Daniel K Ndungu v Ambeyi Ligabo

e) 4. Any other relief this Honourable Court may deem fit and just to meet the ends of justice.” At the conclusion of the suit, Honourable Kalo, the learned chief magistrate, held the appellant wholly responsible for the accident. He awarded the respondent Kshs. 1, 400,000/= in general damages. As far as the special damages are concerned, the learned magistrate held as follows: “ The plaintiff made a claim for special damages amounting to Ksh 5,899,365.59. The same was supported by receipts and is found to have been specifically pleaded and strictly proved. The plaintiff is awarded special damages of Ksh 5,899,365.60.” The respondent was also awarded costs of the suit and interest, calculated at court rates from the date of delivery of the judgment. 5. The appellant was agrieved by this judgment and, for this reason, he has filed the instant appeal. His grounds for appeal have been set forth in the memorandum of appeal as follows: “ 1. That the trial Magistrate erred in law and in fact by finding that the Respondent specifically proved Special Damages pleaded of Kshs.5,250,000.00 was paid to Mountain Surgery Center. 2. That the Honourable Trial Magistrate erred in law and in fact by failing to consider that the Respondent discharged the burden of proof to the required standards that the suam of Ksks 5,250,00.0 was actualy spent and/or incured. 3. That the trial Magistrate erred in law and in fact by finding that the Respondent paid Kshs.5,250,000.00 without considering that the Respondent did not produce any document confirming bank transfer was made to Mountain Surgery Center. 4. That the Trial Magistrate erred in law and in fact by awarding the Respondent Special Damages of Kshs.5,250,000.00 without proof of recommendation to Mountain Surgery Center for treatment as alleged. 5. That the Trial Magistrate erred in fact and in Law by failing to consider that the Respondent failed to submit any evidence of recommendation to Mountain Surgery Center for further medical treatment. 6. That the Trial Magistrate erred in law and in fact by awarding the Respondent Special Damages of Kshs.5,250,000.00 without considering that the Respondent did not produce any evidence demonstrating that the Respondent travelled to West Orange State for treatment at Mountain Surgery Center. 7. That the Trial Magistrate erred in law and in fact by awarding the Respondent Special Damages of shs.5,250,000 without: i. proof of funds transfer from the Respondent's bank account to Mountain Surgery Center, and ii proof of confirmation of receipt of the sum of Kshs.5,250,000.00 by Mountain Surgery Center. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18737/eng@2025-08-08 2

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8. That the Honourable Trial Magistrate erred in law and in fact by failing: i. to consider that the alleged receipt from Mountain Surgery Center was not supported by any particular set of facts and/or evidence; and ii. To consider that the Respondent failed to submit any discharge sheets, doctors notes, inventory for the services rendered and/ or the particulars of his admission and discharge at Mountain Surgery Center, Consequently incurring the sum of Kshs 5,250,00.00. 9. That the Trial Magistrate erred in law and in fact by failing to consider that an award for special damages for receipts which had not been presented with proof of stamp duty payment. 10. That the Trial Magistrate erred in law and in fact that the award for Special Damages must be strictly proved, depending on the nature of the case. 11. That the Trial Magistrate erred in fact and in law by failing to consider that the claim for Kshs.5,250,000.00 as medical costs at Mountain Surgery Center must be strictly proved to have been incurred and actual medical services was rendered to the Respondent to warrant the cost alleged.” 6. The appellant seeks that the appeal be allowed, and the judgment of the trial court be set aside in its entirety. Even then, the appellant has specifically prayed that the court sets aside the award of Kshs. 5,250,000.00 as special damages. He has also asked for costs of the appeal. 7. It is apparent from the grounds of appeal that the appellant’s appeal is centered around the award of special damages. To be precise, the appellant has not sought to impeach the trial court’s finding on liability and neither has he sought to dispute the quantum of the award of general damages. 8. Perhaps to emphasise this point, it is submitted on behalf of the appellant that: “ This appeal thus centers on the specific award only and what caused us to file seven (7) grounds of appeal raising in total two (2) questions:- 9. i Was the plea of special damages of USD 50,000.00 required to be specifically proved? ii. Was it proved on a balance of probability?” Thus, the attention of this Honourable Court in evaluating afresh the evidence adduced at the trial turns on particularly the evidence on special damages. The record shows that the respondent’s evidence on this aspect of his testimony came out in answers to questions he was asked during cross-examination. He stated as follows: “ As a diplomat I was entitled to certain privileges. I had my own medical cover in my private capacity. Some of the expenses incurred was (sic) paid for by the insurance. Most of the expenses was paid by myself. I was covered by Resolution Health Insurance.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18737/eng@2025-08-08 3

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10. And in re-examination, his evidence was as follows: “ Resolution Health Insurance wrote to me on 25.8.16 and told me they would no longer meet the cost of my treatment. I am claiming costs incurred out of my pocket.” 11. As noted, the learned magistrate awarded the sum of Ksh 5,899,365.59 as special damages which, in his opinion, was not only specifically pleaded but was also strictly proved. I note this award of special damages is what was pleaded in the respondent’s plaint. 12. The bone of contention in this appeal is that part of evidence, according to which the respondent is said to have made a payment of $50,000 to Mountain Surgery Center. According to the appellant, only $ 25,000 USD was paid but that the court was led into believing that a further sum $25,000 had been paid only because two copies of the same receipt for the payment of the sum of $25,000 were produced as evidence. 13. I have had a chance to look at the two receipts in the appeal bundle filed on the e-filing portal. The two receipts bear the same particulars, including such particulars as the date and time of payment and the receipt number. 14. I am persuaded that with this kind of information, the logical conclusion is that one reciept is a copy of the other. In any event, no explanation was proferred by way of evidence at the trial why a single receipt of $ 50,000 was not issued considering that the amount is said to have been paid at a particular time. No satisfactory answer has been given to the question why it was necessary to issue two receipts bearing the same particulars if a single payment of Kshs. $ 50,000 was made by a particular individual and at a particular time. 15. In these circumstances, there was no basis for the conclusion that the respondent paid Mountain Surgery Center $ 50,000 instead of $ 25,000. In my own assessment of the evidence presented at the trial, the alleged payment of $ 50,000 was not specifically proved. 16. But a more fundamental issue on this question of special damages appears to me to be that, if the insurance compnay or companies covering the respondent made certain payments towards the respondent’s medical expenses, it is unclear from the respondent’s evidence how much of the expenses pleaded as special damages was paid by the respondent, out of his pocket, and which, for that reason, he would be entitled to as compensation. 17. Perhaps to reiterate this point, the court awarded the respondent the sum of Kshs. 5,899,365.59, which, I gather from his own pleadings, was the total cost of the expenses incurred on his treatment. Yet in his evidence, the respondent was categorical that as a diplomat, he had had certain privilges that, as far as I understand his evidence, included such benefits as medical cover. He also had his own private insurance cover. If this was the case, why would the respondent be compensated as if he had not benefited from the insurance cover or covers at all? 18. In the absence of a satisfactory answer to this question, I would have been prepared to set aside the entire award on special damages not just for want of proof but also to guard against what appears to have been unjust enrichment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18737/eng@2025-08-08 4

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19. Nonetheless, I note that the appellant’s only concern in this appeal is the amount of $25,000 which, as noted, was the only payment made to Mountain Surgery Center but which was replicated in two copies of the same receipt. In the submissions filed on behalf of the appellant, it has been urged that: “ It is for that reason, my lord, that we pray that the court set aside the claim for payment of Kshs.5,250,000.00 or USD 50,000.00 as claimed by the Plaintiff and in turn redeem the judgment sum with a sum of Kshs.2,049,365.00.” 20. I would, therefore, allow the appeal, in part, and reduce the award on special damages by $ 25,000. According to the re-amended plaint, the adopted exchange rate was Kshs. 105 for a dollar. Accordingly, the award shall be reduced by the Kenya Shilling equivalent of $ 25,000 which, according to the exchange rate adopted, is Kshs. 2,625,000. The learned magistrate’s award on general damages and loss of amenities shall not be disturbed. 21. The appellant shall have costs of the appeal while the respondent shall have costs of the suit in the lower court. Interest on the award and costs in the lower court shall be calculated at court rates and shall accrue from the date of the judgment in the lower court till payment in full. Interest on costs in this Honourable Court shall accrue from the date hereof. Orders accordingly. SIGNED, DATED AND DELIVERED ON 8 AUGUST 2025 NGAAH JAIRUS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18737/eng@2025-08-08 5

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