M N K (a minor suing through her father and next friend) Patrick Kyalo Maundu v Joseph Mwaura [2017] KEHC 4265 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI(CIVIL DIVISION)

CIVIL CASE  NO.  59  OF 2011

M N K (a minor suing through her father and next friend)

PATRICK KYALO MAUNDU.........................................PLAINTIFF

VERSUS

JOSEPH MWAURA...................................................DEFENDANT

JUDGMENT

1. The plaintiff in this case is a female minor whose name for purposes of these proceedings shall be by way of initials only namely M.N.K. She is suing through her father and next friend Patrick Kyalo Maundu. The defendant is Joseph Mwaura.

2. Vide a plaint filed  in court on  22nd February 2011 which is dated  17th February 2011, the  plaintiff  minor  was on 22nd April 2010 injured when she fell from the defendant’s  building  Mount Kenya  House in Huruma  Ngei Phase 11 estate, which  was under construction  as she allegedly held on loose  ropes  from the  3rd floor of the 7th floor building  which  was  under  construction.  The plaintiff attributes her injuries to the negligence of the defendant.  She was then aged about 5 years old. She claims for general damages and damages for loss of earning capacity, costs and interest.

3. The defendant filed his defence dated 30th May 2011 on 31st May 2011 denying the plaintiff’s claim against him.  He denied being the owner of the Mt Kenya House on Plot No. 24B in Huruma Ngei II.  He also denied that the  plaintiff was residing  therein with her parents  or at all  or that the said building  was under  construction or that  there  was any loose  rope  used for  dropping  materials  for construction which the  plaintiff   minor allegedly  hung on.

4. The defendant  also  denied  any knowledge of  or occurrence  of any accident  as alleged  and or  that there  was any injury or loss  occasioned  to the minor plaintiff   or at all and put the  plaintiff  to strict  proof thereof.

5. Further, the defendant  pleaded  that if at all an accident  did occur  in the manner pleaded and on the named date involving the plaintiff minor, which  was denied, then the same  was  solely caused   and or substantially caused by or contributed  by the  negligence  of the plaintiff minor and or her guardian or next friend.

6. The defendant particularized the acts of negligence complained of against the plaintiff.  He also denied particulars of injuries, loss or damage and prayed  that the  plaintiff’s suit  be dismissed  with  costs.

7. The plaintiff filed reply to defence reiterating  contents of the plaint and   denying particulars of negligence attributed to the minor and or her guardians.

8. On  14th June   2012  Honourable  Waweru J directed  that this suit be  heard  on priority basis.

9. The defendant’s counsel withdrew  from  acting  for the defendant and the defendant sought  for alternative  legal  representation. The firm of M/s Mbiyu  Kamau & Company  Advocates came on record on 5th November 2015 for the  defendant.  The matter  proceeded  to hearing  on 5th May 2015.

10. The plaintiff  testified  through  her father  and next  friend  Patrick  Kyalo Maundu  as PW1 and stated that the minor  MNK  was his second born daughter. He adopted his witness  statement  filed in court  on  4th May  2015.   He also produced his bundle of documents filed on 4th May 2015 as his exhibit 1.

11. PW1 stated  that the minor  was now at the time of hearing this case aged  9 years  and in  standard 3. That following the accident, she does not comprehend  anything.

12. According to PW1, his family and the minor at the material time of the accident complained of lived as tenants in the  defendant’s premises at Mt Kenya House apartments  in Huruma  Estate, Nairobi since 2006.  That he  was the minor’s  father and that  on 22nd  April  2010 he was  going  about  his normal  duties at his place  of work when at  4. 30 pm or thereabouts, he  received  a call from one  of his family  friends  who informed  him that the his minor daughter had fallen  off from the  third  floor  of the building  while  playing  with friends, when she came across   the rope   that the developers  were using  to uplift   the bundles  of steel bars  from the ground  to the seventh  floor.  That he was informed that the minor held  the rope not knowing  the danger she  was  exposing  herself  to and  so she lost  control and  fell  on the ground as the  developers  were  lifting  he last bundle  of bars.

13. It was the plaintiff’s further evidence that the Landlord’s car was  used to  transport the injured minor  to Kenyatta National Hospital. That the landlord defendant herein dumped the  child at Kenyatta National Hospital and left. That the plaintiff arrived at Kenyatta National Hospital at  5. 30pm.  The  minor  was  admitted   in the intensive care unit for  13 days  and remained  an  inpatient  for  41 days  undergoing  medication and  treatment.  She  lost her  speech  and  ability  to walk  for  six (6)  months.

14. PW1further testified that before  the accident, the minor  was  joyful and  led a  normal  healthy life.  She  was  then in  nursery  school.  That  after the accident, the minor’s  whole life  changed.  She  developed complications  involving; mental  confusion, constant  and  moderate  disorientation; unstable  gait; mumbled  speech; difficulty in  walking; could not turn  self in bed; relied on  use of container to relief  herself; bends   on her back  on sitting.

15. According to PW1, the minor requires  to be assisted  all her life  and that she  will have to go to special needs school.  That she   was unlikely  to: lead  a normal life, get  employed or start  her own life.  He  claimed that  the minor  had lost  her future  earning  capacity and that she  would require  physiotherapy throughout  her life at shs  5,000 per month.  That she also required  a nurse at  a cost of  shs  10,000 per month, medication, specialized treatment,  and  care.  According  to PW1, the defendant was to blame for  the accident for:

a. Allowing construction of the building without taking precautionary  measures  to protect  the lives of  innocent people;

b. Allowing  construction  of an  occupied  building  against  the law;

c. Failure to provide protection to the public while   constructing  a building; and

d. Acting  deliberately  negligent  due to  greed.

16. The PW1 denied being an extortionist and maintained that the photographs  he produced showed  the status of  the construction  work at the material time of the accident. He prayed for damages, costs, and  interest.

17. The plaintiff  also called  PW2  Hellen  Nduku   who testified  on oath  that she   was the  mother  to the minor plaintiff. She stated that  she lived  in the defendant’s  premises  with her husband  PW1  and their  minor  daughter  the plaintiff  herein.  She  stated  that  on 22nd April 2010 she send her two daughters, the plaintiff  and  her sister to the shop and when  they returned, she  remained in the house to  carry out her  other chores  as they  rushed  out to play.  After a while, she heard a loud thud and followed by wails from her neighbours.  She rushed outside to establish what was happening and saw a child lying on the ground next to metal that had been tied and a rope was hanging from above her.  She identified the child as  her daughter  the plaintiff herein. PW2 climbed  down and found when a neighbour   had picked the child  from where she had  laid when  she fell.  They looked for help  and  the landlord’s  vehicle  came and  rushed them to Kenyatta National Hospital and that the Landlord abandoned them at  Kenyatta National Hospital.  Later  her husband  PW1  joined her  in hospital.  She remained  in hospital with the minor who had suffered very serious injuries that destroyed her  life.  She stated that it is the  defendant  and his  caretaker Kennedy Mutua and neighbours who assisted  her take  the  child  to hospital. She stated that the child was now a ‘vegetable’ who cannot  do anything for herself and neither can she walk well nor comprehend things.  That she is unstable.

18. PW2 maintained  that the defendant  owed  a duty  of care  but that  he  was negligent  because  he left  a loose  hanging rope which  her daughter found and  swung  on it leading  to her near fatal fall.  PW2 claimed  in her  testimony that her child had  now become  a ‘vegetable’ she  cannot  hold  a pen well, she  cant walk well, she maintained  that it  was  the defendant who  took her  child  to hospital.  She denied being negligent or being the cause of her child’s accident.  She prayed for damages.

19. The plaintiff also called PW3 Mr Kennedy Mutua who testified on oath that he was a farmer in Kathonzweni.  He relied on his adopted written witness statement as filed in court as his evidence in chief.

20. PW3 testified   that in 2008-2011 he worked for the defendant as his caretaker of the building called Mount Kenya House, Huruma.  That he knew the plaintiff PW1 and PW2 who were  tenants in the defendant’s  premises.  He also testified  that  there  were workers in the building  which had  7 storey’s  lifting  materials  from the ground  to the 7th floor, using  ropes  which ropes  were hanging  loosely.  That on the  material  date pleaded by the plaintiff  on 22nd April  2010  children  were  playing on the balcony when the minor (MNK) fell from the storied  building.

21. That at the time, the 7th floor of the building was under  construction  being   supervised  by the defendant  himself; and  that some  building  materials were being  lifted  to the  7th floor.  That at  that time,PW3 was in  his shop located  on the ground floor of the  same  building where  he sold kerosene.  That he  heard  a  loud  thud  and  followed by  wails  all over.  That when he rushed outside, he found people crowding a young  child and  he realized  it  was the minor  plaintiff(MNK) who lay  there unconscious.  He also saw the rope which she had been holding still hanging nearby.  PW3 testified that one woman picked  up  the child   and himself, the child’s mother, jointly with the defendant  and  PW3  rushed the child to Kenyatta National Hospital  and  after dropping  them there he left.  The child’s father joined them at the hospital at about 5. 30 pm.

22. That the plaintiff was admitted at the ICU.  That Pw3  stayed  at the  hospital  until 9. 30 and left .  According to PW3, the  defendant  undertook  the  construction of the suit premises  when tenants   were in occupation  and  that  six  floors  of the building  were fully  occupied.  That the  defendant  did not  take  any steps to ensure the safety   of the tenants  as there  were  no covers on the walls   of the  building to avoid  accidents  arising  from  falling  debris  from materials  being  lifted  by casual workers.  He  stated that  there  was  no contractor   as the defendant   himself  acted as the  supervisor  and  contractor  of the building  and  that the defendant   was  fully to blame   for the accident.

23. PW3 confirmed  that  the  child  was   badly injured as  a result    of the accident.  He identified the photographs taken after the accident showing   the then status of the building.

24. According to  PW3,  Mary Wangari  who was  also a tenant in the same  building  witnessed the  child  fall from  the storied  building  and when  shown  her  written statement on what  she had  stated, he responded  that she  was not saying  the truth.

25. PW4, Dr  Herbert  Ojiambo  Ong’ang’o testified  on oath  and  stated that  he  was  a medical doctor (an Orthopaedic specialist)   based at Kenyatta National Hospital   and  a holder of   Bachelor  of Medicine  and Bachelor of Surgery  from the University  of Nairobi.  That he also holds a Master of Science in Orthopaedics from the University of London.

26. PW4 testified that in the course of his duties he examined the minor MNK on 2nd December 2010.  She was aged 5½ years   vide  hospital  No.  1369925.  She  was   a  nursery pupil and he  compiled  a  medical report  which he   produced  in court.  It is dated  2nd  December  2010 the medial  report   was  produced  as  PEX2.

27. According  to PW4, the minor   patient  had  a history  of falling  from a storeyed  building  and  sustained  severe  head injury  and  shoulder  fractures.  She had swelling on the brain.  She was admitted at the ICU for 13 days and 27 days at the general ward.  That the patient had difficulty in walking, could not turn in bed, and bend on sitting.  She relied on containers for relieving herself; she had an unstable gait, disoriented and mumbled speech.

28. In the doctor’s opinion, the plaintiff/minor suffered a severe injury on the head and right humerus.  She had  permanent  brain damage  as a result of  the  accident  and  that it  could  however  not be   picked by the CT  scan.

29. According to  PW4, from the time  of compiling  the  report, the plaintiff  may never  recover  from the injury.

30. On being  cross  examined   by Miss Njuguna  counsel for the  defendant,  PW4  responded that he did  not expect  the  child to recover  although  he  had  examined  her last in  2010.

31. The defendant testified as DW1 and  called  one more  witness. According to the defendant’s testimony given on oath  adopting  his written statement   signed  on  17th February  2012, and  filed on 20th February 2012, he admitted being Joseph Kiige  Mwaura, a business man and  a  landlord of Mount Kenya  House at Huruma.  He admitted knowing the plaintiff who was  his tenant.  DW1  testified  that his  house  was  constructed  in 1998  and  that it was  as  described  by the  plaintiff’s  plaint.  That it   was a 7 storey building.  He denied that the minor fell from the balcony of the third floor of the said building as alleged  by the plaintiff’s pleadings and her  witnesses.  DW1 also  denied  that his  7th floor of the said  building  was  under  construction or at all in 2010.  He stated that  since the tenants  took possession  and occupation thereof,  he had  never  carried out  any further  construction  of the said  house   save for  routine  maintenance and  repairs.  He further  stated that  in his  written  statement  he had stated that the  aforesaid  storied  house  was   completed  in  2001.

32. According  to the defendant, if indeed  the minor  plaintiff  fell from the  balcony  of his  house  as  claimed, then he  could  have been  notified, since  on the material  day  of  22nd  April  2010  he  was  within the  precincts  of  his said  building.

33. The defendant  further  testified  that he  only came to know  the allegations  by the plaintiff  of the accident in question when he  received  the demand notice from the  plaintiff’s  advocates.  He maintained that the plaintiff’s claim was fictitious and intended to defraud him.  Further, that he had several plots and he knew the precautionary measures which he is supposed to take while undertaking construction.  Further, that if  his house  was under construction, he could have taken the requisite safety measures while  undertaking  the alleged  construction.  The defendant urged the court to dismiss  the plaintiff’s suit with costs.

34. In cross examination by Mr Kivuva counsel for the plaintiff, the defendant  responded  that he  was the owner of  Mount Kenya  House  in Huruma, Nairobi.  He also admitted that his defence was filed on  31st May  2011.  The defendant stated that he never  denied that  he was the owner of  the subject building.  He stated that  he  was only  called after the incident.

35. The defendant further stated that  he completed  construction works of the building  in  2002, after  receiving  permission  to  construct  the  same  in 1998.  He denied being in possession of documents showing the permit to construct the building.  The defendant further stated  that he was given occupation licence by the City Council of Nairobi  after he completed  the  construction, although  he  stated that he did not  have that   license  before  court.

36. The defendant stated that his contractor was called Ndungu an approved contractor.  When shown the photographs of the building in question as produced by the plaintiff, the defendant confirmed that the photographs    were of the building in question and which was his  building.  He confirmed that the photographs showed another floor above which was incomplete.  The defendant  stated that the plaintiffs lived  on the 4th floor  and that there were barriers  of upto 4½ feet.  He denied being present when the accident occurred.  He stated  that he had  no protective  material  to protect people from the injury of falling objects while constructing.

37. DW1 stated that his building had 75  houses of single  rooms  and that it was fully  occupied  by tenants.  He  responded that he  had nothing  to show  that materials  for construction were being  lifted using  the staircase.  He stated  that his  building  had 6  floors  with no lift.  He stated  that he did not   know  that he was breaking   the law by  failing to fix  a lift  in his building.  The defendant further stated that he did not place any barriers  to protect  the children  from injury.  He denied flouting  any building requirements and stated that he did not find it  necessary  to enjoin  his building  contractor  as a party to this suit.

38. The defendant stated that he heard that a child fell from 4th floor to the ground.  He stated that after the incident, he had never placed extra barriers to the balconies to prevent accidents.

39. On being   reexamined  by Miss Njuguna, the defendant  stated that he completed  construction works in 2002  and maintained  that he  had a permit  to build the house, using  Ndungu  as his contractor.  He stated that he never asked for documentation or licences from Mr Ndungu  because Mr Ndungu  was building  other houses  in the area.  He stated that construction materials  were being  lifted using  a staircase.  He denied that there  was any  accident  on his house.

40. On being questioned by the court to clarify, he defendant responded that his building  was of six floors, plus the ground floor.  The defendant further stated that the upper part of the building was a tank construction.  He conceded that the photographs  PEX 1(b),(c ) and  (d)  produced by the  plaintiff   were taken  on 6th May  2010 and  that the upper  part of his house   was not included   in the floor  plan.

41. The defendant also called  DW2 M/s Mary Wangare  Wathika  who testified  on oath  and  stated that  she  was  a small scale  business  lady.  She adopted  her written  witness  statement filed  on 20th February  2012  as her evidence  in chief. DW2 stated that   she  knew the defendant   as she had lived in his premises  from 2001  upto 2012  while  trading in table  cloth  making  (embroidery) on a veranda.  She  also  stated that the defendant  had constructed a 7 story  building   and  that the  plaintiff’s  father   was  a tenant  in the defendant’s house.

42. The defendant’s witness evidence in her written  statement   denied that  the  plaintiff ever  fell from  the balcony  of the  3rd floor of the defendant’s house. She also denied in that statement that  the  7th floor or any  other floor  of the aforesaid  house  was  under construction  in April 2010 save for routine maintenance. She further stated in her witness  written statement  that she only  learnt  of the allegation when  the defendant  approached  her and  informed  her that he had received  a demand letter from the plaintiff’s  advocates concerning the alleged accident.  She also stated therein that the plaintiff’s claim was fictitious and intended to defraud the defendant since the balconies of the house were properly secured.

43. However,  in her oral evidence on oath in court  the defendant’s  witness DW2 testified  that  on the material  day, she  started  working at  her usual place (veranda) in the morning  and  something  fell  down  from the storey  and she thought  it  was  waste.  On checking she saw a child in front of her.  That a lady came over and picked the child and many people gathered to witness what had happened.  She stated that there were no other children.  She  stated  that she knew  the parents  of the child  who fell from the 4th floor.  She stated that the House was not under construction but that some minor repairs were being undertaken and that she had lived there for 11 years.  She denied ever hearing any accident.  She stated  that she  screamed  and  the owner  of the plot  was  around  and so he  came and  took the child to hospital and  paid her  hospital bills.  According to DW2, the child who was alone   was about 3 years old.

44. On being cross examined by Mr Kivuva counsel for the  plaintiff,  DW2 stated that she  recorded  her statement  which  was  dated  17th February 2012, with the  defendant’s  lawyer, and that the  incident was still  fresh  in her mind.  She stated that she saw the child when  she (the child) fell.  That the child’s  mother  came  down and gave her  (DW2) the young  baby to hold  as she (mother)  went to check  on the  fallen  child.  She stated that she was surprised when she saw that it was a child hitting the ground.  She   stated that  there  were  iron  sheets  on top of the  building  under construction and that she  had never climbed on top but  conceded that there  were 7  floors.

45. When shown the photographs of the said building, DW2 identified/recognized them to be of the defendant’s house.  She  conceded that the photographs showed that there was construction  work going  on, on  top of  the  building ; and that the building was  roofed  when she  was  still the defendant’s  tenant  and that it  was  roofed  in 2010 or early 2011.  She  also stated that the 7th  floor  which  was  the top most  floor  had tenants  occupying it  and  that  water  tanks  were  brought in  2012.

46. DW2 further (recognized) PW1 as the father of the injured child as well as DW1 the defendant owner of the building in question.

47. DW2 also stated that  the  building had  balconies  but were  not raised and  that there  were  no barriers  during  construction to protect passerby.  DW2 further conceded that if there were barriers, the child could not have fallen.  She conceded that the plaintiff lived upstairs and stated that she lived in room 2B.

48. On being shown the photographs the second time, DW2 conceded that there were ropes and wires hanging.  She maintained that she was telling the truth, that the child   fell from the balcony and that she could not tell exactly how old the child was.

49. On being  reexamined  by Miss  Njuguna counsel for the defendant, DW2 stated that the child  fell from  the balcony on the  material date and that the  mother  followed  her after  she had fallen.  That the child   was about  3 years  and that there  was construction  works which   were being finished  hence there  were no materials  which  were  being lifted.  She stated that she could not confirm if water tanks were up.  She denied being paid to come and testify in court.

50. On being  asked  by the court to clarify, the defence witness  2  stated that   the  building had  7 floors  and  that she  could tell  that at the  time of the  accident, there  was  a floor being constructed  on top of the building  which  was the 7th floor.

51. The defence closed his case and both parties’ advocates   agreed to file written submissions within 7 days   from 17th May 2016.

52. The plaintiff’s counsel filed his written submissions and  authorities  on 26th May  2016  but as  at the time  of writing this judgment, the defendant’s counsel had not  filed his submissions and  on 13th September  2016 when the matter  was mentioned to fix  a judgment   date after  lapse of  4 months  as  I had just  been deployed  to the Judicial Review  Division  and  as I  was  not sitting  on  26th May  2016  when the  matter ought  to have been  mentioned  to fix  a judgment  date, due to other  official engagement, the defence  counsel intimated to court  on  13th September 2016  that they had no submissions  to file and  hence the court  was  called upon to write  and  render its  judgment  which I  hereby do.

53. In their written submissions dated 24th May 2016 and filed in court on 26th May 2016, the plaintiff’s counsel summarized the pleadings and evidence  of the parties  and  framed  3 issues   for determination namely:

1. Did the accident occur on 22nd April  2010 involving  MNK.

2. Was the defendant’s negligence  the cause of the accident?

3. What damages  are payable  to the plaintiff?

54. On whether  an accident  occurred On 22nd April  2010, it  was  submitted  on behalf  of the plaintiff  that albeit  paragraph 10  of the defence  denied  any occurrence  of the  accident, the plaintiffs  witnesses  testimonies  and  DW2’s  testimony  clearly  disclosed   that an accident  involving  the minor  child falling  from the balcony  of the building did occur.  It  was   submitted  that the defendant in his  testimony  in court  admitted  that he knew of the accident  after it occurred.

55. On the second issue of whether the defendant’s negligence  was  the cause  of the accident, it  was  submitted  that the plaintiff’s witnesses and the  photographs  produced  in evidence  clearly showed that the defendant’s building was under  construction  at the top most 7th floor and that the  said  evidence  was  supported by the testimony  of DW2.  Further, that the defendant’s denial  and  attempt to explain that the  incomplete  part  of the building was   for water tank storage  was unconvincing  since  the photographs  showed the  incomplete and later completed  work on the 7th floor, showing  windows  and  doors.

56. Further, it was submitted that the house was not properly  secured  and  that even  without holding on the ropes, a minor could  easily  slip between the  metal grills  at  the corridor  to the ground.

57. It was  further submitted that the defendant  had no  occupational licence  to show that he  was authorized   in  2001  to  have the building inhabited as  alleged.

58. It  was  submitted that the metal  grills  in the corridor  should  have been elevated to cover the entire wall to arrest the  accident, and that  DW2 confirmed  that no additional  safety measures were taken to secure the area after the fateful  accident  to avoid  any future   similar  occurrences.

59. Reliance  was placed on Section  3 of  the  Occupier’s  Liability Act ( Cap 34 Laws of Kenya)  in the submission that an occupier  of any premises has the  duty of care   to ensure that the  premise  is not defective  and is  safe  for occupation; which  duty is owed by Landlords  and  contractors  in  equal  measure to the lawful visitors to the premises including trespassers and other non visitors ( as per the English  Common Law).

60. Further reliance was placed on the  Halsburys  Laws of England  VOL 48  5th Edition  on the Occupier’s  Duty of Care  and the  standard  of care.  Citing  Section 3(3)  of Cap  34  Laws  of Kenya, it  was submitted that  the defendant  was not  adequately  prepared  for children  in his premises  and allowed  construction to continue when the  property  was occupied without  securing the  premises.

61. That  there  was no warning  displayed  in  the house  to warn the  minor and  other tenants  of the dangers of the  building.  It  was further submitted that the minor  had  a right  under Section  17 of the Children’s Act to Leisure and  Play  and that play is also in the best interest  of the child and is guaranteed   under Article  53(2)  of the Constitution.

62. The plaintiff’s counsel submitted  that  Section  118  of the Public  Health Act Cap  242  describes  any dwelling  or premises  or part  thereof  which is under  construction  as  a nuisance  and that therefore  the  defendant  in this case had  a  duty to ensure  that the minor’s  safety  was protected  while in the premises.  it was submitted, that Instead, the defendant allowed  construction to take place while the building was under occupation without  securing   the corridors  to protect  young  children from hanging  on ropes  used to pull building  materials  to the roof   of the building  or slide  through  the  wide spaced  metal  grill securing  the corridor  and  fall  to  the ground, which  was  a foreseeable  fact  hence the  defendant  was to blame   for the accident.

63. It was submitted that the minor could not have contributed to the accident.  Reliance was placed on the  case of Bashir Ahmed   Butt  vs  Uwais Ahmed  B.  Khan [1982-88] 1 KLR  where the Court of Appeal   held that a child under  the age  of  10 years  cannot be  guilty  of  contributory  negligence  unless it   was  proved that  he had the capacity to know  that he ought  not to do the act or  make  the omission.

64. In this case, it  was  submitted  that at the time of the  accident, the minor   was  only  4  years  hence  she could  not have  known the  danger of  jumping from the 4th  floor  of a building  as she  was  pure  and  innocent, owing to her tender  age.

65. it  was  further submitted  that Section  126A(vi)  of the  Public  Health  Act requires that a certificate of fitness  for occupation  of  premise  should  be given   and  a permit  must be given by  the City  Council ( now City County Government of Nairobi) before premises are repaired  such that  even if it   is true  as  contended by the  defendant  that he  was  carrying out routing  repairs  and  maintainance  in the premises, permission to do so  had to be obtained  from  the City County Government of Nairobi, and that  lack thereof  is  both criminal  and  nuisance.

66. It  was  submitted that not only  was the  defendant   in breach of   the law, but that  he  was  greedy, inconsiderate  and  brutal  in failing  to take  reasonable  care for the  safety of the minor  who  was  lawfully  occupying  the  premises  hence he should  be held  100% liable  for the accident.

67. On the third issue of whether the plaintiff was entitled to  damages, it was submitted that the minor sustained serious  injuries  which have  permanently  incapacitated  and  changed her life  as testified  by the father  PW1, the mother PW2 and  PW4 Dr. H.O. Ong’ang’o who testified and produced  her medical examination report  as an exhibit.

68. It was submitted that the minor who attended court exhibited all the conditions  indicated  by the  doctor  and  could not  properly  pronounce her name, had mumbled  speech, limped,  looked  paralyzed  from the right hand  side  and as  a girl  she  may  never marry and  raise  a family.  The plaintiff’s counsel prayed for an award  of damages:-

a. Pain and suffering kshs  5,000,000 relying  on the authority  of Susan Wanjiru  Njuguna Vs Keringet Flowers HCC 64/2001,Martin Kidake vs Wilson Simiyu  Siambi[2014] e KLR; Euphania Owino  Odego  vs  Martin  Osondo [2009] e KLR.

b. Loss of  amenities – kshs  1,000,000 based  on the decision  in Mwaura  Muiruri Vs Suera  Flowers  Ltd  & Another [2014] e KLR; Halsburys Laws of England page 348 paragraph  884  VOL. 48  5th Edition  2010.

c. Loss of future earnings capacity based on the  decision in Butler vs Butler [1984] KLR  225 as applied  in  EW (BM) minor  vs  KPLC  & Another [2015] e KLR  by this court.  A multiplier  of  40 years  was proposed  to suggest that the minor  would have  studied  upto university  and  become  a lawyer, doctor   or engineer and work from age 25-65  if not  longer  and  supported her parents  in different  ways.  Reliance   was placed  on LN NO.  116  Kenya  Subsidiary  legislation  2015, Kenya  Gazettte Supplement No. 91 of  26th June, 2015  enacted  under the  Labour  Institution  Act  No. 12  of  2001  which sets  the minimum wage at kshs  10,954. 70  per month for a domestic worker  which  translates  to kshs 10,954. 70  x  12  x  40= 5,258,286.

d. Costs of  a minder (nurse).

69. It  was  submitted  that the  child’s  mother  had abandoned  her work  to take  care of the  minor hence  she lost  her earnings   to care for  the injured  child.  That  the child  would not  live an  independent  life hence  she requires  a monthly cost  of shs  10,000  for the next  50 years  when she is likely  to turn  60.  Reliance was placed  on Martin  Kidake  v Wilson  Simiyu  Siambi(supra)where the court in similar circumstances  awarded  a minor  shs  4,200,000 at  a monthly  rate  of  kshs  10,000 for   a  minder for  35 years.  A sum  of shs  4,800,000  was proposed  at  40 x 12 x 10,000.

70. In total, the plaintiff’s counsel  prayed  for damages  as follows;

1. General damages for pain & suffering  - shs  5 million.

2. General  damages  for loss  of amenities kshs  1 million.

3. Loss   of earning  capacity – kshs  5,258,256. 00

4. Cost of  a minder  kshs  4,800,000

Total  kshs  16,058,256. 00.

71. On 13th September, 2016 the defendant being represented by Mr Ocho holding brief for Ms Mbiyu Kamau  informed the court that the defendant had no submissions to make and the court reserved this matter for judgment delivery on this 17th January, 2017.

DETERMINATION

72. I have carefully considered the pleadings and evidence  tendered by both parties  to this  suit  and their  respective  witnesses  and the documentary evidence  tendered  by the plaintiff  as fortified  by  her counsel’s written  submissions and decided cases as  well as statute law  cited.

73. The defendant never filed any submissions. Nonetheless, submissions are not evidence and therefore the defendant was not disadvantaged in any way. In my  humble view, the issues  for determination in this matter  are:

1. Whether  there   was an accident  involving  the  plaintiff minor  falling from the  defendant’s building on  22nd April  2010.

2. Who  was  to blame  for the  accident?

3. What injuries did the minor sustain as a result of the accident?

4. What is the  quantum of damages  payable  if any.

5. Who should  bear the costs of  this suit.

74. On the first issue of whether  there  was  an accident  involving  the plaintiff minor  falling from the  defendant’s building on 22nd April 2010, the minor’s next friend  and father  testified  as PW1 and  stated  that he  was away  from home  at the time  of the accident and only found the minor at Kenyatta National Hospital.  He  received  information that the minor  had fallen  off from the third  floor  of the building while playing  with  friends  when  she came  across  a rope  used by the developers  to uplift  building materials  bundles  of steel  bars from  the ground  to the seventh floor  and that  the  minor  held the rope  not knowing  the danger thereof, lost  control and fell  on the ground and that  the Landlord who was on site came and carried her to Kenyatta National Hospital  following  the accident.

75. PW1 and his minor daughter lived in the defendant’s premises at the material time of the accident. He however did not witness the accident.  He was only told of what had happened. He found his minor daughter in hospital, seriously injured.

76. PW2 the minor’s mother testified and stated that on the  material  date she  was to be  found  at  the defendant’s  premises  where she  lived with  her husband, PW1 and   the daughter ( minor  subject  of these  proceedings). Further, that  on that  date of the accident she  (PW2) send her  minor  daughter  in the company of another daughter to the shops.  The children returned  and  as she continued  carrying out her other household  chores  the children  rushed out  to play.

77. After a while, she heard a loud  thud which was followed by wails from neighbours.  She rushed outside to see what was happening and saw a child lying on the ground next to a metal that had been tied and a rope was hanging from above her.  She indentified her minor   daughter as the one who had fallen on the ground.  She climbed down stairs and found when a neighbour had picked  her daughter from where  she had  fallen.  They looked  for  help and  fortunately, the Landlord  who is the defendant  herein   was  available.  He took the child to Kenyatta National Hospital in his car and left  them there.  She  was  also in the company of Kennedy  Mutua  who was the  defendant/landlord’s  caretaker and who testified as PW3.

78. PW3 Kennedy Mutua testified that he was the defendant/Landlord’s caretaker and  stated that  he  had worked  as  the defendant’s  caretaker of the building  from 2008 until 2011 and that  he knew the plaintiff and PW2 who were tenants in the defendant’s premises.  He  stated  that at the material  time  there  was  construction  work  going on  the 7th floor of the building  which  was  occupied  by tenants  and that the workers used ropes  to uplift  materials  to the 7th floor.

79. He stated that the said ropes were loosely hanging.  He stated that on  22nd April  2010 the children  were playing  on the balcony  when the minor(MNK) herein fell  from the  storeyed  building.  That he  was in his shop  which was  on the ground  floor  of the building when  he heard  a loud thud followed  by wails  all over.  That when he rushed outside, he found a gathering of people around a young child and he noticed (MNK) minor lying unconscious.  He noticed a loosely hanging rope which he suspected she must have hung on.  He accompanied   the mother  and  one other  female  neighbour and took  the  injured  minor  to Kenyatta National Hospital using the  defendant’s vehicle and  PW1 later followed them at the hospital   at or  about 5. 30 pm.

80. Dr H.O. Ong’ang’o testified as PW4 and stated that he received the history of the minor having fallen from a  storeyed building while playing. He administered treatment to the minor who suffered very serious and debilitating injuries.

81. According to  DW1’s written statement of defence he denied   that there  was any accident or at all  involving a minor(MNK)falling  from the balcony  of his (defendant’s) building  as  claimed by  the plaintiff.  He also wrote a witness statement which he adopted as his evidence in chief wherein  he maintained  that there  was no accident  of MNK falling  from his  building, and  that he only  learnt of an alleged  accident  when he  received a demand  letter  from the  plaintiff’s  advocate.

82. DW1  stated  that if  the minor  had fallen  off the  building, and that since he  was  within the  said  precincts  of the  building  on the material day of 22nd April 2010, he  could  have been  notified  which he  was not.

83. According to the defendant, the plaintiff’s  claim  was  fictitious and  intended  to defraud  him.

84. However, during cross  examination by the plaintiff’s  counsel,  the defendant  owned up and admitted being the  owner of the material building  and  conceded that  he  was only  called after the incident.  He also stated that he  heard that  a child  fell  from 4th floor  to the ground.

85. The defendant’s  witness  DW2  testified  that at the  material  time  she  was  a tenant  of the  defendant, and   was engaged  in embroidery.  In her written witness statement which she  adopted  as her evidence  in chief, she concurred  with the defendant that no accident occurred  involving  MNK falling on the ground on the named date  and stated that the  defendant  only learnt  of the accident  on receipt of a demand letter from the plaintiff’s   advocates.  She concluded  that the plaintiff’s claim was therefore  fictitious  and  intended to defraud  the defendant.

86. However, while testifying  on oath  in court and after adopting  her written  witness statement as her evidence  in chief, DW2 departed from her earlier witness statement and stated that on the material day, she  started working at her usual place-veranda during morning hours when something fell down from the storeyed  building  and she  thought  it was waste but on  checking out  she  saw  a child  infront  of her. A lady  came and  picked  the  child  as many people gathered  to witness  what had happened.  That she  knew the parents of the fallen child.  She screamed. She also testified that the owner of the  building  was around  so he  came and took the child to hospital  and settled  her hospital bills.

87. In cross examination  by Mr Kivuva,  DW3  emphatically  stated that she saw the child  fall and  that thereafter the child’s  mother came  with a baby  and  gave  to he(DW2) to hold for her  as she attended to the fallen  child.  DW2  also  reiterated  that the  child  fell  from the balcony.

88. From the  exposition of the entire  evidence adduced by the plaintiff’s side and  defence side, it is clear that DW2  was  the eyewitness to the minor’s  fall from  the building,  although  nobody  knows  or could  tell with  precision  from which  floor  the  child fell and how exactly she fell.  The rest  of the  witnesses only found  when the  child  was down  after hearing  a loud thud, while  DW1  was  only called   or came  to learn of the accident  after the fall, and  although  he tried  to deny knowledge  of the accident, he  eventually  admitted  that he  was  informed  after the fall.  Further, the  defence witness  DW2 was clear  that  when  she  saw the child fall,  she  thought it   was  waste  only  to learn  that it   was MNK.  She screamed and  people  gathered.  DW1 came and took the child to hospital.  DW1 never denied taking the injured child to hospital.

89. On the whole, therefore, I find that there was sufficient  evidence to show that  there  was  an accident  involving  the fall of MNK (minor)  from the building owned  by the defendant  but as  to how the  child fell,  whether it  was  as a result  of her  hanging  on the  ropes  used  to  uplift  building  materials  to the  7th floor  or by  shipping  through  the balcony  grills,  was  not clear  as no witness  testified   seeing  the child  hanging  on the rope or  simply  falling  from the balcony  via  the metal barriers.

90. Nonetheless, the undisputed  fact is that  there   was an accident  involving  the minor (MNK) falling  from  a storeyed  building  belonging  to the defendant  on  22nd April 2010.

91. The second and very important question and issue for determination is who was to blame for the material  accident?

92. According to the  plaintiff’s plaint filed  on  22nd February 2011, the defendant  was  liable  for the accident  because  he  caused building materials  to be pulled from the ground  of the building up to the 7th floor  via lose  hanging  ropes which  were not  secured  when the minor  who  was  about  5 years  got hold  of one  of the  loose  ropes  from the  3rd floor  and  was  pulled  by the same, lost  control  and fell on the ground   as a  result of  which she  sustained  serious injuries.  The  particulars  of  negligence   as set out in paragraph 6 of the  plaint dated  17th February 2011  are:

a. Allowing  the construction  of a building  on the top floor  while occupied by  other tenants.

b. Failing to secure the construction  thereby exposing  the plaintiff  and  other  tenants  and  the public  as a whole to  serious danger  of injury;

c. Failing to use modern construction  equipment   to carry out  the said   construction;

d. Failing to use  best construction  practices  while erecting   the said building;

e. Failing  to give  proper supervision  on the  construction site to  avoid  accidents;

f. Exposing  the plaintiff and other members  of the public  to grave danger  of injury;

g. Acting carelessly, recklessly  and  without  due regard  to the dignity  of human life;

h. Failing to take any adequate  or sufficient  precautions  as to avoid the  accident;

i. Deliberately  exposing the plaintiff  to the  danger of injury;

j. Causing   the  accident;

93. On the other hand, the defendant  while  wholly  denying  the occurrence  of the accident   by his  pleadings  also  set out  what he  believed  could  have  caused  the accident  though denied  namely:

i. Allowing  the plaintiff minor  to play at  a construction site  while it  was dangerous  and  unsafe  to do so.

ii. Using  the ropes  to jump from the  3rd floor  of the building  when it  was  unsafe  to do so.

iii. Hanging and or  causing   to be  hanged  ropes  dangerously on the third  floor  of the said  building.

iv.  Exposing the plaintiff to danger and  injury  and  or damage   when it  was   unsafe  to do so.

v. Jumping  from the 3rd floor of  the building  when it  was  unsafe  to do so.

vi. And the defendant   shall at the  hearing   hereof  seek to rely on the doctrine  of  Res ipsa  Loquitur.

94. As  earlier  stated  while answering  the question  of whether  there  was  an accident  involving  the minor  falling  from the defendant’s building,  other than  DW2, no other witness  saw how the minor MNK fell from wherever she  was  on that building.  DW2  saw the child  fall  from the  building  but does not  state that she  saw  the child  hang on  a rope  which  was  loosely  hanging.  PW1 was only  called  to the hospital  after the  accident  while PW2 and  PW3  found when the  child had already hit the ground.

95. The plaintiff  and her  witnesses in their testimonies  blame  the defendant for constructing  on a building   which   was  occupied  by tenants without securing  the construction site and  or placing  barriers  to protect  the occupiers  and or  tenants  and  other members  of the public  and  relies  on the provisions  of the Occupiers Liability Act, Cap 34 Laws of Kenya and  Common Law.

96. My assessment  of the  evidence  as  a whole  does not  reveal that indeed  the child  fell as a result of hanging on ropes  which were loosely  hanging  and being used to  lift construction  materials to the 7th floor, which from the photographs  produced, as PEX 1a, 1b,1c, and  1e  is clear that  the  top most  floor  of the building  was then under construction and not completed  in  2001  or  2002  as the  defendant  wanted  this court to believe.

97. Accordingly, I find that  there is no  conclusive evidence  to show  that the  cause of the  accident   was the loosely  hanging  ropes  shown in the photograph  produced as PEX 1b, or that  the  child minor  who  was  either playing  on the 4th  or 3rd  floor  of the  now completed  building  as per exhibit PEX 1a could have pulled the ropes  and  fallen as  a result.

98. Nonetheless, what is  apparent  from the  evidence  adduced  as a whole and as shown by the produced photographs without any resistance from the defendant  is that  there are  barriers  on each  floor  and the metal  grills  have wide  spaces  in between which, if a  young child  was to climb onto them through the stair case as per photograph produced as PEx 1(d) or push  through, they would  fall or penetrate  through and  fall to the ground.  That is the logical conclusion that this court can reach upon observing the photographs produced in evidence.

99. In my view, that explains why DW2 testified that the child fell from the balcony.

100. Albeit the plaintiff did not plead the doctrine of res Ipsa Loquitur, the doctrine is a rule of evidence, which need not be pleaded.  On the  other hand, the defendant  pleaded  the doctrine  of res Ipsa Loquitur.  In Nandwa  v Kenya  Kazi Ltd  CA 91/1987 Mombasa Platt, Gachuhi JJA & Masime Ag JA, when confronted  with  a complaint  that the plaintiff did not plead  res Ipsa loquitur, in dismissing  that assertion, the learned  Judges  of  the Court of Appeal  observed as follows:

“Mr Oyatsi complained that the plaintiff did not plead res Ipsa loquitur.  Evidence is not to be pleaded. As was held in  Barkaway V South  Wales  Transport Company Ltd[1950] 1 ALL ER  392  at  393 B:

“ The application of the doctrine  of  Res Ipsa Loquitur, which  was no more  than a rule  of evidence  affecting  onus of proof  of which the essence was that an event, which  in the  ordinary course of things, was more likely than not to have been  caused by negligence  was by itself  evidence of  negligence, depended on the  absence  of explanation of  an accident, but, although it was the duty of the respondents to give an adequate  explanation, if the facts spoke for themselves, and  the solution  must be found by determining whether or not on he  established  facts negligence  was to be inferred.”

101. In Henderson V Henry  E Jenkins  & Sons  [1970]  AC  282  at  301,Lord  Pearson  a letter D  stated:

“ In an action  for  negligence  the plaintiff  must allege, and  has the  burden of proving, that the accident was caused by negligence on the part  of the defendants.  That is the  issue  throughout  the trial, and  in giving  judgment  at the end of the  trial, the judge  had to decide whether he is satisfied  on a balance of probabilities that the accident was caused by  negligence   on the part  of the defendants, and if he  is not  so satisfied  the plaintiff’s  action  fails.  The formal burden does not shift.  But  if in the  course of the trial there  is proved  a set of  facts  which raises  a prima facie  inference  that the  accident was caused by negligence on the part of the  defendants, the issue  will be  decided  in the plaintiff’s  favour  unless  the defendants by their evidence  provide  some answer  which is  adequate  to displace  the prima  facie  inference.  In this situation there is said to be an evidential burden of proof   resting on the defendants….”

“ From  these  facts  it seems  to me clear, as  a prima facie  inference, that the accident  must have been due  to the default of the defendants in respect  of inspection of maintainance or both.  Unless they had a satisfactory answer, sufficient to displace the inference, they should have been held liable.”

102. In the instant case, albeit there is no direct evidence of how the minor (MNK) fell from the storeyed building, there is no contradiction or doubt that she  was to be found on the storeyed  building  and  that  DW2 saw her drop to  the  ground  with a thud.

103. The plaintiff  minor, from the  doctor’s  medical  report  and  as  was  observed  by this court  during the  trial, is  incapable of understanding what transpired and or what   happened  to her.  She cannot be her own witness as her injuries are so severe that she could hardly tell her name.

104. The evidence that is uncontroverted reveals that the plaintiff minor and her parents were tenants in the defendant’s building.  They had no control over the manner in which the building   was being constructed or had been constructed.

105. The building, as seen from the photographs taken and produced in evidence, had no adequate secure barriers on the balconies.  The defendant  owed  a duty of  care when  constructing  the  7 storey  building, to the occupants, visitors  and  non visitors  to the building.  The balcony barriers   to the building   have wide metal grills which any person and especially children could fall from.

106. There was no evidence that the defendant had obtained certificate of completion of the storeyed building and occupation licence to allow tenants to occupy such a building with no secure balconies.  The defendant owed a   duty of care to the tenants, visitors, and non visitors alike, to his building.

107. The risk  of any  person and the plaintiff  minor  falling  from the balcony due to insecure barriers  was  very  foreseeable and therefore preventable by the defendant  reducing  the gap in the metal  grills  and  elongating   the barriers  to a level where a child  cannot climb  over.  That was not done in this case.

108. Therefore, in the absence of any evidence  to the contrary; this court  infers  that the  accident  was  caused  by the negligence  of the  defendant  developer failing to secure the balconies to prevent children from falling.

109. The plaintiff’s evidence as supported by DW2 was emphatic that the child fell from the balcony.  The  defendant  had not  displaced  the proved  facts  and  so, the  defendant  should be  held  responsible  in negligence.

110. Although the defendant pleaded contributory  negligence against  the  minor plaintiff  and  her guardians, in his  evidence  and  testimony  tendered  in court, he did not  attempt  to state or  prove how the minor or her guardian could have been  responsible  for the accident.  He did not even testify as to how   the minor and her guardians were responsible for the accident. Albeit the burden of proof lies on the plaintiff to discharge on a balance of probabilities, the negligence attributed to the defendant, where the defendant alleged contributory negligence on the part of the plaintiff, then it in upon him to prove that which he alleges. Section 107-109 of the Evidence Act, Cap 80 Laws of Kenya stipulates that:

107. Burden of proof

(1) Whoever desires any court to give judgment as to any legal right or liability

dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. Incidence of burden

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

109. Proof of particular fact

The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

111. The defendant having pleaded contributory negligence, it cannot be said that he bore no burden of proving it against the minor child. Thus,  there was no evidence to support contributory negligence either.  It cannot  be said  that there can be  no  playing  by the children on the  balcony  of a storeyed  building, so  long as  it is safe to  do so.  And the duty to make the balconies a safe place for children to play from is on the defendant developer.  This court cannot see any negligence on the children playing from the balconies of their houses.

112. To my  mind, the defendant  failed to  take  precautions  for the safety  of the  plaintiff minor and  had exposed  her to  risk of  injury or damage  which he  knew or ought to  have known and  albeit the plaintiff’s  evidence on exactly  how the  accident  occurred was not the strongest, but that  evidence was supported  by DW2 who   was the defence  witness who  saw the minor  child fall  to the ground  infront of her from  the storeyed  building  above ( see  Platt JA  in Nandwa  vs Kenya Kazi  Ltd (supra).

113. I find and hold that the plaintiff discharged the burden of proving her case on a balance of probabilities.

114. Thus,  the circumstance  which led to  the minor  child fall to the ground  from the balcony  of the defendant’s premises  could not be fully  explained,  yet the  facts  spoke for  themselves  as  a prima facie matter of negligence, there being no direct evidence as to cause of the accident thereby circumstances thereof leading the court to infer the cause thereof.

115. Furthermore, the defendant  in his defence  relied on the doctrine  of  res Ipsa  Loquitur  meaning, the  cause  of the accident could not reasonably  be explained  by  direct evidence.

116. In addition, whether  or not the  minor child  hung on the ropes  being  used for lifting  of construction materials  on the 7th  floor  of the building which  hanging of ropes were an apparent  fact from the produced  photographs  PEx 1(b) and testimonies of the plaintiff’s  witnesses  and  DW2, it is immaterial as the minor nonetheless fell on the ground from the storeyed  building.

117. In Abbay Abubakar Haji Vs Marain Agencies Company & Another [1984] 4 KCA 53 in which all parties to a motor vehicle accident were killed,  leaving no  witnesses, the Court  of Appeal  held :

“It is the  clear duty  of the court to arrive at a finding on the facts, however difficult the circumstances  may be, if  that  is at all  possible, although  that duty  does not   extend  to supplying  a  theory as to  what  happens  when the  inferences  from  the  primary  facts do not  inevitably  point  that way.”

118. In the  present  case, albeit  the way in which the evidence  came out  at the trial  did not exactly match  the  pleading  at paragraph 6  of the plaint, especially on the child  falling  from the  balcony  and not  hanging  on the ropes, as the only witnesses  who saw  the children “playing  on the  buildings  balcony  and  one of them  holding  on the rope  coming  down  with it, and  releasing  the rope  and  falling down  next to  the steel bar”  was  Boniface Ndambuki  who wrote  a witness  statement  but never  testified; on  the authority of Kenya  Meat  Commission  v Richard  Ambogo Reiden CA 40/1989[1990]e KLR where  the appellant  argued  that the way in  which the  evidence  came out  at the trial  did not  match  the  pleadings, the Court of Appeal.  (Per. A.R.W. Hancox, CJ; JM Gachuhi, JA and R.O.  Kwach JA) observed, after examining  the plaint  and the evidence  in support  of the  pleading found that there was a suggestion in one of the  medical reports  and in a  small part  of the evidence, that  the plaintiff’s  injury  was caused  by a knife, which suggestion  was not borne  out by any of the evidence, and neither was it  put to the plaintiff in cross examination that the accident occurred in that way.  The Learned Judges of Appeal stated:

“ Though this accident  (sic)  was at  variance  with paragraph 5, and  was commenced  on by Mr  Inamdar  in the submissions  in the High Court, no attempt was made to amend the plaint, except  in another  minor  and  probably  irrelevant  respect.  Did that variance therefore, preclude the Learned Judge from reaching a finding based on the plaintiff’s  evidence that  the  accident  occurred  due to  the  defendant’s  failure  to exercise   reasonable   care to  ensure  smooth  and  safe  operations in it’s  factory ….

I come  now to the  authorities  cited  by Mr Inamdar  in support  of his submissions that the plaintiff was limited to the particulars given in the plaint and  that the  judge  was  not entitled  to rely on evidence  which went  outside  those  particulars, all the more so since agreed  issue No. 2 reiterated  paragraph 5 of the  plaint.

In the early  case of  Blay v Polland & Morris,[1930] AE Rep 69 the Court of Appeal held that the trial  judge  was not entitled  to make  a finding  of non  est  factum  because, as  a matter  of law, the plea was not open to a person who  was not mistaken  as to the  nature  of the document he had  signed, even  though  he might  misapprehend its legal effect.  That, of course, was a straight forward misdirection of law.  However, the  way in which  that case  becomes  relevant  to the instant  one  was  the  second contention  put forward   by Morris, which  was  that  the  agreement could be avoided  for  fraud.  Now fraud at common law has always have special connotations.  The allegation being a serious one, it has been rightly held that such an allegation must be strictly pleaded and proved.  And   this  indeed  emerges  from the  following  passage  in the judgment  of Slesser LJ, which to my mind explains the passage from the earlier   judgment of Scrutton LJ at page 612 cited to us  by Mr  Inamdar.  Slesser LJ said:

“ Fraudulent  conduct  must be  distinctly  alleged  and  as  distinctly proved  and  is not  allowable  to leave   fraud to  be inferred  from the facts.”

The gravamen of that case was, therefore, that the fraud alleged  regarding the agreement  to pay the  rent prior to  the dissolution  of the partnership  could not  be  raised  without  having been  pleaded.  For myself, I would hesitate to apply the rigours  of the universal rule of  pleading  regarding  fraud  to a case of industrial  injury which  is  an action of a wholly different  character, involving, as  it does, the  recollection  of witnesses of a rapid series of events in which there is  understandably  a risk  of confusion, especially  by the person  injured….”

119. The Court of Appeal in the above caseof Kenya  Meat  Commission  v Richard  Ambogo Reiden and further relying on Kanti V British Traders Insurance Company [1965] EA 108 Law JA stated:

“When the parties agree an issue, the court should decide the case upon that issue if it is properly framed, and arises out of the pleadings.”

…..it would be  unjust  for the plaintiffs  to be non-suited  for having  failed to prove  something  that  was  never made  an issue  between the  parties  at the trial  and which  was, in law, incorrect……In the instant case, the issues, whether the  plaintiff  was injured  by the  saw and  whether  that  was  due to the  Commission’s breach  of duty  did arise  fairly  and squarely  on the pleadings, particularly on paragraphs 4 and 8 of the plaint….the defendant  abstained  from calling  any evidence  directed to the issue   as to how the  accident  did occur, but only  generally  called the   foreman as to the sequence  of events that  should have  occurred.  In those  circumstances  they were  not really in a position to refute  the  evidence that a  second  Peter  Nyamai  was  working  as  a saw  operator  on the killing floor. In this case, I do not think there was any unfairness as regards the defendants knowing what case they had to meet.  The plaintiff  said  straight away  in his  evidence that  he  was injured due to  the writing  or jerking  of the  animal.  I think the defendants  should  thereupon  have objected, if they wished  to take the  point, that  the  evidence  was  at  variance  with the pleaded  particulars  of negligence.  They should not wait   until the end of the case, or the appeal, and then, as it were, huff the other side for not having led evidence in accordance with the plaint.  I consider it  would be  most  unfortunate, in a case of personal  injury, if  a plaintiff, who  has otherwise  proved his  case, is deprived  of his remedy  due to the niceties  of  pleading.

Having reviewed the authorities and considered the  submissions  by the appellant’s counsel on the appeal, it would be to my mind  unjust  to hold   the plaintiff  to be non  suited  because while the  general  allegation is correct, the  particular  way in  which the accident  happened   was  at variance  with  paragraph 5,  when there are, indeed  other  allegations in paragraph 4 and  8  which make it  perfectly  clear that  the  accident happened  at work  in  circumstances which established  on the balance of  probabilities  that the defendants  failed in the duty  of  care which  they owed to the  plaintiff.

For those reasons notwithstanding the judge’s unjustified  finding  as  to the reason for the  second  losing  or watering down  taking  place, I agree with the  finding that the accident  occurred  in the course of the  horn cutting  operation   and  was due to the  defendant’s failure  to take reasonable care to ensure  that this   was done  safely.

120. In the instant case,  even if there was no eye witness evidence of whether the child fell when she hung on the ropes being used to lift building materials to the upper most part of the building which was under construction  or whether she slipped through the metal bars on the balcony, and albeit  the  witness  who saw the  child  pull the  rope  and  fall did not  testify, the  defendant’s  caretaker and the defendant’s  own witness  DW2  were clear that the minor   fell from upstairs. There was also no contrary   evidence that  indeed  the 7 storied  building  was still  under construction  when the accident occurred.

121. The photographs  produced  in evidence without  the  defendant’s  objection  clearly show that  the 7th floor  was still under construction at the material  time and  there are ropes  hanging   loosely  from 7th floor  to the ground  floor. See PEx 1b.

122. Further, the evidence in the photographs is clear that the  balcony  barriers  are not only  short  but have  wide  spaces  between the vertical  metals  and  therefore  any child  playing   on the  balcony, whether  they  hang on the  ropes or not,  are likely  to fall through  the wide  spaces or by climbing through the staircase.

124. The plaintiff clearly pleaded  that the defendant, inter alia, failed  to secure  the construction thereby exposing  the  plaintiff  and other  tenants and the public as a whole  to serious  danger  of injury; failed  to use  modern construction  equipment  to carry  out the said construction; failed  to use the best construction  practices while erecting  the  said building; exposed  the plaintiff  and others to grave danger and injury; acted carelessly, recklessly and without  due regard to human dignity; failed  to take  any or any adequate  precautions  as to avoid  the  accident; and  deliberately exposed  the plaintiff  to the danger of  injury.

124. In my humble view, all the above stated particulars of negligence establish the circumstances under  which the plaintiff minor fell from the balcony which was not  secure thereby exposing  her to grave  danger of injury.

125. The defendant did not deny that deny in his testimony in court that any of the above stated particulars of negligence could have contributed to the pleaded accident.

126. As was correctly submitted by counsel for the plaintiff, at common law, and under Section 2 of the Occupiers Liability Act Cap 34  Laws of Kenya, an occupier  of premises  has the duty  of care to ensure  that the  premises   is not defective  and  is safe  for occupation.  This duty  is  owed by landlords  and contractors  in equal measure ( as per  the Occupiers  Liability  Act of  1957- England) and for  lawful visitors  to the premises together with trespassers  and  other  non-visitors  (Occupiers  Liability Act of  1984 of England).

127. The Occupiers Liability Act Cap 34 Laws of Kenya covers all the lawful occupants, visitors, and trespassers. The plaintiff is not expected to plead the law but facts and submit on the law which her counsel did, in this case, to the satisfaction of the court.

128. In Halsbury’s Laws of England (VOL. 48 5th Edition 2010, it is stated:

“ The common duty of care  is a duty to take  such  care as  in all circumstances  of the case  is reasonable   to see  that  the visitor  will be reasonably  safe in using  the premises  for the purposes for which  he is invited or  permitted  by the  occupier to be there.  The relevant  circumstances  include  the degree of care; which  would  ordinarily  be looked  for in the visitor  so that, for example, in  proper  cases, the occupier  must be prepared for children to be less careful than  adults…..”

129. Paragraph 33 of the above writings of Halsbury’s Laws of England as cited thereof explains the standard of care as follows:-

“ In deciding  whether  there is a  danger, regard  must be  had to the physical  and mental  prowess of a child  visitor, in short, what  is  not  a danger  to an adult  may be  a danger  to a child.  In determining the standard of care owed to a child who is not accompanied by the guardian, it will be material to inquire, whether, in the circumstances, the occupier could have reasonably have expected the presence of the child unaccompanied.”

130. The  above statement  is in pari materia with Section  3  of Occupiers  Liability Act,  Cap 34  Laws of Kenya which  states:

3. Extent of occupier’s ordinary duty

(1) An occupier of premises owes the same duty, the common duty of care, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2) For the purposes of this Act, “the common duty of care” is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

(a) an occupier must be prepared for children to be less careful than

adults;and

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4) In determining whether the occupier of premises has discharged the

common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)—

(a) where damage is caused to a visitor by a danger of which he had been

warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b) where damage is caused to a visitor by a danger due to the faulty

execution of any work of construction, maintenance or repair by an

independent contractor employed by the occupier, the occupier is

not to be treated without more as answerable for the danger if in all

the circumstances he had acted reasonably in entrusting the work to

an independent contractor and had taken such steps (if any) as he

reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

(5) The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).

(6) For the purposes of this section, persons who enter premises for any

purpose in the exercise of a right conferred by law are to be treated as permitted by the occupier to be there for that purpose, whether they in fact have his permission or not.

131. The Act obliges  the  occupier, placing  upon him  a duty, the common  law duty  to all his  visitors, to take  care as  in all circumstances  of the case is  reasonable to see that the visitor  will be  reasonably   safe  in using  the  premises  for the purpose   for which   he is invited  or permitted  by the occupier  to the house.  And Section 3(3) (a) of the said Act provides that an occupier must be prepared for the children to be less careful   than adults.

132. The defendant, by continuing with construction work on premises which were occupied, and in failing to ensure  that the  balcony  was fully  secured  exposed the plaintiff  minor  to the risk  of injury  which  was  reasonably  foreseeable.  Children have the unfettered right to leisure   and play within the building and which, in this case, was with the proximity of their ordinary   habitat.  (See Article 53(2) of the Constitution and Section 17 of the Children’s Act).

133. Furthermore, Section  118  of the Public Health  Act Cap  242  Laws of Kenya recognizes  that any dwelling  or premises  or part  thereof  which is under  construction is a nuisance  hence, the defendant  was  under common  law and  statutory duty   to ensure  the minor plaintiff’s safety while in those premises  wherein  her  parents  were tenants.  Instead, the plaintiff continued with the construction works on the 7th floor while tenants occupied the rest of the floors  below, and  failed to secure the  balconies  to ensure that  children playing  thereon would not  slide through  and  fall  to the ground. This was a foreseeable risk which the defendant cannot escape liability.

134. Albeit  the  defendant claimed in his pleadings  that the plaintiff  and her guardians were negligent or contributed to the accident, in his testimony and that of  his witness  DW2 , there  was no mention   of how the plaintiff  could have been negligent  or even  contributed  to the occurrence  of the  accident.

135. Furthermore, the court found the defendant to be too dishonest for denying any knowledge of the accident yet his witness was clear that it was the defendant who took the injured minor to Kenyatta National Hospital.

136. The minor was about 5 years at the material time of the accident. In Bashir Ahmed Butt vs Uwais Ahmed B. Khan [1982-88] 1 KLR, the Court of Appeal stated:

“  The  practice  of the Civil Courts  ought  to be that  normally  a person under the age of 10 years cannot be guilty of contributory  negligence  and therefore  in so far  as a young  person is concerned, only upon clear proof  that……….he had  capacity  to know that he  ought  not to do  the act  or make  the omission.”

137. The plaintiff minor  aged about 5  years  could not  have been  expected  to  know the risks of  hanging  onto a  rope and   or sliding  through  the  balcony  and falling   on the ground from  a storied  building.

139. The Court of Appeal in the above Bashir Ahmed Butt (supra) case further observed:

“ It  would need  a  great deal of  pursuation before  imputing  contributory negligence to the child  aged 8 years  having regard  to her tender  age.  Even if  she did   step off into the car  it would  not be  right  to count  as negligence on  her part  such a momentary  act of  inattention or  carelessness……A young  child cannot  be  guilty  of contributory  negligence  although an old child might be, depending on the circumstances.  The test should be whether the child was of such age as to be expected to take precautions for his or her own safety and a finding of contributory negligence   should only be made if blame could be attached to the child…….”

139. In the  circumstances  of this case, this court is  unable  to find that the  minor child  who was of  such age  of 5 years as the plaintiff herein was to be  expected  to take precautions  for her own safety  and therefore  no blame  could be attached to her.  Accordingly, I find that no contributory negligence can be made against her.

140. In addition, Section 126(A)(vi) of the Public Health Act mandates  the owner  of the building to obtain a certificate  of fitness  for occupation of a premises  and  a permit  issued  by the local authority-in this case the City County Government of Nairobi,  before occupation or before repair works  such that even if the defendant  was  carrying  out routine works  in the premises, which allegation  was disproved  by the photographs  produced  in evidence  by the plaintiff, then it  was upon him to obtain  such permission from the Nairobi City County Government authorizing the  works, or to allow tenants occupy the premises.

141. Further, the defendant  was under a  duty to produce  to this court  evidence that the building  as a  whole  was  certified  as fit for  occupation  before the  plaintiff minor  and  her parents   were allowed  in  as tenants.  In the absence of  such  certificate  of fitness for  occupation  of the  premises, this court   infers that the  balconies  as constructed were  not  certified  to be safe  for the occupants  of the storied  building.

142. In the end, I find that the defendant was responsible  in negligence  for the  accident  which occurred  on 22nd April 2010  involving  the  plaintiff minor  wherein she  fell from the storied  building onto the ground thereby sustaining near fatal injuries.

143. On the next issue of what injuries the minor sustained  as a result  of the accident, it is not  in dispute  that  after  the fall, the minor  was picked  by PW2,PW3 and DW2 and  that DW1, the defendant  herein  accompanied  by PW2 and PW3 took  the  child in his motor vehicle to  Kenyatta National Hospital where the minor was admitted  in the Intensive  Care Unit.

144. PW4 Dr. H.O. Ong’ang’o  a Consultant  Orthopaedic  & Trauma Surgeon  who attended  to the minor testified  and  produced  a medical report dated 2nd December 2010 from Kenyatta  National Hospital confirming that  the  minor who was  5½ years  was seen  from 22nd April  2010  with a history of falling from a storied building  while playing  and  that she  sustained  the  following injuries.

a. Head injuries;

b. Right elbow  injuries

145. On examination, the minor was found to have sustained  injuries  involving  the central  nervous system: Glasgow come scale 6/15;  power grade   2 in the  upper limbs;  power grade  0 in the lower  limbs.  That she   was in poor general condition, and had locomotor-swollen tender right elbow.

146. The x-rays taken showed:

a. Greenstick  fracture  of  distal  right  humerus;

b. CT  Scan  of the head- brain  oedema (swelling)  with a very small  subdural  haematoma  in the left  cerebellum.  The treatment  administered  to her  included  a)  admission to the ICU;(b)manitol; Epanutin; Zantec(c) analgesics,(d)  Antibiotics; (e)  Splinting   the right  upper  limb.

147. The minor   remained  in the Intensive  Care Unit for  13  days  with progressive improvement  and  for  27  days in the  general orthopaedic  ward.  She improved as an out patient, regaining moderate speech.

148. On being examined the minor was found to experience the following problems.

a. Difficulty in walking;

b. Confused  mentally;

c. Cannot turn herself in bed;

d. Relies on the use of container to relieve herself; and

e. Bending of the back on sitting.

149. She was conscious, looking moderately disoriented, has an unstable gait  and  mumbled  speech.  Her locomotor was essentially normal.

150. The doctor’s prognosis   was that the minor suffered a head injury and a greenstic fracture of the distal right humerus in a fall.  The greenstic fracture  of the humerus  has proceeded  to heal uneventfully  but the  head  injury  is pointing  towards  primary brain  damage  that may be  permanent.  That the minor may never recover from the injury.

151. On the whole,  from the above medical  evidence  which is  uncontroverted  as far  as the  plaintiff/minor’s  injuries   are concerned, I find and hold that the minor  sustained   very severe  head injuries  affecting  her brain.

152. The court had an opportunity   to see, observe and talk to the minor during   the hearing of this case.  She could  hardly say  what her name  was,  she  mumbled  words  which  were  inaudible, she was very  uneasy/restless  in court  and moved around the court with a limping gait shaking her  head.

153. The next question is what damages the plaintiff minor is entitled to.  In paragraph 8 of the plaint, the  plaintiff  pleaded that she  was  5  years  old at the time  of the  accident; that she  will require  assistance  all  her life; that she  will need  to attend   special school for children with special needs; that her permanent   head damage will  make  her not lead  a normal life; That  she is  unlikely  to be employed  and  to start  her own  family; that she has lost  future  earnings and future   earning capacity; that  she will undergo  physiotherapy all  her  life  at the rate  of shs  5,000 per month, that her nurse  will cost  approximately  10,000/-  per month; she  will need  medication and  specialized  treatment   and  care.  She therefore prayed for general damages and damages for loss of earning capacity; costs and interest.

154. No special damages were pleaded.

155. In the evidence tendered by PW2, the minor plaintiff’s mother, she testified that her child was a vegetable.  That she cannot do anything for herself.  That PW2 lost her business because of attending to the minor and that she cannot even hold a pen well, is unstable and cannot comprehend.

156. Under the heading of pain and suffering, the plaintiff’s  counsel  proposed  a sum of kshs  5,000,000 based on the authorities  of: (a)  Susan  Wanjiru  Njuguna  vs Keringet  Flowers  Ltd (HCC  64/2001 where the plaintiff  sustained  head injuries  leading to loss of  consciousness, blunt  injury   to the right  hand, loss of 3 upper  frontal  teeth  and  blunt injury  to his hand.  He was admitted at MP Shah hospital for 3 weeks and 3 says.  The court on 3rd July 2008 awarded him shs 3 million general damages for pain and suffering. (b) Martin Kidake vs Wilson  Simiyu Siambi  [2014] e KLR where the  plaintiff  sustained  severe head  injuries  leading   into coma, and  remained  severely  handicapped  mentally  and  physically.  Odunga J on 10th April 2014 awarded him shs 3. 5 million general damages for pain and suffering.(c) Euphania Awino Odego  vs Martin  Osondo [2009] e KLR  where the plaintiff  sustained  severe brain injury  leading to unconsciousness and post traumatic amnesia  she   was awarded   shs  3 million  on 28th September  2009  by Justice  Ali Aroni.

157. The plaintiff’s counsel also prayed for loss of amenities  separate from  the  claim for pain  and  suffering  and  relied  on Halsbury’s  Laws  of  England  and the case  of Mwaura  Muiruri  vs Suena  Flowers Limited  & Another  [2014] e KLR  where it  was held:

“ Damages  for loss  of  amenities  are therefore  awarded  when the  ability of the plaintiff   to enjoy certain  aspects  of his life  as a result of  the  accident  are diminished.  Essentially the  quality of life  of  the  plaintiff  is  reduced  due  to the inability  to do  the things  he would  otherwise  have  done  had it  not been  for the injuries.”

158. It was  submitted  that the minor  is entitled  to loss of  amenities  separately because she  walks with  a limping  gait, she is  paralysed  from  one  side, her  chances of  marriage  are very  low, she  cannot  play  with other  children  since she  is not balanced  when walking  and  has  slurred speech such that she cannot  enjoy life normally.  A sum of shs 1,000,000 damages for loss of amenities   was proposed.

159. Albeit  the minor’s  counsel had passionately  pleaded  for  separate   awards  of pain  and  suffering  and loss of amenities, this court  hesitates  to make  the separate awards  for reasons  that details  provided  in the submission do not  form  part  of the medical evidence of the plaintiff as adduced by Doctor  Ong’ang’o.

160. Furthermore, it cannot  be true that in rural  areas  children  are not  provided  with school report  forms  even if  the minor  was  taken  to school merely  for play.  The Head Teacher or  class teacher  of the minor  should have  given a  progress  report  on how the child  was  fairing  on in school/class  and  how she  relates  with others.

161. The philosophy  behind the award of damages  for pain and suffering is  explained in paragraph 883  in Halsbury’s  Laws of  England 4th Edition VOL 12(1) page 348 thus, “ pain and  suffering.”

“Damages are  awarded  for the physical  and mental  distress  caused to  the  plaintiff, both  pre-trial  and in the future  as a result  of the injury.  This  includes  the pain  caused by the  injury  itself, and  the treatment   intended  to alleviate  it, the  awareness of and embarrassment at the disability or disfigurement, or suffering caused by anxiety  that the plaintiff’s   condition  may deteriorate.”

162. I have no doubt that the plaintiff must have suffered a great deal of pain and the disability suffered is apparent. Although the plaintiff suffered  from primary  brain damage, the doctor   did not  go beyond to give  an opinion   as to what  she  can or  not do in  future  as  a result  of those injuries.

163. Accordingly, I would  decline to award  damages  separately  under loss  of amenities  and  I would therefore  only  proceed  to award damages   under pain, suffering  and loss of amenities  as one  head.  In the Muiruri(supra)  case, the doctor  gave a detailed  prognosis  of the  plaintiff’s  disabilities  unlike in this  case where  the  prognosis   was scanty.

164. In the end, considering  the  serious injuries sustained  by the plaintiff and the pain and  suffering  she  has undergone  since  2010, and  based  on the case of  Martin Kidake vs Wilson  Simiyu (supra) and Euphana Awino  Odego(supra), the  inflationary  trends  and  time lapse  since those  awards  were made, I award  the  plaintiff  minor  a sum of shs  Three Million Five Hundred  Thousand only(3. 5 million)  damages  for  pain, suffering  and  loss of amenities.

165. On the claim for loss of future earning capacity  and loss of  future earnings the plaintiff’s counsel submitted that the  plaintiff’s injuries  are permanent  as confirmed  by Dr Ong’ang’o  and  that her  mother confirmed  that the minor   is only  taken to school to play  since she  cannot understand   anything  and that in  rural areas, result slips (sic) are not  given  indicating  performance.  Further, that the mother’s life has changed as she cannot do her business.  The minor is said to have been expected to study law or medicine or Engineering had it not been for her injuries.  She would also support her parents in future life.

166. Reliance  was placed on  Butler  Vs Butler  [1984] KLR  225   which sets  out principles  applicable  in claims for loss of  earning  capacity  and loss of  future  earnings  and as applied  in EW(BM)  minor  vs  Kenya Power  & Lighting  & Another [2015] e KLR.

167. In claiming  for loss of  future earning  capacity, the  plaintiff’s  counsel  urged the court  to apply  the minimum wage  set under  legal notice  to 116  of  26th June  2015  enacted  under the Labour Institutions  Act, using   a multiplier  of  40 years   since children  are the security  of their aging  parents.  A sum of shs 10,954. 70 per month was proposed for a domestic worker which translates into shs 10,954. 70 x 12 x 40 = 5,258,256. 00.

168. Applying  the principles  set out  in Butler  vs Butler (supra) case, it is not  disputed  that the plaintiff   was aged  about  5 years  at  the time of  the accident  and at the  time of  hearing  she  was  about 12  years  with debilitating  effects  of a head  injury  arising   from a fall  from 4th floor  of a building, a limping  gait, and near  paralysis   of the left hand.  Had it not been for the injuries  sustained, nothing would have stopped her from getting education  which  is now  free in  primary public  schools  and  highly subsidized   in secondary  schools,  and  proceed up to University    or College.  No doubt, she could have started working from age 25 or thereabouts and retire at age 60 according to the Kenyan Employment Laws, for the public sector,as a minor  would  not be  expected  to earn  any income  until  the attain  age of majority  and  as  child labour is barred  under the laws.

169. In the circumstances, I find that the proposed minimum wage of shs 10,954. 70 is reasonable.  I therefore  award  the  plaintiff  shs  10,954. 70  per month  x  12  x 20 years   taking into account  the viscitudes of   life which translates in shs   2,629,128.

170. The plaintiff’s counsel also pleaded for the cost of a minder/nurse.  However, the doctor PW4 did not testify as to how a nurse would assist the plaintiff in life.  Furthermore, the  minor’s  mother, PW2  who testified  that she   was forced  to  abandon  her business   and  care for the  minor   due to her  medical condition   was not  party  to this suit and therefore   I cannot award  her  any damages.

171. I have examined   the Martin Kidake v Wilson Simiyu (supra) case.  Although   the  court in that   case  awarded   the  plaintiff  shs  10,000 the  costs of a nurse  per month, there  was  evidence  adduced  by Dr Wangai  and the plaintiff  also testified  that she had  a nurse who  was being  paid at  a  cost of shs  8,000 per month.

172. None of such evidence was adduced in this case accordingly; I decline to award any damages for   the cost of a minder.  There is no evidence for the cost of physiotherapy and medication and specialized treatment   and care pleaded. i decline to award the same.

173. In the end, I enter judgment for the plaintiff minor   against the defendant as follows:

a. Liability against the defendant at 100%.

b. General  damages  for  pain, suffering  and  loss of  amenities  shs  3,500,000

c. General  damages  for loss of future  earning capacity   shs  2,629,128

Total damages   shs 6,129,128

174. I also  award  the  plaintiff costs of  the  suit and  interest on damages  at  court rates  from the date  of this judgment   until payment  in full.

Those shall be the orders of the court.

Dated, signed and delivered in open court at Nairobi this 17th day of January 2017.

R.E. ABURILI

JUDGE

In the presence of:

Mr Githinji h/b for Mr Kivuva for the plaintiff

N/A for the Defendant

CA: George