Tracom Ltd & another v Adan (Civil Appeal 192 of 2006) [2009] KECA 48 (KLR)
The bottom line
#Kenya's Court of Appeal cut an injury award by over Ksh.1.2 million because two claims weren't properly pleaded or backed by evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claim for future medical expenses was properly pleaded and whether the trial court could award it
- 2.Whether the award of Ksh.1,250,000 for future medical expenses was proved to the required standard and whether the multiplier of 25 years was proper
- 3.Whether the award of Ksh.900,000 for loss of earnings was properly pleaded and strictly proved
- 4.Whether the Court of Appeal should interfere with the trial judge's discretionary assessment of damages
Key legal issues
#Pleading and proof of future medical expenses
Future medical expenses constitute special damage that must be pleaded and proved; here the plaint pleaded the claim with quantum to be ascertained, and the parties by consent framed the issue for determination, so the trial court was entitled to award it.
The plaint's particulars of special damage referred to cost of future medical expenses to be ascertained after professional consultation, warning the appellants in good time. Further, counsel recorded a consent that submissions would be made on future medical expenses, so the issue was before the court even if it had not been specifically pleaded. However, the amount awarded had to be supported by the medical evidence.
Quantum of and multiplier for future medical expenses
The trial judge failed to consider the progressive decrease in the need for medication evidenced by successive reports; the Court reduced the annual figure to Ksh.40,000 and the multiplier to 22 years, totalling Ksh.880,000.
The Kenyatta National Hospital report of December 1999 suggested Ksh.100,000 per year; Dr. Shah's report three months later indicated no further operation was likely; Dr. Wangai's 2003 report suggested only Ksh.50,000. The trial judge adopted counsel's submission without considering this progressive drop or the period the approximation covered, warranting appellate interference.
Pleading and proof of loss of earnings
The award of Ksh.900,000 for loss of earnings was set aside because the claim was nowhere pleaded in the plaint, the particulars of special damage, the prayers or the consent, and there was no evidence of earnings.
The plaint made no mention of loss of earning or earning capacity. Counsel's figure of Ksh.3,000 per month as a 'minimum award' had no evidential foundation and in fact exceeded the 1995 statutory minimum wages under Legal Notice No. 193 of 1995. No business, employer or income was identified. Following Karani v Nchedu, an unpleaded and unproved special damage claim cannot stand.
Legal principles established
#- A claim for future medical expenses is special damage and must be specifically pleaded and proved before a court can award it; what must be pleaded is the approximate sum of the future medical expenses.
- A claim for loss of earnings is a special damage which must be pleaded and proved; an unpleaded claim cannot support an award even where some attempt at proof is made.
- A trial court may pronounce judgment only on issues arising from the pleadings or such issues as the parties have framed for the court's determination, including issues adopted by consent.
- An appellate court is slow to interfere with a trial judge's discretionary assessment of damages, and may do so only where the judge considered matters he ought not to have considered, failed to consider what he should have considered, misapprehended the case, or the award is so low or high as to reflect an improper award.
Court orders
#- 1.Appeal allowed to the extent that the award for future medical expenses is reduced from Ksh.1,250,000 to Ksh.880,000 (Ksh.40,000 per year for 22 years from the date of the superior court's judgment)
- 2.The award of Ksh.900,000 for loss of earnings is set aside as it was neither properly pleaded nor strictly proved
- 3.Total award reduced from Ksh.3,393,350 to Ksh.2,123,350, less 25% contribution, coming to Ksh.1,592,512.50
- 4.The reduced amount to carry interest at court rates
- 5.Respondent to get half the costs of the appeal and of the superior court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nakuru
- H.C.C.C. No. 508 of 1999
- Jurisdiction invoked
- First appellate jurisdiction over the High Court (appeal from the judgment and decree of the High Court at Nakuru)
Relief refused
#Retention of the award of Ksh.900,000 for loss of earnings
The claim was neither pleaded nor strictly proved; the figure of Ksh.3,000 per month had no evidential basis
Retention of the 25-year multiplier and Ksh.50,000 per year for future medical expenses
The trial judge failed to consider matters he should have considered, including the progressive drop in the need for future medication
Costs
The respondent will get half the costs of this appeal and of the superior court.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In conclusion, we allow the appeal to the extent that the award for future medical expenses is reduced from the figure Ksh.1,250,000/= to Ksh.880,000/=.
The award for Ksh.900,000/= in respect of loss of earning is set aside as it was neither properly pleaded nor strictly proved.
The total amount of Ksh.3,393,350/= is reduced to a sum of Ksh.2,123,350/= less 25% contribution which comes to Ksh.1,592,512/50. That amount will carry interest at court rates. The respondent will get half the costs of this appeal and of the superior court.
We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it.
The claim for loss of earning is a special damage. It must be pleaded and proved. That is the law.
in law, sitting on appeal, we are duty bound to be slow in interfering with the assessment made by the trial Judge as in doing so the trial Judge is exercising discretionary powers.
Issues in the judgment
#The judgment records the figure of Ksh.48,164 for drugs in the trial judge's excerpted order, whereas the appellants' counsel and the narrative elsewhere refer to Ksh.49,164 for drugs and Ksh.493,350 as receipted actual expenses; the discrepancy appears in the reproduced trial court order.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Mutwaruhiu (As the Personal and Legal Representative of the Estate of Ibrahim Muturuhiu Kimamo - Deceased) v Kingathia (Civil Appeal 129 of 2018) [2025] KECA 1104 (KLR)[2025] KECA 1104 (KLR)20 Jun 2025applied
- Farmland Aviation Limited v Kiptoo (Civil Appeal 45 of 2020) [2024] KECA 1792 (KLR)[2024] KECA 1792 (KLR)6 Dec 2024applied
- Kenya Power & Lighting Company Limited v AMK (Suing as the mother and next friend of JMK - Minor (Civil Appeal 58 of 2020) [2021] KECA 52 (KLR)[2021] KECA 52 (KLR)8 Oct 2021followed
- Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR)[2013] KECA 538 (KLR)14 Jun 2013applied
Cite this brief
#Cite this brief
Caselaw, "Tracom Ltd & another v Adan (Civil Appeal 192 of 2006) [2009] KECA 48 (KLR)", Case Analysis (2009). Civil Appeal 192 of 2006. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2009/48/eng@2009-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.