Background
1. By a plaint dated 8th January 2019 and filed on the same date, the Appellant sought damages as against the Respondent for injuries suffered on 17th May 2017 along jogoo road, Nairobi when 2nd Respondent’s motor vehicle KBL 093A, was alleged to have been recklessly and negligently driven by the 1st Respondent thereby knocking down the Appellant.
2. By a statement of defence dated 16th February 2019 and filed on 19th February 2019, the Respondents denied the Appellant’s claim.
3. On 6th August 2021, the trial court issued its judgment with liability being assigned at 75:25 in favour of the Appellant pursuant the consent of the parties. The trial court also awarded the Appellant a sum of Kshs. 600,000/- in general damages (subject to 25% contribution) and further Kshs. 73,770 in special damages.
The Appeal
4. Aggrieved with the decision of the trial court particularly on the quantum of special and general damages, the Appellant, vide his memorandum of appeal dated 16th August 2021 appealed to this Court against the trial court’s decision raising seven grounds of appeal as follows; -
i. The learned trial magistrate erred in fact and in law disregarding the plaintiff’s submission on quantum and nature of the injuries.
ii. The Learned trial Magistrate erred in fact and in law in not considering the Plaintiff’s case on quantum and in considering the plaintiffs supporting exhibits relating to special damages.
iii. The Learned trial Magistrate erred in fact and in law in failing to find that the special damages and future medical expenses were pleaded and such ought to have been awarded.
iv. The learned trial magistrate erred in fact and in law in disregarding the Plaintiff’s submissions and evidence on quantum and special damages.
v. The Learned trial Magistrate erred in fact and in law in disregarding the fact that the Defendants never called any witness nor did they adduce any evidence to dispute receipts adduced in support of special damages.
vi. The Learned trial Magistrate erred in fact and in law in that he disregarded the appellants submissions and judicial authorities on quantum with the resultant miscarriage of justice to the Appellant
vii. The Learned Magistrate erred in law and in fact in failing to appreciate that the Plaintiff’s injuries and supporting evidence.
5. In a nutshell, it was the Appellant’s position in this appeal that the sum of Kshs. 600,000/- awarded by the trial court as compensation in general damages for pain, suffering and loss of amenities was inordinately low in the circumstances of the case.
6. Additionally, the Appellant challenged the award of Kshs.73,770 in special damages on the basis the trial court failed to consider all the Appellant’s evidence submitted at trial in support thereof.
Submissions By the Parties
7. On 12th February 2024, directions were given that the appeal be canvassed by way of written submission and both parties complied with the Appellant’s filing theirs dated 8th March 2024 whilst that of the Respondents equally dated 8th March 2024.
8. The first issue taken up by the Appellant in his submissions was that the trial court erred in law and in fact by awarding Kshs. 73,770 only in special damages. According to the Appellant, the amount was inordinately low and was below what was pleaded by the Appellant proved in evidence as special damages by production of receipts in the course of the trial.
9. The Appellant asserted that they supplied at the trial court, all medical receipts bearing the name and necessary credentials of the treatment facilities in support of their claim for special damages and therefore the same ought to have been awarded by the trial court. Reliance was placed by the Appellant in the case of Benjamin Muela Kimono v Daniel Kiprong Tarus & another [2015] eKLR.
10. Further, citing the case of Hashim Mohammed Said & another v Lawrence Kibor Tuwei [2018] eKLR, the Appellant submitted that special damages ought not to be subjected to reduction based on apportionment of liability.
11. The second issue taken up by the Appellant in his submissions was that of quantum of general damages for pain and suffering. The Appellant submitted that the amount of Kshs. 600,000/- awarded by the trial court under this heading was way too low and did not reflect the nature of the injuries suffered by the Appellant in the accident which were more grievous.
12. According to the Appellant, taking into account the nature of the injuries suffered in the accident and taking into account the authorities cited at trial, the trial court ought to have awarded a sum exceeding Kshs. 2,500,000/-.
13. Finally, it was the Appellant’s submissions that the trial court erred in failing to award the cost of future medical expenses which was pleaded and proved by the medical report by Dr. Phostine Manyonge dated 17th August 2018 who assessed that a sum of Kshs. 150,000/- was required by the Appellant as the cost of future medical expenses.
14. On his part the Respondent supported the finding of the trial court both on general damages and special damages. the Respondent submitted that the amount of Kshs. 600,000/- awarded by the trial court was in line with the injuries suffered by the Appellant as supported by the medical reports of Dr. Wambugu and Dr. Phostine Manyonge adduced as evidence at trial. The Respondent further asserted that the award by the trial court under this heading was in line with the awards in cases with comparable injuries as contained in the authorities submitted by the parties at trial.
15. Regarding the Appellant’s submissions on the cost of future medical expenses, the Respondent simply answered that the same was not pleaded in the plaint and could therefore not be awarded by the trial court.
16. On special damages, the Respondent’s answer to the Appellant’s submissions was that the award of Kshs. 73,770 by the trial court was in line with the receipts produced by the Appellant at trial in support of the claim. The Respondent’s position was that other than receipts, the invoices produced by the Appellant were not admissible for the purposes of proving special damages.
17. Citing the case of Caltex Oil (K) Ltd – vs – Auto Spring Manufactures Ltd [2004] eKLR the Respondent maintained that special damages are not proved by invoices. That special damages are only proved by way of production of actual receipts of payment coupled with revenue stamp in compliance with the Stamp Duty Act.
Analysis and Determination
18. I have considered this appeal in the light of evidence on record, submissions and cited authorities. I note that the appeal is primarily on the quantum of damages awarded by the trial court.
19. When dealing with an appeal on quantum, this court is alive to the principle that assessment of damages is within the discretion of the trial court and that as an appellate court, I should only interfere in instances where the trial court, in assessing damages, erred in principle by either taking into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence (see Mbogo vs Shah (1968) EA 93 and Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727).
20. In the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR the Court of Appeal held as follows in relation to the circumstances under which an appellate court may disturb an award of damages by the trial court: -
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that: ‘An appellate court will not disturb an award of 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.”
21. I am equally alive to the principle that in awarding general damages, the courts ought to give an award that reflects the nature and gravity of the injuries. That comparable injuries should as far as possible, be compensated by comparable awards, always bearing in mind that not two cases are precisely alike. This is the guidance that was given by the Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR when it stated that: -
“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
22. A perusal of the pleadings and proceedings reveals that the Appellant, in his Plaint dated 8th January 2019 pleaded that he suffered the following injuries as a result of the accident: Fractured right ankle; Mild head injury; Bruises on the right leg; Right tibia fibular fracture; Displaced right tibia fibular; Blunt injury and bruises on the right knee; Blunt injury to the pelvic region and a soft tissue injury to the right ankle. However, the reports adduced in evidence paints a different picture.
23. The initial treatment notes from Mater Hospital indicated that the Appellant was seen in their facility on 17th May 2017 following involvement in a road traffic accident along Likoni Road and that the x-ray done on him the same day revealed a “Right tibio fibular fibular mildly displaced”. The medical reports by Dr. Phostine Manyonge dated 17th August 2018 and that of Dr. Wambugu dated 19th March 2019 were largely in agreement with the initial treatment notes and confirmed that the Appellant had suffered a “displaced fracture of tibia and fibula bone near the ankle joint.”
24. In the circumstances it is important to note that in considering the quantum of the damages to be awarded, the court would be guided by the injuries as proved in evidence by the medical reports and not those contained in the pleadings.
25. It is the duty of the advocates to avail relevant authorities to guide the trial court in arriving at a fair award for the injuries suffered. I have considered the authorities cited by both the Appellant and the Respondent in support of their respective positions and note that the injuries suffered in the instant case were far much less serious than those suffered in the case of Frankline Chlabisi -vs- Kirangu Liston [2017] eKLR cited by the Appellant in support of her position at trial.
26. In my view, the injuries suffered by the Appellant in this case are more comparable to those suffered in the case of Tirus Mburu Chege & another – vs - J K N (minor suing through the next friend and mother D W N & another [2018] eKLR cited by the Respondent where an award of Kshs. 500,000/- was made for Fracture on both tibia and fibula; Blunt injury to the forehead and broken upper right tooth.
27. In the premises, I find no reason in this case to interfere with the trial court’s assessment of general damages for pain, suffering. I therefore uphold the award of Kshs. 600,000 in general damages by the trial court, subject to contribution.
28. Turning to the Appellant’s arguments on special damages, the Appellant submitted that the amount of Kshs. 73,770 awarded by the trial court was inordinately low and below that which was pleaded in the plaint and proved in evidence. I have perused the plaint and noted that a sum of Kshs. 422,913/- was pleaded by the Appellant. However, the trial court instead awarded a sum of Kshs. 73,770/- only, being the amounts, the Appellant supported by way of production of receipts at trial.
29. From the record, the Appellant produced various receipts, bills and invoices from various hospitals, health providers and chemist in proof of the cost special damages pleaded. However, I agree with the position taken by the trial court that it is only payment receipts that are relevant when considering an award for special damages. It is a well settled principle of law that an invoice is not proof of payment. Special damages can only be proved by producing actual receipts or invoices endorsed with the word “Paid”. In Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR, the Court of Appeal stated as follows on the issue; -
“From the judgment, the respondent produced proforma invoices in support of the claims for the retained petrol station equipment. A proforma invoice is considered a commitment to purchase goods at a specified price. It is not a receipt, and as such cannot attest to the existence of or the acquisition of goods. We consider that a proforma invoice was not satisfactory proof of the respondent’s loss, or the replacement value of the respondent’s equipment, and the learned judge misdirected himself in finding that the proforma invoices were sufficient proof of special damages for the respondent’s equipment supposedly withheld by the appellant.”
30. The law on special damages is that it must not only be specifically pleaded, but must also be strictly proved. In Nairobi Civil Appeal No. 283 of 1996 – David Bagine – vs – Martin Bundi [1997] eKLR, the Court of Appeal had the following to say on the subject; -
“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:
\"....special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Park Hotel Limited [1948] 64 TLR 177 thus: http://www.kenyalaw.org - Page 1/3 DAVID BAGINE vs MARTIN BUNDI [1997] eKLR \"Plaintiffs must understand that if they bring actions for damages it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, \'this is what I have lost, I ask you to give me these damages.\' They have to prove it\"
31. In the circumstances, I agree with the position taken by the trial court that special damages could only be awarded to the extent proved by production of receipts as opposed to invoices. I therefore uphold the award of Kshs. 73,770 by the trial court in special damages.
32. Additionally, it is also important to point out that contrary to the position taken by the Appellant in his submissions, a perusal of the judgement reveals that the award of special damages was not subject to contribution. Consequently, that complaint by the Appellant against the judgment of the trial court is found unmerited and therefore fails.
33. Finally, regarding the Appellant’s complaint that the trial court erred in failing to award the sum of Kshs. 150,000/- being the cost of future medical expenses as assessed by the medical report of Dr. Phostine Manyonge dated 17th August 2018, I note that the pleadings that the same was not prayed for in the plaint. In the circumstances, I agree with the Respondents’ submissions that the trial court was right in failing to award the same since the law is that parties are bound by their pleadings. In Ogando v Watu Credit Limited & another (Civil Suit E098 of 2022) [2024] KEHC 3074 (KLR) where the court stated that; -
“This aspect of pleadings was addressed by a Tanzanian court in the case of Salim Said Mtomekela Versus Mohamed Abdallah Mohamed, Dar-Es-Salaam Court of Appeal Civil Appeal No. 149 Of 2019 (Mugasha. J.A. Kihwelq. J.A. Rumanyika. J.A p where it was held as doth: -
“Pleading in law means, written presentation by a litigant in a law suit setting forth the facts upon which he/she claims legal relief or challenges the claims of his opponent. It includes claims and counterclaim but not the evidence by which the litigant intends to prove his case … That said, since the pleading is a basis upon which the claim is found, it is settled law that, parties are bound by their own pleadings and that any evidence produced by any of the parties which is not supportive or is at variance with what is stated in the pleadings must be ignored. See Barclays Bank (T) Vs Jacob Muro, Civil Appeal No. 357 of 2018 [where] the Court cited with approval a passage in an article by Sir Jack I.H. Jacob bearing the title,
\"The Present Importance of Pleadings\", first published in Current Legal Problems (1960) at p. 174 whereby the author among other things said: \"As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings... for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he as to meet and cannot be taken by surprise at the trial. The court itself is as well bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings...\"
34. Accordingly, I find that to the extent that the prayer for cost of future medical expenses was not pleaded, the trial court was perfectly right in failing to award the same. Again, this ground of appeal also fails.
35. In view of the foregoing, I find the appeal unmerited and is hereby dismiss the same with costs to the Respondent.
36. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 26TH DAY OF SEPTEMBER 2024
ADO MOSES
JUDGE
In the presence of:
Moses – Court Assistant
N/A………………for the Appellant
Ms. Ngala…………for the Respondent.