Wamalwa v Mahee Flowers Limited (Civil Suit 16 of 2015) [2016] KEMC 10 (KLR)

and 2B, respectively. The consent was entered after the opening of the plaintifi's case. Dr. Omuyoma had testified for the plaintifi on 19.11.2015. Procedural facts of the case 5. As already stated hereinabove, the plaintifi filed this suit vide a Plaint dated 16.02.2015 on 17.02.2015. The Plaint was filed together with the Summons to Enter Appearance, List of Witnesses, Documents and the Statements. 6. The defendant entered appearance through the firm of Matiri Mburu 7 Chepkemboi Advocates on 25.03.2015, when it filed its Memorandum of Appearance and Written Statement of Defence, both dated 25.03.2015. 7. The plaintifi then filed his Reply dated 04.05.2015, and Pre-trial questionnaires through Munene Chege Advocates on 04.05.2015. 8. The Pre-trial conference which were to be held before me, could not proceed because the defendant had not filed and served its lists of documents, witnesses' statements and all the other post-pleading requirements as per Order 11 Civil Procedure Rules, 2010. It was nevertheless agreed that the matter does proceed with the hearing, which was to commence before me on 06.08.2015. 9. It however took some two adjournments for the matter to take ofi. The claim was eventually compromised when the parties agreed on the liability1 and on the admission of the plaintifi's exhibits herein2. The consents greatly infiuenced and changed the nature, and course of this suit. Parties herein went ahead to close their respective cases and further agreed to file and exchange their written submissions, arguments and authorities before 9.00am on 16.06.2016 when the matter was to be mentioned to confirm the closure, or otherwise, of the submissions. 10. The submissions were however confirmed closed on 23.06.2016 and the matter fixed for the present judgment. Substantive facts of the case 11. Though from the outset, all parties herein appeared to be serious adversaries, subsequent developments that occurred, when the parties compromised through the consents herein and the summarised facts in the written submissions filed on behalf of the parties herein, leave me to conclude that this matter is more like a case stated; stated with most of the facts just requiring my judicial opinion on the awards. 12. The facts that have come out clearly herein are summarised by this court as follows: a. The plaintifi was an employee of the defendant and was involved in an accident for which the defendant is to be held 75% liable. That was via a consent judgment on liability. b. The plaintifi was examined by Dr. Omuyoma approximately 2 years thereafter and found to have sustained the injury pleaded, to be complaining of lower back ache, in a fair state of health and normal. Award 13. The relevant remaining issue is the quantum. The defendant having conceded to 75% liability should not raise the issue of liability again in its submissions. It could not have admitted liability to this claim 1 Refer to the proceedings of 14.04.2016 2 Refer to the proceedings of 19.05.2016 https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/10/eng@2016-07-21 2

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if the plaintifi was not injured at its premises and/or when on duty. The Defendant did not adduce any evidence to controvert the plaintifi's which they also conceded to. Dr. Omuyoma's expert report was admitted by consent and I do therefore find it to be conclusive proof that the plaintifi sustained the injury pleaded, complains of present lower back aches and sufiered harm. The same must have been caused in an industrial accident. The standard of proof herein is a preponderance of probability. The defendant has already conceded to 75% liability in the plaintifi's claim for the sane. I shall therefore proceed to consider the learned counsel's submissions on the award. 14. The learned counsel for the plaintifi relying on the decisions in Ben Menges Vrs Edith Makungu Lande [2013] Eklr And Bhupco Textile Mills Limited Vrs Alfred Ogutu [2014] eKLR, submitted for an award of Kshs. 530,265/=. The injuries sustained in the two matters were however more serious. In Ben Menges Vrs Edith Makungu Lande, supra, the claimant therein sustained blunt injuries to almost all the limbs, the chest, head, lumbar spine etc; while in Bhupco Textile Mills Limited Vrs Alfred Ogutu, supra, the claimant therein had some more serious complications including inability to walk. The plaintifi's counsel's authority is therefore not relevant herein. 15. Learned defence counsel, on the other hand, relied on the cases of Sokoro Saw Mills Limited Vrs Grace Nduta Ndungu [2006] Eklr And David Okoka Odero Vrs Kilindini Tea Warehouses Ld [2008] eKLR and argued for an award of Kshs 100,000/=. In the former case, the claimant was awarded Kshs. 30,000/ = in 2006 for hip joint and back injuries sustained in 1999. Perhaps the latter case has the most relevant injury to the present case. The claimant therein was awarded Kshs. 40,000/= in 2008 for minor soft tissue injuries of the lumbar sacral spine sustained in 2004. 16. The defendant's counsel's authorities are therefore more relevant herein than the plaintifis. The injuries therein were however sustained more than 12 years ago. Considering the rise in the costs of living, and the present lower backaches experienced by the plaintifi herein, I do find that an award of Kshs. 220,000/= would adequately compensate the plaintifi. 17. On special damages, learned counsel for the plaintifi has submitted for Kshs. 5,265/= being Kshs. 265/ = for treatment and Kshs. 5,000/= for the medical report. 18. It is however trite law that claims for such special damages must not only be particularly pleaded, but must be specifically proved. There are several and countless judicial authorities on the same including the Court of Appeal decisions in Savannah Development Co. Ltd Vrs Posts And Relecommunicatons Employees Housing Co-op Society Ltd { Civil Appeal No. 160 of 91 (ur)}, Jivanji Vrs Sanyo Electrical Company Limited (2003) 1 EA 98 and Kenya Shell Ltd Vrs Benjamin K. Kibiru (Civil application No. NAI 97 of 1986) and the oftenly cited/ quoted famous Lord Goddard CJ's in Bohham-carter Vrs Hyde Park Hotel Ltd (1948) 64 times Law Report, 117. 19. This requirement is not merely a procedural necessity but is a mandatory requirement as held in a recent appeal decision by Korir-Lagat, J, sitting at the High Court at Kisii in KPLC Ltd Vrs Diana Achieng Ogunyo (Supra); where she quoted Savannah Development Co. Ltd Vrs Posts And Relecommunicatons Employees Housing Co-op Society Ltd, supra, where the learned judges of appeal held as follows on this requirement: Having considered judicial pronouncements on the subject of special damages including the decision of this court, we can confidently state that the requirement that special damages must be explicitly pleaded and proved is not merely a procedural necessity but is a mandatory legal requirement going to the jurisdiction on the specific issue and an objection by the defendant that a plaintifi haw violated this rule may be taken at any time and even on appeal. https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/10/eng@2016-07-21 3

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20. There was therefore no evidence tendered to prove the Ksh. 265/= special damages claimed in the learned counsel's submissions. PExh. No. 2B however proves the pleaded special damages of Kshs. 5,000/= and the same is therefore awardable herein. 21. The awards herein are subject to the consent judgment on liability entered into herein. Order 22. 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. DATED, SIGNED AND DELIVERED AT NYAHURURU IN OPEN COURT THIS 21ST DAY OF JULY, 2016 ALOYCE-PETER-NDEGE SENIOR RESIDENT MAGISTRATE In the presence of; Counsel for the plaintifi: n/a Counsel for the defendant: n/a Plaintifi: n/a Defendant's representative: n/a https://new.kenyalaw.org/akn/ke/judgment/kemc/2016/10/eng@2016-07-21 4

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