Wamalwa v Mahee Flowers Limited (Civil Suit 16 of 2015) [2016] KEMC 10 (KLR)
The bottom line
#A Kenyan court awarded an injured worker Kshs. 168,750 for a workplace back injury, but only receipts that were actually proved counted.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the plaintiff proved that he sustained the pleaded injury in the industrial accident of 10/05/2012
- 2.What is the appropriate quantum of general damages for pain and suffering for blunt injury to the lumbar-sacral region with severe soft tissue injury
- 3.Whether the special damages of Kshs. 265 (treatment) and Kshs. 5,000 (medical report) were specially pleaded and proved
Key legal issues
#Proof of the injury and causation
The consent admission of 75% liability and the medical report admitted by consent were conclusive proof that the plaintiff sustained the pleaded injury in an industrial accident, on a preponderance of probability
The defendant conceded 75% liability by consent judgment and admitted the plaintiff's medical documents, including Dr. Omuyoma's expert report. The defendant adduced no evidence to controvert the plaintiff's case and could not re-open liability in submissions. On a balance of probability the court found the injury pleaded was proved and must have been caused in the industrial accident.
Quantum of general damages
Kshs. 220,000 awarded as general damages before apportionment, informed by comparators cited by the defence but adjusted for inflation and the plaintiff's continuing backache
The plaintiff's proposed comparators involved more serious injuries and were held not relevant. The defence comparators were more apposite (Kshs. 30,000 in 2006 and Kshs. 40,000 in 2008 for comparable lumbar-sacral injuries) but were over 12 years old. Factoring the rise in cost of living and continuing lower back pain, the court fixed Kshs. 220,000, reduced to Kshs. 165,000 by the 25% contributory negligence reflected in the consent.
Special damages
Only the Kshs. 5,000 medical report fee, proved by PExh. No. 2B, was awardable; the Kshs. 265 treatment charge failed for want of proof
Special damages must be specifically pleaded and proved. The receipt for the medical report (PExh. 2B) proved the Kshs. 5,000 claim, but no receipt or other evidence proved the Kshs. 265 treatment charge. The proved Kshs. 5,000 was likewise reduced by 25% to Kshs. 3,750 pursuant to the consent on liability.
Legal principles established
#- Claims for special damages must be particularly pleaded and specifically proved; the requirement is mandatory and an objection for breach may be taken at any time, even on appeal
Court orders
#- 1.Judgment entered against the defendant for Kshs. 165,000 general damages for pain and suffering, subject to the consent judgment on 75% liability
- 2.Kshs. 3,750 special damages awarded (Kshs. 5,000 pleaded and proved, subject to 25% reduction)
- 3.Total award of Kshs. 168,750
- 4.Costs of the suit to the plaintiff
- 5.Interest on all sums at court rates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the magistrate's court over a personal injury claim under the Civil Procedure Act (not expressly cited in the judgment)
Relief refused
#Special damages of Kshs. 265 for treatment charges
No evidence was tendered to prove this item despite the requirement that special damages be specifically pleaded and proved
Costs
Costs of the suit to the plaintiff ('costs of the suit and interests on all the sums at court rates')
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the above findings, I do hereby order that judgment be and is hereby entered against the defendants herein for the sum of Kshs. 165,000/=, being general damages for pain and sufiering, and 3750/= being special damages; totalling to KSH. 168,750/=; costs of the suit and interests on all the sums at court rates.
It is however trite law that claims for such special damages must not only be particularly pleaded, but must be specifically proved.
The defendant having conceded to 75% liability should not raise the issue of liability again in its submissions.
The standard of proof herein is a preponderance of probability.
Issues in the judgment
#The style of cause refers to 'the defendants' (plural) in the operative order although only one defendant, Mahee Flowers Limited, is a party
The learned magistrate refers to 'Korir-Lagat, J' using the female pronoun 'she'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wamalwa v Mahee Flowers Limited (Civil Suit 16 of 2015) [2016] KEMC 10 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/10/eng@2016-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.