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Court of AppealPartially AllowedCivil Appeal No. 26 of 2013· [2014] KECA 755 (KLR)

Taveta v Njeru (Civil Appeal 26 of 2013) [2014] KECA 755 (KLR)

Court of Appeal of Kenya
5 February 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
3,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reduced a paralysis injury award because future medical costs were never specifically claimed in the lawsuit pleadings.

What this practically means

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Executive summary

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The respondent, a passenger, was seriously injured in a road traffic accident caused by the appellant, suffering complete paralysis of the limbs with 100% permanent disability. Liability was settled by consent at 85:15 in the respondent's favour, with special damages agreed at Ksh. 601,620/=, leaving only quantum of general damages for trial. The High Court (Ong'undi J.) awarded a global sum of Ksh. 4,000,000/= as general damages for pain, suffering and loss of amenities, subject to 15% deduction. The appellant appealed on three grounds, contending the trial judge took into account unpleaded future medical expenses and produced an inordinately excessive award; there was no cross-appeal. The Court of Appeal, as a first appellate court, reassessed the evidence and framed two issues: whether future medical treatment was pleaded, and whether the award was excessive. Applying the settled rule from Kenya Bus Services Ltd v Gituma that future medical care is special damages which must be pleaded and proved, the court found the plaint contained no such plea and the trial judge therefore erred in considering it. Since the global award was not itemised, no deduction could be made and the entire award of Ksh. 4,000,000/= was set aside. Applying the Kemfro Africa principles and the comparability doctrine, and guided by awards in comparable paralysis cases, the court substituted an award of Ksh. 3,500,000/= with interest from the date of the High Court judgment, subject to 15% deduction for contributory liability. No award was made for future medical care. The court also cautioned counsel against misrepresenting awards in cited authorities. The appeal was allowed; the appellant bears the High Court costs while each party bears its own costs of the appeal.

Key legal issues

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01

Pleading of future medical expenses

Holding

The trial judge erred in considering future medical expenses and/or eventualities, which were not pleaded in the plaint, in arriving at the global award

Reasoning

The plaint contained no plea for future medical attention as special damages. Relying on Kenya Bus Services Ltd v Gituma and Mbaka Nguru v James George Rakwar, the court held that future medical care is special damages that must be pleaded and proved. Since the trial judge's global award of Ksh. 4,000,000/= incorporated this unpleaded item without itemisation, no fixed sum could be deducted and the entire award fell to be set aside and reassessed.

p. 4
02

Reassessment of quantum of general damages

Holding

Award reassessed at Ksh. 3,500,000/= for pain, suffering and loss of amenities, guided by comparable awards for comparable injuries

Reasoning

As a first appeal, the court reassessed the evidence and applied the principle of comparable awards. Guided by Eva Mueni Wambugu v Simon Peter Githae and William Wagura Maigua v Elbur Flora Limited, and taking into account the 100% disability and complete paralysis, the court found Ksh. 3,500,000/= appropriate. The court also cautioned counsel against misrepresenting awards in cited authorities.

p. 5

Legal principles established

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  • The need for future medical care is special damages that must be specifically pleaded before evidence is led and an award made
  • An appellate court may interfere with quantum where the trial judge took into account an irrelevant factor or omitted a relevant one, or where the amount is so inordinately low or high as to be a wholly erroneous estimate of the damage
  • Comparable injuries should as far as possible be compensated by comparable awards

Court orders

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  1. 1.The appeal is allowed
  2. 2.The entire award of Ksh. 4,000,000/= decreed by the High Court is set aside
  3. 3.Substituted award of Ksh. 3,500,000/= as general damages for pain, suffering and loss of amenities, bearing interest at court rates from 26th September 2012
  4. 4.15% deducted from the award as the respondent's portion of liability
  5. 5.The appellant shall bear the costs of proceedings in the High Court and each party shall bear the costs of this appeal

Authorities

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Legislation

  • Court of Appealnot specified

Cases cited (22)

  • Nguru & Others –v– Rakwar
    [1995-1998] 1 EA 246
  • Alexander Kipkoech Kosgey –v- Fredrick Towet & 4 Others
    (2005) eKLR
  • Patrick Mwangi Irungu –v- Charles Macharia Mwangi & Another
    Nakuru HCCC No. 188 of 2005
  • William Wagura Maigua –v- Elbur Flora Limited
    Nakuru HCCC No. 248 of 2011
  • Pius Arere Mitei –v- Leonard Kissongochi & Another
    Eldoret HCCC No. 220 of 2001
  • Agatha Wanjiru Njuguna –v– Mary Wanjiku Ikiki & 3 Others
    (2006) eKLR
  • Selle -vs- Associated Motor Boat Co.
    [1968] EA 123
  • Abdul Hameed Saif vs. Ali Mohamed Sholan
    (1955), 22 E.A.C.A. 270
  • Jabane –vs- Olenja
    [1986] KLR 661
  • Ephantus Mwangi -vs- Duncan Mwangi Wambugu
    (1982-88) 1 KAR 278
  • Mwanasokoni vs. Kenya Bus Services
    (1982-88) 1 KAR 870
  • Kenya Bus Services Ltd. - v _ Gituma
    (2004) EA 91
  • Bonham Carter –v- Hyde Park hotel Ltd.
    (1948) 64 T.R. 177
  • Ouma –v- Nairobi City Council
    (1976) KLR 297
  • Mbaka Nguru & Another -v- James George Rakwar
    Court of Appeal Civil Appeal No. 133 of 1998
  • Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini –v- A.M.M. Lubia & Another
    (1982-88) 1 KAR 777
  • Ilango –v- Mayoka
    (1961) EA 705
  • Denshire Muteti Wambua –v- Kenya Power & Lighting Co. Ltd.
    Civil Appeal No. 60 of 2004
  • Arrow Car Limited –v- Bimomo & 2 Others
    (2004) 2 KLR 101
  • Kim Pho Choo –v– Camden & Islingtom Area Health Authority
    (1979) 1 All ER 332
  • Joseph Maganga Kasha –v- Kenya Power & Lighting Company
    Mombasa High Court Civil Suit No. 188 of 2005
  • Eva Mueni Wambugu –v- Simon Peter Githae & Another
    Machakos HCC Case No. 202 of 2009
On appeal from
High Court of Kenya at Embu
H.C.C.C No. 192B of 2010
Jurisdiction invoked
First appeal to the Court of Appeal under the Court of Appeal's appellate jurisdiction over the High Court (no specific constitutional provision invoked in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Taveta v Njeru (Civil Appeal 26 of 2013) [2014] KECA 755 (KLR)", Case Analysis (2014). Civil Appeal No. 26 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/755/eng@2014-02-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.