JOSEPH KANJA KAMAU VS KENYA POWER & LIGHTING CO. LTD JOSEPH KANJA KAMAU VS KENYA POWER & LIGHTING CO. LTD

(Being an Appeal from the judgment and decree of Hon. D. OCHARO Senior Resident Magistrate in Nairobi CMCC No. 8688 of 2013 delivered on 13/9/2013)

JUDGMENT

The appellant Joseph Kanja Kamau has filed this appeal through a memorandum of appeal dated 26/9/2018 only on the issue of quantum of damages.
The appellant was the plaintiff before the trial court. His claim through his plaint dated 13/9/2016 he was on duty on 24/6/2015 while replacing wooden electric poles with concrete ones at Emali to Wote feeder line when he suffered electrocution by coming into contact with live electric cables when the defendant’s servant or agent switched on power at Emali. He sustained injuries as a result of which he has suffered loss and damage. He blamed the defendant for negligence or breach of contract or statute
The appellant made prayers tabulated as follows:
1. General damages for:-
  1. pain and suffering, and loss of amenities of life,
  2. future medical costs KShs 300,000/=,
  3. future loss of earnings or diminished earning capacity,
  4. cost of artificial limbs over the years
2. special damages of KShs 383,155/=,
3. costs and interest.
After trial the learned magistrate found the defendant wholly to blame for the accident. In his judgment the learned trial magistrate awarded the appellant general damages Kshs 3,000,000/=, future medical costs KShs 450,000/= and special damages KShs 360,000/= making a total award of KShs 3,810,000/=.
The appellant was dissatisfied with that decision and has filed the present appeal based on two grounds that the learned trial magistrate erred by:
1. failing to make an award of for loss of earnings or diminished earning capacity.
2. making an award of KShs 3,000,000/= for pain and suffering and loss of amenities which award was too low.
3. awarding interest on special damages from the date of judgment.
The appellant therefore prays for this court to:
1. allow the appeal with costs.
2. assess damages for loss of earnings or diminished earning capacity and award the same.
3. reassess the damages for pain, suffering and loss of amenities and enhance the award.
4. set aside the order on interest on special damages and substitute the same with an order for interest thereon from the date of filing suit.
5. such further order as the court may deem just.
The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:

“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 demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.

The respondent’s counsel defended the award of Ksh.3,000,000/= in general damages.
The respondent urged this court not to disturb the award of the learned magistrate as it was not issued based on a wrong principle of law or that the amount was extremely high or so very low. He cited the cases of Butt vs. Khan (1977) 1 KAR in support.
The law regarding awards on quantum of general damages is as was explained in the case of Nyambura Kigarari vs. Agrippina Mary Aya (1982-1988) 1 KAR that general damages should be awarded within reasonable bounds and compensation must be fair in line with recent authorities of comparable injuries. See also the case of Rahima Tayah & another vs. Anna Mary Kinaru (1987-88) 1 KAR 90 which buttresses this position.
The appellant outlined the following injuries that he sustained in his plaint:
1. extensive deep burns on the head.
2. extensive deep burns on the upper limbs.
3. extensive deep burns on both shoulders.
4. extensive deep burns on the left leg leading to amputation at the lower shin.
5. deep burns on the right leg.
6. hazy eye sight of the left eye.
7. deformation of the right foot toes.
8. permanent disability 65%.
In his submissions, learned counsel for the appellant says that the trial court only identified and relied on two authorities involving amputation of a leg. It totally failed to take into account other injuries like:
1. multiple deep burns per medical report.
2. total blindness in one eye
3. 100% disability.
The learned trial magistrate in his judgment outlined the injuries sustained by the appellant being as per Dr. Wokabi’s findings in two medical reports presented to court as:
1. extensive deep burns of the scalp for which surgical debridement was carried out.
2. extensive deep burns on both arms and forearms.
3. deep burns on both shoulders.
4. a very extensive deep burn on the left leg, the lower part of which was worst burnt that it would not be salvaged and consequently the left leg was amputated at the lower shin.
5. deep burns on the right leg which had not healed even up to the date of hearing.
It is noted that these injuries as outlined by the learned trial magistrate are similar to those outlined in the appellant’s pleadings.
Learned counsel for the respondent submits that the damages of KShs 3,000,000/= are in fact more than adequate for these injuries.
I understand the appellant’s issue to be that the learned trial magistrate failed to consider comparable decisions for similar injuries and thereby arrived at an inordinately low award that this court should disturb. Particularly the appellant submits that the learned trial magistrate failed to consider decisions that involved multiple deep burns per medical report, total blindness in one eye and 100% disability.
In awarding KShs 3,000,000/= general damages for pain, suffering and loss of amenities, the learned trial magistrate relied on the following cases:
1. Agnes Wanjiku Ndegwa v Kenya Power & Lighting Company [2014] eKLR where the High Court awarded KShs 1,300,000/= for the following injuries particulars of the injuries sustained when an electric pole fell on the plaintiff and burnt her;
  1. Severe and extensive burns all over the body which have now left scares all over the body which turns itchy and painful in cold weather.
  2. Extensive burns that have disfigurements in the thighs and buttocks.
  3. Extensive burns to the shoulder, chest and the neck leaving stiff neck.
  4. Extensive burns to both legs, feet and toes with the result that she is unable to step flat on both feet.
  5. Inability to do any laborious task or carry heavy loads.

Two doctors made findings on the injuries sustained as follows.

Dr. Wokabi:

She was walking with a profound limp.
She has a very tender scar on the outer aspect of the left foot.
There is a skin graft on the upper out aspect of the right foot.
The right 5th toe is missing.
There are multiple nodular scars on the right thigh and buttock.
There are multiple nodular scars covering a large area of the chest posteriorly.
There is a large contracted scar on the right side of the neck which is liming full flexion of the neck sideways.

Dr. Wokabi assessed her permanent disability as 35% Dr. Wambugu:-

Electrical burn wounds involving right side of neck, upper trunk posteriorly, left arm right lower limb and both feet.
Total burn surface area estimated at 12%
Amputation right small toe.

Dr. Wambugu assessed permanent disability at 30%.

1. Nickson Muthoka Mutavi v Kenya Agricultural Research Institute [2016] eKLR where the appellant sustained burns to the head, on the abdomen, the right leg and burns on the left foot. Further, that his right leg was amputated below the knee and he was fitted with an artificial leg.

The High Court on appeal awarded the appellant KShs 3,000,000/= general damages for pain, suffering and loss of amenities.

From the awards made in these two decisions, it is apparent that the learned trial magistrate relied on the case of Nickson Muthoka Mutavi in arriving at the award he made. This was one of the cases submitted by learned counsel for the appellant to the learned magistrate for his consideration. It had one of the highest awards. The other case cited by the learned counsel for the appellant with a similar award was Nairobi CMCC No. 2599 of 2014. This decision was not made available to the court for its consideration even as I note that it was from a Magistrates Court. The learned trial magistrate did not have the benefit to consider the injuries sustained in that case and so it was not available for his use. In any case, the award therein was KShs 3,000,000/=. Learned counsel for the appellant did not make any other decision with higher awards for comparable injuries though he proposed an award of KShs 6,000,000/=. The two other decisions he made available had far less awards.
In his submissions at the lower court, learned counsel submitted that the plaintiff (appellant herein) had suffered a leg amputation, loss of sight in one eye, non-healed burn wound on the other leg, inability to walk unaided and 100% disability. He now submits that the court failed to consider that the learned trial court failed to consider multiple deep burns per medical report, total blindness in one eye, and 100% disability.
It is not correct that the learned trial magistrate failed to consider either that the appellant sustained multiple deep burns as per the medical report or that the decisions he considered in making the assessment of KShs 3,000,000/= did not involve such injuries. The injuries which the learned trial court outlined as having been sustained by the appellant clearly consisted of multiple deep burns.
On the aspect of total blindness in one eye, and 100% disability, these aspects came in the further medical report by Dr. Wokabi dated 24/4/2018. Dr. Wokabi also testified of the same conditions in court. However, the appellant never amended his plaint to conform to his changed condition. The learned magistrate was therefore not at fault not to consider them in his assessment of general damages. It is a trite principle of the law of civil procedure that parties are bound by their pleadings and cannot be allowed to depart from them in their evidence. If they do, without amending their pleadings the court will ignore the evidence on the fresh issues raised in evidence and only consider what relates to the pleadings.
In the case of IEBC & Another vs. Stephen Mutinda Mule & 3 others (2014) eKLR the Court of Appeal cited with approval the Nigerian case of Adetoun Oladeji (Nig) Ltd vs. Nigeria Breweries Plc S.C. 91/2002, where Judge Pius Aderemi J.S.C. expressed himself as follows;

“….it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”

Citing the above case, the High Court in Mbogo (Suing as the administrator to the Estate of the Late John Gachau Mbugua) v Kenya School of Monetary Studies (Civil Appeal 708 of 2016) [2024] KEHC 468 (KLR) while considering the issue of failure to amend a pleading held that:

“The Appellant herein did not amend his plaint to align it with the evidence that the deceased was employed by the Respondent as a stone mason and neither did he amend the particulars of negligence against the Respondent. It was not permitted for the Appellant to adopt evidence that was not pleaded. Failure to amend was fatal to his case.”

Even in this appeal, learned counsel for the appellant has not provided any authority that the appellant can argue that the learned trial magistrate would have considered to make a higher award. Instead the argument seems to be that the learned trial magistrate ought to have considered the injuries and made awards for the amputation of the leg separately then for severe multiple burns and then put them together as general damages thereby giving a higher figure than what was awarded of KShs 3 million.
With respect to learned counsel, that is not the approach in assessing general damages for bodily injuries.
Consequently, I find that the failure by the appellant to amend his plaint to indicate that he had sustained total loss of eyesight in the left eye and 100% disability was fatal to his case on the quantum of damages awardable.
It appears that the trial court in assessing damages in respect of the respondent’s injuries failed to note that they were not exactly comparable to those of the plaintiff in the Nickson Muthoka Mutavi case, as the latter were less severe. Probably if I had sat on the trial, I might have awarded to the appellant some higher sum than that awarded by the trial court, but that cannot be the basis for my interfering with the trial magistrate’s award (see the case of Nairobi Bus Union v Dexter Ireri Imanene [1993] eKLR).
The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:

“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 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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”

Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:

“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 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.”

I do not find any justification in line with the principles enunciated in the above cases to warrant this court to disturb the award of KShs 3,000,000/= general damages for pain, suffering and loss of amenities. Consequently, this court affirms the trial court’s award in that respect.
The other ground of appeal is that the learned trial magistrate failed to make an award for loss of earnings or diminished earning capacity. In considering this ground I will start by considering the appellant’s prayer in plaint which was sought under general damages as … (iii) future loss of earnings or diminished earning capacity,
The summary of the principles of the award of Damages concerning the said claim as propounded by the Court of Appeal emerging from the case of Butler v Butler (1984) KLR 225 were restated in the case of Mumias Sugar Company Ltd. -vs-Francis Wanalo [2007] eKLR as under:

“From the above analysiz of the English case law and the decision of this Court in Butler v Butler, the following principles, among others emerge. 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 so employed. The justification for award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in 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 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. The award can be a token one, modest or substantial depending on the circumstances. 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 approximate financial loss that the plaintiff has suffered as a result of disability.”of each case.

I also rely on the observation of Lord Denning MR in Fairley v John Thompson (Design and Contracting Division) Ltd. [1973] 2 Lloyd’s Rep 40 at page 41 which is cited in the Butler v Butler case that:

“it is important to realize that there is a difference between an award for loss of earning as distinct from compensation for loss of future earning capacity. Compensation for loss of future earnings are awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

In this case, the appellant pleaded for future loss of earnings or diminished earning capacity (emphasis in bold mine). He thus pleaded the two heads of damages in the alternative. The learned trial magistrate made a choice to make an award on diminished earning capacity and made a finding that it was included in the award for general damages. Even then, in the Mumias Sugar Company Ltd case, the Court of Appeal held that loss of earning capacity can be awarded as part of general damages. That 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 approximate financial loss that the plaintiff has suffered as a result of disability (emphasis mine). In the present case, the learned trial magistrate held that the claim for loss of earning capacity could not succeed as it had been included in the award for general damages for pain and suffering.
I find that this was a misdirection on the part of the learned trial magistrate as he ought to have ascertained the real or approximate financial loss that the appellant had suffered as a result of disability even if he was to include it in the general damages.
In the Butler v Butler case the Court of Appeal said on the factors to be taken into account in assessing the damages that:

“The factors to be taken into account will vary with the circumstances of each case. Examples include the age and qualifications of the plaintiff; his remaining length of working life; his disabilities; previous service, if any, and so on. Mathematical calculation may not be possible, but a court can try to assess what earnings a plaintiff may lose after the trial and for how long. There is no formula and the judge must do the best he can.”

In the Mumias Sugar Company Ltd case the Court of Appeal said that the award can be a token one, modest or substantial depending on the circumstances. According to the medical report by Dr. Wokabi dated 22/6/2016, the appellant was 48 years old. He therefore had an active length of service of 12 years if we go by government retirement age of 60 years. In his case, he was in private service and so he may have worked for a little longer. Taking into account the imponderables and vicissitudes of life, I would give him another ten years of active service. There is evidence that the appellant was employed and was on duty when the accident occurred. He said that he was earning KShs 1,000/= per day and KShs 1,500/= per day on a good day. Without engaging into a mathematical calculation, I would award the appellant KShs 200,000/= as a token damages for loss of earning capacity.
Accordingly, I am persuaded that this is a suitable case for this Court to exercise its discretion and interfere with the trial court’s finding on general damages for loss of earning capacity for reasons that the court failed to take into account rlevant factors in arriving at its determination to include the same in the general damages for pain, suffering and loss of amenities.
The final issue is on the interest applicable to special damages. The learned trial court simply stated that he was awarding costs to the plaintiff (appellant herein) and interest at court rates which will accrue from the date of judgment. In the case of Heinz Broer v Buscar (K) Ltd & others [2019] eKLR the High Court in dealing with a similar issue as that raised herein said as follows with regard to paying of interest on damages.

“The basis of awarding interest on general damages from the date of judgment is premised on the ground that a plaintiff will not have been kept away from his monies because none would have been ascertainable at the time of institution of the suit. Interest on special damages would, however, accrue from date of filing suit as a plaintiff will have incurred expenses from the date suit is filed and he will have been kept away from his monies until judgment is delivered.

Following the same reasoning, this court was not persuaded that the issue of accrual of interest on general damages should be determined in any other way. It was its holding and finding that interest on general damages would accrue from the date of judgment. The Learned Trial Magistrate erred in not pronouncing herself clearly on this issue. Fortunately, the time from when interest could accrue on the general damages was correctly discerned at the time of issuance of the Decree.

As the Appellant had been kept out of monies he had incurred as special damages, interest on the same ought to have been from the date of filing suit. Bearing in mind the provisions of Order 45 of Civil Procedure Rules and Section 80 of the Civil Procedure Rules, this court was inclined to find and hold that the Appellant’s appeal was successful as far as the question of accrual of interest on special damages was concerned.”

I am persuaded to follow this decision which was made upon the court considering several decisions including from the Court of Appeal. The learned trial magistrate was in error in awarding interest on special damages from the date of judgment. I belive this was an error of omission rather than commission.
Therefore, interest on special damages herein shall accrue from the date of filing suit while interest on general damages shall accrue from the date of judgment.
In the final analysis, I find that, other than the issue of loss of earning capacity and interest on special damages, the findings of the learned trial magistrate are affirmed.
Considering the extent to which the appellant has succeeded in the appeal and the long period this matter has remained in the court system, I order that each party shall bear their costs of the appeal.

Delivered, dated and signed at Nairobi on the Virtual Platform, Teams this 17^th of July, 2024.

In the presence of:

Kaburu for Appellant.

Bore for the Respondent.

Eutropia: Court Assistant.

30 days Right of Appeal granted.