IN THE COURT OF APPEAL

AT NAIROBI
(CORAM: TUIYOTT, LESIIT & NGENYE, JJ.A.)
CIVIL APPEAL NO. 244 OF 2013

BETWEEN
PITTY GATHIGIA MBAARU…...........................1ST APPELLANT
J. GACHERU NDUGI……………………..……….….2ND APPELLANT
AND
KENYA BUS SERVICES LIMITED also known as
STAGE COACH BUS INTERNATIONAL.……....1ST RESPONDENT
CHARLES OBIERO OGOLA…………………..….2ND RESPONDENT
(Being an appeal from the Judgment and Decree of the High
Court of Kenya (Ang’awa, J.) dated and delivered on 14 th
July 2005
in
Civil Case No. 154 of 1999.)
***************************

JUDGMENT OF THE COURT

1. Before this Court is an appeal arising from the judgment of

the High Court at Nairobi (Ang’awa J.) dated 14th July 2005
in Civil Case No. 154 of 1999.

2. A brief background of the appeal is that Pitty Gathigia

Mbaaru and J. Gacheru Ndugi, the appellants, who are wife
and husband respectively, commenced the suit in the
superior court by a plaint which was later amended on 14th
May 2004. The appellants’ claim was for personal injury
which was hinged on a road traffic accident which occurred
on 15th September 1997, when the 1st appellant was aged
42 years. The 1st appellant stated that she was lawfully

Page 1 of 52
 standing on the pavement along Ronald Ngala Street,
Nairobi waiting for the traffic to clear and make it safe for
her to cross the road when the 2nd respondent being the
agent, servant and/or driver of the 1st respondent
negligently drove motor vehicle registration number KAD
553D by suddenly climbing onto the island and violently
knocking her down as a result of which she sustained
severe bodily injuries.

3. The appellants pleaded the particulars of the 2nd

respondent’s negligence as, inter alia, driving the motor
vehicle without due care and attention and at an excessive
speed in the circumstances; failing to heed or observe the 1st
appellant’s presence along the road; failing to have any
adequate regard to the safety and well-being of pedestrians
along the road and in particular the 1st appellant; and
failing to stop, to swerve, to slow down or in any other way
so to manoeuvre and manage the motor vehicle as to avoid
the said accident.

4. The 1st appellant particularized the injuries she suffered to

include; head injury (cerebral concussion); unconsciousness
for one month and thereafter confusion for another one
month; multiple cuts and abrasions on the face; abrasion
over the chest wall; fracture of the right collar bone
(clavicle); crush injury to the right upper limb leading to
amputation; and crush injury to the right lower limb leading
to an above-knee amputation. The 1st appellant was later
diagnosed with renal failure and she was started on dialysis.

Page 2 of 52
 She further claimed that due to her injuries she has been
unable to resume work as a clerk with the Kenya Power and
Lighting Company.

5. In addition, the 1st appellant pleaded her present complaints

which included; pain in the amputation stump on the right
lower limb; discharge of sinus over the amputation stump in
the right shoulder; that she gets easily frightened; was
emotionally unstable; had un-cosmetic scars on the face;
two scars measuring 5cm x 2cm and another 0.5cm in
diameter below the nose; hypo pigmented scaring patch
measuring 8.5cm x 6.5cm over the right anterior chest wall;
a bony deformity over the right clavicle indicating a mal-
united fracture; right arm disarticulated at the shoulder
joint level; un-cosmetic surgical scar measuring 20cm in
length and a hypo pigmented scarring patch, a sinus over
the amputation stump; loss of 51cm length of the left leg
together with the joints of the knee, ankle, and the foot and
extreme tenderness at the amputation stump; and that
healing is nowhere in sight.

6. The 1st appellant averred to future prognosis of 5% chances

of developing epileptic fits in future; loss of length of the
right leg by 51cm; a prosthesis that has both ankle and
knee joints which had been recommended at an estimated
cost of Kshs.750,000/=; that her children and husband
have lost motherly attention and love, and all have suffered
psychological trauma, and permanent incapacity and loss
as regards gainful employment, among others.

Page 3 of 52
7. The 2nd appellant’s claim was for loss of consortium. He
pleaded that prior to the accident, he had been enjoying the
company and society of the 1st appellant as his wife but
since the accident, he lost the said benefits.

8. The appellants claimed that the 1st respondent is vicariously

liable for the wrongful acts of the 2nd respondent who is its
employee. Secondly, they sought to rely on the doctrine of
res ipsa loquitur. For the reasons thereof, the appellants
prayed for judgment against the respondents for special
damages of Kshs.1,582,970/=, general damages for pain
and suffering and loss of amenities, loss of consortium and
loss of future earning capacity and psychological problems
and future medical care, interests, and any other relief that
the court deemed fit to award.

9. The respondents entered appearance and filed their

statement of defence dated 30th September 1999. The
respondents generally denied the claims by the appellants
and particulars of negligence alluded to by the 1st appellant.
The respondents contended that the accident was solely
caused, or substantially contributed to, by the 1st
appellant’s negligence. It was averred that the 1st appellant
failed to observe and obey the traffic lights; crossed the road
recklessly without regard to the heavy flow of traffic on the
road; crossed the road when it was unsafe for her to do so;
failed to wear reflective clothes at night when visibility was
poor; stopping at the middle of the road; failed to have due
regard to the lawful presence of the motor vehicle

Page 4 of 52
 registration no. KAD 553D on the road; and caused the said
accident.

10. The respondents also denied and made no admission to any

injuries, loss or damages suffered by the 1st appellant and
further denied all and singular particulars of injuries and
damages pleaded by the appellants.

11. Lastly, the respondents repudiated the applicability of the

doctrine of res ipsa loquitur to the facts and circumstances
of the case and prayed that the appellants’ suit be
dismissed with costs.

12. In reply, the appellants filed their reply to defence dated 12th
October 1999 and denied every averment put forth by the
respondents. They maintained that the contested doctrine
applied and prayed that the respondent’s defence be struck
out and judgment entered in their favour.

13. Prior to the trial the appellants and the respondents were in
agreement that the accident occurred on 15th September
1997, the 1st respondent was the registered owner of motor
vehicle registration no. KAD 553N, and the 2nd respondent
was the servant and/or agent of the 1st respondent.

14. At the hearing thereof, the appellants called seven (7)

witnesses in support of their case. The 1st appellant in her
testimony reiterated her claim as in the amended plaint.
She testified that at around 4.00 p.m. on the date of the
accident, together with the 2nd respondent, her husband,
they went to visit a patient at Kenyatta National Hospital.

Page 5 of 52
 Visiting hours were from 4.00 to 6.00 p.m. When it reached
6.00 p.m. and she could not find her husband who had
gone to see another patient in another ward, the 1st
appellant decided to leave him and go home. She stated that
she boarded a bus and alighted at Ambassador Hotel and
proceeded to Diamond Trust Bank, now Family Bank and
bought vegetables from the hawkers along the pavement.

15. The 1st appellant gave evidence that she was on the left side
of the road as one faces Moi Avenue from Ronald Ngala
Street. She admitted that along the Ronald Ngala Street,
there were iron barriers or guards to stop pedestrians from
coming into the road. She testified that she went around the
iron barrier and went to the side of the road on the
pavement. It was her testimony that before she could cross,
she saw two buses approaching each other at a speed along
Ronald Ngala Street and to avoid collision one bus swerved
towards her, knocked her down and she lost her
consciousness.

16. She further testified that when she regained consciousness

one month later, she found herself at Nairobi Hospital with
both her right hand and right leg amputated. It was her
evidence that after staying in the hospital for some time, she
developed kidney failure.

17. The 1st appellant testified that she was discharged on 21st
December 1997. However, she could not resume her normal
life. It was her evidence that she had to be confined to a
wheelchair. It was her evidence that at the time of the

Page 6 of 52
 accident she had an eight months’ old baby and therefore
needed someone to take care of her personal needs. The
appellant further testified that she had been in and out of
hospital severally with further operations being performed
on her. Regarding the 2nd appellant, the 1st appellant
testified that the accident affected her, with the wounds that
kept coming back. That consequently, since then she has
been unable to attend to her husband physically, and that
there has been no intimate relationship with the 2nd
respondent. Furthermore, she went back to work with the
Kenya Power and Lighting Company where she worked as a
clerk earning a monthly salary of Kshs.20,000/= and later
Kshs.40,000/= on promotion.

18. The 2nd appellant testified that he transferred the 1st

appellant from Kenyatta Hospital to Nairobi Hospital the
next morning following the accident when he received
information of her whereabouts. He said that he found his
wife at Kenyatta Hospital, on a canvas lying on the floor and
she was naked. Her right leg was amputated. He said that
he organised with Kenya Power, her employer and moved
her to Nairobi Hospital where she remained unconscious for
a month. Regarding the relationship between him and his
wife, he said that the relationship was broken; that she had
hatred against him; and that she became moody, kept quiet
and blamed him for everything, which was unusual, for
which he blames the accident.

Page 7 of 52
19. He said he came to understand that she had suffered
psychologically following the accident. He referred to the
Report by Dr. F. G. Njenga, a Psychiatrist from Aga Khan
Hospital who treated her, dated 25th July 2000. The doctor’s
finding was that the 1st appellant’s relationship with her
husband had deteriorated significantly, not just because of
her physical limitation due to her traumatic injuries, but
emotional and psychological problems proving to be a major
strain. The doctor opined that due to her physical
appearance and limitation, she constantly worried about the
future of their marriage.

20. The 2nd appellant testified that the 1st appellant had
wounds, he had to carry her, wash her, attend to her
wounds, settle her on a couch, carry her to bed and
basically cared for all her needs. That she developed
bleeding in her cervix that was attended to by Dr. Kaggia.
He said their relationship changed after the accident due to
so much suffering his wife went through. That he became
the 1st appellant’s primary caregiver. Further that he lost
his job with the Central Bureau of Statistics as he had to
care of his wife. He lost the intimacy, love and peace he
enjoyed from his wife. He therefore claimed damages for loss
of consortium and for loss of earnings at Kshs.23,000/- per
month.

21. Dr. Nasir Hashan Bhanji, a Consultant Surgeon and

traumatologist based at the Doctors Plaza of the Aga Khan
Hospital with a practice experience of 22 years testified that

Page 8 of 52
 he examined the 1st appellant when she visited his office on
21st August 1998. She was complaining of pain in the
amputation stump on the right lower limb, discharging
sinus over the amputation stump in the right shoulder, got
easily freighted and was emotionally unstable since the
accident. In his report dated 22nd August 1998, Dr. Nasir
confirmed that the 1st appellant’s complaints were valid and
were directly as a result of the injuries sustained during the
accident.

22. Regarding the future prognosis, Dr. Nasir in his report

noted what, inter alia, the physical examination revealed:
that the head injury which the 1st appellant sustained and
rendered her unconscious and confused for two months
following the accident, was a cerebral concussion. Such an
injury may have caused damage to the underlying brain
tissue which usually heal by process of scarring. Such scars
may predispose the 1st appellant to develop epileptic fits in
future. The chance of her developing such fits is about 5%.
There was a bony deformity palpable over the middle third
of the right clavicle which indicated a malunited fracture.
The bony deformity is a feature of permanent nature. The
loss of the right arm is permanent in nature; the loss of
51cm in length of the right leg together with the joints of the
knee, ankle, and the foot is a feature of permanent nature.
He formed an opinion that the four children of the 1 st
appellant have been deprived of motherly attention and love
which she could have given them had she not been injured
in the first place; and the 1st appellant not being mobile as

Page 9 of 52
 she was presently on a wheelchair denied her the chances of
getting gainful employment are practically zero. He assessed
her permanent incapacity at the time as 100%. In
conclusion, Dr. Nasir noted that it is unlikely that the 1 st
appellant would ever recover from the injuries she sustained
during the impugned accident of 15th September 1997.

23. A second examination was done on 14th May 2004. Dr.

Nasir testified that the 1st appellant complained of inability
to do house work chores for example cooking, washing
clothes, cleaning the house etc; inability to work on her
farm; and inability to drive her vehicle. In his report dated
14th May 2004, he noted that the examination of the spine
revealed that the 1st appellant had developed a right convex
scoliosis of the lumbar spine secondary to the pelvis tilt.
Examination of the lower limbs indicated that she had been
fitted with above knee prosthesis with immoveable ankle
and knee joints; and there was a heavy limp in her gait but
she could walk without support. In his finding he reached
the same conclusion as he did earlier.

24. Regarding the future prognosis, Dr. Nasir in his report

noted that, inter alia; that the 1st appellant does not have
her right arm and is unable to bend the right knee and
ankle joints which means that it would not be possible for
her to drive a vehicle nor to undertake any work on her
farm, neither would it be possible for her to do any of the
house chores; that she needed to undergo a thorough renal
check-up to rule out any residual damage; change the

Page 10 of 52
 prosthesis of the right leg; indicated that the amputation
stump always changes its size with passage of time and
therefore, she may need to change her prosthesis once again
after a couple of years depending on the atrophy of the
muscles on the amputation stump; and that the right
convex scoliosis of the lumbar spine will increase with
passage of time and may lead to the 1st appellant developing
spinal problems such as osteoarthritis as well as prolapse of
an intervertebral disc. He charged for the medical report
Kshs.6,000/= each and produced the relevant receipts. One
invoice showed a total of Kshs.16,000/= which he explained
included Kshs.10,000/= for court attendance fees.

25. Dr. Nasir further testified that he took the 1st appellant to a
hospital in South Germany for further treatment and fitting
of the artificial leg, where she was attended to for 3 weeks
and they incurred a total of Kshs.1,200,000/= as medical
expenses.

26. Joseph Segera Momanyi, the Credit Officer at the Nairobi

Hospital gave his testimony. He produced the invoices from
the Nairobi Hospital related to the 1st appellant’s medical
care and the documents showing payment of the same. He
further testified that the invoices were billed to Kenya Power
& Lighting Company, the 1st appellant’s employer, and the
same were paid by the company. He confirmed that the 1 st
appellant was not self-paying. The production of the
invoices by Mr. Joseph was objected to by the respondent’s
advocates for the reason he was not the maker of the

Page 11 of 52
 documents or rather he had not been employed by the
hospital at the time the 1st appellant was in the hospital.
However, by a ruling of Ang’awa, J. dated 3rd May 2005, the
learned judge held that Mr. Joseph was the right person to
give evidence.

27. Kenneth Njoroge an eye witness of the accident testified of

how the accident occurred. He testified that the accident
occurred at night between 7.00 and 8.00 p.m. along Ronald
Ngala Street. He stated that before he could cross the road
he saw the 1st appellant standing near a grill at the road.
Further, that he saw three buses all from Kenya Bus coming
at a high speed. One bus slowed down, the third one, a bus
registration number KAD 553D, intended to overtake and
swerved and that was when its body caught the 1st
appellant on the shoulder, pulled and threw her down. He
stated that the people started screaming and the driver of
the bus held its brake and run over her. Mr. Kenneth
indicated that once he saw that, he rushed to the 1st
appellant, turned her around as she was hearing. He saw
her arm and leg had been run over. He continued to state
that the driver of the said bus came and together with him
they put the 1st appellant in the vehicle and took her to
Kenyatta National Hospital and they left her with the
doctors. Thereafter, he recorded his statement with the
police. He confirmed that the 1st appellant was standing on
one side of the road and was not on the road when she was
knocked down. Further, that behind where she was
standing there was a grill.

Page 12 of 52
28. Louis Wachira Mwangi testified that she was employed with
the 1st appellant as a house help in September 2004 earning
a salary of Kshs.2,000/- and that her work entailed
preparing food and taking it to the 1st appellant, heating
bathing water for the 1st appellant, making the 1st
appellant’s hair, preparing children for school, and washing
clothes.

29. Prof. Josephat Mulimba, a Consultant Orthopaedic and

trained Surgeon at Kenyatta National Hospital attended to
the 1st appellant. He testified that he met the 1st appellant
in the course of his work after being involved in a road
accident. Further, that he examined her for purposes of
managing her injuries. He produced a medical report which
he prepared dated 5th August 1998. In his report he noted
that on 15th September 1997 the 1st appellant, having been
involved in a road accident was admitted at Kenyatta
National Hospital and both right upper and lower limbs
were amputated. Further, that on 16th September 1997 she
was transferred to Nairobi Hospital. Prof. Mulimba testified
that an operation was performed on the 1st appellant for
badly infected leg and upper limb stumps and that she also
had a renal problem with renal failure. He stated that the 1st
appellant was discharged on 24th December 1997 from
hospital for outpatient follow up. She was re-admitted on
26th June 1998 due to bad state of her stumps where she
stayed for a month and discharged on 21st July 1998 with
follow up in clinic.

Page 13 of 52
30. In his prognosis, Prof. Mulimba noted that the 1st appellant
had multiple cuts in the face and scalp which were treated
surgically and that they have healed well except for scars
which would remain as permanent features; that the 1st
appellant’s right upper limb was crushed and had to be
amputated above the elbow at the level of the shoulder and
that the remaining stump would be difficult to fit with a
prosthesis or artificial limb hence the loss is permanent;
right lower limb was crushed and had to be amputated
which left her unable to walk or perform any useful work.
Prof. Mulimba’s opinion was that the 1st appellant would be
unable to work and will need prosthesis costing
approximately Kshs.350,000/-. He confirmed that the 1st
appellant’s disability was 100%. Prof. Mulimba testified that
his payments for service delivery with regards the 1st
appellant was paid through the Nairobi Hospital.

31. Before closing their case, the advocate for the appellants
told the court that he was unable to trace two doctors whom
he intended to call for them to testify. By a consent by both
parties, the following documents were admitted as evidence
without the need to call the makers; 9 documents, 27
receipts, and 28 invoices. Further, the 1st appellant was
recalled and she produced additional receipts issued by Dr.
L.K. Mungola Mwongera, Prof. Mulumbe from Dr. Sagane
L.K. and Dr. Sagane and she confirmed that the amounts
were paid. The appellants closed their case.

Page 14 of 52
32. Mr. Charles, 2nd respondent, was the only witness who
testified in support of the respondents’ case. He stated that
he was the driver of the 1st respondent’s bus KAD 553E and
as he drove along Ronald Ngala Street coming from Tusker
House heading to Kencom, he had a knock at the door but
the conductor told him there was no one. Further, that he
stopped and alighted from the bus only to find a lady lying
behind the bus. Mr. Charles testified that he had no idea
that the 1st appellant was knocked down and he had not
been aware of her since the streets were dark as the traffic
lights were not working. However, the bus head lights were
on. He testified that he was driving along Ronald Ngala
Street. He passed the lights and suddenly he felt a knock.
When he came out from his vehicle, he saw a lady under the
bus. The respondents closed their case.

33. Parties filed their respective submissions. After hearing the

parties and considering their respective rival written and
oral submissions, together with the authorities relied upon
by them, Ang’awa, J. delivered her judgement on 14th July
2005. On the issue of negligence, the learned Judge placed
blame on both the 1st appellant and the 2nd respondent. She
noted that the 1st appellant should have taken care by
standing behind the pedestrian metal iron barrier and
ensured it was safe before attempting to cross the road.
That she was indeed trapped not being able to move back.
On the other hand, the 2nd respondent, having the lethal
machine under his control had indeed a greater duty of care
to ensure that his vehicle was driven with due care. The

Page 15 of 52
 learned judge thus apportioned liability at 75% against the
1st and 2nd respondents jointly and severally with the 1st
respondent being vicariously liable. She further apportioned
25% against the 1st appellant for contributory negligence.

34. When it came to the 2nd appellant, the learned Judge found
that he had no locus standi to sue and accordingly
dismissed his suit against the respondents with costs.

35. On the issue of general damages, the learned Judge noted

that the 1st appellant sustained injuries that were traumatic
to her. Further, that she indeed underwent much and
needed to adjust her life to the new situation she found
herself in. In the circumstances, she awarded
Kshs.900,000/- under the head of damages of pain,
suffering and loss of amenities.

36. On the claim for special damages, the learned Judge relied
on the case of Perestello vs. United Parts [1969] WLR 570
and noted that all losses other than those which the law
does contemplate resulting from the infringement of a
person’s legal right should be pleaded. For claims of medical
reports, hospital bills and related medical expenses the
learned Judge found that the 1st appellant was an employee
of the Kenya Power & Lighting Company and that at the
time of the accident her bills were fully paid by the
employer. Therefore, the 1st appellant could not be
permitted to come to court to claim this sum as the same
would amount to double enrichment. Further, that the
respondents could only pay the sum claimed if the employer

Page 16 of 52
 or insurance company claimed subrogation in the name of
the 1st appellant. For claim of police abstract report and
transport to and from hospital, the learned Judge rejected
them stating that they were never supported by receipts and
evidence respectively. She invoked the decision in the case
of Ouma vs. Nairobi City Council [1976] KLR 279 to
support her finding.

37. On the 1st appellant’s claim for loss of earning of

Kshs.23,000/- x 10 months= Kshs.230,000/-, the learned
Judge found that no evidence was presented to indicate any
loss hence, rejected this claim and entered nil result.

38. On the 1st appellant’s claim for loss of future earnings, the
trial Judge noted that the 1st appellant was still in
employment as a clerk with the Kenya Power & Lighting
Company. Further, that during that period and after the
accident she never lost any earnings. That there was
evidence on record that she had been promoted to a clerk
grade 2 “B” since the accident and her salary adjusted
accordingly. The trial Judge thus rejected this claim.

39. Lastly on the claim for future medical expenses, the learned
Judge noted that although the doctor in his report had
indicated that the 1st appellant would require a sonogram
instigation at Kshs.100,000/-; refashioning of scars in
stump at Kshs.200,000/-; and prosthesis costing
Kshs.750,000/-, none of these claims were pleaded and
particularized and therefore she rejected it. The learned
Judge also rejected claims for costs of medical reports,

Page 17 of 52
 Police Abstract, hospital bills, related medical expenses and
transport to and from hospital (locally) for lack of
documentary support.

40. In the upshot, the trial Judge entered judgment for the 1st
appellant on the proved sum of Ksh.900,000/- less the 25%
liability apportioned to her bringing the total award to
Kshs.657,000/- together with interest and costs.

41. Aggrieved and dissatisfied with the said judgement of

Ang’awa, J., the appellants preferred an appeal to this Court
by way of a Notice of Appeal dated 17th May 2005. The
grounds of appeal relied on by the appellants in their
Memorandum of Appeal dated 12th September 2013 are the
following:

i. The learned Judge erred in law and in fact when she

made a finding that the 2nd appellant, a husband of
the 1st appellant, should not have sued directly as
the co-plaintiff for his claim for damages and loss
of consortium.

ii. The learned judge erred both in law and fact when
she failed to assess and to make award for general
damages to the 2nd appellant for loss of consortium
yet there had been laid, by way of pleading and
evidence, a sufficient basis for the award of the
same.

iii. The learned Judge erred in law and in fact when

she dismissed the suit by the 2nd appellant with
costs yet there was sufficient basis to award him
the damages costs and interest thereon.

iv. The learned Judge erred in law and in fact when

she failed to appreciate the extent and gravity of
personal injuries, pain, loss of amenities, suffered
by the 1st appellant and hence proceeded to assess

Page 18 of 52
 very low general damages for pain, suffering and
loss amenities, contrary to comparable awards on
record at the material times.

v. The learned judge erred both in law and fact when

she failed to make a finding and award the special
damages suffered by way of amongst others, the
medical bills and expenses, yet the same had been
sufficiently pleaded, proven, when she decided that
since, “her bill was fully paid by her employer, she
is therefore not permitted to come to court to
claim this sum as it would amount to double
enrichment.”

vi. The learned trial judge, further erred in both law

and fact when she misdirected herself so much
that she failed to appreciate that it is trite law that
the consequences of a legal liability are
straightforward and damages paid for under an
obligation by third parties, gratuitously,
contractually by relatives or other, are not
deductible and that the wrongdoers should not take
benefit of such, or tortfeasor and should be liable.

vii. The learned trial judge, erred both in law and fact
when she failed to award plaintiff the loss and
damage suffered by way of medical expenses, and
anticipated further medical care, contrary to the
aforesaid principle, the pleadings, the evidence led,
and the cited guiding restatement of the law in the
landmark decision of Donnelly Vs. Joyce (1974) Q.B
454 (C.A).

viii. The learned trial judge erred both in law and fact
when she misdirected herself and made a finding, “
that the defendant can only pay this claim if the
employer or insurance company claims a
subrogation claim in the name of the plaintiff”, a
misdirection that was so grave as it to exhibit, an
error that occasioned heavy prejudice to the
appellants right to compensation, and recovery of
her medical expenses, costs of the medical reports
and related medical expenses a clearly erroneous
statement of the applicable law.

Page 19 of 52
 ix. The learned trial judge erred both in law and fact
when she rejected the appellants claim for special
damages for transport to and from the hospital
when the same was sufficiently proved, and made a
finding that the same could only be awarded if
supported by the production of receipts, contrary
to the law and the required standard of proof.

x. The learned Judge erred in law and in fact when

she summarily made a finding that the claims for
loss of earnings/future earnings, reduced earning
capacity, future medical expenses comprising of
sonogram investigation and excursion of the
amputation stump, the estimated at
Kshs.100,000/- stump refashioning and placement
then at Kshs.200,000/- and prosthesis then
estimated at Kshs.750,000/=, had not been pleaded
and particularized, thereby occasioning an error on
the face of record, as the same had been
sufficiently pleaded, evidenced in their support and
prayed for.

xi. The learned trial judge erred both in law and fact
when she erroneously rejected the appellants’
proposal on the various heads of loss and damages,
contrary to the weight of evidence led and the
appellants having satisfied the principles of law
regarding the required standard of proof.

42. Before this appeal was heard, the appellants filed a Notice of
Motion application dated 13th November 2018 in this appeal
vide which they sought leave to adduce additional evidence
by way of an affidavit mainly on ground that the suffering of
the appellants had continued to escalate specifically in
terms of medical bills, travel expenses and anticipated
future medical care, which caused the appellants to travel
abroad and seek medical aid in a hospital in Austria in
2014. Further that the magnitude of the information raised

Page 20 of 52
 in the application had arisen over time and could not be
anticipated at the time of trial.

43. The application was allowed by this Court in its ruling dated
19th July 2019. The additional evidence was taken by
Ongeri, J. who directed that the same be submitted to this
Court as directed in the ruling dated 19th July 2019,
through a supplementary record of appeal. The same is on
record and is dated 10th December 2023.

44. The evidential material admitted by Ongeri, J. comprised

the following:

a. A copy of the appellants’ passports stamped with

travel details to Austria;

b. A copy of medical records from the hospital that

provided the prosthesis care, orthopadietechnik sanitat
and Gesundheit Buchsbaum Hospital in Austria;

c. A copy of electronic air tickets from Turkish Airlines

for the 1st appellant and her two (2) primary caregivers
dated 25th July 2014 to 7th August 2014 from Nairobi
Jomo Kenyatta Airport through Istanbul, Turkey to
Vienna in Austria and back;

d. A copy of the electronic return air tickets from Turkish

Airlines for the 2nd appellant and one (1) primary
caregiver of the 1st appellant dated 29th July 2014 to
8th August 2014 from Nairobi Jomo Kenyatta Airport
via Istanbul Turkey to Vienna in Austria and back.

Page 21 of 52
 e. The expenses for the travel and accommodation were
tabulated in the supporting affidavit of the 1st
appellant paragraph 13, a total of
Kshs.1,623,947.66/=.

HEARING OF THE APPEAL AND SUBMISSIONS OF COUNSEL

45. The appeal proceeded before us through this Court’s virtual

platform on 30th January 2024, and heard by way of written
submissions. Learned counsel Mr. C. N. Kihara appeared
for the appellants while learned counsel Mrs Njoroge
holding brief for Mr. Mereka was present for the
respondents. Mr. Kihara highlighted the appellants’
submissions whereas Mrs. Njoroge expressed her wish to
rely on the respondent’s written submissions without the
need to highlight. Both parties filed two sets of written
submissions. The appellants’ written submissions are dated
13th November 2018 and 26th January 2024 respectively
whereas the respondents’ written submissions are dated
19th November 2018 and 25th January 2024 respectively.

46. Mr. Kihara, in his written submissions summarized the

reasons that compelled the appellants to appeal the
assessed award on damages as being the fact that the
award was low and not comparable to awards for persons
with similar injuries as the 1st appellant; the final judgment
of the trial court was delivered in 2015, almost 20 years ago;
the effects of inflation on the cost of living; and, the
depreciation of the Kenya Shilling.

Page 22 of 52
47. In regard to the claim for loss of consortium, Mr. Kihara
urged that the appellants were appealing the decision to
dismiss the 2nd appellant’s claim for loss of consortium,
after the Judge found that he had no locus standi to sue the
respondents in the first place. He urged that the claim was
pleaded and the 2nd appellant personally testified and
offered credible evidence in support. Counsel emphasized
that the 2nd appellant was, prior to the accident, enjoying
the comfort and consortium of his wife. In addition, the ugly
and un-cosmetic scars of the two amputations of the limbs,
being wheel chair bound, the psychological trauma, and the
total incapacity of the 1st appellant supported the 2nd
appellant’s evidence of loss of consortium. Reliance was
placed on the case of Timo Kalevi Jappinen & Another
vs. Texcal House Services Station Limited & Another
HCCC No. 220 of 1997 where the Court awarded a sum of
Kshs.200,000/- for loss of consortium. However, Mr. Kihara
urged that even then the amount suggested was lower than
should be considered to satisfy the claim.

48. The respondents’ counsel, in rebuttal submitted that the 2nd

appellant did not provide adequate particulars in the
pleadings for loss of consortium. Further, that it was not
clear how the 2nd appellant had lost the company of the wife
and yet she was alive. That moreover, it was not claimed
that the wife did not love her husband anymore. On the
issue of sexual intercourse, it was submitted that it had to
be proved that the husband had lost the same out of the
accident and not in the normal exercise of consent. Further,

Page 23 of 52
 that it had to be proved that the wife suffered a deformity
that resulted to loss of conjugal rights to the husband. The
respondents contended that there was no medical evidence
to back the claim for consortium and relied on the case of
James Maina Muriithi vs. My Beauty Transporters
Limited & 2 Others [2018] eKLR where none was awarded
for lack of doctor’s evidence in support thereof.

49. In regard to the award for general damages for pain and
suffering, Mr. Kihara submitted that the 1st appellant has
appealed against the award of Kshs.900,000/= awarded by
the learned Judge for reason it is not comparable to awards
of injuries similar to those of the 1st appellant, urging that it
was even lower for less serious injuries. Counsel urged that
the learned Judge did not appreciate the extent and the
gravity and catastrophic nature of the injuries the 1st
appellant suffered. The appellant thus urges this Court to
raise the award to a sum of Kshs.20,000,000/- or
thereabout and order interest to apply with effect from the
date of the high Court judgment until payment in full.
Counsel relied on two cases: Edward Mzamili Katana vs.
CMC Motors Group Limited & Another High Court Civil
Case No. 70 of 1997 and Ahmed Mohamed Adan vs.
Jimmy Tomino & 2 Others & 2 Others [2006] eKLR. The
appellants submitted that the cited cases gave comparable
awards for similar injuries as those sustained by the 1st
appellant herein although the claimants had not suffered
double amputation as the 1st appellant had, they were

Page 24 of 52
 awarded Kshs.2,000,000/- and Kshs.1,800,000/-
respectively for single amputation.

50. The respondents in response, whilst relying on the case of

Ken Odondi & 2 Others vs. James Okoth Omburah T/A
Okoth Omburah & Company Advocates [2013] eKLR
submitted that it is trite law that the appellate court will not
interfere with the award of damages which is a discretionary
power of the trial court. It was emphasized that the learned
Judge analysed the extent and gravity of injuries of the 1 st
appellant and that the 1st appellant failed to prove her case
before the High Court. In conclusion, it was submitted that
no serious arguments have been advanced to disturb the
general damages as assessed and awarded, and further
that, the learned Judge used comparable authorities
analysing the injuries and their extent.

51. On raising of general damages from Kshs.900,000/- to

Kshs.20,000,000/=, it was submitted that that was a new
issue. Therefore, it was submitted that no evidence was
adduced to disturb the award.

52. The counsels next addressed the issue of special damages.

Mr. Kihara for the appellants submitted that the learned
Judge failed to appreciate and to take into account the
principles guiding the assessment and award of proved
special damages. The appellants noted that the special
damages as pleaded in their amended plaint were:

Page 25 of 52
 Medical reports Kshs. 10,000/=
Police abstract Kshs. 100/=
Hospital bills Kshs. 1,224,837.79/=
Related medical expenses Kshs. 6,000/=
Transport to and from hospital Kshs.140,000/=
Totalling to Kshs.1,374,837.40/-.

53. In addition, counsel also argued that they also claimed for
costs for future medical treatment and cost of nursing care
under the title “Future Prognosis” which included estimated
costs of Kshs.100,000/- for surgery and hospitalization,
Kshs.200,000/- for re-fashioning and placement of the
surgical scar over amputation stump and Kshs.750,000/-
for prosthesis that has both an ankle and knee joint. He
took issue with the learned Judge finding that as there was
no document to prove expenditure, the same were not
payable. He urged that additional evidence was admitted by
order of this Court which directed the High Court to receive
additional evidence, and that on that basis, the claim
pleaded as Future Prognosis was payable.

54. The appellants also took issue with dismissal of the 1st
appellant’s claim for medical expenses on the grounds that
the employer, friends and insurance took care of the bills.
Counsel referred to the 1st appellant’s evidence where she
told the trial Court that she had a contract with her
employer for insurance cover for which her salary was
deducted. Placing reliance on the cases of Bradburu vs.
Great Western Railway Company [1874] LR 10 EX.1 and
Parry vs. Cleaver [1970] AC 1, the appellants argued that
once the respondents were found liable, then they should

Page 26 of 52
 not be allowed, as tortfeasors, to keep the benefit of the
insurance payment where they were not parties, but to meet
and compensate their victim to the extent of their liability.

55. Lastly, it was submitted that the learned Judge wholly and
erroneously misdirected herself such that she went on a
wrong enquiry where it appeared that she belaboured under
the wrong and misapprehension view of the law, that special
damages can only be proved by the production of receipts,
rather than any other of the accepted proof mechanism.
Moreover, counsel urged that the learned Judge placed a
higher burden of proof on the appellants than that which is
required in a civil suit of a balance of probabilities. Lastly,
the appellants sought the re-assessment of the special
damages and submitted that the same were pleaded to the
required particularity and itemization.

56. On the issue of the additional evidence adduced in this

appeal, Mr. Kihara submitted that the matter was taken
back to the High Court for taking additional evidence, and
that the High Court was not supposed to make any finding
as the appeal was pending before this Court. Counsel
therefore argued that this Court would have to look at the
additional evidence and make a finding on the same for the
first time as it related to future medical expenses.

57. The appellants submitted that following the admissions of

additional evidence, it is now trite law that the subject
appeal against an award of damages takes the process of
more or less a re-hearing of the case. That the same is done

Page 27 of 52
 by way of a review and evaluation of the evidence on record
as looked at together with the pleadings filed by the parties.

58. Counsel for the respondents in response argued that special

damages in the nature of the out of pocket expenses are for
reimbursement of what the appellants spent. Therefore, it
follows that it must be actual spending of the money as
opposed to speculations. Placing reliance on the case of
Zacharia Waweru Thumbi vs. Samuel Njoroge Thuku
[2006] eKLR, the respondents contended that it is trite that
a person cannot be reimbursed that which he had not
spent, meaning that if the 1st appellant did not spend even a
single coin for medical bills then she cannot be reimbursed.
Further that to allow the 1st appellant to claim for that
which she did not spent is to aid unjust enrichment. In
addition, that the said action would be against public policy
for the 1st appellant to be reimbursed the money on behalf
of the insurance.

59. The respondents submitted that the law creates an

exemption to the rule of gratuitous payment where the
money will be paid using insurance or government money,
then the plaintiff cannot recover. It was argued that the
same was settled by the House of Lords in the case of
Dimond vs. Lovell [1999] 3 ALL ER 1 which case
abandoned the principle as set out in the Parry case
(supra). The respondents maintained that the 1st appellant
having admitted that she did not spend any money for
medical expenses, it follows therefore that she cannot claim

Page 28 of 52
 for reimbursement of amounts which she did not spend.
The respondents thus urged this Court to reject the text
propounded by the appellants as was rejected by the House
of Lords.

60. On claim for transport to and from the hospital, the

respondents submitted that the same is special damages
which ought to be specifically pleaded and proved and the
appellants failed to meet the threshold. The respondents
challenged the appellants’ submissions that the learned
Judge said transport must be proved by receipts. They
submitted that the learned Judge rejected the claim, not
because of lack of receipts only but inadequate evidence. It
was submitted that the appellants were speculating on the
amount spent on transport, there was no cogent evidence
such as receipts offered and in fact, the 1st appellant
admitted that she did not have receipts to prove her claim
for special damages.

61. The respondents submitted that the 1st appellant was not
entitled to future medical expenses and future earning
capacity. The respondents argued that although the 1st
appellant had particularized refashioning, the same had
already been performed at Kshs.200,000/- as stated by the
doctor. On the claim of prosthesis, the respondents
contended that by May 2004 it had been done both in Moshi
and Nairobi and the doctor confirmed that the prosthesis
was fitted at the time of giving evidence. Further, it was
submitted that the second prosthesis where she went to

Page 29 of 52
 Germany was not pleaded, that despite the doctor claiming
that it was done in Germany at a cost of Kshs.1.2 million,
no receipts were produced since this was an expense
already incurred. Lastly, the respondents submitted that
once the particularised future medical expenses were
undertaken, they ceased from being future to actual
expenses. Therefore, the 1st appellant was supposed to
amend the plaint and include them as part of medical
expenses and was supposed to produce receipts of the
medical expenses like any other claim for special damages.

62. In the alternative, the respondents submitted that the 1st

appellant prayed for future medical expenses under the
prayer for general damages. However, the respondents
argued that the same is a special damages claim as settled
in this Court decision in Simon Taveta vs. Mercy Mutitu
Njeru [2014] eKLR. The respondents also relied on the
Supreme Court of Indian case of Raj Kumar vs. Ajay
Kumar & Another on 18 October, 2010.

63. On the issue of future earning capacity, the respondents

submitted that the 1st appellant did not lose future earning
capacity since she remained in the same work. In fact, it
was submitted that she was promoted to Grade 2 Clerk.
Further, it was contended that on record, the 1st appellant
said that she resumed work in 1998, she was promoted to
Clerk Grade II 2B and salary was adjusted hence, the
learned Judge was justified in holding that no evidence was
produced to prove loss of earning capacity.

Page 30 of 52
ANALYSIS AND DETERMINATION

64. We have considered the two sets of submissions filed for

and on behalf of the parties in this appeal, as well as the
highlights by learned counsel Mr. Kihara for the appellants.

65. Being a first appeal, it is our duty to re-analyze and re-

assess the evidence on record and reach our own
conclusions, always bearing in mind that we have neither
seen nor heard the witnesses and hence we should make
due allowance in this respect. However, we are not bound
necessarily to follow the trial judge’s findings of fact if it
appears either that she has clearly failed on some point to
take account of particular circumstances or probabilities
materially to estimate the evidence or if the impression
based on the demeanour of a witness is inconsistent with
the evidence in the case generally. See Selle vs. Associated
Motor Boat Co. [1968] EA 123, Abdul Hameed Saif -vs. -
Ali Mohamed Sholan [1955], 22 EACA. 270 and Kenya
Ports Authority vs. Kuston (Kenya) Limited [2009] 2 EA
212.

66. Having considered the submissions of counsel and the

entire case, we find that the issues that call for our
determination are as follows:

1). Whether the learned Judge erred in dismissing

the 2nd appellant’s claim for loss of
consortium;

2). Whether this Court can interfere with the

learned Judge’s exercise of discretion in the

Page 31 of 52
 award of general damages for pain and
suffering;

3). Whether the 1st appellant’s claim for loss of

earning capacity or reduced earning capacity
was fairly dismissed;

4). Whether the learned Judge erred when she

dismissed the 1st appellant’s claim for special
damages; and

5.) Whether the 1st appellant’s claim under the

heading ‘Future Prognosis’ was payable.

WHETHER THE LEARNED JUDGE ERRED IN DISMISSING THE 2ND

APPELLANT’S CLAIM FOR LOSS OF CONSORTIUM;

67. The learned Judge dismissed the 2nd appellant’s claim for
loss of consortium finding that he had no locus standi to
bring the claim against the respondents. The learned Judge,
in dismissing this claim observed, ‘The Plaintiff No. 2 (read
2nd appellant) has no locus in this case and would
accordingly dismiss this suit against the two defendants with
costs.’ The appellants in their proposal for the award relied
on the case of Timo Kalevi Jappinen & Another vs.
Texcal House Services Station Limited & Another HCCC
No. 220 of 1997 where the court awarded a sum of
Kshs.200,000/- for loss of consortium. The appellants
submitted that although the said award was not upheld on
appeal to wit, Civil Appeal No. 134 of 1998 due to its own
peculiar circumstances, the assessment of the then
Kshs.200,000/- remained a useful and persuasive guide.

Page 32 of 52
68. The respondents’ counsel attached an article titled ‘Loss of
consortium claims’ by Jeffrey Rolls, Brisbane. The writer
opines that ‘The common law recognised that a husband had
a proprietary interest in his wife, and her services gave rise
to a right of action when the interest had negligently been
invaded by a third party. Thus, a husband might recover the
loss he had suffered by being deprived of the comfort and
society of his wife and the services she had rendered to him.’
The writer discusses the difference in a claim for loss of
society based on deprivation or impairment of consortium
as a result of temporal and material and psychological harm
of nervous shock, vis a vis a spiritual loss; the former being
sustainable, but the latter not.

69. The respondents’ counsel supported the dismissal of this

claim on grounds that the 2nd appellant could claim loss of
consortium as the wife was still alive. In the alternative, the
respondents submitted that the claim cannot succeed
unless there was medical evidence in support. Cited to
support that proposition was the case of Mwaura Muiruri
vs. Suera Flowers Limited & Another [2014] eKLR, a
persuasive authority from the High Court where Emukule,
J. held:

“Consortium can only be granted to a person who

has suffered serious personal injuries which
have affected his abilities to provide
consortium… The doctor who examined him did
not find the injuries sustained by him hindered
his ability to perform his marital duties in any
way.”

Page 33 of 52
70. Quite apart from the cited case being merely persuasive, the
case is distinguishable from the instant case. The facts are
different in that the plaintiff in the cited case was the
injured spouse. In the instant case, the claim was brought
by the spouse of the injured partner. This Court in the case
of Salvatore De Luca vs. Abdullahi Hemed Khalil &
Another [1994] eKLR awarded loss of consortium in a fatal
accident claim; the Justices of Appeal held thus:
“So far as consortium is concerned, there is
evidence that the appellant loved his wife and so
did their children. The appellant has not re-
married. No doubt, he had lost his wife’s
companionship. There is, moreover, an
impairment in the social life of the appellant
and his young children who, too, have lost love,
care and devotion of their mother. The learned
judge clearly erred, in our view, in failing to
award any damages for loss of consortium and
servitium. Bearing in mind the fact that each
case should be judged on its own facts, we would
think that an award of Shs.40,000/= is a fair
measure for this head of damages and we award
the appellant this sum with interest from the
date of judgement in the superior court until
payment in full.”

70. We cite the above case to show that loss of consortium is a

recognised claim in law, and to show the principles that
apply. We know that the award in the cited case was
granted in a fatal accident case. The instant case was not a
fatal accident. It is nevertheless an appropriate case for
such an award. The principles to be considered include
proof that the appellant loved the spouse before the
accident. Loss of consortium means loss of any or all of the
following; companionship, love and affection, comfort,

Page 34 of 52
 mutual services and sexual intercourse. Since the accident
he has lost his wife’s companionship, has suffered an
impairment in the social life, lost love, care and devotion of
his wife. It is our view that within a marriage situation, the
claim for loss of consortium is recognised as sustainable
when brought by a spouse who claims loss as a result of
injuries caused to his/her partner by a third party,
sustainable only in the status of marriage.

71. While a doctor’s assessment to determine whether the

affected spouse has suffered the loss of consortium is, no
doubt, critical in proving the loss, the gravity and nature of
the injuries suffered coupled with the claimant’s direct
testimony of the loss will, in certain instances, be sufficient
to prove the loss. As we have stated above, loss of
consortium includes loss of companionship, love and
affection, comfort, mutual services and sexual intercourse,
an impairment in the social life, care and devotion. Here,
the injuries sustained by 1st appellant were debilitating.
Then there was the evidence of the 2nd appellant that their
relationship changed since the accident and as a result of
the injuries, there was no intimacy, warmth or comfort
between them. The 2nd appellant was very clear that his wife
totally changed from being a lovely compassionate wife to
one full of hate and blaming him for everything. He said he
understood it to be psychological trauma as a result of the
accident, and he identified the psychiatrist’s report of Dr. F.
G. Njenga who saw her for some time.

Page 35 of 52
72. We saw in the record of appeal the evidence of several
doctors and several reports relevant to this aspect of the
claim. Dr. Nassir in his report dated 21st August 1998
stated that the 1st appellant was complaining of pain in the
amputation stump on the right lower limb, discharging
sinus over the amputation stump in the right shoulder, got
easily freighted and was emotionally unstable since the
accident, terming the complaints valid. Report by Dr. F. G.
Njenga, a Psychiatrist from Aga Khan Hospital who treated
her, dated 25th July 2000 was that the 1st appellant’s
relationship with her husband had deteriorated
significantly, not just because of her physical limitation due
to her traumatic injuries, but emotional and psychological
problems proving to be a major strain. The doctor opined
that due to her physical appearance and limitation, she
constantly worried about the future of their marriage. We
find that there was sufficient evidence to support the 2 nd
appellant’s claim for loss of consortium. We find that the
learned Judge clearly erred when she failed to award any
damages under this head.

73. As to assessment of damages under this head, we have the

Salvatore De Luca case, supra, a 1998 case, in which
Kshs.40,000/= was awarded. In Timo Kalevi Jappinen &
Another, supra, a 1997 case, Kshs.200,000/= was
awarded. The judgment in this matter was delivered in
2005. We think that, had the learned Judge properly
directed herself to the appropriate award under this head,

Page 36 of 52
 Kshs.300,000/= would have been fair at the time. We so
find.

WHETHER THIS COURT CAN INTERFERE WITH THE LEARNED

JUDGE’S EXERCISE IN DISCRETION IN THE AWARD OF GENERAL
DAMAGES FOR PAIN AND SUFFERING;

74. The 1st appellant has challenged the award of

Kshs.900,000/= for general damages for pain and suffering.
As shown on the body of this judgment, it was the view of
the respondents’ counsel that the award given was justified
and should not be interfered with. Mr. Kihara on the other
hand was of the view that the award was excessively low,
compared with awards made for similar injuries as those of
the 1st appellant in this case. As to whether we can interfere
with the learned Judge’s exercise of discretion in the award
on pain and suffering, we are guided by the principles which
were restated in the case of Kemfro Africa Ltd vs. Lubia &
Another [1982-88] I LR wherein the Court of Appeal stated
as follows: -

“In deciding whether it is justified in disturbing

the quantum of damages awarded by a trial
Judge, an appellate court must be satisfied that
the Judge in assessing the damages, took into
account an irrelevant factor, or left out of
account a relevant one or that; short of this, the
amount is so inordinately low or so inordinately
high that it must be a wholly erroneous estimate
of the damage.”

75. In Denshire Muteti Wambua vs. Kenya Power & Lighting

Co. Ltd Civil Appeal No 60 of 2004, this Court reiterated
the principles under which this Court can interfere with an

Page 37 of 52
 award of damages as stated in Kemfro Africa Ltd vs.
Lubia & Another, supra. It also emphasised the need for
the Court to ensure that awards make sense and have
regard to the context in which they are made, and that they
should strike a chord of fairness. In Arrow Car Limited vs.
Bimomo & 2 Others [2004] 2 KLR 101, it was stated that
comparable injuries should as far as possible be
compensated by comparable awards.

76. The learned Judge outlined the injuries of the 1st appellant
as:
Head injury (Cerebral concussion);
Multiple cuts and abrasions;
Abrasion over the right chest wall;
Fracture of the right collar bone;
Crush injury to the right upper limb leading to
amputation of the same;
Crush injury to the right lower limb leading to an
above the knee amputation.

77. The learned Judge employed the guidance of two cases to

assess damages for pain and suffering. Mary Ouko Wawiye
vs. Attorney General High Court Civil Case No. 788 of
1998 where the plaintiff sustained injuries to the head,
neck, right hand and right hips and was awarded
Kshs.1,000,000/=. Samson Mutuku Kimweli vs. Golden
Harvest Mills Ltd High Court Civil Case No. 164 of 2002
where Kshs.500,000/= was awarded for an industrial
accident. The particulars of the injuries sustained by the

Page 38 of 52
 plaintiff are not provided. The final order made was an
award of Kshs.900, 000/=.

78. The appellants counsel relied on very old cases of

Byabalema and Others vs. Uganda [1975] (1990-1994)
Ltd EA 59 and Byaragable vs. Kilemba Mines Ltd [1972]
EA 341. We find the appropriate cases to apply in this case
as a guide to the award of pain and suffering includes the
one cited by the respondents’ counsel, albeit in support of a
different issue. This is the case of James Maina Muriithi
vs. My Beauty Transporters Limited & 2 Others [2018]
eKLR. The plaintiff in that case was 52 years old and had
sustained frictional burns over the lower abdomen;
frictional burns on both thighs; crash injury of the right
lower limb with eventual amputation below the knee; crush
injury left upper limb with eventual disarticulation and
pains, blood loss and soft tissue injuries. The court awarded
him Kshs.4,200,000/=.

79. The other case we apply to guide us is Nancy Wanjiku

Mwangi vs. Peter Njoroge Ngata [2005] eKLR, a 1999
case, where the plaintiff was aged 46 years old in 1999 who
had 15% disability after suffering deep wound to the
forehead with minor head injury; simple comminuted
fracture of the right humerus; compound fracture of the
right tibia; loss of bone segment; and amputation of right leg
below the knee. Ang’awa, J. (same Judge as in this case)
awarded Kshs.800,000/=. And in Kariuki M’Ng’ondu alias
Kariuki Josphat M’Ng’ondu vs. Philip Miriti & 2 Others

Page 39 of 52
 [2005] eKLR where for facial and left wrist laceration,
fractures of the clavicle and scapular and blood transfusion,
the learned Judge awarded Kshs.1,500, 000/=. In Samuel
Waruguru Njoroge vs. Kenya Bus Services Ltd Nairobi
HCCC No. 495 of 1998 the plaintiff was awarded general
damages for pain suffering and loss of amenities of
Kshs.1,300,000/- in a case where he had sustained an
amputation of the right leg and the degree of permanent
disability was assessed at 35%. In Samson Omari vs.
Simon Kamau & Another HCCC 157 of 2001 [2007]
eKLR which judgment was delivered in 2007 Kimaru, J. (as
he was then) awarded the plaintiff Kshs.1,500,000/- where
the plaintiff had sustained injuries on the left leg leading to
amputation below the knee, fracture and dislocation of the
right ankle.

80. The appellant had much more severe injuries, double

amputations right leg above the knee and upper right limb
at shoulder level, head concussion with one month comma
and a second month in confusion, has 100% disability and
needs prosthesis, among the other injuries the learned
Judge noted. We find that the award given was not
comparable to awards made in cases where the injuries
were almost similar to those of the appellant in this case.
We are satisfied that the learned Judge did not fully
appreciate the gravity and the severity of the injuries
suffered by the 1st appellant and consequently, the amount
awarded was so inordinately low that it was a wholly
erroneous estimate of the damage and warrants

Page 40 of 52
 interference. It is our view that as of 2005 when the
judgment in this case was delivered, and award of
Kshs.6,200,000/= would have been adequate compensation.

WHETHER THE 1ST APPELLANT’S CLAIM FOR LOSS OF EARNING

CAPACITY OR REDUCED EARNING CAPACITY WAS FAIRLY DISMISSED;

81. The learned Judge found that the 1st appellant was not
entitled to loss of earnings or to future earning capacity on
grounds the 1st appellant was promoted by his employer
post the accident and her salary adjusted accordingly. We
noted that counsel for the appellants submitted that the 1st
appellant retired at 55 years, which was not the normal age
for retirement at the time. However, going by her evidence in
Court, she did not state that she had been retrenched or
forced to retire early. This may have happened post the
judgment of the High Court, in which case it does not fall
for our consideration. We do not see any reason to disturb
the learned Judge’s conclusion on the claim under this
head.

WHETHER THE LEARNED JUDGE ERRED WHEN SHE DISMISSED THE

1ST APPELLANT’S CLAIM FOR SPECIAL DAMAGES;

82. We wish to make it clear that there are two prayers which,
from the arguments of counsel seem to merge at some
points. There was the special damages claim and the claim
for future prognosis. For clarity, the claim for special
damages was heard and determined by the learned Judge.
The prayer for future prognosis falls for determination by
this Court by virtue of the ruling of this Court dated 19th

Page 41 of 52
 July 2019, allowing the appellants to adduce additional
evidence; first as a first appellate Court, and secondly, on a
fresh assessment of the amount payable, if we find payment
due.

83. First, we shall consider the appeal against the judgement on

special damages under this head. In the Amended Plaint
under paragraph titled ‘PARTICULARS OF SPECIAL
DAMAGES’, the following particulars were pleaded:

i). Medical reports ………………………..Kshs.10, 000/=

ii). Police abstract ………………………..Kshs.100/=
iii). Hospital Bills (medical, surgery and
treatment expenses) ……………… Kshs.1, 224, 837. 40
iv). Related Medical expenses ……….. Kshs.6, 000/=
v). Transport to and from Hospital ….Kshs.140, 000/=
Total …………………………………………..Kshs.1, 374, 837. 40/=
Loss of earnings (23, 000/= X 10 months = 230,000/=)
Future earnings and or extinguished earning capacity
to be adduced at the hearing thereof.

84. On this claim, the learned Judge relied on the case of

Perestello vs. United Parts [1969] WLR 570 and of Ouma
vs. Nairobi City Council [1976] KLR 279 and dismissed
the claim under this head. Specifically, the learned Judge
ruled that claims of medical reports, hospital bills and
related medical expenses were all met by her employer,
Kenya Power & Lighting Company. She held that the 1st
appellant could not be permitted to claim these sums as it
would result in double enrichment. Further, that the
respondents could only pay the sum claimed if the employer

Page 42 of 52
 or insurance company claimed subrogation in the name of
the 1st appellant. For the claim of police abstract report and
transport to and from hospital, the learned Judge rejected
the claims stating that the same were never supported by
receipts and evidence respectively.

85. Authorities abound that special damages must be

specifically pleaded and strictly proved. That is the
proposition in the cases of Charles C. Sande vs. Kenya Co-
Operative Creameries Limited, Civil Appeal No. 154 of
1992. Much earlier in Hahn vs. Singh, Civil Appeal No.
42 of 1983 [1985] KLR 716, this Court articulated that:

“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.”

86. See also the decision of this Court in Daniel Gatihi

Gachomo vs. Kenya Union of Teachers Nyeri Branch
[2013] eKLR; Capital Fish Limited vs. Kenya Power and
Lighting Company Limited [2016] eKLR.

87. The appellants pleaded the special damages. However, for

the hospital bills and doctors’ charges, what was presented
were the reports of the various doctors, invoices and in
some cases copies of the payment receipts. None of them
were original copies. For the police abstract, claim for
transport to and from hospital, no documents were

Page 43 of 52
 presented to support the claims. In regards to the hospital
bills and the doctor’s charges, the 1st appellant was
categorical that her employer, KPLC paid everything. She
however claimed that the same was deducted from her
salary.

88. The law is that the expenditure in a special damages claim,

must be supported, which counsel for the appellants
seemed to appreciate when he urged that receipts were not
the only means that can be used to support. For the
deductions from the salary, the appellant could have called
her employer’s representative to support that allegation,
since the payslip she adduced in evidence did not show any
deductions of that nature whatsoever. For the transport, an
acknowledgement from the person or company hired to offer
the transport would have sufficed, as there was nothing else
presented showing that she was required at the hospital,
during which period and for what purpose.

89. We find that the learned Judge was right when she declined
to accept the claim for special damages for the reasons that
she advanced.

WHETHER THE 1ST APPELLANT’S CLAIM UNDER THE HEADING

‘FUTURE PROGNOSIS’ WAS PAYABLE.

90. Before we delve into the issues raised under the head, let us
mention that it is the claim under the heading ‘Future
Prognosis’ that was the subject of the application dated 13th
November 2018, and the ruling of this Court dated 19 th July
2019. It was brought pursuant to rules 29, 42 (1) (2) and

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 43 (1) of the Court of Appeal Rules, 2010. Prior to filing of
the application, the impugned judgment had been delivered.
The learned Judge, in her judgment had this to say
regarding the prayer for future medical expenses/future
prognosis:

“The doctor in his report indicated that the

plaintiff (read the 1st appellant) would require a
sonogram instigation at Kshs.100, 000/-. This is
to atop the sinus and the right shoulder.
Refashioning scars in stump at Kshs.200,000/-;
and prosthesis costing Kshs.750,000/-He also
advised on psychiatric care. The operation on the
sonogram instigation has taken place as has the
refashioning of the scars on the stump. None of
the claim was pleaded and particularized. A
prosthesis is said to cost Kshs.750,000/=. The
plaintiff did not plead this. She has one and is
on her second prosthesis which she ought to have
indeed pleaded and produced receipts
purchasing the same. I would reject this claim as
having not been particularized and proved as
special damages incurred.”

91. In the application, the 1st appellant sought to adduce

additional evidence, particularised in the grounds on the
face of the application and in the 1st appellant’s affidavit in
support of her claim for special damages for the following
expenses:

i. Air tickets (in July 2014 at the exchange rate of

1USD=87.741Kshs)
Pitty Gathigia Karonji Baaru,
Amos Baaru Gacheru and
Edith Wanjiru Baaru
USD 2930.29 equivalent to Kshs.257,106.57 in
July 2014 at exchange rate of
1EUR=120.172Kshs).

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 ii. Accommodation Euro 840 equivalent
Kshs.100,944.88.
iii. Transport from Hotel to Hospital Euro 40
equivalent to Kshs.4,946.00/-
iv. Prosthesis and 2 stockings Euro 4,946.10/-
equivalent to Kshs.594,382.73/-
v. Affidavit of Nicholas Ndege, the bi-lingual
translator of from German language into English
of all the documents presented.

92. Mr. Kihara submitted that according to the evidence led at

the hearing to receive additional documentary evidence, the
1st appellant testified and produced the receipts, passports
and aircraft receipts. That the expenses amount to the
aggregated sum of Kshs.975,240.66/- with the foreign
currencies converted at the rates prevailing as at the time
the expenses were incurred. Moreover, counsel urged that
the said expenses were incurred as a consequence of the
injuries subject hereof, and the treatment recommended by
Dr. Nasir many years before. He urged that the respondents,
as submitted, are liable to meet the cost.

93. Mr Kihara placed reliance on the English case of Parry vs.

Cleaver (1970] AC 1, quoted per Lord Reid that: “It would
be revolting to the ordinary man’s sense of justice and
therefore contrary to public policy, that the sufferer should
have his damages reduced so that he would gain nothing
from the benevolence of friends and relatives or the public at
large and the only gainer would be the wrong doer.” We note
that the respondents’ counsel urged that the above
statement was abandoned by the House of Lords in the
same case as espousing only a general rule, that ‘the fruits

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 of insurance which the plaintiff himself has provided and the
fruits of benevolence of their parties as apparent exceptions
to the rule against double recovery founded on the special
considerations of policy which Lord Reid had explained.” We
think that the two arguments are complementary and not
opposed.

94. On the issue of particularity of special damages, counsel

relied on the Racliffe vs. Evans [1892] 2 QB 524 C.A. for
the proposition that ‘the character of the acts themselves
which produce, and the circumstances under which these
acts are done, must regulate the degree of certainty and
particularity with which the damage done ought to be
stated”. Put simply, the particulars given for special
damages, and we dare state also future medical
requirements, must relate to the facts of the case, the
circumstances of the case and the damage that was caused
to the plaintiff.

95. In rebuttal, counsel for the respondents submitted that it is

not in dispute that three persons travelled as per the
passports and the visas adduced in evidence, hence the
amount of Kshs.257,106.57/- is not disputed. However, it
was argued that the respondents disputed the amounts on
accommodation and transport from the hotel to the hospital
as the 1st appellant did not have receipts to show that
indeed the same were incurred; and prosthesis and
stockings for Kshs.594,382.73/-. The respondents

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 maintained that special damages must not only be pleaded
but specifically proved.

96. The respondents further contended that the 1st appellant

cannot seek a refund of the amount on prosthesis and 2
stockings which amount she acquired through “harambee”
or contributions from friends in Kenya. It was submitted
that the purpose of an award of special damages is not to
unjustly enrich a claimant but rather to compensate them
from the loss incurred.

97. We do not wish to belabour this issue. As this Court

observed when it allowed the application for adduction of
additional evidence,

“Noting the amended plaint contains a plea and

claim for future medical treatment, it is our
considered view adducing of the additional
evidence neither created nor introduced a new
cause of action. A claim for future medical
treatment or expenses is anticipatory expenses
whose exact figures remain unknown at the time
of pleading., It is impractical to plead and claim
specific sum as future medical expenses.
(Emphasis added).”

98. That the 1st appellant could only list anticipated future
medical care and treatment required was quite in order, and
there was nothing inappropriate of the claim pleaded as she
did. There is a connection between the pleaded future
medical expenses, the injuries she suffered in the accident
and the prognosis given by her doctors who were taking care
of her. The learned Judge had stated that the appellant had
already received prosthesis twice and was on the third one.

Page 48 of 52
 That is precisely the point. The doctors can only give
prognosis of future treatment but the form and the nature it
may take may not be ascertainable. That is why, even
though one should plead future medical treatment, one
cannot be expected to produce proof of the expenses, as
they would not have been incurred.

99. In this case, the ‘Future Prognosis’ of future medical

expenses changed character to special damages, with the
leave of the Court on application, so that the 1st appellant
brought documentary proof of actual expenses incurred.
That window opened to the 1st appellant because of the
delay of 14 years or so between the date of judgment of the
High Court and the date the appeal was heard.

100. As to whether the expenses have been proved and can be

paid, counsel for the respondent has admitted that the
claim for airfare for the trip to Austria as per the documents
that were produced to support it was payable. He declined
hotel accommodation and travel to and from hospital and
the prosthesis the 1st appellant was fitted and the stockings
that came with it. He argued that the expenses were met
through ‘harambee’ or in other words through benevolence
of friends and would result in double enrichment if it was
refunded.

101. We do not buy the argument that a victim who has looked
for resources through friends and family, should not get a
refund of such funds. We adopt Lord Reid’s statement that
it is revolting to the ordinary man’s sense of justice and

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 therefore contrary to public policy, that the sufferer should
have his damages reduced so that he would gain nothing
from the benevolence of friends and relatives or the public
at large and the only gainer would be the wrong doer. In our
view, donations of benevolence from friends and family
ought to be regarded as exceptions to the general rule
against double recovery or unfair enrichment. The 1st
appellant should recover all her expenses in the trip to
Austria even though largely paid for by friends.

102. Furthermore, for the contested claim of the accommodation

and the transport to and from hospital as well as the costs
of the treatment, including prosthesis and stockings, these
were all incurred. The air tickets and the visas are proof
that the journey was indeed made, for the purpose claimed.
We note however that there were no receipts to support
Kshs.100,944.88/- for accommodation and Kshs.4,946.00/-
for transport to and from hospital. These cannot be
refunded. For the sum of Kshs.594,382.73/- for Prosthesis
and 2 stockings, we note that the 1st appellant has attached
a banking transfer document marked ‘NN3’. It shows that
the 1st appellant paid to the Recipient Bank BUCHSBAUM
GMPH 1 BAN AT 692011100004846885 from account BIC
GIBHATWWXXX NO 000004011172, AMOUNT EUR 4946.
The interpreter from German to English, Mr. Nicholas Ndege
averred in his affidavit dated 1st November 2020 that the
bank document was a payment receipt for the prosthesis
and stockings. We are satisfied that there is proof that the
prosthesis and the accompanying stockings were paid for by

Page 50 of 52
 the 1st appellant and therefor the cost should be refunded to
the 1st appellant as claimed.

103. In the result, we find that the orders that commend

themselves to us to make in this matter are as follows:

1. Judgment be and is hereby entered for the

2nd appellant against the respondents for
loss of consortium in the sum of
Kshs.300,000.00/= with interest from the
date of judgment of the High Court, on 14th
July 2005 until payment in full;

2. Judgment be and is hereby entered for the

1st appellant against the respondents for
general damages for pain and suffering in
the sum of Kshs.6,200,000.00/=, less 25%
contributory negligence by the 1st appellant,
bringing the total award to
Kshs.4,875,000/= with interest from the
date of judgment of the High Court on 14th
July 2005 until payment in full;

3. Judgment be and is hereby entered for the

1st appellant against the respondents for
Prosthesis and 2 stockings in the sum of
Kshs.594,382.73/= with interest from date
of filing suit on 29th January 1999 until
payment in full;

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 4. Judgment be and is hereby entered for the
1st appellant against the respondents for
return air fare from Nairobi to Austria in the
sum of Kshs.257,106.57 with interest from
date of filing suit on 29th January 1999
until payment in full;

5. The appellants will have the costs of the

case in the High Court and half the costs of
the appeal.

Dated and delivered at Nairobi this 26th Day of April, 2024

F. TUIYOTT

……………………….……………..
JUDGE OF APPEAL

J. LESIIT

………………………….…………..
JUDGE OF APPEAL

G.W. NGENYE-MACHARIA

………………………..…………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original
signed
DEPUTY REGISTRAR

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