REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU Civil Appeal 90 Of 2001 DAVID GACHIRI GATHERU ……………........................…....…PLAINTIFF VERSUS MWM………..............................……….. DEFENDANT JUDGMENT The appellant Daniel Gachiri Gacheru has appealed against the above judgment. In that judgment, the learned Senior Principal Magistrate dismissed the appellant’s counter-claim, held the defendant 100% liable and proceeded to access the damages. In the case before the lower court, the respondent had filed a suit against the appellant in which she sought for orders against the defendant for general, special and aggravated damages. The facts that gave rise to this claim can be summarized as follows: It was the respondent’s case that on or about 31.12.96, she was unlawfully accosted and assaulted by the appellant who was forcefully had carnal knowledge with her without her consent. As result of the said assault, and rape, the appellant was charged with and convicted of the offences of causing grievous harm and indecent assault in Nakuru CM Cr. Case No.817 of 1997. The trial Magistrate noted that rape is a traumatizing experience in these days of AIDS and one can only hope that the plaintiff was not infected with the same. The plaintiff fractured her pholanix which affected the movement of her right hand. The court noted the case of rape warrants an award of aggravated damages and awarded the respondent Kshs.200,000/- as general damages and Kshs.15,000/- as special damages with costs of the suit. The appellant being dissatisfied with the said award he filed this appeal and raised the following grounds of appeal to wit: 1) The learned trial Magistrate erred in law and fact by finding that the plaintiff had proved her case on a balance of probability when in fact she had not. 2) That the learned trial Magistrate erred in law and in fact by not considering the defence raised by the defendant. 3) That the learned trial Magistrate erred in law and in fact by awarding an erroneous figure for damages with a clear explanation as to how the same was arrived at and for what. 4) The learned trial Magistrate erred in law and in fact by awarding an excessive figure as general damages.
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5) That the learned trial Magistrate erred in law and in fact by not considering the defendant’s counter-claim. These grounds were further buttressed by Counsel for the appellant during the hearing of this appeal. Specific emphasize was stressed on the fact that the respondent had not pleaded that she was raped by the appellant. Counsel for the appellant argued that in the respondent’s evidence, she did not at all state that she was raped but the only allegation was that she was kicked on her private parts. In further arguments submitted by Counsel for the appellant, reference was made to a medical report by Dr D’Cunha on page 85 where it was alleged the respondent told the doctor she sustained injuries as a result of a fall and not because of an assault by the appellant. Thus according to the appellant, the trial Magistrate failed to consider that the appellant was acquitted of the offence of rape and convicted with the offence of indecent assault of a woman and the award of Kshs.200,000/- is unjustified, erroneous and should be set aside. On the part of the respondent, this appeal was opposed. Counsel for the respondent submitted that the particulars of physical injuries that were suffered by the respondent were duly stated in the plaint. Paragraph 3 of the plaint states; “On or about 31.12.96, the plaintiff was lawfully on or about the vicinity of Kanu Street within Nakuru town when the defendant unlawfully accosted and assaulted her and unlawfully and without the plaintiff’s consent had carnal knowledge of the plaintiff.” Counsel for the appellant further invited this court to consider that the appellant was convicted of the offence of causing grievous harm and indecent assault and the only compensation for a victim of that is by way of damages. There is ample evidence to shoe that the respondent was assaulted very seriously and sustained very severe injuries only that the respondent went to hospital after six (6) days of the ordeal and the evidence of rape could not be traced. The fact that the award of Kshs.200,000/- which was awarded for injuries was not specifically tabulated is frivolous because the sum is for general damages suffered by the respondent. Specific emphasize was attached to the evidence by Dr. Muhuri Vilembwa and the report by Dr Angelo D’Cunha both reports detail the extent of injuries suffered by the respondent. I have carefully considered this appeal, and the proceedings before the lower court. The allegation that cuts across the grounds of appeal is the fact that the respondent failed to prove her case on a balance of probability. In the instant case the respondent was awarded Kshs.15,000/- for special damages, she had produced receipts for medical expenses. Moreover this aspect was pleaded in the plaint as special damages and medical expenses. No submissions were put forward during the hearing of this appeal and therefore in my opinion nothing turns on this award of special damages. The issue was raised in regard to general damages awarded at Kshs.200,000/-. In considering this aspect, I have considered the decision in the case of Storms Bruks Aktie Bolay Vs John & Peter Hatarison 1905 A C 515 which was duly approved in the local case of Ouma vs Nairobi City Council KLR 1976 298 where Lord Macnagtiten said: “General damages” as I understand the term, are such as the law will presume to be the direct natural or probable consequence of the act complained of ……….. The character of the acts themselves which produce the damage, the circumstance under which these acts are done, must regulate the degree of certainty and particularly with which the damage done ought to be stated and proved. As much certainty and particularly must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstance and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist
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upon more would be the vainest pendently.” In the present case, the respondent was assaulted, raped, and she sustained physical and psychological injuries. This is clearly explained in her evidence where she states; “I got injured on the right hand and my middle finger got broken and is deformed (seen). I still feel pain on the right hand. I got injured on the neck and my eye got affected. The neck still pains me. I spent money on medication. I paid Dr D’Cunha 1500/- for the report. I produce it as exhibit No.6. I was buying medicine and I have a bundle of receipts exhibit 8. The total is Kshs.15,000/-. The defendant raped and beat me. He infected me with a venereal disease.” This is a summary and highlight of the respondent’s evidence. Upon evaluation of the entire lower court proceedings, I am satisfied that the plaintiff was unable to prove her case to the required standard and the learned trial Magistrate was justified in dismissing the counter claim. The appellant intentionally and viciously attacked the respondent. He inflicted upon her very severe injuries from which she continues to experience debilitating pain as at the time the matter was heard. The respondent suffered not only physical pain but psychological trauma that may be termed irreparable. As the learned Magistrate remarked, “rape is a traumatizing experience, indeed in these days of AIDS one can only hope that the plaintiff was not infected with the same.” I need not say more regarding the above statement suffice it to say that, I am satisfied that the learned trial Magistrate perfectly assessed the sum of Kshs.200,000/- as general damages taking the totality of the whole evidence into consideration. This sum will go to compensate the respondent for all the injuries she suffered albeit in my opinion the injuries suffered by the respondent are irreparable. According, the appeal herein is dismissed with costs to the respondent. Judgment read and signed on 24th March 2006. MARTHA KOOME JUDGE
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