cogent evidence to prove the serious injury alleged to have been suffered by the Plaintiff in the Plaint, her doctor who made the report and assessed further medical costs should have been called as a witness. In the absence of such evidence, this Court is not able to calculate or assess suitable compensation based on the degree of injury, and may only make an award of nominal damages for the injury, which is admitted by the Respondent, but the exact nature and extent of which is not ascertainable on the evidence properly before the trial Court.

13. As regards the operation charges of Ksh.100,000/= which is in the nature of future medical expenses, the same should have been specifically pleaded and proved. The claim was not specifically pleaded and proved. The claim was not specifically pleaded and the doctor who made the assessment did not testify so as to give the Court the basis for its award. I respectfully agree with the Court of appeal decision in Kenya Bus Service Ltd v. Gituma [2004] EA 91, which is cited in Edwin Otieno Japaso v. Easy Coach Bus Company Ltd(2016) EKLR (Majanja, J.), that future medical costs are in the nature of special damages “a fact that must be pleaded if evidence thereon is to be led and the Court is to make an award in respect thereof.”

14. In the absence of pleading of the operation charges as special damages and the lack of proof thereof by the evidence of the doctor who made the assessment, the award is without legal basis and it must be set aside.

15. The special damages of Ksh.55,375/= for treatment, accommodation and transport was specifically pleaded in the Plaint. At the hearing, the Plaintiff produced them by referring to them as having been attached to the Plaint and requesting the Court to look at them. The receipts were in fact attached to the List of Documents dated 10/5/2012 in certified copies. Other than for the language of producing them and the retention of certified copies rather than the originals, the Plaintiff did present in evidence of receipts for the various expenses in treatment, transport and accommodation and doctor’s consultation. I find the special damages as proved.

Conclusion

16. Accordingly, for the reasons set out above, the Court allows the appellant’s appeal to the extent that the award of general damages in the sum of Ksh.250,000/= is set aside.

17. I make an award of Ksh.20,000/= in nominal damages for the injury on the appellant accepted by the respondent the extent of which was not established by medical expert’s evidence.

18. The award of special damages of Ksh.55,375/=is confirmed.

Orders

19. There shall, therefore be Judgment for the Plaintiff/Respondent against the Appellant in the sum of Ksh.20,000/= together with interest at the Court rate of 14% per annum from the date of the Judgment in the trial Court and a further award of special damages in the sum of Ksh.55,375 with interest at the court rate of 14% from the date of filing suit. The respondent shall have the costs of the suit in the trial court.

20. There shall be no order as to costs in the appeal as the appellant only partly succeeded.

Order accordingly.

DATED AND DELIVERED THIS 9TH DAY OF JULY 2019

EDWARD M. MURIITHI

JUDGE

Appearances:

M/S Chebii & Co. Advocates for the Appellant.

M/S Kipkenei & Co. Advocates for the Respondent.