1.The Appellant’s were the defendants in the primary suit, and were sued as the registered co-owner of Motor vehicle KBU 868L/ZC 8146. It was alleged that on December 30, 2017 at about 5.00pm the respondent herein was lawfully driving her motor vehicle registration Number KBM 056M ( Hereinafter referred to as the 1st suit motor vehicle ) along Nairobi - Maai Mahiu/Naivasha road, when the appellants motor vehicle Registration Number KBU 868L/ZC 8146(Hereinafter referred to as the 2nd suit motor vehicle) was negligently driven, managed and or controlled by themselves, their agent, servant and/or authorized employee whereby the said appellants driver rammed into the rear of the 1st suit motor vehicle thereby causing the respondent to suffer serious injuries. The Plaintiff prayed for general damages, special damages, costs and interest of the suit.
2.The appellants did file their statement of defense on April 27, 2021, where they denied liability in toto and further stated that if indeed the respondent was injured, it was caused substantially by her negligence and thus was liable for contributory negligence, which details were particularized in the statement of defence. Further the appellant averred that they could not be held liable as their driver exercised all reasonable diligence, skill and care to avoid the said accident and it was the respondent to blame for the occurrence of the said accident.
3.During hearing the suit, liability was by consent apportioned at 90:10 in favour of the respondent herein. The parties further agreed to adopt the documents filed in the list of documents as Exhibits and thereafter made submissions on quantum. The learned magistrate in the judgment delivered on March 30, 2022 proceeded to award damages for General Damages of Ksh 600,000/=, special damages were also proved to the tune of Ksh 1,124,293.61/=, less 10%, together with costs and interest.
4.The Appellant’s, being dissatisfied by the whole judgment did file their memorandum of Appeal on April 27, 2022 and raised several grounds of appeal namely: -a.That the learned trial Magistrate erred in law and misdirected himself in law and fact by awarding special damages of Ksh 833,441/= being medical expenses paid by teacher’s service commission and thus not due to the respondent.b.That the learned trial Magistrate’s erred in law and fact by applying the wrong and/or did not apply the applicable law, tests doctrines and principles at all or correctly.c.That the learned trial Magistrate erred in law and fact by taking irrelevant matters or by not taking relevant matters/evidence into consideration.
5.The appellants sought that this appeal be allowed with costs and the award of special damages amounting to Kshs.833,441/= be set aside.
6.The Appellants relied on their written submissions filed in court on December 21, 2022 and raised the following three issues for determination;a.Whether the learned Magistrate erred and misdirected himself in law and fact by awarding special damages of Kshs 833,441/= being medical expenses without taking into consideration that, that portion of the medical expenses was paid by the Teachers service commission and thus not due to the Respondent.b.Whether the learned Magistrate erred in law and fact by applying the wrong and/or did not apply the applicable tests, doctrines and principles at all or correctly.c.Whether the learned Magistrate erred in law and fact by not taking relevant matters/Evidence into consideration.
8.The final invoice from Nairobi women’s Hospital dated November 12, 2020 revealed that an amount of Kshs.794,440.55/= was paid by the insurance under the Teachers service commission scheme. Additionally, the various outpatient invoices from the same invoices totaling to Ksh 39,000/= were paid by the insurance under the same scheme. This amount totaled to Kshs.833,481/= was not paid by the respondent from her pocket and thus she was not entitled to be awarded the same
9.In conclusion the appellant did pray and asked that this appeal allowed, the sum of Ksh 833,481/= be deducted off the special damages as awarded.
10.The respondent did not file any written submissions in opposing this appeal.
11.In A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari v Purushottam Tiwari ( Deceased) by L.Rs (2001) 3 SCC 179.
12.A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko v Varkey Joseph AIR 1969 Keral 316
13.Therefore, this court has a solemn duty to delve at some length into factual details and revisit facts as presented in the trial court, analyze the same, evaluate it and arrive at its own independent conclusion, but always remembering and giving allowance for it, that the trial court had the advantage of hearing the parties.
14.From the record the only issue for determination in this appeal is whether the trial magistrate erred and misdirected himself in law and fact by awarding special damages of Ksh 833,441/= without taking into consideration that, a portion of the said medical expenses was paid by Teachers service commission and thus not due to the Respondent.
16.The same principle was applied in the decision of Butt v Khan (1982 – 88 ) KAR where the court of Appeal stated that;
18.The Respondent claimed Ksh 1,124,293.61/= as special damages and did produce a bundle of receipts/invoices from various hospitals, Taxi services, optician, dental surgeon, and towing receipts to indeed prove that she did incur these expenses. The appellant contention in this appeal is that a portion of the medical expenses totalling to Ksh 833,441/= was paid by the respondent employer Teachers service commission.
19.Indeed, having reviewed the invoices from The Nairobi Women’s Hospital which were produced as Exhibits at trial, they indeed show that the final invoice for in-patient services was Ksh 794,440.55 and for outpatient services the invoices totalled Kshs 39,001/=. These invoices were credited to Minet Kenya Insurance Brokers Limited and the scheme was Teachers service commission.
20.The law as regards special damages is quite clear. Special Damages must be both pleaded and proved, before they can be awarded by the Court. Suffice it to quote from the decision of our Court of Appeal in Hahn v Singh, Civil Appeal No 42 Of 1983  KLR 716, at P 717, and 721 where the Learned Judges of Appeal – Kneller, Nyarangi JJA, and Chesoni Ag JA – held:
21.The respondent indeed did specifically plead the special damages sought of Ksh 1,124,293.61/= but unfortunately did not produce into evidence all receipts to prove that she paid/incurred this amount from her own sources to enable her lawfully claim recovery of the same. Part of her Exhibits were invoices from The Nairobi women’s Hospital totaling to Ksh 833,441/= was paid by the Insurance Company as stated in Christin Mwigina Akonya v Samuel Kairu Chege (2017) eKLR
22.Further as submitted by the appellant, if the amount of Ksh 833,441.00/= was paid, it was paid by the respondent’s insurer under the Teachers service commission scheme and therefore the respondent was not entitled to be compensated for this amount as that would amount to double compensation and would run foul of the doctrine of unjust enrichment.
23.The appellants submissions holds true. The trial magistrate fell in error and applied the wrong principle of law, by failing to consider this aspect that part of the hospital bill was paid by the respondent’s insurer and therefore she was not entitled to be awarded special damages for the sums paid by the insurer.
25.This appeal therefore has merit. The judgment of Honourable Nathan Shiundu Lutta (CM) dated March 30, 2022, with respect to the award of special damages of Kshs 1,124,293.61/= is hereby set aside and the same is reduced to Kshs 290,812.61/=. All other aspects of the judgment will remain as was awarded.
26.Each party will bear their costs for this appeal