(Being an appeal from the judgement of Hon. M.W Murage in Milimani CCC number 6806 of 2019 dated 28.7.2023)
The appellant sued the respondents in Milimani CCC No. 6806 of 2019, seeking general damages, special damages, costs and interest, on account of a road traffic accident which occurred on 6.9.2017. Her case was that she was a lawful passenger in motor vehicle registration No. KCJ 2424L along Thika road, when the 2nd respondent drove motor vehicle registration No. KWN 383 so recklessly that he caused the same to hit motor vehicle registration KCJ 424L, as a result of which the appellant sustained bodily injuries.
The respondents did not file a response to the suit as a consequence of which, interlocutory judgment was entered against them. The matter was set down for formal proof where the only issue was the assessment of quantum of damages payable to the appellant.
The appellant testified that she suffered injuries involving extensive skin and muscle loss on the right leg (degloving injury), fracture of the right femur, fracture of the right tibia plateau and fracture of the shaft of the right tibia. She underwent surgery and fracture of the right femur was fixed with a metal plate implant. She was admitted at Nairobi Hospital from 6.9.2017 to 2.11.2017. She incurred huge medical expenses, paid a sum of Kshs 150,000 and was discharged upon giving an undertaking for the sum of Kshs 2,662,080 from Nairobi Hospital.
The trial magistrate considered the evidence and awarded general damages for pain and suffering amounting to Kshs 2,000,000. The trial court also awarded Kshs 100,000 as costs of future medical expenses.
As regards a claim of Kshs 2,662,080, which was with respect to an undertaking agreement with Nairobi Hospital, the trial magistrate held that there was no proof that the undertaking was honoured. The claim was therefore denied. The court also awarded special damages of Kshs 2,550.
The appellant challenges the judgment of the trial court on three main grounds:
a) That the learned magistrate erred in failing to make an award for special damages despite the same being pleaded and proved in the amended plaint dated 8.9.2022.
b) That the trial magistrate erred in not making an award for the undertaking for Kshs 2,662,080 despite the same being pleaded in the amended plaint.
c) That the trial magistrate erred in failing to award Kshs 150,000 being medical expenses despite the same being pleaded.
The appellant filed submissions in support of the appeal. There were no submissions from the respondents.
The appellant submitted that the amended plaint clearly pleaded the sum regarding the undertaking at paragraph seven of the amended plaint. That the trial magistrate misdirected herself by failing to appreciate what an undertaking is. That the finding that the undertaking was not honoured was a misdirection.
The appellant further submitted that the trial magistrate omitted to award Kshs 150,000 for medical expenses yet the same was pleaded and proved as required.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the court is to re-consider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
This principle was stated by the Court of Appeal in Selle & Another -v- Associated Motor Boat Co. Ltd & Others (1968) EA 123 and Peters v Sunday Post Ltd (1958) EA 424 .
It is clear from the memorandum of appeal that the appellant challenges the award on quantum. The court should therefore determine whether the trial magistrate correctly addressed his mind to the evidence and law on special damages.
The principles upon which an appellate court may interfere with an award of damages are now settled.
In Butt -v- Khan (1981) KLR 349 , the Court of Appeal held that an appellate court should not disturb an award of damages unless it is shown that the trial court proceeded on wrong principles, misapprehended the evidence, took into account an irrelevant factor, failed to take into account a relevant factor, or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages suffered. The same principle was reiterated in Kemfro Africa Ltd T/A Meru Express Services & Another -v- Lubia & Another (1987) KLR 30 .
The appeal herein concerns special damages. It is trite law that special damages must not only be specifically pleaded but the same must be strictly proved.
In Coast Bus Service Ltd -v- Sisco & Murunga, Civil Appeal No. 192 of 1992 (Nairobi)(unreported) , the Court of Appeal stated:
"We would restate the position that special damages must be pleaded with as much particularity as circumstances permit and, in this connection, it is not enough to simply aver in the plaint as was done in the case that the particulars of special damages were to be supplied at the time of trial.... It is only where the particulars of special damages are pleaded in the plaint that a claimant will be allowed to proceed to the strict proof of those particulars."
As regards the claim for medical expenses amounting to Kshs 150,000, there is evidence on record that the same was specifically pleaded and strictly proved by production of a receipt for the said amount. There is no valid reason why the same was not awarded. The learned magistrate was clearly in error in failing to take into account an exhibit which was on record.
The appellant further faults the trial court for failure to award Ksh 2,662,080 which, though pleaded, was allegedly not proved as per the impugned judgement. As regards the said claim, the trial court held.
“She also prayed for medical expenses for which she submitted. She had produced an undertaking agreement with Nairobi hospital which proved she was to pay the hospital Ksh 2,662,080. However, there is no proof the said undertaking was honored hence this claim must fail” .
From the record and in particular, an undertaking agreement produced as an exhibit, and the in-patient bill produced in evidence, there is no doubt that the appellant incurred a huge bill resulting from hospitalisation occasioned by the injuries sustained in the accident. The appellant was discharged from hospital on the understanding that she will have the said sum paid. The undertaking show that a title deed was deposited with the hospital as guarantee for the said sum.
Special damages are awarded to pay back for specific out of pocket financial losses caused by an accident. The primary purpose is to compensate and the aim should be to put a claimant in the exact financial position he/she was in before the harm happened.
The appellant herein sustained injuries which had her hospitalised and as a result she incurred a huge bill which necessitated deposit of a title deed to secure her release. It is not disputed that the bill was as a result of the wrong occasioned to her by the respondent.
To deny her payment of that sum merely because she has not produced receipts will defeat the very purpose for which special damages are awarded.
In the case of John Richard Okuku Oloo -v- South Nyanza Sugar Co. Ltd (2013) KECA 73(KLR) the court of appeal held;
“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of” .
The court of appeal in the above case cited with approval the holding in Coast Bus Services Ltd -v- Murunga & Others . Nairobi Civil Appeal number 192 of 1992(unreported) where it was held as follow;
“It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma -vs- Nairobi City Council [1976] K.R 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni, J. quoted in support the following passage from Bowen L. J’s judgment on pages 532- 533 in [1892] Q.B 524, an English leading case of pleading and proof of damage. “The Character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much as certainty and particularity must be insisted on both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” (Emphasis added )
The fact that the special damages were not supported by production of receipts, yet there is clear evidence that they were incurred cannot relieve the wrongdoer of the necessity of paying damages for the wrong it committed.
I accordingly find that the pleading on special damages suffered by the appellant was clear and the evidence adduced as proof was sufficient enough. The trial magistrate was in error to disallow the claim on the ground that it was not strictly proved.
Having found that the learned trial magistrate was in error in his findings, this appeal has merit and is accordingly allowed. The orders of the trial magistrate disallowing the special damages of Kshs 150,000 and Ksh 2,662,080 are set aside and substituted thereof with one allowing the claim with costs before the trial court and before this court. The said award shall attract interest from the date of the amended plaint which was on 8.9.2022.
DATED, SIGNED AND DELIVERED THIS 14th July 2026.
D.O ONYANGO
JUDGE
2
The appellant sued the respondents in Milimani CCC No. 6806 of 2019, seeking general damages, special damages, costs and interest, on account of a road traffic accident which occurred on 6.9.2017. Her case was that she was a lawful passenger in motor vehicle registration No. KCJ 2424L along Thika road, when the 2nd respondent drove motor vehicle registration No. KWN 383 so recklessly that he caused the same to hit motor vehicle registration KCJ 424L, as a result of which the appellant sustained bodily injuries.
The respondents did not file a response to the suit as a consequence of which, interlocutory judgment was entered against them. The matter was set down for formal proof where the only issue was the assessment of quantum of damages payable to the appellant.
The appellant testified that she suffered injuries involving extensive skin and muscle loss on the right leg (degloving injury), fracture of the right femur, fracture of the right tibia plateau and fracture of the shaft of the right tibia. She underwent surgery and fracture of the right femur was fixed with a metal plate implant. She was admitted at Nairobi Hospital from 6.9.2017 to 2.11.2017. She incurred huge medical expenses, paid a sum of Kshs 150,000 and was discharged upon giving an undertaking for the sum of Kshs 2,662,080 from Nairobi Hospital.
The trial magistrate considered the evidence and awarded general damages for pain and suffering amounting to Kshs 2,000,000. The trial court also awarded Kshs 100,000 as costs of future medical expenses.
As regards a claim of Kshs 2,662,080, which was with respect to an undertaking agreement with Nairobi Hospital, the trial magistrate held that there was no proof that the undertaking was honoured. The claim was therefore denied. The court also awarded special damages of Kshs 2,550.
The appellant challenges the judgment of the trial court on three main grounds:
a) That the learned magistrate erred in failing to make an award for special damages despite the same being pleaded and proved in the amended plaint dated 8.9.2022.
b) That the trial magistrate erred in not making an award for the undertaking for Kshs 2,662,080 despite the same being pleaded in the amended plaint.
c) That the trial magistrate erred in failing to award Kshs 150,000 being medical expenses despite the same being pleaded.
The appellant filed submissions in support of the appeal. There were no submissions from the respondents.
The appellant submitted that the amended plaint clearly pleaded the sum regarding the undertaking at paragraph seven of the amended plaint. That the trial magistrate misdirected herself by failing to appreciate what an undertaking is. That the finding that the undertaking was not honoured was a misdirection.
The appellant further submitted that the trial magistrate omitted to award Kshs 150,000 for medical expenses yet the same was pleaded and proved as required.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the court is to re-consider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify.
This principle was stated by the Court of Appeal in Selle & Another -v- Associated Motor Boat Co. Ltd & Others (1968) EA 123 and Peters v Sunday Post Ltd (1958) EA 424 .
It is clear from the memorandum of appeal that the appellant challenges the award on quantum. The court should therefore determine whether the trial magistrate correctly addressed his mind to the evidence and law on special damages.
The principles upon which an appellate court may interfere with an award of damages are now settled.
In Butt -v- Khan (1981) KLR 349 , the Court of Appeal held that an appellate court should not disturb an award of damages unless it is shown that the trial court proceeded on wrong principles, misapprehended the evidence, took into account an irrelevant factor, failed to take into account a relevant factor, or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages suffered. The same principle was reiterated in Kemfro Africa Ltd T/A Meru Express Services & Another -v- Lubia & Another (1987) KLR 30 .
The appeal herein concerns special damages. It is trite law that special damages must not only be specifically pleaded but the same must be strictly proved.
In Coast Bus Service Ltd -v- Sisco & Murunga, Civil Appeal No. 192 of 1992 (Nairobi)(unreported) , the Court of Appeal stated:
"We would restate the position that special damages must be pleaded with as much particularity as circumstances permit and, in this connection, it is not enough to simply aver in the plaint as was done in the case that the particulars of special damages were to be supplied at the time of trial.... It is only where the particulars of special damages are pleaded in the plaint that a claimant will be allowed to proceed to the strict proof of those particulars."
As regards the claim for medical expenses amounting to Kshs 150,000, there is evidence on record that the same was specifically pleaded and strictly proved by production of a receipt for the said amount. There is no valid reason why the same was not awarded. The learned magistrate was clearly in error in failing to take into account an exhibit which was on record.
The appellant further faults the trial court for failure to award Ksh 2,662,080 which, though pleaded, was allegedly not proved as per the impugned judgement. As regards the said claim, the trial court held.
“She also prayed for medical expenses for which she submitted. She had produced an undertaking agreement with Nairobi hospital which proved she was to pay the hospital Ksh 2,662,080. However, there is no proof the said undertaking was honored hence this claim must fail” .
From the record and in particular, an undertaking agreement produced as an exhibit, and the in-patient bill produced in evidence, there is no doubt that the appellant incurred a huge bill resulting from hospitalisation occasioned by the injuries sustained in the accident. The appellant was discharged from hospital on the understanding that she will have the said sum paid. The undertaking show that a title deed was deposited with the hospital as guarantee for the said sum.
Special damages are awarded to pay back for specific out of pocket financial losses caused by an accident. The primary purpose is to compensate and the aim should be to put a claimant in the exact financial position he/she was in before the harm happened.
The appellant herein sustained injuries which had her hospitalised and as a result she incurred a huge bill which necessitated deposit of a title deed to secure her release. It is not disputed that the bill was as a result of the wrong occasioned to her by the respondent.
To deny her payment of that sum merely because she has not produced receipts will defeat the very purpose for which special damages are awarded.
In the case of John Richard Okuku Oloo -v- South Nyanza Sugar Co. Ltd (2013) KECA 73(KLR) the court of appeal held;
“We agree with the learned judge that a claim for special damages must indeed be specifically pleaded and proved with a degree of certainty and particularity but we must add that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of” .
The court of appeal in the above case cited with approval the holding in Coast Bus Services Ltd -v- Murunga & Others . Nairobi Civil Appeal number 192 of 1992(unreported) where it was held as follow;
“It has time and again been held by the courts in Kenya that a claim for each particular type of special damage must be pleaded. In Ouma -vs- Nairobi City Council [1976] K.R 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni, J. quoted in support the following passage from Bowen L. J’s judgment on pages 532- 533 in [1892] Q.B 524, an English leading case of pleading and proof of damage. “The Character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much as certainty and particularity must be insisted on both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” (Emphasis added )
The fact that the special damages were not supported by production of receipts, yet there is clear evidence that they were incurred cannot relieve the wrongdoer of the necessity of paying damages for the wrong it committed.
I accordingly find that the pleading on special damages suffered by the appellant was clear and the evidence adduced as proof was sufficient enough. The trial magistrate was in error to disallow the claim on the ground that it was not strictly proved.
Having found that the learned trial magistrate was in error in his findings, this appeal has merit and is accordingly allowed. The orders of the trial magistrate disallowing the special damages of Kshs 150,000 and Ksh 2,662,080 are set aside and substituted thereof with one allowing the claim with costs before the trial court and before this court. The said award shall attract interest from the date of the amended plaint which was on 8.9.2022.
DATED, SIGNED AND DELIVERED THIS 14th July 2026.
D.O ONYANGO
JUDGE
2