Juliet Kemunto Ondati v Gladys Mwende Mwende [2021] eKLR

Key Facts

Tax Type

Issues

• Whether the trial court failed to adequately consider the evidence on record, including the appellant's submissions and medical reports, leading to an erroneous assessment of damages.
• Whether the trial court erred in disallowing the claim for special damages due to non-compliance with the Stamp Duty Act, without providing the appellant an opportunity to rectify the deficiency by paying stamp duty and penalties as permitted under the Act.
• Whether the trial court misapprehended the legal principles applicable to the commutation of damages, resulting in a miscarriage of justice.
• Whether the trial court's award of Kshs. 350,000 in general damages for the appellant's injuries was inordinately low, given the severity of the sustained injuries and comparable case law awards.
• Whether the trial court erred in relying on a general practitioner's medical report for bone injuries, given the legal requirement that such reports must be prepared by an orthopedic consultant.

Holdings

• Future medical expenses for removing metal implants were awarded Kshs 150,000, taking a middle ground between the two expert estimates (Kshs 100,000 and Kshs 200,000).
• The court confirmed that the appellant sustained a fracture of the right tibia, blunt trauma to the back, and chest contusion as per medical reports and evidence. The trial court's finding on the nature of injuries was upheld.
• The trial court's award of Kshs 350,000 in general damages was upheld as reasonable, aligning with recent comparable cases involving similar tibial fractures.
• The trial court erred in rejecting special damages receipts due to non-compliance with the Stamp Duty Act. The court ruled the appellant must be given an opportunity to pay stamp duty and penalties, awarding Kshs 85,105 in special damages.
• The appeal was partially allowed, resulting in a total award of Kshs 468,084 (Kshs 350,000 general damages + Kshs 85,105 special damages + Kshs 150,000 future expenses, reduced by 20% liability contribution).

Remedies

• The total damages were reduced by 20% (Kshs. 117,021 /=) as per the liability apportionment.
• The court awarded the appellant Kshs. 350,000/= in general damages for her injuries sustained in the accident.
• Interest will accrue on the awarded amount at the court's prescribed rates.
• The final award, after reductions, was Kshs. 468,084/=
• The court awarded the appellant Kshs. 85,105/= in special damages, covering treatment, transport, and other related expenses.
• The appellant was awarded one-third (1/3) of the costs of the appeal.
• The court granted Kshs. 150,000/= for future medical expenses to remove metal implants from the appellant's leg.

Tax Issue Category

Monetary Damages

Legal Principles

• Special damages must be strictly pleaded and proved with certainty. The court found the appellant's claim for special damages partially supported by the evidence, awarding Kshs. 85,105/=. The trial court's initial rejection was overturned.
• The court held that receipts not complying with the Stamp Duty Act are admissible in evidence if the party is given an opportunity to pay the required stamp duty and penalties. The trial court erred by rejecting the receipts without providing this opportunity.
• An appellate court will only interfere with the trial court's damage assessment if it is inordinately high or low, represents an erroneous estimate, or involves misapprehension of the evidence. The trial court's award of Kshs. 350,000/= for general damages was upheld as reasonable.
• The burden of proof lies with the appellant to demonstrate the severity and nature of her injuries. The trial court correctly assessed the evidence and found that the injuries were a fracture of the tibia, blunt trauma to the back, and chest contusion.

Precedent Name

• Benjamin Muela Kimono Daniel Kipkirong Tarus & Another
• Diamond Trust Bank Kenya Ltd vs. Jaswinder Singh Enterprises
• Suderji Nanji Ltd. -vs- Bhaloo
• Stanley Maore v Geoffrey Mwenda
• Ugenya Bus Service v Gachoki
• Isaac Mwenda Michemi versus Muregi Muroongo
• Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd
• George Kigamba vs Buuri Dairy Farmers Co-operative Society
• Butt v Khan
• Agnes Wanjiku Ndegwa vs David N. Waweru
• Leonard Nyongesa vs Derrick Ngula Righa
• Francis Ndungu Wambui & 2 others vs VK
• Hassan Noor Mahmoud vs Tae Youn Ann
• Paul N.Njoroge Vs. Abdul Sabuni Sabonyo
• Peter Ngugi Kimani vs Joseph Kariuki

Cited Statute

Judge Name

Passage Text

• Evidently, the injuries in the authorities cited by the appellant were more severe than those she had sustained. The appellant has referred this court to the decision of Francis Ndungu Wambui (supra) but that decision is also inapplicable since the respondent in that matter sustained compound fracture of the distal tibia fibula shaft which caused him to be at the risk of secondary stress fractures on the same site. That was not the case for the appellant. Dr. Gaya who examined the appellant during the course of the trial stated that she had no signs of permanent disability.
• The appellant was also entitled to future medical expenses for the removal of metal implants that had been inserted into her leg to aid in her recovery. She had averred in her plaint that she would require approximately Kshs. 200,000/= for their removal... I will take the middle ground and award the appellant a sum of Kshs. 150,000/= for future medical expenses.
• The decision by the Court of Appeal is binding on this court as well as the trial court. Consequently, I find that the trial court erred in rejecting the receipts that had been produced by the appellant in support of her claim for special damages on the basis that she had not complied with the Stamp Duty Act as it had not given her an opportunity to pay the requisite stamp duty and penalty prescribed under the Act.