[2023] KEHC 25275 (KLR)

Trundell v EWK (Minor suing through mother and next friend WK) (Civil Appeal E57 of 2021) [2023] KEHC 25275 (KLR) (7 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25275 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E57 of 2021

FROO Olel, J

November 7, 2023

Between

Robert John Trundell

Appellant

and

EWK (Minor suing through mother and next friend WK)

Respondent

(Being an Appeal from the Judgment And Decree of Hon K. Bidali (c.m.) Delivered On 8Th September 2021 In Naivasha CMCC No 60 of 2014)

Judgment

1. The Appellant was the defendant in the primary suit, where he was sued as both the registered owner and beneficial owner of Motor vehicle KAN 853Y- TOYOTA LAND CRUISER (hereinafter referred to as “the suit motor vehicle”). It was alleged that on 14th June 2009, the respondent herein was a lawful pedestrian along Gilgil- Nakuru Highway at Kekopey Area when the appellant by himself, his employee and /or agent so negligently drove managed and/or controlled the suit motor vehicle that he/they lost control of the said suit motor vehicle and veered off the road permitting the same to hit the plaintiff and caused her serious and severe bodily injuries.

2. The appellant herein, who was the defendant in the primary suit filed statement of defence essentially denying the contents of the Plaint and opined that if the accident did occur (which was denied), it was caused and/or substantially contributed to by the negligence of the plaintiff.

3. After considering the evidence adduced, the trial Court in its judgment delivered on 8th September 2021 allowed the respondent’s suit and awarded the minor, Ksh.400,000/= for pain and suffering, future medical care calculated at Ksh.5,500,000/= a global sum of Ksh.2,000,000/= for lost earning capacity, Ksh.3,700,000/= for medical supplies calculated by using a multiplier of 37 years at Ksh.100,000/= annually, special damages of Ksh.350,000/= to buy a wheelchair and special damages as pleaded of Ksh.45,270/= plus costs as against the appellant. The above sums were to attract interest from the date of judgment.

4. The Appellant being dissatisfied by this judgment filed a memorandum of Appeal dated 6th October , 2021 and raised the following grounds of appeal namely: -a.That the Learned Trial Magistrate erred in law and in fact in awarding the plaintiff the stated awards which were not pleaded, no particulars thereof were given and no evidence adduced as required by the law being special damages claims thereby arriving at an erroneous decision which has occasioned great miscarriage of justice.b.That the Learned Trial Magistrate erred in law and in fact in awarding the plaintiff the award under loss of earning capacity yet it was not pleaded as required by the law being a general damages claim which needed to be pleaded before the court can make an award for the same and no evidence was led on the same hereby arriving at an erroneous decision which has occasioned great miscarriage of justice.c.That the Learned Trial Magistrate erred in law and in fact in making an award under the loss of earning capacity as the minor was of tender age and not in any employment and /or prospect thereof thereby reaching an erroneous decision which has occasioned great miscarriage of justice.d.That the Learned Trial Magistrate proceeded on wrong principles of law when assessing damages to be awarded to the respondent and failed to apply precedents and tenets of the law applicable thereby arriving at a figure which is manifestly excessive.e.That the Learned Trial Magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.

B. Facts of the case 5. Before the trial court, the Respondent testified and called 2 witnesses. PW1 Fredrick Gitai, testified that he was a general duties police officer attached to Gilgil Police station and had the OB in court. A report confirming that the accident had occurred had been booked and the OB details confirmed the same, though there was no entry recorded in the traffic Register. He further stated that he did not visit the scene of the accident and was merely reading the entry made by the police officer who went to the scene. He did not have details of how the accident occurred.

6. PW2 SWK stated that she was the mother to the minor and that on 14. 06. 2009 together with her mother in law and daughter, they were headed to her sister’s place for a funeral at Kikopey. When they alighted, her mother in law held her daughter’s hand as they crossed the road, the suit motor vehicle being driven at high speed appeared and hit them as they cross the road on the Zebra crossing. She further stated that she was left behind while putting her son on her back. She suddenly heard a bang and realized that her daughter and mother in law had been hit and were injured in the middle of the road.

7. It was her testimony that E, her daughter was taken to St.Mary’s Hospital and was admitted there for two weeks. She had severe injuries on her abdomen and spinal cord and had various documents issued from different hospitals confirming her daughters’ injuries and also receipts to show amounts spent. She conducted a motor vehicle search from KRA, got the police abstract from Gilgil Police Station and further had taken her daughter for medical examination. The doctor noted that her daughter had not fully recovered from the accident and had permanent injuries. As a result of the accident, she had been paralyzed, could not control urine or stool, she cannot bend her legs and was no longer in school. The KRA motor vehicle search, police Abstract and Medical Report were produced as Exhibits.

8. The respondent further testified that she blamed the appellant for causing the accident as he was driving at high speed and did not have a proper look out for other road users. She sought for damages, cost of future medical expenses, costs and interest of the suit. It was her wish and desire to take her daughter for specialized treatment abroad and it would cost approximately Ksh.2,000,000/=. She stated that the appellant also contributed Ksh.100,000/= towards payment of the minor’s hospital bills.

9. In cross examination PW2 stated that she recorded her statement as she had witnessed the accident occurred at Kikopey. Her statement was not accurate where it alleged that she was called to the scene and her evidence in court was the truth. Her daughter and mother in law were hit by the suit motor vehicle which was heading towards Gilgil from Nakuru, while almost at the end of the tarmac and that they were crossing the road not walking on a footpath. She reiterated that they needed kshs 2,000,000 to go to India for the minor’s further treatment. In reexamination, the witness stressed that her oral evidence in court was truthful and that is what the court should rely upon and not her witness statement which had some errors.

10. PW3 PC Paul Komen testified and stated that the investigating officer, who handled the incident, had been transferred from Gilgil police station, but he had carried the Occurrence Book and police file, which he produced. He stated that an accident occurred on 14th June 2019 involving the suit motor vehicle KAN 853Y driven by the appellant from Nakuru towards Naivasha at Kikopey where two pedestrians crossing the road were knocked down and sustained injuries. The injured were rushed to St. Mary’s Hospital and a report was done vide OB of 14. 06. 2009. In cross examination PW3 did state that he was not the investigating officer and never visited the scene and did not have the full file. He stated that nobody was charged and the cause of the accident was pedestrian crossing.

11. In defence, the appellant, Robert John Trundell, testified that on 14. 06. 2009 at 5. 15pm he was driving the suit motor vehicle KAN 853Y from Nakuru towards Nairobi and as he approached Kikopey, he slowed down to 50 Km/hr. He noticed a child running across the road from 10 meter away, and there was a lady running after the said child from the right side of the road. He immediately hooted and applied emergency brakes, but unfortunately the suit motor vehicle hit the child at the front center and knocked her onto the tarmac. As a result of the said accident, the child slid approximately 3 meters away before coming to a halt. The woman who was following the said child also hit the front right-hand wing and indicator light. The accident occurred on the left-hand lane and police took the details of the scene.

12. The accident had occurred so fast, he did not have the time to swerve to the other lane due to the oncoming motor vehicles. The injured parties were taken to St Mart’s hospital by 3rd parties as he waited by the road for police to come. Two police officers came and marked the road where the motor vehicle was and he was asked to move the suit motor vehicle to Kikokey police post. He then gave his statement to the police and was never charged before court with any traffic offence. He stated that he did his best to avoid the accident and blamed the adult lady as she should have held the child’s hand and prevented her from crossing the road.

13. In cross examination DW1 confirmed that he was the owner of the suit vehicle and had of 50 years of driving experience. That he had spotted the child crossing the road, while 10 meters away and would probably take 2-3 meters to stop. The woman too, fell at the center of the road on being hit by the vehicle. While the child bounced off the vehicle and was pushed forward. He noted that the police abstract did not blame anybody for the accident and that he was aware that he owed the duty of care to other road user.

Appeal Submissions. Appellant Submissions. 14. The Appellant filed submissions on 09. 03. 2023 where his counsel did aver that the trial court erred in law and in fact in awarding the respondent future medical care/Nurse, loss of earning capacity & Medical care whereas she did not plead for the same in the amended plaint under the disputed heads of awards as required in law, nor did the respondent lead any evidence on the said head of damages to enable the court assess the said evidence. The medical report also did not contain particulars of any evidence under the heads awarded to warrant the court to make the awards appealed against and thus the awards were erroneous and occasioned a miscarriage of justice.

15. Further, the respondent never testified nor did she lead any evidence on the disputed heads of award, hence the court did not have any basis (figures to rely on) to adjudicate on the said awards. This was a grave error and misdirection as the appellant was gravely prejudiced since he was not given an opportunity to test such evidence through cross examination and submissions. Accordingly, the said awards were based on the wrong principles of law and deserved to be reviewed.

16. The appellant further submitted that Ksh.5,550,000/= for future medical expenses was wrongly arrived at and no evidence was submitted the basis upon which an award could be made. The damages sought ought to have been specified in the plaint and specifically proved as special damages. Similarly, for medical supplies the sum of Ksh.3,700,000/= was not pleaded and no evidence was led the basis upon which it could be awarded. The final award of loss of earning capacity being the sum Ksh.2,000,000/=, though it could be made under a claim of General damage’s, the said sum was excessive and should be reviewed downwards to Kshs 1,000,000/=. Reliance was placed in the case of Nairobi High Court HCCC No.22 of 2011 Edward Mungai Waweru vs Samson Ochieng Kaguda& another, Kiambu High Court Civil Appeal No. 97 of 2016 and Ephantus Mwangi & Anor. Vs Duncan Mwangi Wambugu (1982) IKAR 278.

17. Accordingly, the appellant did pray that this appeal be allowed as the awards were erroneous and occasioned miscarriage of justice.

Respondents Submissions 18. The Respondent’s filed submissions on 22. 03. 2023 and submitted that this being the first appeal, the appellate court should be slow to interfere with the award and finding of the trial court unless such award was not supported by the facts or there was misapprehension of the evidence by the trial court which had the advantage of seeing and hearing witnesses before reaching the final determination. Reliance was made in the case of Kiruga v Kiruga & another [1988] KLR 348, Kamau vs Mungai & another [2006]1 KLR 150 & Kiragu Vs Kiragu & Ano (1988) KLR 348 to buttress this point.

19. It was submitted that the appeal was challenging the quantum as awarded and the principles of awarding damages were well known and set out in many citations .Reliance was placed in the citations of Kenya Power Lighting Comp. Ltd & Another vs. Zakayo Saitoti Naingola & another [2008] eKLR, Tridev Construction Vs Charles Wekesa Kasembeli Civil Appeal No.121 of 2002, Kemfro Africa Limited t/a Meru Express Services [1976] & Another vs Lubai 7 Another No. 2 [1987] KLR 30 .

20. The DW1 did testify and confirmed that an accident did take place and the child was injured. PW2 produce the relevant exhibits to show the extent of extensive injuries suffered by the minor, the major one being contusion of the spinal cord resulting to the minor suffering paraplegia, rapture of the spleen and inability to hold stool and urine. The injuries sustained were severe and permanent. On special damages, it is trite law they had to be specifically pleaded and proven. Reliance was made in the case of Mohammed Ali & Another v Sagoo Radiators Limited [2013] eKLR to buttress this point. It was thus submitted that ksh.45,270 awarded was proved as the receipts were admitted by consent of the parties.

21. As For the nature of injuries sustained, the fact that on impact the child was thrown over three meters away did prove that the appellant was driving at high speed in a crowed shopping area. The respondent, also failed to show how the accident could be termed as an “inevitable accident”, and did not give any evidence to support such contention. Reliance was placed in the case of Hussein Omar Farah vs Lento agencies (2006) e KLR , Rahab Micere Mujrage vs Ag & 2 others (2012) eKLR, Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] eKLR.

22. On the award of General damages, the respondent submitted that the principles in the assessment of damages were set out in the case of West [H] & Son Ltd Vs Shepherd (1964) AC 326. In which the court stated that the award of injuries must be regarded as reasonable compensation and comparable injuries should be compensated by comparable awards. From the injuries sustained, there was no doubt that the injuries sustained were permanent in nature. The minor had become completely paralyzed, and completely lost use of the lower limbs. She could also not control or pass urine and would require diapers, catheters and urine bags for the rest of her lifetime.

23. For similar citations where similar injuries were considered, Reliance was placed in the cases of Lucy Kinya V St John of God Hospital- Tigania[2019] eKLR, Nicholas Njue Njuki v Eliud Mbugua Kahuro 2014 e KLR, Jubilee Haulers Limited & 2 Others V Brian Muchiri Waihenya [2021] eKLR where awards between Ksh.4,000,000/= to Ksh.10,000,000/= were issued.

24. On the head of the award of loss of earning capacity it was submitted that the accident had robbed the respondent’s entire life and future as she was forced to end her education at a tender age. Reliance was placed in the case of Butler v Butler [1984] KLR 225, S.J v Francesco Di Nello & another [2015] e KLR, Mumias Sugar Company Limited v Francis Wanalo [2007] eKLr to buttress the limb of awarding damages for loss of earning capacity. The respondent urged this court to find that the trial court award on loss of earning capacity was not excessive.

25. On the head of award for future medical expenses being inordinately high it was submitted that based on the injuries suffered, respondent will forever require services of a care giver and physiotherapist for the rest of her life. This was evidentially proved and the said award should not be disturbed. Finally, it had been demonstrated that the respondent sustained grievous injuries which was proved to the required standard and the evidence presented met the approval of the provisions of section 109 and 112 of the Evidence Act. The respondent too was entitled to costs of the suit as stipulated under section 27 of the Civil Procedure Act and reliance was placed on Republic vs Rosemary Wairimu Munene ex parte applicant v Ihururu Dairy Farmers Cooperative Society Ltd.

26. The respondent did pray that this appeal be dismissed with costs for being frivolous and vexatious.

Analysis & Determination 27. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court has a duty to subject the whole proceedings to fresh scrutiny and make its own conclusions.

28. A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari Vs Purushottam Tiwari (Deceased) by L.Rs (2001) 3 SCC 179.

29. A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties shall have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Keral 316.

30. In Peters Vs Sunday Post Limited(1968) EA 123 the court of Appeal for East Africa stated as follows;“It is a strong thing for the appellate court to differ from the finding, on a question of fact, of a judge who tried the case and who has had the advantage of seeing and hearing the witnesses. An appellate court has indeed jurisdiction to review the evidence in order to determine, whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a difference conclusion.

31. I have independently reviewed and considered all the evidence presented before the trial court, the submission filed by both parties and the grounds of appeal raised and what is clear is that, this appeal only challenges the award of damages.

32. The general law is that money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general 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 it still must be that amounts, which are awarded, are to a considerable extent be conventional. See Tayab vs. Kinanu [1983] KLR 114; West (H) & Son Ltd vs. Shephard [1964] AC 326 at 345.

33. Regarding quantum as stated in Kemfro Africa Limited T/A Meru Express services (1976) & Ano Vs Lubai & Another No 2 (1987) KLR 30 , for the appellate court to interfere with the award of a trial court, it must be satisfied that;“Either the judge in assessing damages took into account an irrelevant factor, or left out of account a relevant one or that short of this the amount is ordinately low or so high that it must be a wholly erroneous estimate of the damages awarded………. It is trite law that the assessment of general damages is at the discretion of the trial court and the appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at the first instant”

34. However, in the same citation the court went further to state that;“The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehending the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

35. This court is also guided by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88) KAR where the Court set out the parameters under which an appellate court will interfere with an award in general damages and held that:“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...”

36. This was also the position obtaining in the case of Southern Engineering Co. Ltd vs. Musungi Mutia [1985] KLR 730, the court held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case…”

I. Did the trial magistrate err in law and fact in awarding the respondent damages not pleaded and where no evidence was adduced as required by law thereby arriving at an erroneous decision, 37. It was the appellants contention that the respondent did not plead specific heads under which she was claiming damages in the amended plaint, nor did she lead any evidence under the said heads for which damages was awarded and therefore the court had no basis to make any awards on the said disputed heads. This did prejudice the appellant as he was not given an opportunity to test the evidence through cross examination and to submit on the same. The awards under the heading of; future medical care, loss of earning capacity, future medical supplies, wheelchair were thus unlawful and should not have been awarded.

38. Under order 4 rule 6 of the civil procedure Act, it is provided that the plaintiff must state specifically the relief, which he claims either specifically or in the alternative and it shall not be necessary to ask for cost, interest or any other general relief given as the court may deem fit and just to grant. The respondent did amend her plaint on 23rd March 2015 and sort for General damages, special damages at Kshs 45,270/=, future medical expenses, cost and interest of the suit.

A. Award for Pain & Suffering 39. The trial court did award Kshs 400,000/= for pain and suffering. This award was not challenged in this appeal.

B. Loss of Earning Capacity. 40. While the appellants contention is true that reliefs sought ought to specifically pleaded and/or proved, it has been severally held by courts that whilst loss of earning capacity or earning power should be /can be included as an item of general damages, it is not improper to award it under its own heading. In Butler Vs Butler (1984) KLR 225 Chesoni Ag . J (As he was then) did consider this issue and stated that;“whilst loss of earning capacity or earning power should be included as an item of general damages, it is not improper to award it under its own heading………once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damage’s it is of little materiality whether the award is under the composite head of general damages or as an item on its own, as a loss of earning capacity. At any rate, what is in a name if damages are payable”.

41. Further in the said citation Butler Vs Butler (1984) KLR 225 at 232 Kneller JA stated that;“loss of earning capacity is a different head of damages from actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained by lord Denning M.R in Fairely Vs John Thompson (Design & contracting Division ) Ltd (1973) 2 Lloyds Rep 40. 42 (CA)………… Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earing capacity is awarded as part of general damages”

42. In Mumias Sugar Company limited Vs Francis Wanalo (2007) eklr, the court did state that;“The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not employed. The justification for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in the future or in case he loses the job his diminution of chances of getting an alternative job in the labour market; while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in the future, loss of earning capacity can be claimed and awarded as part of general damages for pain suffering, and loss of amenities or as a separate head of damages’ award can be token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or appropriate financial loss that the plaintiff has suffered as a result of the disability.”

43. The same holding was also made in Cecila .W. Mwangi & Another Vs Ruth .w. Mwangi (1997) eklr, & Nicholas Njue Njuki Vs Eliud Mbugua Kahuro (2014) Eklr that damages under the head of loss of earning capacity can be classified as general damages but these have also to be proved on a balance of probability. The trial courts finding and award under this head for loss of earning capacity and for pain and suffering were justified and properly awarded under general damages.

44. The test for valuation of lost earning capacity is only what is reasonable. In Riddley Vrs Grifall Trucking Company (1955) 136 App. 2d 682,688 , It was held that;“evidence of actual earning before or after the injury merely assists the jury as persons of ordinary intelligence and experience, in arriving at the amount of the award which is in their power to determine from the nature of injuries.

C. Loss of Earning Capacity 45. The trial magistrate did consider the facts of the case and awarded a global sum of Ksh.2,000,000/=. The appellant challenged this sum on the basis that it was not pleaded and in the alternative if awarded under the heading of General damages, the same was excessive and should have been reduced to Ksh.1,000,000/=. The law is clear that diminished/loss of earning capacity is awarded under general damages which was pleaded. Secondly looking at similar awards and also factoring in the minimum wage prevailing, and inflationary trends I do find that the award of Ksh.2,000,000/= was not excessive nor are there any wrong principles the trial magistrate is shown to have considered in arriving at the same award. The same is therefore upheld.

D. Future Medical care & Future Medical supplies 46. The appellant also challenged the award under future medical care, and submitted that the court did not give any basis for figures arrived at the said award. The respondent did produced treatment notes and medical reports which confirmed that the respondent was paralyzed losing sensation on both lower limbs with the inability to pass urine, walk or perform ordinary life activities. The respondent also specifically pleaded for future medical expenses and though not particularized, there was no doubt whatsoever that the respondent would for the rest of her life need specialized and constant medical care .I agree with the trial court that it is necessary to provide for future medical expenses and it is not doubt that the accident changed the respondent’s life and future prospects. The respondent sustained permanent disability and would require diapers, catheters and urine bags for the rest of her lifetime. She definitely also needs a nurse aid for the rest of her life.

47. The respondent in the amended plaint did specifically plead and asked to be awarded future medical expenses, though not specified. During her evidence to the respondent did plead with the court to award her damages under this head. The trial magistrate awarded the Respondent Ksh.5,500,000/=. As regards the award for future medical expenses, authorities are agreed that, an award for future medical expenses must stand on its own as a specific prayer to be specifically established. Ringera, J (as he then was) in Jackson Wanyoike vs. Kenya Bus Services Ltd & Another Nairobi (Milimani) HCCC NO. 297 of 2002 held that costs of future medical care must be pleaded, as they are special damages. Similarly, the Court of Appeal in Sheikh Omar Dahman T/A Malindi Bus vs. Denis Jones Kisomo Civil Appeal No. 154 of 1993, held that cost of future medical operation is special damages, which must be pleaded. See also Mbaka Nguru & Another vs. James George Rakwar Civil Appeal No. 133 of 1998 [1995-1998] 1 EA 246.

48. Special damages are those damages which are ascertainable and quantifiable at the date of the action. The distinction between general and special damages was explained by the Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 where it was stated that:“The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”

49. Regarding proof of loss, while it is true that it is trite law that special damages must not only be specifically pleaded but also strictly proved, what amounts to strict proof must depend on the circumstances that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. See Nizar Virani T/A Kisumu Beach Resort vs. Phoenix of East Africa Assurance Company Limited Civil Appeal No. 88 of 2002 [2004] 2 KLR 269, Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98, Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992.

50. It was therefore held by the Court of Appeal in Jackson K Kiptoo vs. The Hon Attorney General [2009] KLR 657 that:“The court is conscious that the degree of certainty and particularity of proof required depends on the circumstances and the nature of acts complained of.”

51. Similarly, in Hahn vs. Singh, Civil Appeal No. 42 of 1983 [185] 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 degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

52. That was also the position in Woodruff vs. Dupont [1964] EA 404 where it was held by the East African Court of Appeal that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided cases are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them…The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonably be considered as a rising according to the usual course of things, from the breach of the contract itself”. The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

53. Future medical expenses are therefore, though based on medical opinion, is an amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded. However as was appreciated in MNM vs. DNMK & 13 Others [2017] eKLR:“A court may validly determine an unpleaded issue where evidence is led by the parties and from the course followed at trial it appears that the unpleaded issue has been left to the court to decide (See Odd Jobs v. Mubea [1970] EA 476).”

54. The Court of Appeal in Magnate Ventures Limited vs. Alliance Media (K) Limited & Others [2015] eKLR had this to say on the same issue:“In Gandy V. Caspar Air Charters LTD [1956] 23 EACA”, 139 the former Court of Appeal for Eastern Africa expressed itself as follows on the purpose of pleadings:“…the object of pleadings is, of course, to secure that both parties shall know what are the points in issue between them; so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent. As a rule relief not founded on the pleadings will not be given.”And in Galaxy Paints Co. Ltd. V. Falcon Guards LTD. [2000] 2 EA 385, this Court stated that the issues for determination in a suit flowed from the pleadings and that a trial court could only pronounce judgment on the issues arising from the pleadings and that unless pleadings were amended, parties were confined to their pleadings. (See also IEBC & Another V. Stephen Mutinda Mule & Others, CA No. 219 of 2013).The exception to the general rule that parties are bound by their pleadings, is expounded in such cases as ODD JOBS V. MUBIA [1970] EA 476 and VYAS Industries Ltd. V. Diocess Of Meru [1982] KLR 114) arises where the parties raise and address unpleaded issues and leave them to the Court to decide.”

55. The same court in Christopher Orina Kenyariri T/A Kenyariri & Associates Advocates vs. Salama Beach Hotel Limited & 3 Others [2017] eKLR reiterated this view in the following terms:“Those therefore were the crisp and only issues before the learned judge. As has been stated time without number, a court will not determine or base its decision on unpleaded issues. However, if it appears from the cause followed at trial that an unpleaded issue has been left to the court to decide, the trial court may validly determine the unpleaded issue. (See Odd Jobs v. Mubea [1970] 476, and Baber Alibhai Mawji v. Sultan Hashim Lalji & Another, CA No 296 of 2001).”

56. The Respondent specifically pleaded for future medical expenses. The key question for the Court’s determination is whether the amount of future medical expenses was left for the trial court to determine based on the evidence. In this case, it is clear that the Respondent pleaded the fact that she required further medical attention which would entail further expenses. What she did not plead was the amount. She was however testified as regards the same and was cross-examined and submissions made thereon. Taking a holistic view of the proceedings, I find that the matter was left for determination by the trial Court and on the evidence of PW2. I find no basis for interfering therewith, except to determine if the quantum awarded was fair and in line with similar awards.

57. Tied to the question of Future medical expenses was the award for medical supplies where the trial magistrate awarded the respondent Ksh.3,700,000/=. Though the court did separate the awards of future medical care and medical supplies I do hold that the two awards fall under cost of future medical care, which was pleaded and therefore awardable. The quantum thereof was left for the court to determine.

58. The trial court in awarding cost of future medical treatment did consider that the respondent was 100% paralyzed and she could not control her urine flow and stool hence needed diapers and constant nursing aid. Both medical reports did confirm this fact. The court further was guided by the government minimum wage regulations in major towns and also similar award for similar injuries and proceeded to award the respondent Ksh.5,500,000/= (12,500/= x 12 x 37 yrs.) under the head of future medical care. For medical supplies likewise the respondent was awarded Kshs 3,700,000/=, calculated using a multiplier of 37 years at Ksh.100,000/= annually (37yrs x 100,000/=).

59. The trial magistrate award under these two heading cannot be faulted except for the period applied. Though the minor was six (6) years old, the extent and nature of her injuries, will have a chronic effect on her health. Looking at similar injuries and similar award a time frame of 20 years to 25 years is generally awarded and would have been more appropriate as it is unlikely, that the minor will live for the 37 years due to medical complications which will raise as she gets older, especially bed sores, and other opportunistic infections which she will catch due to her fragile state. To this extent the said multiplier was excessive and is an erroneous estimate of multiplier. The same is reduced from 37 years to 20 years.

60. The other parameters and consideration used in determine the awards under the two heads are fair and accurate. There is no basis to interfere with the same For future medical care the award is reduced to Ksh.3,000,000 (Ksh.12,500/= x 12 x20 years) and Ksh.2,000,000/= ( Ksh.100,000/= per year x 20 years) for medical supplies

61. As regards Ksh.350,000/= for a wheelchair, I hold the opinion that wheelchair constitutes part of medical supplies and to award it under a separate head would constitute double compensation. The award is therefore set aside. Special damages as awarded of Ksh.45,270/= was also not disputed by the appellant.

Disposition 62. Having found as above I do find that this appeal is partially merited. The Judgement of Hon K Bidali {CM} dated 08. 09. 2021 delivered in Naivasha CMCC No 63 of 2014 and the decree arising therefrom is partially set aside as follows;a.General Damages for Pain and suffering … Kshs 400,000/=b.Loss of Earning Capacity…………………. Kshs 2,000,000/=c.Future Medical Care/ Nurse Aid………. Kshs 3,000,000/=d.Medical Supplies………………………………Kshs 2,000,000/=e.Special Damages……………………………….Kshs 45,270/=Total………………………………Kshs 7,445,270/=

63. The respondent is awarded costs of the primary suit plus interest thereof as from the date of Judgment in the primary suit.

64. The appellant is awarded half costs of this appeal is which taxed at Ksh.300,000/=.

65. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 7TH DAY OF NOVEMBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 7th day of November, 2023. In the presence of;…………………………………Appellant………………………………….Respondent………………………………….Court Assistant