MBAKA NGURU & ANOR. vs JAMES GEORGE RAKWAR [1998] KECA 133 (KLR)
The bottom line
#Kenya's Court of Appeal slashed a Shs 6.8 million injury award to Shs 1.5 million because the plaintiff never properly pleaded or proved his biggest claims.
What this practically means
#Executive summary
#Key legal issues
#Service of amended plaint on a defendant under interlocutory judgment
The trial judge erred in holding the first defendant liable for the whole judgment without ordering service of the amended plaint on him, but the point was not taken as a substantive ground of appeal and was not decisive.
The plaint was amended by consent of the plaintiff and second defendant only, adding a claim for future medical expenses after interlocutory judgment had been entered against the first defendant. Fairness required service so he could object, especially as the second defendant's vicarious liability depended on the first defendant's liability in both negligence and quantum. However, since the point was not pursued as a substantive ground and vicarious liability was not ultimately contested, the court did not decide the appeal on it.
Quantum of general damages for paraplegia
The award of Shs. 2,500,000 was so inordinately high that it did not correctly represent the damage suffered; reduced to Shs. 1,500,000.
Applying the settled principles for appellate interference and comparing recent comparable awards for paraplegia (mostly Shs. 700,000 to 1,000,000, with one outlier of Shs. 2,000,000), the court held the award excessive. It considered the plaintiff's 100% disability, his grievous injuries and personal circumstances, and the need for awards to reflect the trend of previous comparable awards and the Kenyan economy.
Loss of future earnings - pleading and proof
Loss of earnings is special damage which must be specifically pleaded and strictly proved; neither pleaded nor proved, the award of Shs. 1,943,760 was set aside wholly.
The claim was not pleaded and the plaintiff never even said he was claiming loss of earning capacity, so the second defendant's counsel could not cross-examine on it. The court reiterated that plaintiffs who fail to plead and prove damages do so at their own risk, however sympathetic the court may be. It added that the 13-year multiplier for a 40-year-old was in any event erroneous, an eight-year multiplier being appropriate had the claim been properly pleaded.
Future medical expenses - pleading and proof
The claim for future medical expenses was not pleaded or proved; a mere reference in a medical report was insufficient and the award of Shs. 2,349,450 was wholly disallowed.
There was no claim in the body of the plaint, no suggestion such a claim would be made, and no quantification. References to future medication costs in a medical report and a bare prayer do not suffice. Had it been properly pleaded and proved, the judge should have taken a global view, accounting for accelerated receipt and investment of the award at interest; but the award was in any event wholly disallowed.
Legal principles established
#- Loss of earnings is a claim in special damages which must be specifically pleaded and strictly proved; a plaintiff cannot simply throw figures at the judge.
- A claim for future medical expenses must be specifically pleaded and proved; a mere reference in a medical report or a bare prayer in the plaint does not justify an award.
- An appellate court may interfere with damages where the judge took into account an irrelevant factor, left out a relevant one, or where the amount is so inordinately low or high that it is a wholly erroneous estimate of the damage.
- Where a vehicle overturns, the driver must explain the overturning; absent a reasonable explanation, negligence is presumed.
- An amended plaint introducing new claims after interlocutory judgment against a defaulting defendant must be served on that defendant before he can be held liable for the whole judgment amount.
Court orders
#- 1.The award of general damages for pain, suffering and loss of amenities reduced from Shs. 2,500,000 to Shs. 1,500,000
- 2.The award of Shs. 1,943,760 for loss of future earnings set aside in its entirety
- 3.The award of Shs. 2,349,450 for future medical expenses set aside in its entirety
- 4.The total award of Shs. 6,793,210 reduced to Shs. 1,500,000 with interest at court rates from 11th December 1997
- 5.The second defendant awarded three-quarter of its costs
- On appeal from
- High Court of Kenya, Nairobi
- Nrb. HCCC No. 5978 of 1993
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court in civil suits (Court of Appeal, Civil Appeal No. 133 of 1998)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Maqsooda Begum Sroya v Sunmatt Limited [2017] KECA 390 (KLR)[2017] KECA 390 (KLR)28 Jul 2017followed
Cite this brief
#Cite this brief
Caselaw, "MBAKA NGURU & ANOR. vs JAMES GEORGE RAKWAR [1998] KECA 133 (KLR)", Case Analysis (1998). Civil Appeal No. 133 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/133/eng@1998-12-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.