Njoka (alias Jackline Kirigi alias Edith Jackline) v Munuve (alias Benjamin Mulatya Munuve) [2022] KEHC 14294 (KLR)

Njoka (alias Jackline Kirigi alias Edith Jackline) v Munuve (alias Benjamin Mulatya Munuve) (Civil Case E003 of 2021) [2022] KEHC 14294 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14294 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Case E003 of 2021

MW Muigai, J

October 13, 2022

Between

Edith Jackline Kirigi Njoka

Plaintiff

alias Jackline Kirigi alias Edith Jackline

and

Benjamin Munuve

Defendant

alias Benjamin Mulatya Munuve

Judgment

Plaint Filed on February 19, 2021 1. The plaintiff, by way of a plaint dated January 18, 2021 claimed general damages for pain & suffering, loss of earnings, current, future medical and specialized needs and expenses, nursing expenses, housemaid expenses, transport expenses, physiotherapy, medical equipment and medical drugs, regular checkups expenses; purchase of specialized electric bed ,orthopedic mattress and wheel chair and changed after every 2 years, witness expenses, special damages (as outlined below paragraph 4), costs of the suit and interest against the defendant. On interest, the plaintiff has pleaded for 24% per year on loss of earnings and special damages.

2. The plaintiff has pleaded that the defendant was at all material times the registered owner and/or the beneficial owner and/or in possession, control and/or management of motor vehicle registration number KBL 871W.

3. The cause of action in the plaint is that on or about November 21, 2019, along Machakos-Muvuti Road, the plaintiff was lawfully travelling as a passenger in motor vehicle registration number KBL 871W when the defendant or his driver, his servant and/or agent recklessly, negligently or carelessly drove and/or controlled the motor vehicle without any due care and attention at a high speed that he lost control of the motor vehicle causing it to roll several times as a result, occasioning the plaintiff serious bodily injuries, pain and loss.

4. The plaintiff incurred expenses as a result of the accident as follows;a.Medical expenses……………………..Ksh 260,000/-b.Medical report ………………………..Ksh 10,000/-c.Police abstract…………………………Ksh 500/-

Statement of Defence Filed on March 24, 2021 5. The defendant filed defense on March 24, 2021 and denied being registered and/or beneficial owner or user or in possession of motor vehicle Reg KBL 871. The defendant also denied the particulars of the alleged accident and/or negligence by the defendant’s agent/servant/driver. The defendant took issue with the general and special damages expenses and costs pleaded and sought by the plaintiff. The defendant attributed particulars of negligence to the plaintiff of not taking adequate precaution for safety, not fastening the safety belt, boarding a vehicle that was unroadworthy, carelessly and recklessly driven, overloaded moto vehicle and distracting the driver of the said motor vehicle Reg No KBL 871W.

Hearing/evidence 6. On February 1, 2022 the court referred parties/counsel for pre-trial before DR/MHC. The parties/counsel took the hearing date of March 30, 2022. The plaintiff’s advocate confirmed that the defendant was served vide affidavit of service filed in court. This court deferred hearing to the May 10, 2022 and the defendant to be served with the next hearing date of May 10, 2022.

7. On May 10, 2022, The plaintiff’s advocate informed the court that the defendant’s advocate on record was served with the hearing notice and filed affidavit of service on May 9, 2022. The defendant’s advocate sought to be served with witness statements and thereafter the matter proceeded for hearing.

8. The plaintiff, Edith Jacqueline Kirigi Njoka, who was in court in/on a wheelchair, testified that on November 21, 2019 she was in motor vehicle Reg KBL 871W and they were coming back from a funeral and an accident occurred at Mbuani and an accident occurred, the motor vehicle rolled and she was injured on her back and the leg. She was rushed to Machakos Level5 Hospital and was admitted for 2 days. She was transferred to Kijabe Hospital and was admitted for 2 days and later she was transferred to the Spinal Injury Hospital where she was admitted for 4 months.

9. PW1 testified she was discharged from hospital but had not fully recovered. She needed and obtained help from a housemaid and a nurse who wheeled her in court. PW1 stated that she was in pain on her head leg and back and had to take painkillers to sleep, she attends therapy. PW1 requires medical supplies and medicine, doctors visits twice a week.

10. PW1 adopted her witness statement dated April 30, 2022 and all her filed list of documents dated February 19, 2021 in support of her case. She produced her witness statement as exhibit 1. During her oral testimony, the plaintiff produced list of documents d, g, h, i, j, k, l, m as exhibits.

11. In her witness statement dated April 30, 2021, the plaintiff stated that she is 30 years old and single with two children. She stated that she used to work and run her salon as a salonist, a job which she can no longer do since she was involved in a road accident. According to the plaintiff, after the accident she found herself at the National Spinal Injury Referral Hospital in Nairobi where she was admitted for a period of 4 months with severe fractures of T3-T6 vertebrae, fracture of the right femur and paraplegia.

12. According to her, she has not fully recovered since she experiences pain and trauma. She stated that she is confined to a wheel chair and depends on help wash and relieve herself. She stated that, a nurse takes care of her and at times she cannot pay her since she is not working. According to her, although there is a house maid, her children have been left uncared for as she is a single mother.

13. The plaintiff stated that she used to earn Kshs 100,000/- per month from her salon business before the accident. She has stated that she has a house help whom she pays Kshs 12,000/- per month but during her evidence in chief, she stated that she needed Kshs 5, 000/- a day for the house help and nurse expenses but also stated she needed Kshs 12, 000/- a month for house help and nurse expenses.

14. According to her, the doctors have advised her that she will need to always attend physiotherapy, to have an electric bed, orthopedic mattress and a specialized wheel chair but she does not have the money to buy the items for her use. She lacks money to attend to regular medical check-ups. She has stated that the doctors have informed her that she will be confined to a wheel chair for the rest of her life.

15. The plaintiff stated that she would call the medical doctor and police officer but she closed her case without their testimony.

16. In his witness statement dated April 30, 2021, P Kimathi the plaintiff’s nurse stated that his job was to change the urinary aviators, monitor affections and treat the same, skin care to prevent pressure sores and administering drugs on the plaintiff. According to the nurse, he attends to the plaintiff on a daily basis for at least two hours. He has stated that he has been charging the plaintiff Kshs 20,000/- per month but it has been difficult for the plaintiff to pay him regularly. According to the nurse, the plaintiff is in arrears. According to the nurse, the plaintiff needs physiotherapy, a specialized electric bed, an orthopedic mattress and a specialized wheel chair.

17. In his witness statement dated April 30, 2021, Peter Nyaga. the plaintiff’s brother has stated that he has been taking care of the plaintiff financially by paying a nurse Kshs 20,000/- and a house helpKshs 12,000/- in cash though irregularly since he has no money to pay. He has stated that he owes the nurse and the housemaid some money. According to him, the plaintiff has two other children whom he takes care of. He stated that the doctors at the Spinal Injury Hospital have asked him to buy the plaintiff a specialized electric bed, an orthopedic mattress and a specialized wheel chair. According to him, it is also difficult to get money for the plaintiff to attend regular medical visit.

18. In cross examination by counsel for the defendant,PW1 confirmed she had her seatbelt on during the accident, she filed documents for medical treatment required and costs, that there are also medical expenses as shown at Pg 27 of plaintiff’s bundle. PW1 admitted that she did not produce documents to show she made Ksh 100,000/- monthly from her salon business, she did not prove by documents the payment to the nurse and housemaid and she did not produce birth certificates of the 2 children she has and takes care of.

Consent Filed on June 7, 2021 19. By consent,1. That liability be shared at 80% for the defendant and 20% for the plaintiff2. That all documents and witness statements filed by the parties herein be adopted3. That parties file their submissions on quantum4. That the defendant’s names in the pleadings be amended to read; Benjamin Munuve alias Benjamin Mulatya Munuve.The consent was signed by Messrs Bizmana Associates Advocates for the plaintiff & Messrs Kiruki & Kayika Advocates for the defendant.

Plaintiff’s Submissions 20. On behalf of the plaintiff, it has been submitted that the plaintiff sustained grievous harm with 100% permanent disability. Reliance has been placed on the witness statements of the plaintiff, P Kimathi-ID No xxxxxx, Peter Nyaga and the medical reports of Dr C.O Okere and Dr Ashwin Madhiwala. According to the plaintiff, she was hospitalized for a period of 4 months from November 21, 2019 to March 27, 2020 and had to undergo a great deal of pain during that time. According to the plaintiff, he cannot walk and stand. She is confined to a wheel chair. She has lost sensation on both the lower leg with no power. She is on napkins/diapers, urine catheter and suffers from bed sores which are painful. According to the plaintiff, she has to be assisted by another person in everything throughout her remaining life in this world. She is a total paraplegic who will never walk again as per the two doctors’ medical reports.

21. The plaintiff has proposed a total sum of Kshs 25,000,000/- as general damages for pain and suffering. According to the plaintiff, the court should take into account the serious injuries sustained by the plaintiff, the resultant effect of the injuries, the inflationary trends in Kenya and the decline in the value of the Kenyan shillings.

22. Reliance was placed on the cases of Bernard Mutisya Wambua v Swaleh Hashil[2017] eKLR where the plaintiff was hospitalized for several months for treatment and the degree of incapacity was assessed at 80%, the court awarded Kshs 6,500,000/- as general damages for pain suffering and loss of amenities. In civil appeal No 135 of 2018, Kangaroo Shuttle v Joshual Maina Nganga-HC at Eldoret where the plaintiff suffered head injury with loss of consciousness for 2 months and suffered 60% permanent disability, the court awarded Kshs 5,000,000/-as general damages. In Charlene Njeri Kuria v Githu Geoffrey & another [2016] eKLR where the plaintiff suffered partial paralysis of the lower limb with 60% disability, the court awarded Kshs 5,000,000 for pain and suffering.

23. Regarding the loss of earnings, it has been submitted that the plaintiff aged 30 years operated a saloon business which earned her Kshs 100,000/- per month but due to the injuries she sustained leading to a permanent disability of 100%, she can longer do her job any more for the remaining period of her life. According to the plaintiff, hairdressing is a skill that an individual acquires and performs personally.

24. The plaintiff proposed a multiplier of 22. 7 years using the average life expectancy of 66. 7 years suggested by the World Health Organization data for 2018 hence the award for loss of earnings will be Kshs 27,240,000/-(Kshs 100,000/- x 22. 7 years= Kshs 27,240,000/-). Reliance was placed on the cases of Ali Abdalla Mwanza v DPP [2021]eKLR where the court applied the average life expectancy of 66. 7 years and in Hellen Waruguru(suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Ltd[2015]eKLR where Court of Appeal made reference to the case of Jacob Ayiga Maruja &another v Simeone Obayo[2005]eKLR on the proposition that it is not only documentary evidence can prove profession and earnings hence a claim was upheld for loss of earnings using a multiplier of 8 years for a carpenter aged 55 years.

25. Regarding the physiotherapy, it has been submitted that Dr C.O Okere recommended for the same 3 times per week at a cost of Kshs 18,000/- while Dr Ashawin Madhiwala gave a figure of Kshs 16,000/- per month. According to the plaintiff, considering the inflationary rates, Kshs 18,000/- per month is reasonable for physiotherapy. The plaintiff proposed the amount to be tabulated as follows; Kshs 18,000/- x 22. 7 years= Kshs 4,903,200/-.

26. Regarding the medical equipment and the costs of medication/drugs, it has been submitted that they include the diapers, catheters, urine bags, medication for evacuating stool and chest pains, a pair of front and back leg brace. According to the plaintiff, premised on the medical reports of the two doctors, the recent depreciation of the kenyan shillings and the inflationary rates, the plaintiff has proposed a sum of Kshs 7,200/- for adult diapers per month, catheters at Kshs 4,000/- per month, a pair of front and back leg brace each at Kshs 4,000/-, medication for evacuating stool and chest pains at Kshs 5,000/- per month and a pair of stocking at Kshs 4,000/- per month all for a period of 12 months which is totaling toKshs 7,681,680/-.

27. On regular medical check-ups, the plaintiff has made reference toDr C.O Okere who has proposed a sum of Khs 200,000/- while Dr Ashawin Madhiwala gave a sum of Kshs 18,000/- for doctors consultation per month. It has been submitted that Dr Ashawin Madhiwala report which is recent and taking into account the increase in inflation in the country over time as well as the depreciation of the Kenyan shillings, Kshs 20,000/- per month is reasonable for regular medical check-ups hence the amount should be tabulated as follows; Kshs 20,000/- x 12 months x 22. 7 years= Kshs 5, 448,000/-.

28. It has been submitted that the plaintiff needs an electric bed, orthopedic mattress and a wheel chair which need to be replaced regularly. Reference was made to Dr C.O Okere who suggested a sum of Kshs. 30,000/- for wheel chair which needs to be replaced every five years while Dr Ashawin Madhiwala opined that a wheel chair will be replaced regularly but did not suggest a price or the period of replacement.

29. Reliance has been placed on the case of Edward Mungai Waweru v Samson Ochieng Kagunda & another civil case No 22 of 2011, Nairobi High Court where court awarded Kshs 50,000/- for the wheel chair which was to be replaced every 3 years and in civil case No55 of 2005,Jane Adhiambo Akwiri v Al Husnain Mothers & anotherNairobi High Court where the court awarded Kshs 60,000/-for a wheel chair in the year 2011 which was to be replaced every one year.

30. It has been submitted that taking into account the increase in inflationary rate over time, the general increase in commodity prices in Kenya and the decline in Kenyan shillings over time, a figure of Kshs 80,000/- is reasonable and a replacement period of 3 years hence the amount is tabulated as follow; Kshs 80,000/- x 22. 7 years/3 years= Kshs 605, 333/-.

31. For a specialized electric bed and orthopedic mattress, the plaintiff proposed a sum of Kshs 450,000/-. Reliance has been placed on civil caseNo 139 of 2009, Japheth Ngula Matingi v Hon AG-Nairobi High Court where court awarded Kshs 350,000/- for an electric bed in the year 2016 and in civil caseNo 198 of 2015 Francis Muvinga Musili v Afro Plastic (K) Ltd & another-Nairobi High Court where the court awarded Kshs450, 000/- for an electric bed in the year 2016.

32. On nursing expenses, it has been submitted that the plaintiff stated that she had been paying her nurseKshs 20,000 per month. According to the plaintiff, the witness statement of P. Kimathi-IDNo xxxxx dated April 30, 2021 has not been challenged. The plaintiff has urged the court to award Kshs 20,000/- per month for nursing expenses to be tabulated as follows; Kshs 20,000/- x 12 months x 22. 7 years= Kshs 5,448,000/-.

33. Regarding the housemaid expenses, it has been submitted that the plaintiff has a full time house help to aid her in taking care of her and her two young children. According to the plaintiff, she pays the house help a monthly salary of Kshs 12, 000/-. Reference was made to the recommendation of the two doctors that the plaintiff would need a helper for movement. It has been submitted that Dr Ashawin Madhiwala proposed a sum of Kshs 20,000/-. According to the plaintiff, as a result of the increase in inflation and even the minimum wage increase upward by the government to12% in 2022, an award of Kshs 20,000/- should be applied to be calculated as follow; Kshs 20,000/- x12 months x 22. 7 years=Kshs 5,448,000/-.

34. On transport expenses, it has been submitted that the plaintiff will regularly require transport to and from hospital. Reference has been made to the medical reports which have indicated that the plaintiff will need to visit the hospital at least once a month for medical consultation. According to the plaintiff, she resides in Embu and the only specialized government spinal injury hospital is in Nairobi where she has been treated. It has therefore been submitted that Kshs 10,000/- per month would take care of the transport expenses hence the amount should be tabulated as follow; Kshs 10,000/- x 12 months x 22. 7 years= Kshs 2,270,000/- for transport expenses.

35. On witness expenses, it has been submitted that the plaintiff incurred expenses on May 10, 2022 to bring witnesses to court when she testified. The plaintiff has proposed Kshs 10,000/- for witnesses expenses on May 10, 2022.

36. Regarding special damages as pleaded in paragraph 4 of the plaint, it has been submitted that the same has been pleaded and proved by way of receipts and not denied by the defendant.

37. On costs, it has been submitted that costs follows the event hence the court should award the plaintiff costs and on interest on costs. The plaintiff has urged the court to award interest on the loss of earnings and special damages at 24% per year.

38. In the end, the plaintiff has urged the court to award a total sum ofKshs 73,158,213/- in damages with interest from the day of filing the suit until it is fully paid and costs of the suit.

Defendant’s Submissions 39. On behalf of the defendant, it has been submitted that based on the medical report of DrC.O Okere and Dr Ashawin Madhiwala, the plaintiff sustained fracture of the right femur, fracture T3 to T6 thoracic vertebrae and damage to spinal cord-paraplegia with a permanent disability of 100%.

40. According to the defendant, the plaintiff has only pleaded and strictly proved Kshs 227,000/- as special damages. It has been submitted the treatment and transport costs have not been proved.

41. Regarding general damages, it has been submitted that the injuries sustained by the plaintiff are comparable to the injuries suffered by the plaintiff in the case ofJoseph Kimanthi Nzau v Johnson Macharia [2019] eKLR where the court cited with approval the case of Nairobi HCCC No 374 of 2009-BAJ v Roadstar Ltd & 2 others where the plaintiff was awarded Kshs 1,500,000/-. According to the defendant, an award of Kshs 1,500,000/- to the plaintiff is adequate compensation as general damages for the soft tissues injuries.

42. On loss of earnings, it has been submitted that it is a special damages which the plaintiff ought to have quantified what she lost and specifically prove. According to the defendant, it is not enough for the plaintiff only to state that she was working as a salonist earning Kshs 100,000/- per month without supporting financial statements or registration documents. Reliance has been placed on the case ofNzuki Isaac Muveke v Francis Njogu Njehia [2021] eKLR on loss of earnings being a special damage which must be pleaded and proved. According to the defendant, an award under this head must be specifically pleaded and proved by quantifying the amount to enable the court make a step but the plaintiff has just thrown figures to the court. The defendant has urged the court to disallow the claim.

43. It has further been submitted that the loss of earnings has been considered as part of the general damages hence the plaintiff has already been compensated. Reliance has been placed on the case of Hamo Transporters Company Ltd & Another v Dorcas Wangui Kiriro [2019] eKLR where Ngetich J was guided by the case of Mumias Sugar Co Ltd v Francis Wanalo [2007] eKLR where the Court of Appeal held that loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loos of enmities or as separate head of damages.

44. Regarding loss of earning capacity, it has been submitted that the plaintiff has not shown that she lost her employment of that her chances of gaining employment in the future were diminished as a result of the injuries sustained from the accident. Reliance has been placed on the case of Kenblest Kenya Ltd v Musyoka Kitema [2020] eKLR where Sitati J disallowed the award for lack of proof. The defendant has urged the court not to award the amount to the plaintiff.

45. The defendant has urged the court not to award future medical expenses to the plaintiff since the expenses are considered as special damages which ought to have been specifically pleaded in the plaint and proved. It has been submitted that the plaintiff has not specified the amount she needs for future medical expenses. According to the defendant, the plaintiff has failed to discharge that burden and is bound by her pleadings.

46. Reliance has been placed on the case of Valji Jetha Kerai & another v Julius Ombasa Manono & another [2019] eKLR where the court cited the case of Tracom Ltd & another v Hassan Mohammed Adan [2009] eKLR andKenya Bus Services Ltd v Gituma(2004) 1 EA 91on the proposition that future medical expenses is a special claim which need to be specifically pleaded and proved. According to defendant, the plaintiff has failed to strictly prove the future medical expenses as there is no evidence on record or any documentary evidence to prove the expenses. The defendant urged the court not to award the expenses but in the event the court is inclined to award the amount, the defendant proposed a sum ofKshs 70,000/- based on the costs proposed in the medical report of Dr Ashawin Madhiwala.

47. On the nursing, housemaid, transport and witness expenses, it has been submitted that the plaintiff has not specifically proved the claims and some have already been captured under the heading of special damages. According to the defendant, the claims have been sufficiently provided for under the award of general damages.

48. In the end, it has been submitted that the following amounts will sufficiently compensate the plaintiff;a.Special damages Kshs 227,000/-b.General damages Kshs 1,500,000/-c.Future medical expenses Kshs 70,000/-d.Less 20% contribution (Kshs 359,400/-)Total Kshs 1,437,600/-

Determination 49. The court considered both viva voce and documentary evidence, submissions and the court decisions relied upon by respective parties.

Liability 50. Liability was/is agreed upon by consent of parties filed on June 7, 2022 having been apportioned by consent of parties, the court is therefore required to assess quantum of damages.

51. Despite the plaintiff and the defendant compromise on liability, it is trite that whoever wishes the court to decide as to any right or liability whose proof depends on the existence of a set of facts must prove the existence of those facts (section 107(1) of the Evidence Act).

52. As was stated in David Bagine v Martin Bundi (283 of 1996) [1997] eKLR, the Court of Appeal, referred to the judgment by Lord Goddard CJ in Bonhan Carter v Hyde Park Hotel Limited [1948] 64 TLR 177) where it was held:“It is trite law that the plaintiff must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.”

53. It is trite that the discretion to assess damages squarely falls in the jurisdiction of the trial court. The Court of Appeal in the Southern Engineering Co Ltd v Musungi Mutia [1985] KLR 730, held:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual judge or magistrate, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case… The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought… It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”

54. The guiding principles to court while awarding damages were pronounced by Nambuye J (as she then was) in Boniface Waiti & another v Michael Kariuki Kamau [2007]eKLR where the learned judge held:“Having established liability, the court proceeds to assess quantum. In doing so it has to bear in mind the following principles.i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered.ii.The award should be commensurate to the injuries suffered.iii.Awards in decided cases are mere guides and each case should be treated on its an facts and merit.iv.Where awards in decided cases are to be taken into consideration then the issue of own element of inflation has to be taken into consideration.v.Awards should not be inordinately too high or too low..”

55. It was stated in Cecilia W Mwangi & another v Ruth W Mwangi [1997] eKLR that:“..It has been quite often pointed out by this court that awards of damages must be within limits set by decided cases and also within limits that Kenyans can afford. Large awards inevitably are passed on to members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs for insurance cover or increased fees…we would commend to trial judges the following passage from the speech of Lord Morris of Borth-y-Gest in the case ofWest (H) & Son Ltd v Shephard [1964] AC 326 at page 345:‘But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.’The approach of Lord Morris to the matter of compensatory damages was supported by Lord Denning MR in Lim Pho Choo v Camden and Islington Area Heath Authority [1979] 1 ALL ER 332 at page 339 and this approach was also adopted by this court in the case of Tayab v Kinanu [1982-88] 1 KAR 90. Lord Denning MR said:‘In considering damages in personal injury claims, it is often said: “the defendants are wrongdoers so make them pay in full. They do not deserve any consideration.” That is a tedious way of putting the case. The accident, like this one may have been due to a pardonable error much as may befall any of us. I stress this so to remove the misapprehension, so often repeated that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay.’The reason why this passage is referred to by us is to show that damages ought to be assessed so as to compensate, reasonably the injured party but not so as to smart the defendant.”

Quantum 56. Awarding of damages is therefore not an avenue to enrich the injured party but to compensate the injured party what is in the circumstances, fair compensation to both the injured party and the defendant. The award of damages must be commensurate to the sustained injuries.

General Damages for Pain and Suffering 57. According to the Black’s Law Dictionary free online legal dictionary 2nd Edn.-“General damages are the damages and injuries that directly result from an action or the failure to take action of the defendant.”

58. In Mcgregor on Damages 15th Edition 1988 paragraph 153, its observed as follows:“....pain means the physical hurt or discomfort attributable to the injury itself or consequent upon it. It thus includes the pain caused by any medical treatment which the plaintiff, might have to undergo.Suffering on the other hand denotes the mental or evidential distress which the plaintiff may feel as a consequence of the injury: anxiety, worry, fear, torment, embarrassment…….Whereas loss of amenity is deprivation of the plaintiff of the capacity to do the things which before the accident he was able to enjoy, and due to the injury he is fully or partially prevented from participating in the normal activities of life.”

59. The plaintiff has pleaded the following injuries-a.Fracture of T3-T6 thoracic vertebraeb.Fracture of the right femurc.Paraplegiad.Cut on the upper limb partial paralysis

60. The plaintiff presented the following documents in support of the claim;a.Discharge summary from National Spinal Injury Referral Hospital of March 16, 2020; March 24, 2020 & March 27, 2020b.Ambulance call of November 23, 2019c.Police abstract of June 12, 2020d.P3 form of May 12, 2020e.Receipt from Kijabe Hospital of November 28, 2019f.Receipt from Brain, Spinal & Rehabilitation Hospital (BSR) of November 23, 2019g.Receipt from La Jolla Heights Invest Co of November 29, 2019h.Receipt from German Medical Center of November 22, 2019i.Receipt from Harleys Ltd dated November 30, 2019j.Receipt from New Lemuma Pharmacy Co Ltd of March 30, 2020k.Receipt from Lamlola Group Ltd of March 30, 2020l.Demand letter of July 12, 2020Medical report by Dr C Okere of April 21, 2020 as per further list of documents of December 1, 2021. The defendant produced medical report by Dr Ashwin Madhiwala of April 7, 2022.

61. In this case the plaintiff has stated that she has pain on her head, back and legs. According to the plaintiff, she cannot do anything for herself due to the injuries. She has stated that she is confined to a wheel chair for the rest of her life and has to depend on another person to be taken for short or long calls or clean herself or do anything. She has hired a house help and a nurse to take of her and her two children. According to the plaintiff, the doctors have advised her that she need to always attend physiotherapy, to have an electric bed, orthopedic mattress and a specialized wheel chair. In re-examination she stated that she has a house help who cooks, dress and turns her while in bed. The discharge summary from the National Spinal Injury Referral Hospital show that the plaintiff had been admitted at the hospital for a period of 4 months but had spent two days prior at the Machakos Level 5 Hospital.

62. The plaintiff has placed reliance on two medical reports. The medical report of Dr C.O Okere and the other from Dr Ashawin Madhiwala dated October 1, 2020 and April 7, 2022 respectively. The doctors’ medical reports are expert evidence. By consent the two medical reports were adopted.

63. The injuries pleaded by the plaintiff are not in dispute. Dr C.O Okere and Dr Ashwin Madhiwala medical reports as well as the police P3 form dated June 2, 2020 confirm the pleaded injuries. Dr C.O Okere examined the plaintiff an year later after the accident. He observed that the plaintiff was unable to walk, had total loss of sensation on both lower limbs and had incontince of urine and faeces. On physical examination, the doctor found that the plaintiff was on a while chair and the plaintiff had total loss of sensation on the limbs. He classified the plaintiff injuries as grievous harm and assessed the degree of permanent incapacity at 100%. The doctor opined that the plaintiff would need catheter per month and adult diapers for a month. According to the doctor, the plaintiff will need physiotherapy three times a week.

64. Dr Ashawin Madhiwala examined the plaintiff two years later after the accident. He noted that open reduction and internal fixation was done on the fracture right mid femur and K-nail was inserted. As for the fracture T3 to T6 thoracic spine, open reduction and internal fixation was done with plates and screws. He observed that despite the plaintiff being on physiotherapy and rehabilitation, her condition has not improved as she in now not in control of the urine and stool hence on urinary catheter and diapers. He noted that the plaintiff is on wheel chair totally dependent on family. On examination, the doctor observed that all scars healed well but the plaintiff had loss of sensation on both lower leg and no power. The doctor considered the plaintiff to have suffered a permanent disability of 100%.

65. The two doctors have agreed on the injuries save for the prices on the items needed by the plaintiff weekly and/or monthly. They both assessed the plaintiff’s degree of permanent incapacity at 100%. The plaintiff has proposed Kshs 25,000,000/- as general damages for pain and suffering. She has placed reliance on the case of Bernard Mutisya Wambua v Swaleh Hashil [2017] eKLR where the plaintiff sustained fractures to the right hand side collar bone, right hand metacarpals, complete paralysis of right limb, dislocation of the right shoulder, fractured left femur and compound fractures to the right tibia and fibula. The plaintiff was hospitalized for several months for treatment and the degree of incapacity was assessed at 80%. The most serious consequence of the plaintiff’s injury was the paralysis to the right hand. The court awarded Kshs 6,500,000/- as general damages for pain, suffering and loss of amenities.

66. In civil appeal No 135 of 2018, Kangaroo Shuttle v Joshual Maina Nganga-HC at eldoret where the plaintiff suffered head injury with loss of consciousness for 2 months, skull fracture with large epidural haematoma, loss of six teeth (5 lower and one upper left molars), paralysis of the right limbs which resulted to 60% permanent disability, the court awarded the plaintiff Kshs 5,000,000/-as general damages.

67. In Charlene Njeri Kuria v Githu Geoffrey & another [2016]eKLR where the plaintiff suffered injury to the spine with transient alteration in the level of consciousness due to the spine injury, inability to walk because of profound weakness of both legs with sensory loss – paraplegic, fracture dislocation at the level of L1 to L2 (complete anterolisthesis of L1 over L2 and wedge fracture of L2) with cord injury, loss of sensation on the lower limbs distally, lower abdominal (lap belt) bruising and lower back deformity which resulted to 60% disability, the court awarded Kshs 5,000,000 for pain and suffering.

68. The defendant has proposed an award of Kshs 1,500,000/- as general damages for pain and suffering. He has placed reliance on the case of BAJ v Roadstar Limited & 2 others [2018] eKLR where the plaintiff suffered facial and leg injuries which necessitated two weeks of admission and five operations to correct her disfigured face, scarred legs and to remove some of the metal implants. Dredwin K Rono’s in his medical report described the facial fractures as Lt orbital floor and margin fractures with pneumo-orbit, comminuted LT maxillary factures of the anterior and posterior lateral wall, LT zygomatic arch fracture, LT mandible angular fracture, RT parasymphyseal mandibular fracture. Dr Wambugu P.M who prepared a report 8 years after found a degloving wound right ankle medical aspect and lateral aspect of left leg. The court found Ksh 1,500,000/= to be a reasonable award of general damages.

69. The Court of Appeal in George Kirianki Laichena v Michael Mutwiri, civil appeal No 162 0f 2011, had this to say:-“It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case…”

70. The court has carefully considered the nature of injuries and awards made in the case cited by both the plaintiff and defendant. The court has no doubt that the injuries sustained by the plaintiff are severe. According to the doctors, the plaintiff will be confined to a wheel chair for the rest of her life causing her to be dependent on other people to go on with her daily life. She has been paralyzed on the lower limbs as a result of the accident. They assessed the plaintiff’s disability at 100%.

71. The injuries sustained by the plaintiff in BAJ v Roadstar Limited & 2 others (supra) are serious but not comparable to the injuries sustained by the plaintiff herein and the doctor in the case did not assess disability but opined there were residual but subtle facial asymmetry and scars on both lower limbs which are of significant cosmetic concern.

72. The plaintiffs in the cases cited by the plaintiff herein also suffered paralysis. The cases were decided 6 years ago. In the case of Charlene Njeri Kuria v Githu Geoffrey & another(supra) where the court awarded the plaintiff Kshs 5,000,000/- show similar injuries as the injuries sustained by the plaintiff herein although it was decided 6 years ago. The court cited the case of Nakuru High Court civil case No 248 of 2011 William Wagura Maigua v Elbur Flora Limited where the plaintiff sustained spinal injuries and was confined to the spinal injuries hospital for 14 months was 100% dependent not able to return to work, an award of Kshs 3 Million was made in 2012 and in Nakuru HCC No 157 of 2012 Ngure Edward Karega v Yusuf Doran Nasir where the spinal injury incapacitated the plaintiff, an award of Kshs 5 million was made in May 2014. In Bernard Mutisya Wambua v Swaleh Hashil [2017] eKLR the paralysis was to the right hand and had no spinal injury while in this case it was on both lower legs and paraplegic due to the damage to thoracic spinal injury. In Emmanuel Kombe Nzai also known as Kombe Emmanuel v Basari Company Limited & another [2017] eKLR where the plaintiff suffered 80% disability with paralysis of the lower limbs, an award of Kshs 6,000,000/- was made to the plaintiff.

73. Dr C.O Okere in his report of October 1, 2020 observed on examination that PW1 had total less of sensation on the limbs and was of the medical opinion that PW1 had/has paraplegia and fracture of right femur and degree of incapacity is 100%. Taking into account the grave nature of the injuries suffered by the plaintiff and their long term effects, the current inflationary trends an award of Kshs 7,000,000/- is a reasonable award. See Lydia Moraa Mokaya v Patrick Kiarie & another [2021] eKLR where the plaintiff would have to remain in a wheel chair for the rest of her life, the court awarded him Kshs 7,000,000/-.

74. The amount of Kshs 7, 000,000/- is awarded as general damages, pain and suffering, and loss of amenities.

Loss of Earnings 75. The Court of Appeal at Mombasa in Tile & Carpet Center Warehouse v Okello (civil appeal 74 of 2019) [2022] KECA 5 (KLR) (4 February 2022) held:-“20. Loss of earning capacity, as opposed to loss of earning which must be specifically pleaded and strictly proved, falls within the category of general damages but must also be proved on a balance of probabilities. See Cecilia W Mwangi & another v Ruth W Mwangi [1997] eKLR. In S J v Francesco Di Nello & another [2015] eKLR, this Court held that: Loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairley V John Thomson LTD [1973] 2 Llyod’s Law Reports 40 at pg. 14 wherein Lord Denning M.R said as follows:“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

76. Loss of earnings must be specifically pleaded and proved as they are in the nature of special damages while loss of earning capacity need not be pleaded as it is in the nature of general damages. SeeKenblest Kenya Limited v Musyoka Kitema [2020] eKLR.

77. The defendant submitted that it was/is not enough for the plaintiff only to state that she was working as a salonist earning Kshs 100,000/- per month without supporting financial statements or registration documents. The Defendant has placed reliance on the case of Nzuki Isaac Muveke v Francis Njogu (supra) citing the case of Kalafa Ombeva v David Ngama[2013]eKLR where the court held that where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically.

78Indeed, the Court of Appeal in Mbaka Nguru & Anor v James George Rakwar[1998] eKLR stated:“We need not set out here the statement of Lord Goddard C.J It will suffice to say that plaintiffs who do not plead their damages properly and who then do not prove the same do so at their own risk. They will not get those damages however sympathetic the court may feel towards them.”

79Section 107(1) of the Evidence Act is to the effect that whoever alleges a fact must prove those facts exist. See Evans Nyakwana v Cleophas Bwana Ongaro[2015] eKLR. In Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR the court held that the burden still lay with the plaintiff even in the absence of rebuttal from the defendant. The burden of proof will only shift to the defendant if the plaintiff has discharged it. The defendant has the evidential burden of proof which is well captured in sections 109 and 112 of the Evidence Act.

80. In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & another [2016] eKLR Mulwa LJ stated:“I am of the opinion that uncontroverted evidence must bring out the fault and negligence of a defendant, and that a court should not take it truthful without interrogation for the reason only that it is uncontroverted. A plaintiff must prove its case too upon a balance of probability whether the evidence in unchallenged or not.

81. It is not dispute that the plaintiff has not produced any document to support her earnings. The Court of Appeal pronounced itself on lack of documentary evidence to prove earnings in Jacob Ayiga v Simon Obayo (2005) eKLR as follows:“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things…”

82. The Court of Appeal in Isaack Kimani Kanyingi & another (suing as the legal representative of the estate of Loise Gathoni Mugo (deceased) v Hellena Wanjiru Rukanga [2020] eKLR held:-“30. The fact that no licenses or books of accounts were produced, was explainable by the fact that the deceased was operating her business as a sole proprietor. In any case, the business appears to have been a small business enterprise carried out by an individual who may not have had the necessary acumen for keeping proper records. The bank account statement that was produced clearly showed that there were monies going into and out of the deceased’s account, and this is normal for a business enterprise as new stock has to be purchased even as sales are made. The court had no reason to question the propriety of the deceased’s bank statement. Catherine explained that some of the records appeared to have been lost following the break-in into the business premises after the deceased’s death. In our view, there was sufficient evidence that the deceased was a business lady. All that was required of the court was to assess the net income of the deceased, given the business enterprise that she was undertaking and the evidence that was available before the court.”

83. In the case of Wambua v Patel & another (1980) KLR 336 cited with approval in Kimatu Mbuvi & Bros v Augustine Munyao KiokoCA No 203/2001 it was held:“We appreciate the expectation of Mr Inamdar that account books, Income tax returns or audited accounts would have put the claim beyond doubt if it was specifically pleaded as special damages or even as general damages. But there are dicta in decided cases that a victim does not lose his remedy in damages merely because the quantification is difficult.”

84. In Priscilla Mwathimba v Simon Kaibunga & another Meru CA 132 of 2008, the court opined as follows:-“While the appellant did not produce evidence of earnings of Kshs 30,000. 00 per month, it was not disputed that the deceased had a business and was also farming. The trial court did not give reasons why it chose a sum of Kshs 5,000. 00 as the deceased’s monthly earnings and not any other sum. There was unchallenged evidence before court that the deceased had a wife and six children…can both a shop and farming be producing only Kshs 5,000. 00 per month? This court finds it’s unreasonably low to sustain such a family. It is quite clear that in rural Kenya, people rarely keep books of accounts nor do they file returns. They however do live and cater for their own livelihood. They pay for their food, clothing, other bills (including hospital) and pay school fees for their children. This is a fact of life. To expect them to meticulously keep records of their income and expenditure would in my view be expecting too much and by itself unreasonable. It would not only be unfair but outright unjust in such a situation to deny such rural folks compensation for reason that there are no proper records of income.”

85. The plaintiff’s evidence remains uncontroverted despite lack of documentary evidence. The burden of proof in civil claims is on a balance of probabilities. See Miller v Minister of Pensions [1947] 2 All ER 372 where Denning J held that burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough.

86. In Janet Kaphiphe Ouma & another v Marie Stopes International (Kenya) Kisumu HCCC No 68 of 2007 Ali-Aroni, J citing the decision in Edward Muriga Through Stanley Muriga v Nathaniel D Schulter civil appeal No 23 of 1997 held that:“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence”.

87. It was held by the Court of Appeal in Hahn v Singh, civil appeal No42 of 1983 [185] KLR 716 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.”

88. In Woodruff v Dupont [1964] EA 404 the East African Court of Appeal held that:“The question as to quantum of damage is one of fact for the trial judge and the principles of law enunciated in the decided cases are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them…The quantum of damages being a question of fact for the trial judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonably be considered as a rising according to the usual course of things, from the breach of the contract itself”. The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

89. The court finds the defendant has not sufficiently rebutted the plaintiff’s earnings of Kshs 100, 000/- per month. It has been disputed that the plaintiff was a salonist, owned and ran a salon and earned Ksh 100,000/- as the plaintiff admitted in cross examination by the defendant’s advocate that she did not produce any documents to prove she made Ksh 100,000/- monthly from the salon. The court finds that PW1’s testimony was corroborated by the statement of PW3 Peter Nyaga admitted by consent that PW1 was working before the accident and disability.

90. The plaintiff being a single parent with two children to take care of was disputed as again during cross examination by the defendant’s counsel, the plaintiff admitted that no evidence of the children was produced birth certificates etc. The evidence from the witness statement by Peter Nyaga of April 30, 2020 produced by consent confirms that the plaintiff was working before the accident, so that evidence corroborates PW1 that she worked. Secondly, Peter Nyaga confirmed that PW1 has 2 children that he takes care of since PW1 his sister was disabled and challenged.

91. The plaintiff’s evidence remains uncontroverted. The defense did not raise or produce any evidence against the plaintiff’s claim in the absence of which PW1’s evidence is relied on. The court finds there are sufficient reasons to conclude that the plaintiff’s earnedKshs 100,000/- there being no contrary evidence from the defendant. The same is adopted as the multiplicand.

92. The plaintiff has urged the court to adopt a multiplier of 22. 7 years based on the World Health Organization (WHO) data for 2018. It is also well known that the life expectancy is dependent upon enjoyment of good health during the life time of a human being. She stated in her evidence in chief that she was born in 1978. The court notes that in her witness statement dated April 30, 2021, the plaintiff has indicated that she was 30 years. Dr Okere has indicated in his medical report dated October 1, 2020 that the plaintiff was aged 30 years. According toDr Ashawin’s report dated April 7, 2022, the plaintiff was aged 44 years. In cross-examination, the defendant’s advocate did not cross-examine on the age of the deceased. The tragic incident happened on November 21, 2019. The deceased age of 44 years having not been disputed, the court will adopt 44 years as the plaintiff’s age as at the year 2022. The discharge summary from the Spinal Injury Referral Hospital show that as at the date of admission on November 28, 2019, the plaintiff was aged 41 years. It follows therefore that the plaintiff was aged 41 years at the time of the accident.

93. The plaintiff worked in the private sector hence there is a possibility she could have worked beyond the 60-year retirement age under government labour regulations but due to the vicissitudes of life the woking life may be cut short earlier than the retirement age. SeeCrown Bus Services Ltd & 2 others v Jamilla Nyongesa and Amida Nyongesa (legal representatives of Alvin Nanjala (deceased) [2020] eKLR where court stated that a court determination ought to be realistic and the court is better placed in justice to adopt a figure of the multiplier which is reasonable and in tune with realities of life.

94. In Beatrice Wangui Thairu v Hon Ezekiel Barngetuny & another Nairobi HCCC No1638 of 1988 (unreported), in which Ringera J (as he then was), held at page 248 that:“……In choosing the said figure, usually called the multiplier, the court must bear in mind the expectation of earning life of the deceased, the expectation of life and dependency of the dependants and the chances of life of the deceased and dependants…”

95. The court notes that the age of the plaintiff’s children was not revealed to enable court know the length of dependency. The doctors have opined that the plaintiff would be confined to wheel chair for rest of her life. It is possible for the plaintiff to have worked past the age of 60 years noting that no evidence was led by the defendant of her incapacity or ill health before the accident but due to the vicissitudes of life and age the court will adopt a multiplier of 19 years. The plaintiff would be not be as active at 60 years as she was before the accident. In Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR where the deceased was aged 44 years, the court adopted a multiplier of 16 years.

96. The computation for loss of earning shall be as follows; Kshs 100,000/- x 19= Kshs 1,900,000/-. The court awards the plaintiff Kshs 1, 900,000/- for loss of earnings.

Loss of Earning Capacity 97. Regarding the loss of earning capacity, it was submitted on behalf of the defendant that the plaintiff has not shown that she lost her employment or that her chances of gaining employment in the future were diminished as a result of the injuries sustained from the accident. The defendant has urged the court to disallow the claim.

98. Loss of earning capacity is described in Butler v Butler (1984) KLR 225 as follows:“A person’s loss of capacity occurs when as a result of an injury, his chances in the future of any work in the labour market or work, as well as paid before the accident are lessened by his injury.”

99. According to the Court of Appeal in Butler v Butler(supra) at page 226, loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included, it is not improper to award it under its own heading. The court notes that despite the defendant’s submissions that loss of earning capacity should be disallowed, the plaintiff has not pleaded damages for loss of earning capacity as part of general damages or under its own head. Unlike the defendant, the plaintiff has also not submitted on her loss of earning capacity.

100. In Tile & Carpet Center Warehouse v Okello (supra) the Court of Appeal has opined that Loss of earning capacity falls within the category of general damages but must be proved on a balance of probabilities. See Cecilia W Mwangi and another v Ruth W Mwangi Nyr CA civil appeal No 251 of 1996 [1997] eKLR andS J v Francessco Di Nello & another [2015] eKLR

101. It is trite that parties are bound by their pleadings. However, the Court of Appeal in Christopher Orina Kenyariri T/A Kenyariri & Associates Advocates v Salama Beach Hotel Limited & 3 others[2017] eKLR had this to say:“Those therefore were the crisp and only issues before the learned judge. As has been stated time without number, a court will not determine or base its decision on unpleaded issues. However, if it appears from the cause followed at trial that an unpleaded issue has been left to the court to decide, the trial court may validly determine the unpleaded issue. (See Odd Jobs v Mubea [1970] 476, and Baber Alibhai Mawji v Sultan Hashim Lalji & another, CA No 296 of 2001).”

102. It was held by court in Chalicha FCS Ltd v Odhiambo & 9 others [1987] KLR 182, that:“Cases must be decided on the issues on the record. The court has no power to make an order, unless by consent, which is outside the pleadings. In this instance, the issues raised by the judge and the order thereon, was a nullity.”

103. The two doctors may have assessed the plaintiff’s disability at 100% and opined that she would be dependent on other people for the rest of her life as she is confined to a wheel chair but the court finds that no suggestion from the evidence that loss of earning capacity was left to be decided by the court. In the circumstance, the court cannot make an order on loss of earning capacity.

Current Medical, Future Medical/specialised Needs & Expenses 104. Dr C.O Okere opined that PW1 will need nursing care throughout her life and a wheelchair, catheter, front leg brace and back leg brace, diapers, physiotherapy and medical expenses. According to the defendant, the future medical expenses are in the nature of special damages which must be specifically pleaded and strictly proved. It has been submitted that the plaintiff has not proved hence nothing should be awarded but if the court is inclined to award, an approximate total of Kshs 70, 000/- provided in Dr Ashawin’s medical report should be awarded.

i. Physiotherapy 105. In his medical report, Dr C.O Okere recommended physiotherapy 3 times per week at a cost of about Kshs 18,000/- whileDr Ashawin Madhiwala gave a figure of Kshs 16,000/- per month, twice per week. Plaintiff has submitted that considering the inflationary rates, Kshs 18,000/- per month is reasonable to cater for physiotherapy. The plaintiff proposed tabulation for physiotherapy is as follows; Kshs 18,000/- x 12 x 22. 7 years= Kshs 4,903,200/-.

106. The two doctors’ assessment on the plaintiff’s incapacity at 100% is uncontroverted. The court notes that the plaintiff has submitted the costs of Kshs 18,000/- for physiotherapy per month while his doctor, Dr Okere gave an estimate of three times a week at a cost of Kshs 18,000/-. The court’s view is that Kshs 18,000/- for a week would be an excessive figure for the defendant to cater for as an individual. In Cecilia W Mwangi & another v Ruth W. Mwangi(supra) the court opined that awards of damages must be within limits set by decided cases and also within limits that Kenyans can afford. The court is inclined to adopt Dr Ashawin Madhiwala figure of Kshs 16,000/- per month for the physiotherapy session twice per week hence the computation for the costs of physiotherapy is Kshs 16,000/- x 12 x 19= Kshs 3,648,000/-.

ii. Medical Equipment And Cost Of Medication/drugs 107. Regarding the medical equipment and the costs of medication/drugs, it has been submitted that they include the diapers, catheters, urine bags, medication for evacuating stool and chest pains, a pair of front and back leg brace.

Adult Diapers 108. Dr Okere proposed 6 packets per month for Kshs 7, 200/- whileDr Ashawin proposed Kshs 4, 000/- per month. Dr Okere’s report was prepared earlier than Dr Ashawin’s report hence taking into consideration the increase in commodity prices and inflationary trends, the court finds Kshs 7,200/- per month to be reasonable hence computation of the award is as follow; Kshs 7,200/- x 12 x 19= Kshs 1,641,600/-. The amount of Kshs 1,641,600/- is awarded for the diapers costs.

Catheter 109. Dr Okere proposed Kshs 1, 250/- for the cost of catheter per month while Dr Ashawin proposed Kshs 3,000/- per month. The court finds that due to the current increase in price commodities, Kshs 3, 000/- per month proposed by Dr Ashawin is current and reasonable hence the computation of the award is as follow; Kshs 3,000/- x 12 x 19= Kshs 684,000/-.The amount of Kshs684,000/- is awarded for the catheter costs.

Front And Back Leg Brace/stockings 110. Dr Okere proposed Kshs 4,000/- for each of the brace while Dr Ashawin proposed Kshs 4, 000/- per month for stocking. It is not in dispute that the plaintiff sustained a fracture of the right femur hence necessary to have the braces or stockings as proposed by the doctors. The court finds that the costs are reasonable hence the computation will be as follows; For front brace Kshs 4,000/- x 12 x 19= 912,000, back brace Kshs4,000/- x 12 x 19=Kshs 912,000/- and stocking Kshs 4000/- 12 x 19=912,000/-. The total amount under this head of claim will be Kshs2,736,000/-.Medication for evacuating stool and chest pains atKshs 5,000/- per month

111. Dr Ashawin opined that the plaintiff would need Kshs 5, 000/- per month on medication. The court notes that none of the doctors has expressly opined in their medical reports that costs would be needed for medication to evacuate the stool and chest pains. The court finds the claim has not been sufficiently proved. No evidence was led by the plaintiff or her supporting documents.

iii. Regular Medical Check-ups 112. On medical check-up expense, the plaintiff has made reference to DrC.O Okere who has proposed a lump sum of Khs 200,000/- while Dr Ashawin Madhiwala gave a sum of Kshs 18,000/- for doctors consultation and medication per month. It has been submitted that Dr Ashawin Madhiwala report which is recent and taking into account the increase in inflation in the country over time as well as the depreciation of the Kenyan shillings, Kshs 20,000/- per month is reasonable for regular medical check-ups hence the amount should be tabulated as follows; Kshs 20,000/- x 12 months x 22. 7 years= Kshs 5, 448,000/-.

113. The plaintiff’s proposal of Kshs20, 000/- is not backed with any court cases. Dr Okere’s report was prepared in the year 2020 while Dr Ashawin was prepared in the year 2022. Taking into consideration the increase of the cost of living and costs of commodities/services, the court is inclined to adopt Dr Ashawin Madhiwala proposal of Kshs 18, 000/- for the medical expenses per month.

114. The computation for regular medical check-up expenses will be as follows; Kshs 18, 000/- x 12 x 19= Kshs 4,104,000/-.The amount of Kshs 4,104,000/- is awarded.

iv. Specialized electric bed ,orthopedic mattress and a wheel chair Specialized electric bed and orthopedic mattress 115. For a specialized electric bed and orthopedic mattress, the plaintiff proposed a sum of Kshs 450,000/-. The court notes that none of the doctors opined that the plaintiff would require a specialized bed and mattress. The nurse P. Kimathi stated in her witness statement that the plaintiff would need a specialized electric bed and mattress but he never proposed the costs for the items. The court will not award the claim for lack of proof.

Wheel Chair 116. Dr C.O Okere proposed a sum of Kshs 30,000/- for a wheel chair whose life span is about five years while Dr Ashawin Madhiwala opined that a wheel chair will be replaced regularly but did not suggest a price or the period of replacement. The plaintiff has placed reliance on the case of Edward Mungai Waweru v Samson Ochieng Kagunda & another civil case No 22 of 2011, Nairobi High Court where court awarded Kshs 50,000/- for the wheel chair which was to be replaced every 3 years and in civil case No 55 of 2005, Jane Adhiambo Akwiri v Al Husnain Mothers & another Nairobi High Court where the court awarded Kshs 60,000/-for a wheel chair in the year 2011 which was to be replaced every one year.

117. Dr Ashawin has not suggested a price for the wheel chair or the period of replacement. Dr Okere report was prepared in the year 2020. According to Dr Okere it would cost Kshs 30, 000/- to be replaced after every 5 years. Taking into consideration the increase in commodity prices and inflationary trends, the court finds a sum of Kshs 50, 000/- to be reasonable cost of the wheel chair to be replaced after every 5 years hence a sum of Kshs 190,000 will be sufficient for 15 years which is awarded to the plaintiff i.e 19/5 x 50,000= Kshs 190,000/-.

Nursing Expenses 118. On nursing expenses, the plaintiff has urged the court to award her Kshs 20,000/- per month for nursing expenses to be tabulated as follows; Kshs 20,000/- x 12 months x 22. 7 years= Kshs 5,448,000/-. In his witness statement, the nurse stated that she charged the plaintiff Kshs 20,000/- per month but the plaintiff has been unable to pay him hence in arrears. Dr Okere opined that the plaintiff would need nursing care. In her cross-examination, the plaintiff stated that she needs Kshs 5, 000/- daily to cater for housemaid and nurse expenses. However Peter Nyaga has stated in his witness statement adopted in court that he pays the nurse Kshs 20, 000/- since the plaintiff can’t work and the amount has been confirmed by the nurse. This evidence is uncontroverted by the defendant. According to Peter Nyaga and the nurse, the plaintiff is in arrears. The court will adopt Kshs 20,000/- per month as the cost for nursing care.

119. The computation for the award under this head shall be as follows; Kshs 20, 000/- x 12 x 19= Kshs 4,560,000/-. The court awards Kshs 4, 560,000/- as nursing expenses.

House Help Expenses 120. According to the plaintiff, she pays the house help a monthly salary of Kshs 12, 000/-. The plaintiff’s brother, Peter Nyaga has stated in his witness statement that he pays the house help Kshs 12, 000/-. It has been submitted that DrAshawin Madhiwala proposed a sum of Kshs 20,000/-. The court will adopt Kshs 12, 000/- per month as salary for the house help.

121. The computation for the award under this head shall be as follows; Kshs 12, 000/- x 12 x 19= Kshs 2,736,000/-. The court awards Kshs 2, 736,000/- as nursing expenses.

Transport Expenses 122. It has been submitted that the plaintiff will need to visit the hospital at least once a month for medical consultation. According to the plaintiff, she resides in Embu and the only specialized government spinal injury hospital is in Nairobi where she has been treated. The two doctors did not make any preference to a hospital for the plaintiff to undergo monthly medical consultation. It is not in dispute that the plaintiff was treated at the Spinal Injury Referral Hospital. The court notes the remarks from the hospital that the plaintiff had been fully rehabilitated. The court finds no remarks from the hospital that the plaintiff must go back to the hospital for medical consultation.

123. The court takes judicial notice that with the promulgation of the 2010 Constitution, health services have been decentralized to the County governments making it easier for the citizens to access health services with less travelling expenses. It is not in dispute that the plaintiff will need to see a doctor frequently noting her condition but the court’s view is that it can also be done in Embu to mitigate on transport expenses.

124. In Jacqueline Syombua v BOG Ekalakala Sec School [2010] eKLR Karanja J. was of the view that:“In my considered view a plaintiff has a duty to mitigate his or her expenses whether or not there is a defendant who is shouldering the responsibility. One must not be seen to overreach or to seek remedies or solutions that would otherwise be out of reach if he/she was the one expected to foot the bill. As Lord Denning M.R stated in the case of Limpoh Choo v Camden And Islington Area Health Authority (1979) 1 AER 332“In considering damages in personal injury cases, it is often said, the defendants are wrong doers, so make them pay in full…they do not deserve any consideration…….”We do not have a report from stoke Mandeville from a Dr who has examined Syombua and decisively said what they can do for her at Mandeville which the doctors here cannot do at the spinal injury. I find no justification for making provisions for the plaintiff to be sent to UK for treatment. If on the other hand she feels strongly about being treated there, she can still go there and pay from the damages this court will eventually award her because as stated by Lord Pearce in H. West & Sons Ltd v Shepherd (1964) A.C 326 at Pg 364“The court has to perform the difficult task of converting into monetory damages the physical injury and deprivation and pain to give judgment for what it considers to be a reasonable sum. It does not look beyond the judgment to the spending of damages.The task of assessing damages in a case such as this is a difficult one. The court must nonetheless be guided by relevant precedents because there will always be decided cases with almost similar categorization of disabilities or injuries. In assessing compensatory damages the court will always bear in mind that the purpose of awarding damages is not to pay as it were for the loss or injury the plaintiff has suffered. Damages only ussuage the pain or loss suffered by the plaintiff because no amount of money can replace a lost limb. No amount of money awarded in this case would set back the clock and reinstate the plaintiff to that young able bodied girl who boarded the bus on August 2, 2006 with very high expectations in life.”

125. The court’s view is thatKshs 5,000/- is reasonable cost for transport hence computation is as follows; Kshs 5, 000/- x 12 x 19= Kshs 1, 140,000/-. The court awards Kshs 1, 140,000/- as transport expenses.

Witness Expenses 126. The plaintiff has claimed Kshs. 10,000/- for witnesses’ attendance expenses on May 10, 2022 but no receipts or any documentary evidence has been tendered to prove the expenses. The court finds that attending court cannot be regarded as an item of special damages as it is more in the nature of the witness expenses to be considered in the bill of costs.

127. Accordingly, the court declines to award the witness expenses. See Joseph Mbiria v Jamlic Fredrick Kirimi Nairobi (Milimani) HCCC No 866 of 2001 & Jacqueline Syombua v BOG Ekalakala Sec School [2010] eKLR.

Special Damages 128. It is trite that special damages must not only be specifically claimed but strictly proved. See Hahn v Singh (1985) KLR 716. The Court of Appeal in Douglas Odhiambo Apel & Another v Telkom (K) Ltd [2014] eKLR held that cases are decided on actual evidence that is tendered before the court.

129. According to the plaintiff, she has proved special damages of Kshs270, 958/- as pleaded in paragraph 4 of the plaint while the defendant has submitted that only special damages of Kshs 227,000/- have been proved. The sum of Kshs 10,000/- for the medical report has not been strictly proved despite their adoption in court as no receipt was tendered to show that the plaintiff paid his doctor.

130. The sum of Kshs500 for the issuance of a police abstract is a cost incurred in gathering evidence hence not to be claimed under special damages. The amount cannot be awarded.

131. The plaintiff has pleaded Kshs 260,458/- for medical expenses. The court finds that the only receipts produced in court to support the claim for medical expenses are listed in the list of documents dated January 19, 2021 as d, g, h, i, j, k, l and m. The total sum from the receipts amount to Ksh 254,752/- and not Ksh 260,458/-. The court awards Khs 254, 752/- as special damages pleaded and strictly proved.

Costs of the Suit 132. On costs, it has been submitted that costs follows the event hence the court should award the plaintiff costs. It is trite that costs follow the event. See section 27(1) of the Civil Procedure Act and in Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others, petition No 4 of 2012 on the proposition that costs follow the event.

133. In Orix ( K) Limited v Paul Kabeu & 2 others {2014}eKLR the court held that the plaintiff being the successful party should ordinarily be awarded costs unless its conduct is such that it would be denied costs or the successful issue was not attracting costs. The court finds none of the factors to warrant denying the plaintiff costs of the suit and the same is hereby awarded.

Interest 134. By dint of section 26 Civil Procedure Act court has the discretion to award interest from such date as it deems it fit. In New Tyres Enterprises Limited v Kenya Alliance Insurance Company Ltd(1987) KLR, 380 the Court of Appeal said that the court, under section 26 (1) of the Civil Procedure Act (cap 21) has a wide measure of discretion on the question of interest.

135. In Sansora Wire & Nail Works Ltd v Shreeji Enterprises Kenya Ltd (2005) eKLR Ochieng J held as follows:-“From the foregoing working, it is evident that the court has discretion to order for the payment of interest at such rate as it deems reasonable. The said discretion of the court enables it to order interest be payable;(a)from a date before the institution of the suit(b)from the date of the suit(c)from the date of the decree. The interest that is ordered to be paid, may be directed to be payable either to the date of the payment or until such earlier date as the court thinks fit.”

136. The court has the discretion to order payment of interest pre-action or pre-judgment and post judgment. It being a discretion of the court to award, interest has to be pleaded and justification shown for award ability during the trial for the court to have some basis for making such an award. In Sempra Metals Ltd v Inland Revenue Commissioners and another [2007] 3 WLR 354 it was held that:“In the nature of things the proof required to establish a claimed interest loss will depend upon the nature of the loss and the circumstances of the case. The loss may be the cost of borrowing money. That cost may include an element of compound interest. Or the loss may be loss of an opportunity to invest the promised money. Here again, where the circumstances require, the investment loss may need to include a compound element if it is to be a fair measure of what the plaintiff lost by the late payment. Or the loss flowing from the late payment may take some other form. Whatever form the loss takes the court will here, as elsewhere, draw from the proved or admitted facts such inferences as are appropriate. That is a matter for the trial judge."

137. The plaintiff has pleaded interest for the claim of loss of earnings (2) and special damages (8) at 24% per year. The defendant has not raised any objection to the proposed interest but in the Court of Appeal inButler v Butler(supra) held that no interest is recoverable for loss of earnings as follows;“c.Damages under the heads of loss of earning capacity and loss of future earnings, which in English law were formerly included as an unspecified part of the award for pain, suffering and loss of amenity, are now quantified separately and no interest is recoverable on them;.”

138. The court therefore declines to award interest for loss of earnings.

139. Regarding interest on special damages, in Prem Lata v Peter Musa Mbiyo(1965) EA 592 the court was of the view that interest should normally be awarded on special damages if the amount has been actually expended or incurred at the date of filing suit. The court of Appeal held in the case of Samuel Philip Kidoti v Kenya Cargo Handling Services Limited CA No 76 of 1992 (Cited in Francis Joseph Kamau Ichatha v Housing Finance Company of Kenya Limited (2015) eKLR case that;“…special damages bear interest from the date of filing suit.”

140. The plaintiff has pleaded interest at 24% per year. In Jane Wanjiku Wambu v Anthony Kigamba Hato & 3 others [2018] eKLR Ngugi J. held that:-“The rate that is mostly used by the courts absent special or exceptional circumstances which are not proved here, is to award an interest rate of 12% per annum from the date of filing suit until payment in full..”

141. In Autolog Kenya Limited v Navisat Telematics (Kenya) Limited(2013)eKLR Mabeya J. held:“Under practice note No 1 of 1982, the then Chief Justice Simpson Ag CJ issued the following practice direction:-“The Civil Procedure Act cap 21 Laws of Kenya section 26 enables the court to order interest on the principal sum adjudged in a decree both before and after the date of the decree to be paid at such rate as the court deems reasonable.In the absence of any valid reason for ordering a higher or lower rate of interest, the rate of interest should now be 12%”. (emphasis mine)7. It is clear that under section 26 aforesaid the award of interest and the rate thereof is in the discretion of the court. That section read together with the practice note No 1 of 1982 above leads to a conclusion that the court has to consider if there are any valid reasons for awarding interest at a higher or lower rate than provided.”

142. The court finds no special or exceptional circumstances exhibited by the plaintiff to warrant awarding interest at 24% per year. The special damages will attract interest at 12% per annum from the date of filing suit.

Disposition 143. In the end, judgment is entered in favour of the plaintiff and against the defendant as follows;a.General damages Kshs 7,000,000/-b.Loss of earnings Kshs 1, 900,000/-c.Loss of earning capacity NILd.Total current medical,Future medical/specializedNeeds & expenses Kshs 11, 362,000/-e.Nursing expenses Kshs 4, 560,000/-f.House help expenses Kshs 2, 736,000/-g.Transport expenses Kshs 1, 140,000/-h.Witness expenses NILi.Special damages Kshs 254, 752/-Sub Total Kshs 28,916,752/-Less 20% contribution Kshs 5,783,350. 4/-Total Kshs 23,133,402. 00/-

144. Costs of the suit.

145. Interest on general damages be payable from the date of the judgment until full payment of the amount. Interest on special damages shall accrue at 12% from the date of filing suit. No interest on loss of earnings.Judgment accordingly.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 13TH DAY OF OCTOBER, 2022 (VIRTUAL/PHYSICAL CONFERENCE)M.W. MUIGAIJUDGEIN THE PRESENCE OF:NO APPEARANCE - FOR THE PLAINTIFFNO APPEARANCE - FOR THE DEFENDANTGEOFFREY/PATRICK - COURT ASSISTANT(S)