Background
1. This Appeal is from the decision of the court in Milimani CMCC No. 4971 of 2020 in which the Respondent/Cross-Appellant (hereinafter referred to as “the Respondent”) sued the Appellant/respondent in the cross-appeal (hereinafter referred to as “the Appellant”) seeking compensation for injuries suffered on 13th March 2020 in a road traffic accident.
2. It was pleaded by the Respondent in the lower court that he was a fare paying passenger aboard motor vehicle registration number KCJ 065B when the said motor vehicle lost control, rolled and overturned along Jogoo Road, thereby causing him the injuries.
3. On 2nd December 2022 the trial court delivered its judgment and apportioned liability in the ratio of 90:10 in favour of the Respondent. The court also issued the following awards in favour of the Respondent; -
a) General damages at Kshs. 700,000/-
b) Future Medical expenses – Kshs. 120,000/-
c) Costs of the Suit and Interest
The Appeal
4. Dissatisfied with the decision of the trial court, the Appellant, vide his memorandum of appeal dated 25th April 2023 appealed to this Court against the trial court’s decision raising six grounds of appeal. However, in his submissions to this court, the Appellant argued the appeal solely on the issue of quantum of damages awarded by the trial court.
5. It was the Appellant’s position in this appeal that the sum of Kshs. 700,000/- awarded by the trial court as compensation in general damages for pain, suffering and loss of amenities was high and excessive in the circumstances of the case.
6. Additionally, the Appellant challenged the award of Kshs.120,000 as the cost of future medical expenses by the trial court. According to the Appellant the amount was issued without any concrete evidence in support thereof.
The Cross-Appeal
7. The Respondent also filed a memorandum of cross-appeal dated 12th April 2024 raising the following five grounds; -
i. That the learned trial Magistrate erred in law and in fact in apportioning liability against the Respondent and failing to appreciate that the Respondent was a fare paying passenger in the suit motor vehicle and thus could not have been liable for the occurrence of the said accident.
ii. That the learned trial Magistrate erred in law and in fact in failing to address his mind on the evidence adduced and hence made an erroneous determination in apportioning liability against the Respondent.
iii. That the learned trial magistrate in assessing the quantum of damages took into account wrong decision and made an award to the Respondent of Kshs. 700,000/- which sum is manifestly too low in the circumstances of the case.
iv. That the learned trial Magistrate erred in law and in fact by failing to take into account that the Respondent pleaded and proved damages for loss of earning capacity and award damages under the said head.
v. That the learned trial Magistrate erred in law and in fact by failing to take into account that the Respondent pleaded and proved special damages but failed to award damages under the said head.
Submissions
8. The appeal was canvassed by way of written submissions. The Appellant’s submissions were filed on 15th March 2024 while that of the Respondent’s was filed on 28th May 2024.
9. In his submissions, the Appellant maintained that the sum of Kshs. 700,000/- awarded by the trial magistrate in general damages was high and excessive. According to the Appellant, the award did not take into account the injuries suffered by the Respondent and that the same was way above awards in cases with comparable injuries contrary to the holding in Michael Okello v Priscilla Atieno [2021] eKLR where it was held that comparable injuries should be as far as possible be compensated by comparable awards.
10. The Appellant, citing two authorities submitted that the appropriate quantum of damages for the injuries suffered by the Respondent ought to have been between Kshs. 295,000 and Kshs. 350,000/-.
11. Additionally, the Appellant submitted that the Kshs. 120,000 awarded by the trial court as cost of future medical expenses was made against the evidence on record. According to the Appellant, the evidence on record was that a sum of Kshs. 80,000/- only would be required by the Respondent as the cost of future medical expenses as per the medical report of Dr. Ruth Ichamwenge’s medical report of 16th March 2022.
12. On his part, the Respondent in his submissions supported the award of Kshs. 700,000/- given by the trial court as general damages for pain and suffering and asked this court to maintain the same.
13. Regarding general damages for loss of earning capacity, the Respondent submitted, in support of the cross-appeal, that the trial court committed an error of law and of fact in failing to award the same. That the trial court erred when it failed to address the issue in its judgment despite the fact that the loss was pleaded in the plaint and proved in evidence at trial.
14. Citing the decision in Mumias Sugar Company Ltd v Francis Wanalo [2017] eKLR the Respondent argued in cross-appeal that a global sum of Kshs. 700,000/- would be a reasonable compensation as general damages for loss of earning capacity.
15. On future medical expenses, the Respondent submitted, in answer to the appeal, that the same ought to be maintained by this court since the award by the trial court was supported by the medical report of Dr. Wokabi dated 2nd April 2020 which was admitted in evidence before the trial court.
16. On special damages, the Respondent submitted, in support of his cross-appeal, that the trial court erred in fact and in law by failing to award a sum of Kshs. 655,350 in special damages. According to the Respondent, the same was pleaded and proved in evidence.
17. The Appellant on his part did not make any submissions on the issue of the failure by the trial court to award special damages neither did they make any submissions on the issue of general damages for loss of earning capacity.
Analysis and determination
18. Being a first appeal, the duty of this court is to reevaluate and reassess the evidence tendered at trial with a view of reaching its own conclusion on the issue of liability and on quantum. I am however aware to the fact that unlike the trial court, I did not have the advantage of observing the demeanor of the witness and hearing their evidence first hand. I will therefore give due allowance for this. See the Court of Appeal decision in Peters vs Sunday Post Limited [1958] EA where the court stated that; -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses……the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. At the same time, I will also bear in mind the fact that an appeal to this court is by way of retrial and this court is not bound by the findings of the trial court merely because it did not have the advantage of hearing the witnesses testify and seeing their demeanor as was held in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial 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..."
20. On liability, the Respondent raised as a ground of cross-appeal that the trial court erred in fact and in law by apportioning liability in the ratio of 90:10 in favour of the Respondent. This ground was however dropped by the Respondent in his submissions on the basis that it was erroneously raised. According to the Respondent, subsequent to filing the memorandum of appeal, he learnt that the trial court, in its judgment had found the Appellant 100% liable for the accident. The Appellant also did not, in this appeal, challenge the trial court’s finding on liability. Accordingly, the finding of the trial court on liability remains.
21. On general damages for pain and suffering, the Appellant argued that the Kshs. 700,000/- awarded by the trial magistrate was high and excessive. According to the Appellant, the award did not take into account the injuries suffered by the Respondent and that the same was way above awards in cases with comparable injuries contrary to the holding in Michael Okello v Priscilla Atieno [2021] eKLR where it was held that comparable injuries should be as far as possible be compensated by comparable awards.
22. The Appellant further cited the case of Jennifer Mathenge v Patrick Muriuki Maina [2020] eKLR where the court, relying on the decision in Kenya Power & Lighting Company Limited & another v Zakayo Saitoti Naingola & another (2018) eKLR laid down the principles to be considered in courts in assessing damages as follows; -
i. Damages should not be inordinately too high or too low.
ii. They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered.
iii. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.
iv. Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment.
23. As a guide to this court on the amount of award which the Appellant considered reasonable in the circumstances of this case, the Appellant cited the case of Maina Onesmus v Charles Wanjohi Githome [2018] eKLR where an award of Kshs. 350,000/- was made by the court for fracture of the midshaft humerus, fracture of the condyles, fracture of the shoulder gird and pain and psychological trauma. He also cited the case of Boniface Waiti & another v Michael Kariuki Kamau [2017] eKLR where an award of Kshs. 295,000/- for what the Appellant perceived to be injuries comparable to the ones suffered by the Respondent in the instant appeal.
24. On his part, the Respondent urged this court to maintain the award of Kshs. 700,000/- given by the trial court as general damages for pain and suffering. In support of this position, the Respondent cited the case of Roy Mackenzie v Cartrack Kenya Limited [2012] eKLR where an award of Kshs. 700,000/- was made in September 2012 for fracture of the left humerus and severe injury to the left shoulder, which the Respondent submitted, were substantially similar to the injuries in the instant case.
25. When dealing with appeals on quantum, this court is alive to the principle that assessment of damages is within the discretion of the trial court and that as an appellate court, I should only interfere in instances where the trial court, in assessing damages, erred in principle by either taking into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence (see Mbogo vs Shah (1968) EA 93 and Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727),
26. This court is equally alive to the principle that in awarding general damages, the courts ought to give an award that reflects the nature and gravity of the injuries. That comparable injuries should as far as possible, be compensated by comparable awards, always bearing in mind that not two cases are precisely alike. This is the guidance given by the Court of Appeal in the case of Simon Taveta v Mercy Mutitu Njeru [2014] eKLR.
27. Taking into account injuries suffered by the Respondent as particularized in the plaint and considering the evidence, the parties’ respective submissions and cases cited. I find that the injuries suffered in the case of Roy Mackenzie v Cartrack Kenya Limited [2012] eKLR cited by the Respondent were more comparable to the injuries suffered by the Respondent in the instant case. Consequently, I find no reason for departing from the trial court’s finding on quantum of damages for pain and suffering.
28. On the cost of future medical expenses, it was the Appellant’s submissions that the amount of Kshs. 120,000/- awarded by the trial court was against the evidence on record. According to the Appellant, the evidence on record showed that only a sum of Kshs. 80,000/- would be required by the Respondent as the cost of future medical expenses as evidenced in Dr. Ruth Ichamwenge’s medical report of 16th March 2022 which was admitted in evidence.
29. The Respondent on the other hand urged this court maintain the award by the trial court, submitting that the cost of future medical report as awarded by the trial court was supported by the medical report of Dr. Wokabi dated 2nd April 2020. The Respondent further submitted that Dr. Ruth Ichamwenge’s medical report of 16th March 2022 relied on by the Appellant was never produced in evidence at trial and should therefore be ignored.
30. I have perused the proceedings and noted that contrary to the Respondent’s submissions, the two medical reports were produced and admitted in evidence by consent of the parties on 24th May 2022. Consequently, the only issue remaining for determination by this court is whether the cost of future medical expenses should be a sum of Kshs. 80,000/- as recommended by Dr. Ruth Ichamwenge or the Kshs. 120,000 recommended by Dr. Wokabi.
31. Considering the recommendations as contained in the two medical reports and taking into account the inflationary trends in the country, I find no reason to depart from the finding by the trial court. consequently, I will maintain the sum of Kshs. 120,000/- awarded by the trial court as costs of future medical expenses. This limb of the appeal therefore fails.
32. On general damages for loss of earning capacity, the Respondent submitted in cross-appeal that the trial court committed an error of law and of fact in failing to give an award for the same. That the trial court failed to address the issue in its judgment despite the fact that the loss was specifically pleaded in the plaint and proved in evidence.
33. It was the Respondent’s submissions that the medical report by Dr. Wokabi which was admitted in evidence at trial assessed that the Respondent had sustained a permanent incapacity of 18% and consequently, the trial court ought to have considered and awarded damages for the diminished earning capacity.
34. Citing the decision in Mumias Sugar Company Ltd v Francis Wanalo [2017] eKLR the Respondent argued in support of the cross-appeal that a global sum of Kshs. 700,000/- would be a reasonable compensation as general damages for loss of earning capacity. As pointed elsewhere in this judgment, the Appellant did not put forward any submissions on this ground of cross-appeal by the Respondent. Consequently, this ground will be determined solely on the documents in record of appeal and the submissions by the Respondent.
35. I have perused the Judgment of the trial court and established that apart from identifying the prayer for loss of earning capacity as one of the items pleaded by the Respondent, the trial court did not address its mind to the same in its judgment. The same was in the end not awarded and no reason was given by the court for the failure to award the same.
36. In Mumias Sugar Co. Ltd v Francis Wanalo [2007] eKLR the court of appeal stated the following regarding damages for loss of earning capacity; -
“…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 the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him to either losing his job in the future or in case he loses the job, his diminution of chances of getting an alternative job in the labor 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 of each case. There is no formula for assessing the 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.”
37. From the above, it is clear that 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. However, when awarded as a separate head, caution must be exercised to ensure there is no overlap between the two. See Clark v Rotax Aircraft Equipment Limited [1975] KLR 1579 cited by the court of appeal in the case of Mumias Company Limited v Francis Wanalo (supra).
38. It is however important to note that for this head of damages to be awarded, there must be real assessable loss proved in evidence. See Butter v Butter (1984) KLR where the Court of Appeal, quoting Lord Denning MR in Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40, 42 (CA) stated that; -
“Compensation for loss of future earnings, is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages.”
39. In the instant case, the Respondent faulted the trial court for failing to award him damages for loss of earning capacity. In his submissions at trial, the Respondent submitted that he had sustained a permanent incapacity of 18% as supported by the evidence of Dr. Wokabi in his medical report. According to the Respondent’s written statement dated 10th August 2020 which was adopted in evidence, the Respondent was at the time an employee of Zepha Enterprises Limited earning Kshs. 16,200/- per month. He further stated that he had not, at the time, resumed work and it was evident that after recovery, he will not be efficient and effective as he would have been before the accident.
40. However, I note that save for the medical report by Dr. Wokabi which assessed the Respondent’s permanent incapacity at 18%, the Respondent did not adduce any other evidence demonstrating how his earning capacity had diminished. He did not reveal whether he continued working in the same job or whether he lost the job. Further, there was no evidence that the Respondent tried to secure an alternative employment but failed as a result of his injuries.
41. In any event, I am of the view that the Respondent’s permanent incapacitation of 18% as assessed by Dr. Wokabi must have already been factored by the trial court when awarding general damages for pain, suffering and loss of amenities. An additional award for loss of future earnings based solely on the evidence of permanent incapacitation as assessed by Dr. Wokabi, in my view, is likely to lead into duplication of awards contrary to the holding in Clark v Rotax Aircraft Equipment Limited (supra).
42. In view of the above, I find that no sufficient evidence was adduced by the Respondent to warrant the award of damages for loss of future earnings. Consequently, this ground of cross-appeal by the Respondent fails.
43. Finally on special damages, the Respondent submitted that the trial court erred in fact and in law by failing to award Kshs. 655,350 in special damages. The Respondent argued that apart from being pleaded, the damages were specifically proved in evidence by way of production of receipts for treatment, transport, medical report and a receipt for motor vehicle search.
44. The Respondent asserted that all the receipts were produced and admitted in evidence at trial. Consequently, the Respondent urged this court, in his cross appeal, to award Kshs. 655,350 in special damages.
45. Again, the Appellant did not in this appeal make any submissions in answer to this ground of cross-appeal by the Respondents. The same will therefore be decided by this court, solely based on the Respondent’s submissions and the documents in the records of appeal and cross appeal.
46. The law on special damages is that the same ought not only to be specifically pleaded, but must also be strictly proven in evidence. In the case of Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, the Court of Appeal. when dealing with the issue held as follows:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
47. I have perused the trial court’s judgment and the pleadings and noted that despite the fact that the Respondent specifically pleaded a sum of Kshs. 655,350 in special damages, no award was made by the trial court under that heading and no reason was given by the court for the failure.
48. Having established that a sum of Kshs. 655,350 was specifically pleaded by the Respondent in his plaint dated 10th August 2020, the next task for this court is to determine whether the same was strictly proved.
49. The particulars of the special damages claimed by the Respondent in the plaint included the cost of medical report (Dr. Wokabi) Kshs. 3,000/-, cost of copy of records (KCJ 065B) Kshs. 550/-; treatment and medical expenses Kshs. 465,100/-; and transport expenses all totaling being Kshs. 655,350/-.
50. The Respondent in his testimony before the trial court on 24th May 2022, adopted his witness statement as evidence. He also produced in evidence receipts in support of treatment and medical expenses as P. Exh. 9, receipts for transport expenses as Pexh. 10, receipt for payment of medical report as Pexh 14 and receipt for payment of the copy of records as Pexh 16. The documents were admitted in evidence by consent of the parties.
51. I have perused the receipts which are contained on pages 20-47, 55, 57 of the record of cross-appeal. I am satisfied that the same is proven and hereby proceed to allow the same and award the Respondent a sum of Kshs. 655,350/- in special damages. This ground of cross-appeal therefore succeeds.
52. In view of the foregoing, I find the appeal unmerited and is hereby dismiss the same.
53. The Cross-Appeal is partially allowed. The claim for damages for loss of future earnings is dismissed
Disposition
54. Accordingly, I set aside the trial court’s Judgment of 2nd December 2022 and the consequential decree and hereby substitute the same with the Judgment and an order of this court with the following awards:
i. Liability = 100% in favour of the Respondent
ii. General damages for pain, suffering and loss of amenities - Kshs. 700,000/=
iii. Loss of earning capacity – NIL
iv. Special damages – Kshs. 655,350/=
v. Costs and Interest of the lower court the Suit to the Respondent.
55. Each party to bear their own costs of this appeal.
56. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
Moses – Court Assistant
Kabita h/b forNanjwa for the Appellant
Gichumu for the Respondent.
1. This Appeal is from the decision of the court in Milimani CMCC No. 4971 of 2020 in which the Respondent/Cross-Appellant (hereinafter referred to as “the Respondent”) sued the Appellant/respondent in the cross-appeal (hereinafter referred to as “the Appellant”) seeking compensation for injuries suffered on 13th March 2020 in a road traffic accident.
2. It was pleaded by the Respondent in the lower court that he was a fare paying passenger aboard motor vehicle registration number KCJ 065B when the said motor vehicle lost control, rolled and overturned along Jogoo Road, thereby causing him the injuries.
3. On 2nd December 2022 the trial court delivered its judgment and apportioned liability in the ratio of 90:10 in favour of the Respondent. The court also issued the following awards in favour of the Respondent; -
a) General damages at Kshs. 700,000/-
b) Future Medical expenses – Kshs. 120,000/-
c) Costs of the Suit and Interest
The Appeal
4. Dissatisfied with the decision of the trial court, the Appellant, vide his memorandum of appeal dated 25th April 2023 appealed to this Court against the trial court’s decision raising six grounds of appeal. However, in his submissions to this court, the Appellant argued the appeal solely on the issue of quantum of damages awarded by the trial court.
5. It was the Appellant’s position in this appeal that the sum of Kshs. 700,000/- awarded by the trial court as compensation in general damages for pain, suffering and loss of amenities was high and excessive in the circumstances of the case.
6. Additionally, the Appellant challenged the award of Kshs.120,000 as the cost of future medical expenses by the trial court. According to the Appellant the amount was issued without any concrete evidence in support thereof.
The Cross-Appeal
7. The Respondent also filed a memorandum of cross-appeal dated 12th April 2024 raising the following five grounds; -
i. That the learned trial Magistrate erred in law and in fact in apportioning liability against the Respondent and failing to appreciate that the Respondent was a fare paying passenger in the suit motor vehicle and thus could not have been liable for the occurrence of the said accident.
ii. That the learned trial Magistrate erred in law and in fact in failing to address his mind on the evidence adduced and hence made an erroneous determination in apportioning liability against the Respondent.
iii. That the learned trial magistrate in assessing the quantum of damages took into account wrong decision and made an award to the Respondent of Kshs. 700,000/- which sum is manifestly too low in the circumstances of the case.
iv. That the learned trial Magistrate erred in law and in fact by failing to take into account that the Respondent pleaded and proved damages for loss of earning capacity and award damages under the said head.
v. That the learned trial Magistrate erred in law and in fact by failing to take into account that the Respondent pleaded and proved special damages but failed to award damages under the said head.
Submissions
8. The appeal was canvassed by way of written submissions. The Appellant’s submissions were filed on 15th March 2024 while that of the Respondent’s was filed on 28th May 2024.
9. In his submissions, the Appellant maintained that the sum of Kshs. 700,000/- awarded by the trial magistrate in general damages was high and excessive. According to the Appellant, the award did not take into account the injuries suffered by the Respondent and that the same was way above awards in cases with comparable injuries contrary to the holding in Michael Okello v Priscilla Atieno [2021] eKLR where it was held that comparable injuries should be as far as possible be compensated by comparable awards.
10. The Appellant, citing two authorities submitted that the appropriate quantum of damages for the injuries suffered by the Respondent ought to have been between Kshs. 295,000 and Kshs. 350,000/-.
11. Additionally, the Appellant submitted that the Kshs. 120,000 awarded by the trial court as cost of future medical expenses was made against the evidence on record. According to the Appellant, the evidence on record was that a sum of Kshs. 80,000/- only would be required by the Respondent as the cost of future medical expenses as per the medical report of Dr. Ruth Ichamwenge’s medical report of 16th March 2022.
12. On his part, the Respondent in his submissions supported the award of Kshs. 700,000/- given by the trial court as general damages for pain and suffering and asked this court to maintain the same.
13. Regarding general damages for loss of earning capacity, the Respondent submitted, in support of the cross-appeal, that the trial court committed an error of law and of fact in failing to award the same. That the trial court erred when it failed to address the issue in its judgment despite the fact that the loss was pleaded in the plaint and proved in evidence at trial.
14. Citing the decision in Mumias Sugar Company Ltd v Francis Wanalo [2017] eKLR the Respondent argued in cross-appeal that a global sum of Kshs. 700,000/- would be a reasonable compensation as general damages for loss of earning capacity.
15. On future medical expenses, the Respondent submitted, in answer to the appeal, that the same ought to be maintained by this court since the award by the trial court was supported by the medical report of Dr. Wokabi dated 2nd April 2020 which was admitted in evidence before the trial court.
16. On special damages, the Respondent submitted, in support of his cross-appeal, that the trial court erred in fact and in law by failing to award a sum of Kshs. 655,350 in special damages. According to the Respondent, the same was pleaded and proved in evidence.
17. The Appellant on his part did not make any submissions on the issue of the failure by the trial court to award special damages neither did they make any submissions on the issue of general damages for loss of earning capacity.
Analysis and determination
18. Being a first appeal, the duty of this court is to reevaluate and reassess the evidence tendered at trial with a view of reaching its own conclusion on the issue of liability and on quantum. I am however aware to the fact that unlike the trial court, I did not have the advantage of observing the demeanor of the witness and hearing their evidence first hand. I will therefore give due allowance for this. See the Court of Appeal decision in Peters vs Sunday Post Limited [1958] EA where the court stated that; -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses……the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
19. At the same time, I will also bear in mind the fact that an appeal to this court is by way of retrial and this court is not bound by the findings of the trial court merely because it did not have the advantage of hearing the witnesses testify and seeing their demeanor as was held in the case of Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA where the court stated that: -
“...I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial 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..."
20. On liability, the Respondent raised as a ground of cross-appeal that the trial court erred in fact and in law by apportioning liability in the ratio of 90:10 in favour of the Respondent. This ground was however dropped by the Respondent in his submissions on the basis that it was erroneously raised. According to the Respondent, subsequent to filing the memorandum of appeal, he learnt that the trial court, in its judgment had found the Appellant 100% liable for the accident. The Appellant also did not, in this appeal, challenge the trial court’s finding on liability. Accordingly, the finding of the trial court on liability remains.
21. On general damages for pain and suffering, the Appellant argued that the Kshs. 700,000/- awarded by the trial magistrate was high and excessive. According to the Appellant, the award did not take into account the injuries suffered by the Respondent and that the same was way above awards in cases with comparable injuries contrary to the holding in Michael Okello v Priscilla Atieno [2021] eKLR where it was held that comparable injuries should be as far as possible be compensated by comparable awards.
22. The Appellant further cited the case of Jennifer Mathenge v Patrick Muriuki Maina [2020] eKLR where the court, relying on the decision in Kenya Power & Lighting Company Limited & another v Zakayo Saitoti Naingola & another (2018) eKLR laid down the principles to be considered in courts in assessing damages as follows; -
i. Damages should not be inordinately too high or too low.
ii. They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered.
iii. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.
iv. Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment.
23. As a guide to this court on the amount of award which the Appellant considered reasonable in the circumstances of this case, the Appellant cited the case of Maina Onesmus v Charles Wanjohi Githome [2018] eKLR where an award of Kshs. 350,000/- was made by the court for fracture of the midshaft humerus, fracture of the condyles, fracture of the shoulder gird and pain and psychological trauma. He also cited the case of Boniface Waiti & another v Michael Kariuki Kamau [2017] eKLR where an award of Kshs. 295,000/- for what the Appellant perceived to be injuries comparable to the ones suffered by the Respondent in the instant appeal.
24. On his part, the Respondent urged this court to maintain the award of Kshs. 700,000/- given by the trial court as general damages for pain and suffering. In support of this position, the Respondent cited the case of Roy Mackenzie v Cartrack Kenya Limited [2012] eKLR where an award of Kshs. 700,000/- was made in September 2012 for fracture of the left humerus and severe injury to the left shoulder, which the Respondent submitted, were substantially similar to the injuries in the instant case.
25. When dealing with appeals on quantum, this court is alive to the principle that assessment of damages is within the discretion of the trial court and that as an appellate court, I should only interfere in instances where the trial court, in assessing damages, erred in principle by either taking into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence (see Mbogo vs Shah (1968) EA 93 and Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727),
26. This court is equally alive to the principle that in awarding general damages, the courts ought to give an award that reflects the nature and gravity of the injuries. That comparable injuries should as far as possible, be compensated by comparable awards, always bearing in mind that not two cases are precisely alike. This is the guidance given by the Court of Appeal in the case of Simon Taveta v Mercy Mutitu Njeru [2014] eKLR.
27. Taking into account injuries suffered by the Respondent as particularized in the plaint and considering the evidence, the parties’ respective submissions and cases cited. I find that the injuries suffered in the case of Roy Mackenzie v Cartrack Kenya Limited [2012] eKLR cited by the Respondent were more comparable to the injuries suffered by the Respondent in the instant case. Consequently, I find no reason for departing from the trial court’s finding on quantum of damages for pain and suffering.
28. On the cost of future medical expenses, it was the Appellant’s submissions that the amount of Kshs. 120,000/- awarded by the trial court was against the evidence on record. According to the Appellant, the evidence on record showed that only a sum of Kshs. 80,000/- would be required by the Respondent as the cost of future medical expenses as evidenced in Dr. Ruth Ichamwenge’s medical report of 16th March 2022 which was admitted in evidence.
29. The Respondent on the other hand urged this court maintain the award by the trial court, submitting that the cost of future medical report as awarded by the trial court was supported by the medical report of Dr. Wokabi dated 2nd April 2020. The Respondent further submitted that Dr. Ruth Ichamwenge’s medical report of 16th March 2022 relied on by the Appellant was never produced in evidence at trial and should therefore be ignored.
30. I have perused the proceedings and noted that contrary to the Respondent’s submissions, the two medical reports were produced and admitted in evidence by consent of the parties on 24th May 2022. Consequently, the only issue remaining for determination by this court is whether the cost of future medical expenses should be a sum of Kshs. 80,000/- as recommended by Dr. Ruth Ichamwenge or the Kshs. 120,000 recommended by Dr. Wokabi.
31. Considering the recommendations as contained in the two medical reports and taking into account the inflationary trends in the country, I find no reason to depart from the finding by the trial court. consequently, I will maintain the sum of Kshs. 120,000/- awarded by the trial court as costs of future medical expenses. This limb of the appeal therefore fails.
32. On general damages for loss of earning capacity, the Respondent submitted in cross-appeal that the trial court committed an error of law and of fact in failing to give an award for the same. That the trial court failed to address the issue in its judgment despite the fact that the loss was specifically pleaded in the plaint and proved in evidence.
33. It was the Respondent’s submissions that the medical report by Dr. Wokabi which was admitted in evidence at trial assessed that the Respondent had sustained a permanent incapacity of 18% and consequently, the trial court ought to have considered and awarded damages for the diminished earning capacity.
34. Citing the decision in Mumias Sugar Company Ltd v Francis Wanalo [2017] eKLR the Respondent argued in support of the cross-appeal that a global sum of Kshs. 700,000/- would be a reasonable compensation as general damages for loss of earning capacity. As pointed elsewhere in this judgment, the Appellant did not put forward any submissions on this ground of cross-appeal by the Respondent. Consequently, this ground will be determined solely on the documents in record of appeal and the submissions by the Respondent.
35. I have perused the Judgment of the trial court and established that apart from identifying the prayer for loss of earning capacity as one of the items pleaded by the Respondent, the trial court did not address its mind to the same in its judgment. The same was in the end not awarded and no reason was given by the court for the failure to award the same.
36. In Mumias Sugar Co. Ltd v Francis Wanalo [2007] eKLR the court of appeal stated the following regarding damages for loss of earning capacity; -
“…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 the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him to either losing his job in the future or in case he loses the job, his diminution of chances of getting an alternative job in the labor 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 of each case. There is no formula for assessing the 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.”
37. From the above, it is clear that 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. However, when awarded as a separate head, caution must be exercised to ensure there is no overlap between the two. See Clark v Rotax Aircraft Equipment Limited [1975] KLR 1579 cited by the court of appeal in the case of Mumias Company Limited v Francis Wanalo (supra).
38. It is however important to note that for this head of damages to be awarded, there must be real assessable loss proved in evidence. See Butter v Butter (1984) KLR where the Court of Appeal, quoting Lord Denning MR in Fairley v John Thompson (Design and Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40, 42 (CA) stated that; -
“Compensation for loss of future earnings, is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of general damages.”
39. In the instant case, the Respondent faulted the trial court for failing to award him damages for loss of earning capacity. In his submissions at trial, the Respondent submitted that he had sustained a permanent incapacity of 18% as supported by the evidence of Dr. Wokabi in his medical report. According to the Respondent’s written statement dated 10th August 2020 which was adopted in evidence, the Respondent was at the time an employee of Zepha Enterprises Limited earning Kshs. 16,200/- per month. He further stated that he had not, at the time, resumed work and it was evident that after recovery, he will not be efficient and effective as he would have been before the accident.
40. However, I note that save for the medical report by Dr. Wokabi which assessed the Respondent’s permanent incapacity at 18%, the Respondent did not adduce any other evidence demonstrating how his earning capacity had diminished. He did not reveal whether he continued working in the same job or whether he lost the job. Further, there was no evidence that the Respondent tried to secure an alternative employment but failed as a result of his injuries.
41. In any event, I am of the view that the Respondent’s permanent incapacitation of 18% as assessed by Dr. Wokabi must have already been factored by the trial court when awarding general damages for pain, suffering and loss of amenities. An additional award for loss of future earnings based solely on the evidence of permanent incapacitation as assessed by Dr. Wokabi, in my view, is likely to lead into duplication of awards contrary to the holding in Clark v Rotax Aircraft Equipment Limited (supra).
42. In view of the above, I find that no sufficient evidence was adduced by the Respondent to warrant the award of damages for loss of future earnings. Consequently, this ground of cross-appeal by the Respondent fails.
43. Finally on special damages, the Respondent submitted that the trial court erred in fact and in law by failing to award Kshs. 655,350 in special damages. The Respondent argued that apart from being pleaded, the damages were specifically proved in evidence by way of production of receipts for treatment, transport, medical report and a receipt for motor vehicle search.
44. The Respondent asserted that all the receipts were produced and admitted in evidence at trial. Consequently, the Respondent urged this court, in his cross appeal, to award Kshs. 655,350 in special damages.
45. Again, the Appellant did not in this appeal make any submissions in answer to this ground of cross-appeal by the Respondents. The same will therefore be decided by this court, solely based on the Respondent’s submissions and the documents in the records of appeal and cross appeal.
46. The law on special damages is that the same ought not only to be specifically pleaded, but must also be strictly proven in evidence. In the case of Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, the Court of Appeal. when dealing with the issue held as follows:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
47. I have perused the trial court’s judgment and the pleadings and noted that despite the fact that the Respondent specifically pleaded a sum of Kshs. 655,350 in special damages, no award was made by the trial court under that heading and no reason was given by the court for the failure.
48. Having established that a sum of Kshs. 655,350 was specifically pleaded by the Respondent in his plaint dated 10th August 2020, the next task for this court is to determine whether the same was strictly proved.
49. The particulars of the special damages claimed by the Respondent in the plaint included the cost of medical report (Dr. Wokabi) Kshs. 3,000/-, cost of copy of records (KCJ 065B) Kshs. 550/-; treatment and medical expenses Kshs. 465,100/-; and transport expenses all totaling being Kshs. 655,350/-.
50. The Respondent in his testimony before the trial court on 24th May 2022, adopted his witness statement as evidence. He also produced in evidence receipts in support of treatment and medical expenses as P. Exh. 9, receipts for transport expenses as Pexh. 10, receipt for payment of medical report as Pexh 14 and receipt for payment of the copy of records as Pexh 16. The documents were admitted in evidence by consent of the parties.
51. I have perused the receipts which are contained on pages 20-47, 55, 57 of the record of cross-appeal. I am satisfied that the same is proven and hereby proceed to allow the same and award the Respondent a sum of Kshs. 655,350/- in special damages. This ground of cross-appeal therefore succeeds.
52. In view of the foregoing, I find the appeal unmerited and is hereby dismiss the same.
53. The Cross-Appeal is partially allowed. The claim for damages for loss of future earnings is dismissed
Disposition
54. Accordingly, I set aside the trial court’s Judgment of 2nd December 2022 and the consequential decree and hereby substitute the same with the Judgment and an order of this court with the following awards:
i. Liability = 100% in favour of the Respondent
ii. General damages for pain, suffering and loss of amenities - Kshs. 700,000/=
iii. Loss of earning capacity – NIL
iv. Special damages – Kshs. 655,350/=
v. Costs and Interest of the lower court the Suit to the Respondent.
55. Each party to bear their own costs of this appeal.
56. It so ordered.
SIGNED DATED and DELIVERED IN VIRTUAL COURT THIS 6TH DAY OF AUGUST 2024
ADO MOSES
JUDGE
Moses – Court Assistant
Kabita h/b forNanjwa for the Appellant
Gichumu for the Respondent.