JUDGEMENT
1. This is the judgment in respect of the Appellant’s Appeal dated 16th December 2022. It arose from the judgment and decree delivered on 29th November 2022 in Gatundu Chief Magistrate’s Court by Hon. R.N. Ng’ang’a (Senior Resident Magistrate).
2. The Appellant is aggrieved by the decision of the Trial Court on the grounds that it erred in awarding the Respondent Kshs. 500,000 (less 20% contributory negligence) as general damages. This is for the reason that the injuries were not specifically pleaded in the plaint. That this thereby disregarded the well-established principle of law that parties are bound by their pleadings. That injuries sustained must be clearly pleaded and particularized. The Appellant contends that the Trial Court further erred by failing to address and pronounce itself on all the issues raised in the Appellant’s submissions, particularly the issue that the specific injuries relied upon in the judgment were neither pleaded nor supported by the pleadings, and that any evidence adduced contrary to such pleadings ought to have been disregarded. The Appellant also faults the Trial Court for relying on documents that were never formally produced and marked as exhibits in Court, thereby rendering the award of Kshs. 500,000 (less 20%) on quantum erroneous.
3. The Trial Court entered judgment in favour of the Respondent in the following terms:
(i) Liability agreed at 80:20 % in favor of the Plaintiff against the Defendant.
(ii) General damages Kshs. 500,000/= Less 20% contribution = Kshs. 400,000/=
(iii) Special Damages NIL
(iv) Costs and interest of the suit to the Plaintiff.
4. This matter came up under the Rapid Results Initiative (RRI). That pursuant to the directions of the Court, the Appeal was to be determined by way of written submissions. The Court has carefully perused and considered the written submissions filed by the parties, namely, the Appellant’s submissions dated 17th July 2024 and the Respondents’ submissions dated 24th July 2024. The Court appreciates the industry and diligence of counsel in the presentation and citation of the various authorities relied upon. This decision has delayed and the Court apologises for any inconveniences suffered by the parties.
Brief Facts
5. The Respondent filed Plaint before the Trial Court dated 14th April 2021. She averred that on or about 21st April 2018, while in the company of her grandson in Kariua Village attending to farm chores, she stepped on a live electric wire negligently left lying on the ground. As a result, she was electrocuted and sustained serious injuries. She was subsequently hospitalized and, due to the injuries, became unable to continue with her daily activities. The Respondent attributed the incident to the Appellant’s negligence for, inter alia, allowing an exposed live wire to lie on the ground, failing to maintain the wire in a safe and secure position, failing to issue any warning or indication of the imminent danger, and generally failing to adhere to laid down safety regulations governing electrical installations. The Respondent also stated that her grandson, Stephen Kioni Wambui, who was with her at the time, suffered fatal injuries as a result of the same incident. She prayed for judgment against the Appellant for special damages in the sum of Kshs. 20,000/=, costs of future medical treatment, general damages under the Law Reform Act (Cap 26, Laws of Kenya) and the Fatal Accidents Act (Cap 32, Laws of Kenya), interest on special damages and future medical expenses at court rates, and the costs of the suit.
6. In response, the Appellant filed a statement of defence dated 25th May 2021, denying the claim in its entirety and attributing negligence to the Respondent. The Appellant contended that the Respondent was solely or substantially to blame for the incident for, inter alia, stepping on or touching live electrical wires, failing to exercise due care for her own safety, exposing herself to a known and foreseeable risk of harm, failing to avoid contact with the exposed wire, and failing to await assistance from the Appellant’s trained personnel or technicians. The Appellant further asserted that the Respondent voluntarily accepted the risk of injury, and her own recklessness and carelessness were the proximate cause of the injuries sustained.
Issues For Determination
7. Upon a careful perusal of the entire record and consideration of the parties’ submissions on the issues before this Court, the sole issue for determination is whether the Trial Court correctly assessed the award of general damages.
Analysis
8. This is a first Appeal. This Court is under a duty to re-evaluate and re-analyze afresh the evidence adduced before the Trial Court and draw its own independent conclusions. In doing so, the Court must bear in mind that the Trial Court had the advantage of seeing and hearing the witnesses firsthand — see Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123.
9. The Appellant submitted that the Trial Court erred in awarding general damages of Kshs. 500,000/= in the absence of specifically pleaded injuries in the Plaint dated 14th April 2021. It was contended that it is a cardinal rule of pleadings that parties are bound by their pleadings, and any evidence adduced which is at variance with those pleadings ought to be disregarded. The Respondent merely alleged having sustained injuries due to electrocution but did not set out the nature or particulars of such injuries, nor was the Plaint amended to include them.
10. In Nicolas v Wells Fargo Limited (Civil Appeal E099 of 2024) [2025] KEHC 2333 (KLR) (27 February 2025) (Judgment), the High Court reaffirmed the strict legal requirement that special damages must be both specifically pleaded and strictly proved. The Court stated:
“With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 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.””
11. As regards general damages, the decision in Ondoto v Kigotho (Civil Appeal E358 of 2023) [2024] KEHC 13223 (KLR) (31 October 2024) (Judgment) is instructive where the Court stated that:
“While he concurs that an award for general damages is an exercise of discretion of the trial court but it should be within limits set out in decided case law and must not be inordinately so low or so high to reflect an erroneous figure. It must also take into account prevailing economic environment, the trend of previous, recent and comparable awards.”
12. This position aligns with authoritative commentary in LexisNexis, ‘General Damages—Overview’ (PI & Clinical Negligence Quantum Database), general damages refer to those that cannot be precisely quantified, including non-pecuniary losses such as pain, suffering, and loss of amenity, as well as future pecuniary losses like future earnings and care. The LexisNexis overview on general damages states as follows:
“General damages are those damages which cannot be precisely calculated and an assessment of an appropriate sum is made. They include non-pecuniary loss (past and future) for pain and suffering and loss of amenity, handicap in the labour market, loss of congenial employment, loss of convenience etc future pecuniary loss, eg future loss of earnings, future care etc. In practice, the term general damages is often used to refer only to pain, suffering and loss of amenity (PSLA). Although this is the most common head of general damages in personal injury claims, it is not the only one. Care must therefore be taken to ensure that both parties are aware of exactly what is being referred to, particularly during the course of settlement negotiations.”
13. A conceptual foundation is also provided by Andrew James Bell in his doctoral thesis, Damages for Non-Pecuniary Loss in the Tort of Negligence: A Reconceptualisation (PhD thesis, University of Birmingham 2014) 7-8, general damages—distinct from special damages—refer to awards requiring imprecise assessment, such as non-pecuniary and future pecuniary losses. He explains that non-pecuniary loss damages are generally understood as compensatory damages for non-financial detriments. Bell articulates the position thus:
“‘General damages’ (as contrasted with ‘special damages’) are those portions of a damages award requiring imprecise assessment– i.e. non-pecuniary loss damages and future pecuniary loss. Non-pecuniary loss damages in the sense used here means what are generally referred to as compensatory damages for non-financial detriments ....”
14. In Transafric Timber Limited v Kenya Forest Service & 2 others (Constitutional Petition E003 of 2024) [2024] KEHC 9177 (KLR) (Election Petitions) (31 July 2024) (Judgment) the Court addressed the nature of general damages and stated that
“On general damages or non-pecuniary losses, the same are those damages that cannot be mathematically assessed at the trial date. These damages are not amenable to precise monetary quantification and are assessed by the Court, ordinarily guided by precedents of a similar nature.”
15. Turning to the evidentiary standard, Order 18 of the Civil Procedure Rules, 2010 (Cap 21, Laws of Kenya) prescribes the procedure for the conduct of trials, particularly the presentation of evidence. Order 18 Rules 1 and 2 provide that, unless the court directs otherwise, the Plaintiff has the right to begin by stating their case and adducing evidence on the issues they bear the burden of proving. The Defendant then states their case, produces evidence, and may address the Court, after which the Plaintiff may reply. Where the Defendant elects not to produce evidence, the Plaintiff retains the right to address the Court, followed by the Defendant, with a final right of reply reserved for the Plaintiff if new authorities are cited. Given these provisions, any deviation from this prescribed sequence of proceedings constitutes non-compliance with the Civil Procedure Act. In this case, the procedure adopted by the parties did not conform to the mandated framework. The Court is aware that parties may opted to produce the medical records by consent and then have the Court to proceed to assess the damages. As an Appellate Court this Court has a duty to ensure the proceeds before the Trial Court comply with the law. That they are procedurally fair so as to arrive at a just decision.
16. The Court notes that the Plaint before the Trial Court would not pass muster for a well drafted pleading. The injuries sustained by the Plaintiff are wholly absent from the Plaint.
17. Order 2 Rule 10 of the Civil Procedure Rules lays the requirement for parties to plead fully their case before the Court.
10. Particulars of pleading [Order 2, rule 10.]
(1) Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.
(2) The court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just.
(3) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of subrule (2), the court may, on such terms as it thinks just, order that party to serve on any other party—
(a) where he alleges knowledge, particulars of the facts on which he relies; and
(b) where he alleges notice, particulars of the notice.
(4) An order under this rule shall not be made before the filing of the defence unless the order is necessary or desirable to enable the defendant to plead or for some other special reason.
(5) No order for costs shall be made in favour of a party applying for an order who has not first applied by notice in Form No. 2 of Appendix B which shall be served in duplicate.
(6) Particulars delivered shall be in Form No. 3 of Appendix A which shall be filed by the party delivering it together with the original notice and shall form part of the pleadings.
18. This procedure was reiterated by the Court of Appeal in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR)where it was held that:
“The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the documents are filed, the documents though on the court file does not become part of the judicial record.
Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document.
Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the reference and veracity of the contents. This is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the documents when called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the court would look not at the document alone, but would take into consideration all facts and evidence on record.
19. The Court of Appeal further stated: -
“Once a document has been marked for identification it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for is authenticity and relevance to the facts of the case. Once the foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit; it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an authenticated account.”
20. The Court notes from the record that although the medical reports were filed at the inception of the suit and there was no dispute as to their existence during the hearing, the said documents were never formally produced in evidence, nor was the maker of the reports called to testify. This omission is significant in light of Order 18 of the Civil Procedure Rules, 2010, which prescribes the procedure for adducing evidence during trial. Under Order 18, Rules 1 and 2, it is incumbent upon the party bearing the burden of proof to first state their case and formally adduce evidence in support thereof. Any deviation from the prescribed evidentiary process—such as failing to produce a document through a competent witness or tender it as an exhibit—amounts to non-compliance with the Civil Procedure framework and may render the evidence inadmissible or devoid of probative value.
21. Nonetheless, this Court is satisfied—upon review of the full record and particularly the consent on liability recorded by both parties in the trial court—that liability against the Appellant stands. The Court finds guidance in Omar & another v Wachira (Civil Appeal 67 of 2022) [2023] KEHC 25664 (KLR) (23 November 2023) (Judgment), where the Court held that:
“I am of the Considered View that, the Respondent had not discharged the burden of proof and proved on a balance of probabilities, that the Appellants were negligent, causing the aforesaid accident and that as a result thereof he suffered loss and damage. The Consent on liability at the Ratio of 80:20 is indicative of where the blame lay.”
22. The Court notes that when the parties recorded the consent on liability, the intention was to have the Court assess the damages, if the parties could not agree on the same.
23. This is what the Trial Court recorded on on 12/7/2022;
Coram – Before R. Ng’ang’a SRM
Court clerk Lilian
Mr mariga – Present for the Claimants
M/s Njeri – Holding broef for Mr. Kiugu for defendant. We have a consent on liability.
BY CONSENT: Liability in the ration (sic) of 8020 in favour of the plaintiff against the defendant.
Mariga: I confirm.
Court – Consent adopted adopted as an order of the Court.
Mariga – I have fully complied.
Njeri – Hearing date for quantum.
24. This is very different from a situation where by the Defendant maintains that the Plaintiff suffered no injuries. In absence of the injuries being mentioned in the pleadings, the Court would be correct in holding that pleadings reveal no injuries and hence decline to make any award of damages based on the unpleaded injuries.
25. This scenario is not without precedent. In Gachuthi v Karanja & another [2024] KEHC 10066 (KLR) the Court stated as follows;
“I have considered this issue. I agree with the principle that parties are bound by their own pleadings. After finding the Respondent fully to blame for the accident, the trial court reasoned as follows in regard to an award of general damages for pain suffering and loss of amenities:
“Regarding general damages, the cardinal principle on award of general damages is that similar injuries should as far as possible attract similar awards.
In his testimony before the court, the Plaintiff indicated that he suffered a broken leg (fracture) necessitating a metal implant to be fixed on the injured leg. The medical report and discharge summary also indicated that the Plaintiff sustained a fracture of the midshaft femur (L). However, as rightly submitted by the Defendants, the Plaintiff never pleaded this injury in his plaint. Instead, the Plaintiff averred under Paragraph 8 of his Plaint that he sustained injuries which led to loss of blood, bodily pain and loss of amenities. The specific injuries sustained were not pleaded at all.”
The trial court declined to award general damages and relied on the case of Boniface Kinyua which she said was binding to her. She also declined to award damages for future medical expenses and loss of earning capacity. The record of the evidence adduced in the lower court shows that the Appellant, though he did not plead particulars of injuries in the Plaint, adduced evidence on the injuries he had sustained and tendered in evidence documentary evidence showing that he had been treated for fractured femur among other injuries.”
26. This Court is also bound by the decision of the Court of Appeal in Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR. The Court of Appeal in a case no very different from this one stated the following;
“Although the plaint in the suit in the trial court was poorly drafted and did not reflect the correct particulars of the injuries sustained by the appellant, the parties themselves agreed by consent which was recorded as an order of the court about the production of the documents relating to the injuries. In addition, the appellant’s witness, Dr. Wambugu Mungai, gave testimony and the medical report he had compiled was also produced as part of the documents. Clearly, in our view, the trial court had before it sufficient evidence on which to assess the damages. The finding therefore, by the learned trial Judge that “A party is bound by his pleading as there are no particulars of injuries that have been precisely pleaded, I would award Shs.100,000/= ...........” was, in our view, erroneous because it ignored the oral and documentary evidence that was placed before the court. The documentary evidence was by consent of the parties. There was no indication that the respondent had reneged on or resiled from the consent relating to the production of the documents. The court proceeded to assess damages on the erroneous basis that the injuries complained of were only those that featured in the plaint. In arriving at the award of Shs. 100,000/= the learned trial Judge failed to take into account all the evidence adduced which clearly showed that the injuries were more severe and more extensive. Consequently, the assessment of the damages by the learned trial Judge omitted a relevant factor and resulted in an award that was wholly erroneous. We have no hesitation in stating that there is sound basis in this appeal for interfering with the award of general damages.”
27. This Court there does not hesitate from stating that the parties having agreed on liablity, the Appellant cannot turn around and disown that they wished to have the general damages assessed by the Trial Court. The evidence presented before the Trail Court may not have been done elegantly but it was sufficient to assess the general damages.
28. However, in evaluating the Trial Court’s award of general damages, this Court finds material distinction between the present case and Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] KEHC 2803 (KLR), which authority was relied on by the Trial Court.
29. In Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] KEHC 2803 (KLR), the Court (Matheka J) upheld the trial court’s judgment in which the Respondent had been awarded: (i) liability against the Appellant at 100%; (ii) general damages of Kshs. 500,000/=; (iii) special damages of Kshs. 92,270/=; (iv) Kshs. 353,070/= for loss of future earning capacity; (v) Kshs. 50,000/= for costs of future medical treatment; and (vi) costs of the suit. In that case, the medical evidence was consistent and compelling. Dr. Kiamba, in a report dated 24th May 2017, assessed the Respondent as having sustained contractures on multiple fingers and a hypertrophic scar on the right thumb, with reduced function in both hands, resulting in a permanent disability of 20%. Similarly, Dr. Malik, in his report dated 25th May 2017, found the Respondent to have suffered a 10% permanent disability due to flexion deformities and stiffness in several fingers. Both doctors were in agreement that the Respondent had suffered permanent disability, and their opinions were consistent with the Respondent’s own testimony that he could no longer lift heavy objects or use tools essential to his trade as an electrician.
30. Accordingly, the Trial Court’s reliance on Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] KEHC 2803 (KLR) to justify an award of Kshs. 500,000/= is found to be misplaced. The circumstances and degree of injury in the two cases are materially different and do not warrant equivalent awards. The Respondent herein sustained burns limited to the right hand, which, according to the Court record, had substantially healed and left only a scar, with no recorded permanent disability. This award of general damages in the present case was excessive and not supported by comparable precedent or the degree of injury suffered.
31. For purposes of comparative jurisprudence, this Court has considered the following authorities. In Mary Wairimu Njuguna v Kenya Power & Lighting Company Limited [2018] KECA 770 (KLR), the Court awarded a sum of Kshs. 500,000/= as general damages for pain and suffering arising from injuries sustained due to electric shock. The claimant in that case suffered electrical burns on the right arm, blisters on the dorsum of the right hand, an eye injury, acute kidney shutdown, confusion, and bleeding on the lower back. In Eunice Adoyo Onyango v East African Growers Limited [2017] KEHC 1384 (KLR), the Court awarded Kshs. 500,000/= as general damages for pain and suffering where the Plaintiff had sustained significantly debilitating injuries, including deafness, the inability to lift her leg and arm, pain on the right side of the body, permanent hemiparesis, torticollis, permanent incapacity assessed at 80%, and amputation of the thumb and index finger.
32. In Butt v Khan [1981] KLR 349 the Court of Appeal set out the guiding principles on when an Appellate Court may interfere with an award of damages. It held:
“An Appellate court will not disturb an award of damages unless it is inordinately high or low as to represent and 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 law.”
33. Guided by the above principles and upon review of the comparative authorities and the nature of injuries sustained in the present case, this Court finds that the award of Kshs. 500,000/= as general damages was excessive in the circumstances.
34. The Court is of the view that an award of Kshs. 250,000/= is sufficient to compensate the Respondent herein.
35. As to costs, the Court is of the view that the Appellant has partially succeeded and each party should bear it’s or her owns costs of this Appeal.
Determination
36. The Appeal succeeds in part in that the award of general damages of Kshs. 500,000/= is hereby set aside and substituted with an award of general damages of Kshs. 250,000/= less 20% contribution which results to a final sum of Khs. 200,000/=.
37. The part of the Judgement and Decree of the Trial Court relating to general damages is set aside and replaced with orders as above.
38. Each party shall bear their own costs of this Appeal.
39. It is so ordered.
DATED, SIGNED AND DELIVERED AT THIKA THIS 07TH DAY OF AUGUST 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Njeri holding brief for Mr. Kiugu for the Appellant.
Mr. Mariga for the Respondent.
Susan Nzioka – Court Assistant
1. This is the judgment in respect of the Appellant’s Appeal dated 16th December 2022. It arose from the judgment and decree delivered on 29th November 2022 in Gatundu Chief Magistrate’s Court by Hon. R.N. Ng’ang’a (Senior Resident Magistrate).
2. The Appellant is aggrieved by the decision of the Trial Court on the grounds that it erred in awarding the Respondent Kshs. 500,000 (less 20% contributory negligence) as general damages. This is for the reason that the injuries were not specifically pleaded in the plaint. That this thereby disregarded the well-established principle of law that parties are bound by their pleadings. That injuries sustained must be clearly pleaded and particularized. The Appellant contends that the Trial Court further erred by failing to address and pronounce itself on all the issues raised in the Appellant’s submissions, particularly the issue that the specific injuries relied upon in the judgment were neither pleaded nor supported by the pleadings, and that any evidence adduced contrary to such pleadings ought to have been disregarded. The Appellant also faults the Trial Court for relying on documents that were never formally produced and marked as exhibits in Court, thereby rendering the award of Kshs. 500,000 (less 20%) on quantum erroneous.
3. The Trial Court entered judgment in favour of the Respondent in the following terms:
(i) Liability agreed at 80:20 % in favor of the Plaintiff against the Defendant.
(ii) General damages Kshs. 500,000/= Less 20% contribution = Kshs. 400,000/=
(iii) Special Damages NIL
(iv) Costs and interest of the suit to the Plaintiff.
4. This matter came up under the Rapid Results Initiative (RRI). That pursuant to the directions of the Court, the Appeal was to be determined by way of written submissions. The Court has carefully perused and considered the written submissions filed by the parties, namely, the Appellant’s submissions dated 17th July 2024 and the Respondents’ submissions dated 24th July 2024. The Court appreciates the industry and diligence of counsel in the presentation and citation of the various authorities relied upon. This decision has delayed and the Court apologises for any inconveniences suffered by the parties.
Brief Facts
5. The Respondent filed Plaint before the Trial Court dated 14th April 2021. She averred that on or about 21st April 2018, while in the company of her grandson in Kariua Village attending to farm chores, she stepped on a live electric wire negligently left lying on the ground. As a result, she was electrocuted and sustained serious injuries. She was subsequently hospitalized and, due to the injuries, became unable to continue with her daily activities. The Respondent attributed the incident to the Appellant’s negligence for, inter alia, allowing an exposed live wire to lie on the ground, failing to maintain the wire in a safe and secure position, failing to issue any warning or indication of the imminent danger, and generally failing to adhere to laid down safety regulations governing electrical installations. The Respondent also stated that her grandson, Stephen Kioni Wambui, who was with her at the time, suffered fatal injuries as a result of the same incident. She prayed for judgment against the Appellant for special damages in the sum of Kshs. 20,000/=, costs of future medical treatment, general damages under the Law Reform Act (Cap 26, Laws of Kenya) and the Fatal Accidents Act (Cap 32, Laws of Kenya), interest on special damages and future medical expenses at court rates, and the costs of the suit.
6. In response, the Appellant filed a statement of defence dated 25th May 2021, denying the claim in its entirety and attributing negligence to the Respondent. The Appellant contended that the Respondent was solely or substantially to blame for the incident for, inter alia, stepping on or touching live electrical wires, failing to exercise due care for her own safety, exposing herself to a known and foreseeable risk of harm, failing to avoid contact with the exposed wire, and failing to await assistance from the Appellant’s trained personnel or technicians. The Appellant further asserted that the Respondent voluntarily accepted the risk of injury, and her own recklessness and carelessness were the proximate cause of the injuries sustained.
Issues For Determination
7. Upon a careful perusal of the entire record and consideration of the parties’ submissions on the issues before this Court, the sole issue for determination is whether the Trial Court correctly assessed the award of general damages.
Analysis
8. This is a first Appeal. This Court is under a duty to re-evaluate and re-analyze afresh the evidence adduced before the Trial Court and draw its own independent conclusions. In doing so, the Court must bear in mind that the Trial Court had the advantage of seeing and hearing the witnesses firsthand — see Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123.
9. The Appellant submitted that the Trial Court erred in awarding general damages of Kshs. 500,000/= in the absence of specifically pleaded injuries in the Plaint dated 14th April 2021. It was contended that it is a cardinal rule of pleadings that parties are bound by their pleadings, and any evidence adduced which is at variance with those pleadings ought to be disregarded. The Respondent merely alleged having sustained injuries due to electrocution but did not set out the nature or particulars of such injuries, nor was the Plaint amended to include them.
10. In Nicolas v Wells Fargo Limited (Civil Appeal E099 of 2024) [2025] KEHC 2333 (KLR) (27 February 2025) (Judgment), the High Court reaffirmed the strict legal requirement that special damages must be both specifically pleaded and strictly proved. The Court stated:
“With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 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.””
11. As regards general damages, the decision in Ondoto v Kigotho (Civil Appeal E358 of 2023) [2024] KEHC 13223 (KLR) (31 October 2024) (Judgment) is instructive where the Court stated that:
“While he concurs that an award for general damages is an exercise of discretion of the trial court but it should be within limits set out in decided case law and must not be inordinately so low or so high to reflect an erroneous figure. It must also take into account prevailing economic environment, the trend of previous, recent and comparable awards.”
12. This position aligns with authoritative commentary in LexisNexis, ‘General Damages—Overview’ (PI & Clinical Negligence Quantum Database), general damages refer to those that cannot be precisely quantified, including non-pecuniary losses such as pain, suffering, and loss of amenity, as well as future pecuniary losses like future earnings and care. The LexisNexis overview on general damages states as follows:
“General damages are those damages which cannot be precisely calculated and an assessment of an appropriate sum is made. They include non-pecuniary loss (past and future) for pain and suffering and loss of amenity, handicap in the labour market, loss of congenial employment, loss of convenience etc future pecuniary loss, eg future loss of earnings, future care etc. In practice, the term general damages is often used to refer only to pain, suffering and loss of amenity (PSLA). Although this is the most common head of general damages in personal injury claims, it is not the only one. Care must therefore be taken to ensure that both parties are aware of exactly what is being referred to, particularly during the course of settlement negotiations.”
13. A conceptual foundation is also provided by Andrew James Bell in his doctoral thesis, Damages for Non-Pecuniary Loss in the Tort of Negligence: A Reconceptualisation (PhD thesis, University of Birmingham 2014) 7-8, general damages—distinct from special damages—refer to awards requiring imprecise assessment, such as non-pecuniary and future pecuniary losses. He explains that non-pecuniary loss damages are generally understood as compensatory damages for non-financial detriments. Bell articulates the position thus:
“‘General damages’ (as contrasted with ‘special damages’) are those portions of a damages award requiring imprecise assessment– i.e. non-pecuniary loss damages and future pecuniary loss. Non-pecuniary loss damages in the sense used here means what are generally referred to as compensatory damages for non-financial detriments ....”
14. In Transafric Timber Limited v Kenya Forest Service & 2 others (Constitutional Petition E003 of 2024) [2024] KEHC 9177 (KLR) (Election Petitions) (31 July 2024) (Judgment) the Court addressed the nature of general damages and stated that
“On general damages or non-pecuniary losses, the same are those damages that cannot be mathematically assessed at the trial date. These damages are not amenable to precise monetary quantification and are assessed by the Court, ordinarily guided by precedents of a similar nature.”
15. Turning to the evidentiary standard, Order 18 of the Civil Procedure Rules, 2010 (Cap 21, Laws of Kenya) prescribes the procedure for the conduct of trials, particularly the presentation of evidence. Order 18 Rules 1 and 2 provide that, unless the court directs otherwise, the Plaintiff has the right to begin by stating their case and adducing evidence on the issues they bear the burden of proving. The Defendant then states their case, produces evidence, and may address the Court, after which the Plaintiff may reply. Where the Defendant elects not to produce evidence, the Plaintiff retains the right to address the Court, followed by the Defendant, with a final right of reply reserved for the Plaintiff if new authorities are cited. Given these provisions, any deviation from this prescribed sequence of proceedings constitutes non-compliance with the Civil Procedure Act. In this case, the procedure adopted by the parties did not conform to the mandated framework. The Court is aware that parties may opted to produce the medical records by consent and then have the Court to proceed to assess the damages. As an Appellate Court this Court has a duty to ensure the proceeds before the Trial Court comply with the law. That they are procedurally fair so as to arrive at a just decision.
16. The Court notes that the Plaint before the Trial Court would not pass muster for a well drafted pleading. The injuries sustained by the Plaintiff are wholly absent from the Plaint.
17. Order 2 Rule 10 of the Civil Procedure Rules lays the requirement for parties to plead fully their case before the Court.
10. Particulars of pleading [Order 2, rule 10.]
(1) Subject to subrule (2), every pleading shall contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing—
(a) particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
(b) where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.
(2) The court may order a party to serve on any other party particulars of any claim, defence or other matter stated in his pleading, or a statement of the nature of the case on which he relies, and the order may be made on such terms as the court thinks just.
(3) Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of subrule (2), the court may, on such terms as it thinks just, order that party to serve on any other party—
(a) where he alleges knowledge, particulars of the facts on which he relies; and
(b) where he alleges notice, particulars of the notice.
(4) An order under this rule shall not be made before the filing of the defence unless the order is necessary or desirable to enable the defendant to plead or for some other special reason.
(5) No order for costs shall be made in favour of a party applying for an order who has not first applied by notice in Form No. 2 of Appendix B which shall be served in duplicate.
(6) Particulars delivered shall be in Form No. 3 of Appendix A which shall be filed by the party delivering it together with the original notice and shall form part of the pleadings.
18. This procedure was reiterated by the Court of Appeal in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR)where it was held that:
“The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the documents are filed, the documents though on the court file does not become part of the judicial record.
Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document.
Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the reference and veracity of the contents. This is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the documents when called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the court would look not at the document alone, but would take into consideration all facts and evidence on record.
19. The Court of Appeal further stated: -
“Once a document has been marked for identification it must be proved. A witness must produce the document and tender it in evidence as an exhibit and lay foundation for is authenticity and relevance to the facts of the case. Once the foundation is laid, the witness must move the court to have the document produced as an exhibit and be part of the court record. If the document is not marked as an exhibit; it is not part of the record. If admitted into evidence and not formally produced and proved, the document would only be hearsay, untested and an authenticated account.”
20. The Court notes from the record that although the medical reports were filed at the inception of the suit and there was no dispute as to their existence during the hearing, the said documents were never formally produced in evidence, nor was the maker of the reports called to testify. This omission is significant in light of Order 18 of the Civil Procedure Rules, 2010, which prescribes the procedure for adducing evidence during trial. Under Order 18, Rules 1 and 2, it is incumbent upon the party bearing the burden of proof to first state their case and formally adduce evidence in support thereof. Any deviation from the prescribed evidentiary process—such as failing to produce a document through a competent witness or tender it as an exhibit—amounts to non-compliance with the Civil Procedure framework and may render the evidence inadmissible or devoid of probative value.
21. Nonetheless, this Court is satisfied—upon review of the full record and particularly the consent on liability recorded by both parties in the trial court—that liability against the Appellant stands. The Court finds guidance in Omar & another v Wachira (Civil Appeal 67 of 2022) [2023] KEHC 25664 (KLR) (23 November 2023) (Judgment), where the Court held that:
“I am of the Considered View that, the Respondent had not discharged the burden of proof and proved on a balance of probabilities, that the Appellants were negligent, causing the aforesaid accident and that as a result thereof he suffered loss and damage. The Consent on liability at the Ratio of 80:20 is indicative of where the blame lay.”
22. The Court notes that when the parties recorded the consent on liability, the intention was to have the Court assess the damages, if the parties could not agree on the same.
23. This is what the Trial Court recorded on on 12/7/2022;
Coram – Before R. Ng’ang’a SRM
Court clerk Lilian
Mr mariga – Present for the Claimants
M/s Njeri – Holding broef for Mr. Kiugu for defendant. We have a consent on liability.
BY CONSENT: Liability in the ration (sic) of 8020 in favour of the plaintiff against the defendant.
Mariga: I confirm.
Court – Consent adopted adopted as an order of the Court.
Mariga – I have fully complied.
Njeri – Hearing date for quantum.
24. This is very different from a situation where by the Defendant maintains that the Plaintiff suffered no injuries. In absence of the injuries being mentioned in the pleadings, the Court would be correct in holding that pleadings reveal no injuries and hence decline to make any award of damages based on the unpleaded injuries.
25. This scenario is not without precedent. In Gachuthi v Karanja & another [2024] KEHC 10066 (KLR) the Court stated as follows;
“I have considered this issue. I agree with the principle that parties are bound by their own pleadings. After finding the Respondent fully to blame for the accident, the trial court reasoned as follows in regard to an award of general damages for pain suffering and loss of amenities:
“Regarding general damages, the cardinal principle on award of general damages is that similar injuries should as far as possible attract similar awards.
In his testimony before the court, the Plaintiff indicated that he suffered a broken leg (fracture) necessitating a metal implant to be fixed on the injured leg. The medical report and discharge summary also indicated that the Plaintiff sustained a fracture of the midshaft femur (L). However, as rightly submitted by the Defendants, the Plaintiff never pleaded this injury in his plaint. Instead, the Plaintiff averred under Paragraph 8 of his Plaint that he sustained injuries which led to loss of blood, bodily pain and loss of amenities. The specific injuries sustained were not pleaded at all.”
The trial court declined to award general damages and relied on the case of Boniface Kinyua which she said was binding to her. She also declined to award damages for future medical expenses and loss of earning capacity. The record of the evidence adduced in the lower court shows that the Appellant, though he did not plead particulars of injuries in the Plaint, adduced evidence on the injuries he had sustained and tendered in evidence documentary evidence showing that he had been treated for fractured femur among other injuries.”
26. This Court is also bound by the decision of the Court of Appeal in Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR. The Court of Appeal in a case no very different from this one stated the following;
“Although the plaint in the suit in the trial court was poorly drafted and did not reflect the correct particulars of the injuries sustained by the appellant, the parties themselves agreed by consent which was recorded as an order of the court about the production of the documents relating to the injuries. In addition, the appellant’s witness, Dr. Wambugu Mungai, gave testimony and the medical report he had compiled was also produced as part of the documents. Clearly, in our view, the trial court had before it sufficient evidence on which to assess the damages. The finding therefore, by the learned trial Judge that “A party is bound by his pleading as there are no particulars of injuries that have been precisely pleaded, I would award Shs.100,000/= ...........” was, in our view, erroneous because it ignored the oral and documentary evidence that was placed before the court. The documentary evidence was by consent of the parties. There was no indication that the respondent had reneged on or resiled from the consent relating to the production of the documents. The court proceeded to assess damages on the erroneous basis that the injuries complained of were only those that featured in the plaint. In arriving at the award of Shs. 100,000/= the learned trial Judge failed to take into account all the evidence adduced which clearly showed that the injuries were more severe and more extensive. Consequently, the assessment of the damages by the learned trial Judge omitted a relevant factor and resulted in an award that was wholly erroneous. We have no hesitation in stating that there is sound basis in this appeal for interfering with the award of general damages.”
27. This Court there does not hesitate from stating that the parties having agreed on liablity, the Appellant cannot turn around and disown that they wished to have the general damages assessed by the Trial Court. The evidence presented before the Trail Court may not have been done elegantly but it was sufficient to assess the general damages.
28. However, in evaluating the Trial Court’s award of general damages, this Court finds material distinction between the present case and Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] KEHC 2803 (KLR), which authority was relied on by the Trial Court.
29. In Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] KEHC 2803 (KLR), the Court (Matheka J) upheld the trial court’s judgment in which the Respondent had been awarded: (i) liability against the Appellant at 100%; (ii) general damages of Kshs. 500,000/=; (iii) special damages of Kshs. 92,270/=; (iv) Kshs. 353,070/= for loss of future earning capacity; (v) Kshs. 50,000/= for costs of future medical treatment; and (vi) costs of the suit. In that case, the medical evidence was consistent and compelling. Dr. Kiamba, in a report dated 24th May 2017, assessed the Respondent as having sustained contractures on multiple fingers and a hypertrophic scar on the right thumb, with reduced function in both hands, resulting in a permanent disability of 20%. Similarly, Dr. Malik, in his report dated 25th May 2017, found the Respondent to have suffered a 10% permanent disability due to flexion deformities and stiffness in several fingers. Both doctors were in agreement that the Respondent had suffered permanent disability, and their opinions were consistent with the Respondent’s own testimony that he could no longer lift heavy objects or use tools essential to his trade as an electrician.
30. Accordingly, the Trial Court’s reliance on Spin Knit Limited v Benard Kiplangat Cheruiyot [2022] KEHC 2803 (KLR) to justify an award of Kshs. 500,000/= is found to be misplaced. The circumstances and degree of injury in the two cases are materially different and do not warrant equivalent awards. The Respondent herein sustained burns limited to the right hand, which, according to the Court record, had substantially healed and left only a scar, with no recorded permanent disability. This award of general damages in the present case was excessive and not supported by comparable precedent or the degree of injury suffered.
31. For purposes of comparative jurisprudence, this Court has considered the following authorities. In Mary Wairimu Njuguna v Kenya Power & Lighting Company Limited [2018] KECA 770 (KLR), the Court awarded a sum of Kshs. 500,000/= as general damages for pain and suffering arising from injuries sustained due to electric shock. The claimant in that case suffered electrical burns on the right arm, blisters on the dorsum of the right hand, an eye injury, acute kidney shutdown, confusion, and bleeding on the lower back. In Eunice Adoyo Onyango v East African Growers Limited [2017] KEHC 1384 (KLR), the Court awarded Kshs. 500,000/= as general damages for pain and suffering where the Plaintiff had sustained significantly debilitating injuries, including deafness, the inability to lift her leg and arm, pain on the right side of the body, permanent hemiparesis, torticollis, permanent incapacity assessed at 80%, and amputation of the thumb and index finger.
32. In Butt v Khan [1981] KLR 349 the Court of Appeal set out the guiding principles on when an Appellate Court may interfere with an award of damages. It held:
“An Appellate court will not disturb an award of damages unless it is inordinately high or low as to represent and 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 law.”
33. Guided by the above principles and upon review of the comparative authorities and the nature of injuries sustained in the present case, this Court finds that the award of Kshs. 500,000/= as general damages was excessive in the circumstances.
34. The Court is of the view that an award of Kshs. 250,000/= is sufficient to compensate the Respondent herein.
35. As to costs, the Court is of the view that the Appellant has partially succeeded and each party should bear it’s or her owns costs of this Appeal.
Determination
36. The Appeal succeeds in part in that the award of general damages of Kshs. 500,000/= is hereby set aside and substituted with an award of general damages of Kshs. 250,000/= less 20% contribution which results to a final sum of Khs. 200,000/=.
37. The part of the Judgement and Decree of the Trial Court relating to general damages is set aside and replaced with orders as above.
38. Each party shall bear their own costs of this Appeal.
39. It is so ordered.
DATED, SIGNED AND DELIVERED AT THIKA THIS 07TH DAY OF AUGUST 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of;
Miss Njeri holding brief for Mr. Kiugu for the Appellant.
Mr. Mariga for the Respondent.
Susan Nzioka – Court Assistant