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Mohamed v. Gele Civ. App. 192-M-69; 19/3/71; Kisanga Ag. J.



Mohamed v. Gele Civ. App. 192-M-69; 19/3/71; Kisanga Ag. J.

This is an appeal from the decision of the resident magistrate’s court at Mwanza awarding compensation against the appellant in respect of personal injuries he inflicted on the respondent. The compensation was made up of: Shs. 1,000/- for pan and suffering; Shs. 1,500/- for loss of trade and earnings: Shs. 100/- for taxi fares to and from the hospital fees, transport expenses and loss of trade and earnings was challenged on the ground that these were special damages which ought to have been proved strictly but such proof had not been made. The respondent contended that the damages had been admitted because when the respondent alleged them, he was not challenged in cross-examination and therefore no strict proof was required

            Held: (1) “It is difficult to sustain this view. The appellant, in his written statement of defence, had disputed the expenses, loss and damages which were alleged to have been incurred by the respondent. Furthermore, the appellant’s advocates in a “Notice to Produce,” specifically required the respondent to produce documentary evidence in respect of medical treatment. Again, it is apparent from the record that the cross-examination of the respondent was geared to showing that the respondent was unemployed at the time of the incident. In these circumstances, I am unable to uphold the submission that the damages in dispute were in any way admitted by the appellant.” (2) “It is quite clear from the evidence, and the respondent’s counsel concedes, that the damages in dispute were not proved. On the item of medical expenses, for example, one would expect the respondent to produce the bill in support of his claim. On the item of transport expenses, one would expect him to produce a receipt or if this was not practicable, he should call any taxi driver who drove him to and from the hospital during the 11/2 weeks, or any other person who saw him being so driven. On the item of loss of trade and earnings, the respondent merely said that he was a cattle dealer and that

The injury put him out of work for three weeks thus causing him to lose so much money. To my mind, this was not sufficient.” (3) Appeal allowed: award on taxi fares hospital fees and loss of earning are excluded.

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