Automated Summary
Key Facts
Elizabeth Mulwa, a fare-paying passenger in a Tawfiq Bus Services vehicle (KAD 820U), was seriously injured when the bus lost control and rolled on 12 September 1998 near Sultan Hamud on the Nairobi-Mombasa Road. She sustained a fracture of the right femur, tibia, and fibula, with leg shortening requiring future bone-lengthening surgery. The parties reached a consent judgment on 26 July 2001, with the defendant accepting 90% liability. The court awarded Kshs.250,000 for pain and suffering but dismissed the Kshs.350,000 claim for future operation costs due to insufficient evidence and lack of pleading. The judgment was delivered on 28 March 2003 in Mombasa.
Issues
- The plaintiff sought Kshs.350,000 for a future bone-lengthening procedure, but the court ruled this claim failed due to lack of pleading and insufficient evidence. Special damages must be both pleaded and strictly proven under Kenyan law.
- The court assessed whether the defendant's driver was negligent in causing the bus to lose control, leading to the plaintiff's injuries. A consent judgment established 90% liability on the defendant, with the plaintiff conceding 10%.
- The court evaluated the appropriate compensation for the plaintiff's injuries, including fractures to the femur, tibia, and fibula. The plaintiff claimed Kshs.300,000, while the defendant argued Kshs.200,000 was sufficient, resulting in an award of Kshs.250,000.
Holdings
- Awarded Kshs.250,000 for pain and suffering, considering case law examples and the plaintiff's injuries.
- The court determined liability with the plaintiff conceding 10% and the defendant responsible for 90%.
- Claim for future operation cost (Kshs.350,000) failed due to lack of pleading and insufficient evidence.
Remedies
The plaintiff shall therefore have judgement in the sum of Kshs.250,000/= plus costs. The same shall however be subject to the contribution on liability.
Monetary Damages
250000.00
Legal Principles
The court applied the principle that special damages must be both pleaded and strictly proven. This is based on the doctrine that a party is bound by their own pleadings, and failure to plead a claim for future medical expenses (e.g., bone lengthening procedure) renders it unenforceable. The judgment references this rule as 'trite law' and distinguishes it from general damages for pain and suffering, which were awarded despite similar factual disputes.
Precedent Name
- Hamprey Kaingu vs K.P.A.
- Nyamru Stephen Mwaingu vs Davies Nakuli Wandera
- Patrick M. Kangundu vs David M. Musila
- Mary Salome Daniel vs Gulamhussein and Another
- Masha Kombo vs Nicholas Nyange
Judge Name
P. M. Tutui
Passage Text
- It is now trite law that Special Damages must not only be pleaded but must be strictly proven. The plaintiff testified that the Doctor had made the recommendation for further operation but not that she had undergone one. And also failure to plead the same is fatal to the claim in that a party is bound by its own pleadings. In the circumstances the claim fails.
- I have considered the authorities referred to in light of the current case and note that none of them is similar in all four, but are a good guide. Doing the best I can I make an award of Kshs.250,000/=
- In their conclusion both Doctors were of the opinion that the plaintiff had a shortening of Right leg and Bone lengthening procedure recommended.