Coram: Before Justice R. Nyakundi
M/s Akwala & Co. Advocates
M/s M.A Okumu & Co. Advocates
JUDGMENT
Introduction and Background
1. Before this Court are two consolidated appeals arising from the judgment of
Hon. Beryl M. A. Omollo, SRM, delivered on 29th January 2025 in Vihiga
SPMCC No. E210 of 2022. In Civil Appeal No. E006 of 2025, the defendants
in the suit below (hereinafter "the appellants") challenge the quantum of
damages awarded as inordinately high. In the consolidated cross-appeal, Civil
Appeal No. E007 of 2025, the plaintiff below (hereinafter "the respondent")
seeks enhancement of the award of general damages from Kshs. 1,200,000/=
to Kshs. 2,500,000/=.
2. The claim before the subordinate court arose from a road traffic accident
which occurred on or about 20th May 2022 along the Kisumu-Kakamega
Road. The respondent was a pillion passenger aboard motorcycle registration
number KMFX 958X TVS, owned by the 1st appellant and ridden by its rider,
agent and/or servant, when the rider made a drastic turn to the right in the
middle of the road, causing the motorcycle to be run down by a trailing
vehicle.
3. Liability was not contested at trial. By consent of the parties, liability was
apportioned in the ratio of 80:20 in favour of the respondent.
4. The respondent pleaded that he sustained the following injuries: tenderness
on the chest; swellings and bruises on the head; tenderness on the shoulder;
fracture of the right femoral head; and an impacted medial sub-condylar tibial
fracture on the right knee joint. He further pleaded continuing injuries
including inability to weight-bear, walking with the aid of crutches, inability
to sit, walk or stand for long, pain in the right limb, inability to step down on
the right lower limb, and a right limb length discrepancy of 3 cm, and pleaded
a permanent incapacitation of 25%.
5. Upon hearing the suit, the learned trial magistrate entered judgment for the
respondent against the appellants jointly and severally as follows:
a) General damages for pain and suffering: Kshs. 1,200,000/=, less 20% =
Kshs. 960,000/=;
b) Special damages: Kshs. 190,560/=;
c) Future medical expenses: Kshs. 50,000/=;
d) Costs of the suit and interest.
The Appeal and Cross-Appeal
6. The appellants' memorandum of appeal raises five grounds which may be
summarized as follows: that the award of Kshs. 1,200,000/= in general
damages was too high, excessive, unmerited and unjustified; that the award
of Kshs. 50,000/= for future medical expenses was excessive and without
basis, the respondent having healed with no resultant permanent
incapacitation, and the alleged tibial (knee) fracture having admittedly been
sustained in a previous, unrelated accident; that special damages of Kshs.
190,560/= were not strictly proved; that the trial court failed to subject the
awards for future medical expenses, special damages and costs to the agreed
contributory apportionment; and that the trial magistrate considered
irrelevant factors and ignored relevant ones, arriving at excessive and
indefensible awards.
7. The appellants submit that the trial magistrate expressly treated the impacted
medial sub-condylar tibial fracture of the right knee joint as one of the injuries
"not in doubt", yet on cross-examination the respondent admitted that the
knee injury was sustained at an earlier date and was unrelated to the
accident. They propose that an award of Kshs. 300,000/= at full liability
would be adequate for the femoral neck fracture, relying on Reamic
Investment Limited v Joaz Amenya Samuel (2021) eKLR and Bhachu Industries
Ltd v Peter Kariuki Mutura (2015) eKLR. On special damages, they submit that
the respondent's invoice for Kshs. 162,060/= was substantially settled by
NHIF, which paid Kshs. 150,000/= — a fact the respondent admitted in crossexamination — and that there were no receipts proving payment of the
balance of Kshs. 12,060/=; they urge substitution with Kshs. 10,000/=. On
future medical expenses, they contend there was no specialist
recommendation, quotation or treatment plan, and that the disability index
of 25% in the Betterstream Care report was unexplained and unfounded, Dr.
Protas Oketch having found the respondent healed with no permanent
incapacitation.
8. The respondent, for his part, submits that the award only befitted the fracture
of the right femoral head and its consequences, and urges enhancement to
Kshs. 2,500,000/=. He relies on the report of Dr. Neema Mbaruku, who
observed a leg shortening of 3cm attributable to the femoral neck fracture, a
surgical scar at the hip, and continuing healing; the fact that he was still
ambulating on crutches when he testified on 17th September 2024; his
reassignment to lighter duties at work; the likelihood of future surgeries for
maintenance or replacement of the hip prosthesis; and a series of comparable
authorities including Margaret Wothaya Kirweya & Another v James Muchai
Muchiri KLR (Kshs. 1,800,000/= for a hip fracture requiring total hip
replacement with 30% incapacitation), Kahindi Wambugu & Another v
Jeremiah Wanyiri Wambugu eKLR (Kshs. 1,200,000/= upheld for an oblique
fracture of the medial femoral condyle), Jackline Kamunyi Kamau v Simon
Kiiru Njoki KLR (Kshs. 1,200,000/= for a femur fracture managed by K-nail
insertion), Sosines Orindo v Emkay Builders Limited eKLR and Kiiru v Muiruri
KLR on the need to account for inflation.
Duty of the First Appellate Court
9. This being a first appeal, the duty of this Court is as set out in Selle & Another
v Associated Motor Boat Co. Ltd & Others EA 123: to reconsider and reevaluate the evidence on record afresh and draw its own conclusions, bearing
in mind that it neither saw nor heard the witnesses and making due
allowance in that respect.
10. On quantum, the principles upon which an appellate court may interfere
with an award of damages are well settled. In Kemfro Africa Limited t/a
Meru Express Services & Another v Lubia & Another (No. 2) eKLR and
Butt v Khan KLR 349, it was held that an appellate court will disturb an
award of damages only where the trial court took into account an irrelevant
factor, or left out of account a relevant one, or where the award is so
inordinately high or so inordinately low as to represent an entirely erroneous
estimate of the damage.
11. The issues for determination are therefore: (i) whether the trial magistrate
took into account an irrelevant factor, namely the pre-existing knee fracture,
in assessing general damages, and if so, what award ought to be substituted;
(ii) whether the award of special damages of Kshs. 190,560/= was strictly
proved; (iii) whether the award of Kshs. 50,000/= for future medical expenses
was justified; (iv) whether all heads of damage ought to have been subjected
to the agreed 80:20 apportionment; and (v) who bears the costs.
Analysis and Determination
12. First and foremost, the claim here is based under the tort negligence in which
the plaintiff or claimant must prove three core elements, a duty of care, a
breach of that duty and resulting damages. The fundamental principles on
this area of law fall within the following parameters:
• The Burden of Proof: In matters of negligence, the burden of proof rests
primarily on the plaintiff under Section 107 of the Evidence Act. The court
in Kiema Mutuku vs Kenya Cargo Hauling Services Ltd
(1991) established that there is no liability without fault in Kenya; a
plaintiff must specifically plead and prove negligence.
• Police Abstracts vs. Evidence: High Court rulings, such as those
affirmed in Orioki v Kevian Kenya Limited [2025] KEHC (Civil Appeal
341 of 2019), note that a police abstract is merely a record of an initial
report and does not constitute conclusive proof of liability or fault.
Independent evidence, such as eyewitness testimony or an official traffic
sketch map, is required.
• Vicarious Liability: In cases involving employers or vehicle owners, the
High Court follows the principle that vicarious liability is a rule of evidence.
As observed in Tabitha Nduhi Kinyua v. Francis Mutua Mbuvi &
Another [2014], a plaintiff must demonstrate that the employee or driver
was acting within the scope of their employment. Once agency is
established, the onus shifts to the registered vehicle owner to displace the
presumption that they are liable.
• Medical Negligence: In medical negligence claims (e.g., Kusa v Mama
Lucy Kibaki Hospital [2025] KEHC 8593), the High Court reiterates
that the plaintiff must prove that the medical practitioner's actions fell
below standard medical practice and that this specific breach caused the
injury.
13. The concept of negligence in Halsbury’s Laws of England 3rd Edition Vol. 28
pp. 3-5 is formulated as hereunder:
“Negligence is a specific tort and in any given circumstances is the failure to
exercise that care which the circumstances demand. What amounts to
negligence depends on the facts of each particular case and the categories
of negligence are never closed. It may consist in omitting to do something
which ought to be done or in doing something which ought to be done either
in a different manner or not at all. When there is no duty to exercise care,
negligence in popular sense has no legal consequence. When there is a duty
to exercise care, reasonable care must be taken to avoid acts or omissions
which can be reasonably foreseen to be likely to cause physical injury to
person or property. The duty of care owed to that person by whom injury
can reasonably be foreseen and not necessarily to all persons in the same
situation The material considerations are the absence of the care which is
on the part of the defendant due to the plaintiff in the circumstances of the
case and damage suffered by the plaintiff, together with a demonstrable
relation of cause and effect between the two."
14. The development of the law on the tort of negligence is well captured by Lord
Denning M.R in his treatise; The Discipline of Law at page 227 where he
writes:-
“of all the developments in the 20th century by the judges, the greatest has
been in the law of negligence at the beginning of the 19th century the rules
of law were all derived from the forms of actions….the judges of the
19th century formulated a series of particular rules as to when the
defendant were under duty to the plaintiff and what was the extent of that
duty. These particular rules do not satisfy the social necessities and social
opinion of the 20th century. In a series of decisions from 1932 onwards the
courts evolved negligence as an independent and vigorous wrong. It has
come to dominate the whole field of civil liability. In particular there’s been
a remarkable extension of liability of professional men and of public
authorities”
15. The elements of negligence even on appeal and this being a first appeals
court, the jurisdiction is well set out as provided in the case of Mbogo v Shah
[1968] EA 93 at 96 A Court of Appeal should not interfere with the exercise of
the discretion of a judge unless it is satisfied that the judge in exercising his
discretion has misdirected himself in some matter and as a result has arrived
at a wrong decision, or unless it is manifest from the case as a whole that the
judge has been clearly wrong in the exercise of his discretion and that as a
result there has been misjustice.
• In addition, Selle and Another v. Associated Motor Boat Company
[1968] EA 123: This is the foundational precedent. The Court established
that a first appellate court is not a rubber stamp and has a mandatory
duty to reconsider the evidence, evaluate it, and draw its own conclusions,
while acknowledging the trial court’s advantage in seeing witnesses
testify.
• Jabane v. Olenja [1968] KLR 661: The Court affirmed that an appellate
court will not disturb factual findings unless they are entirely unsupported
by the evidence or arrived at via a flawed legal interpretation.
• Kamau v. Republic: A leading criminal case defining the High Court’s
appellate duty to assess trial records afresh in criminal convictions,
independently checking the magistrate’s findings while deferring on
witness demeanor.
16. Given the above the background an appellant appeal is to be tested is within
the scope of this principles to ensure that the impugned judgement is not to
be overturned at whim or captiously. Fortunately for this appeal, liability was
not contested due to the consent filed in which apportionment was based at
80%:40% for the claimant/respondent to this appeal. The borne of contention
is on assessment of damages.
17. The starting point is the trial magistrate's own language. In her judgment
she stated that "the averments that the Plaintiff suffered a tenderness on the
chest, swellings and bruises on the head, tenderness on the shoulder,
fracture of the right femoral head and impacted medial sub condylar tibia
fracture on the right knee joint is not in doubt." It is common ground — indeed
it was admitted by the respondent on cross-examination, as captured at page
89 of the record of appeal — that the impacted medial sub-condylar tibial
fracture of the right knee joint was sustained in an earlier incident unrelated
to the accident the subject of the suit. Dr. Neema Mbaruku herself, in her
report of 11th April 2023, noted that the knee fracture was not related to the
suit accident and confined her final impression to the hip fracture.
18. It follows that the learned trial magistrate, in reciting the knee fracture
among the injuries occasioned by the accident and proceeding to assess
general damages globally without excluding it, took into account an irrelevant
factor. That misdirection entitles this Court to interfere with the award and
to reassess general damages afresh, confining itself to the injuries
attributable to the accident.
19. The injuries properly attributable to the accident are: the fracture of the right
femoral head, together with soft tissue injuries (tenderness of the chest and
shoulder, swellings and bruises on the head). The femoral head fracture was
a serious injury. The discharge summary from Port/St. Florence Community
Hospital confirms the fracture of the femoral neck; the respondent underwent
surgery, evidenced by the surgical scar at the hip noted by both Dr. Neema
Mbaruku and Dr. Protas Oketch; and Dr. Mbaruku attributed a limb
shortening of 3 cm to the femoral neck fracture on the right leg — not to the
unrelated tibial fracture.
20. The medical evidence on the sequelae was conflicting. Dr. Oketch, examining
the respondent on 6th November 2023, some seven months after Dr.
Mbaruku, found that the respondent had healed with a surgical scar on the
hip, that the body was grossly normal, and that there was no resultant
permanent incapacitation; he made no mention of any limb length
discrepancy. The Betterstream Care report assessed a disability index of 25%
but, as the appellants correctly point out, offered no explanation of how that
index was arrived at, contrary to the methodology contemplated by the
Schedule to the Work Injury Benefits Act, and it was premised in part on the
unrelated knee fracture. I therefore approach the pleaded 25% permanent
incapacitation with considerable caution and decline to adopt it as proved.
21. That said, I am unable to accept the appellants' invitation to treat the
respondent as having made a complete and uneventful recovery. Making due
allowance for the fact that the trial court saw and heard the respondent, the
record shows that as at the hearing on 17th September 2024 he presented
ambulating on a crutch, testified while seated because he could not stand for
long, and complained of continuing pain at the fracture site. A femoral
head/neck fracture managed surgically, with a credible (even if contested)
observation of residual limb shortening by one of two equally qualified
orthopaedic examiners, is not a trivial injury.
22. In Rahima Tayab & Others v Anna Mary Kinanu KLR 114, cited by the trial
court, the Court of Appeal, adopting H. West & Son Ltd v Shephard AC 326,
observed that money cannot renew a shattered physical frame and that all
courts can do is award sums which must be regarded as giving reasonable
compensation, comparable injuries being so far as possible compensated by
comparable awards.
23. In awarding damages, the court ought to assess the general picture, the whole
circumstances, the effect of the injuries, the particular person concerned and
uniformity. The court must be guided by recent awards in comparable cases in
the local courts. See Tayab v Kinanu [1983] KLR 114. An appellate court can
only disturb an award of damages when the trial court has taken into account
a factor it ought not to have taken into account or failed to take into account
something it ought to have taken into account or the award is so high or so low
that it amounts to an erroneous estimate. See Bildad Mwangi Gichuki v Tm-
Am Construction Group (Africa), civil appeal number152 of 2001;
Jackson Amwoka v Abdulhalim Salyani, civil appeal number 288 of
1998.
24. Turning to the comparable awards placed before me: for femur/femoral
fractures without the aggravating features of hip replacement, awards have
ranged from Kshs. 300,000/= (Bhachu Industries, 2015, K-nail fixation) and
Kshs. 350,000/= (Reamic Investment, 2021, on appeal) at the lower end,
through Kshs. 900,000/= (Sosines Orindo, reinstated by the Court of Appeal
in 2019), Kshs. 1,000,000/= (Wycliffe Momanyi Mosaremo, 2024, enhanced
from Kshs. 650,000/=; Kiiru v Muiruri, 2022, tibia-fibula fracture with 10%
disability, enhanced expressly on account of inflation), to Kshs. 1,200,000/=
(Jackline Kamunyi, 2018, femur fracture managed by K-nail; Kahindi
Wambugu, 2020, femoral condyle fracture). The higher awards of Kshs.
1,800,000/= to Kshs. 3,000,000/= (Margaret Wothaya; Anne Delorie; Linos
Shisakha) involved either total hip replacement coupled with additional
fractures, or substantially proved permanent incapacitation of 20-30% —
features which, on the evidence as I have assessed it, were not established
here to the required standard.
25. The authorities relied upon by the appellants sit at the very bottom of the
range of awards and were decided some years back. In this same
circumstances the Court of Appeal in Sosines Orindo v Emkay Builders
Limited eKLR restated the need for every court to take inflation into account
when making awards. An award of Kshs. 300,000/= in the year 2025 for a
surgically managed femoral head fracture with the residual complaints
described above would, in my view, be inordinately low. Equally, the
respondent's proposal of Kshs. 2,500,000/= presupposes a proved 25%
permanent incapacitation and an established need for prosthesis
replacement, neither of which was demonstrated by cogent evidence; the
submissions on prosthesis maintenance were counsel's conjecture
unsupported by any medical opinion on record.
26. I have stated elsewhere in this judgment about the decision in the seminal
cases in which an appeals court should rely upon in applying the evidence,
the law to the facts on assemnet of damages so as to arrive at a fair and
reasonable compensation. Compensation road traffic accident claims aims to
restore the victim, although court recognized at the same time that money
cannot perfectly erase physical or emotional trauma. The current process for
measuring pain and damages in my considered view within our legal system
fails to serve the compensation and the accident avoidance goals of tort law.
one has to get undertake a sample size of decisions in our repository to see
lack of standards for judges to apply to mitigate the widely varying pain and
suffering awards that leave claimants wondering what differenced in the cases
justified the disparity. It is also trite that in road accident claims
compensation has long been a primary goal of the total negligence. The
meaning of just and proper compensation seems to differ from case to case
when applied to pain and suffering damages compared to other items of
damages recognized by tort law. It always been premised that just
compensation and in the pain and suffering represents society measurement
of the gravity of the claimants, or victims or the plaintiff physical pain and
accompany mental suffering attributable to the wrongful inflicted injuries.
27. The question which arises and presents itself in this formulation of the
compensatory function of pain and suffering is how in a wrongfully inflicted
injury to what extent and in what versions should the law take account of the
resulting human suffering? This are concerns in which sometimes the law
does not address when it comes to cases of damages assessment involving
the degree of the claimant or plaintiff pains upon which the standards
applicable on assessment might not adequately compensate claimant or
plaintiff. Although judges and magistrates in our legal system may be
motivated by shared knowledge in law and values, the translational of that
knowledge and values into consistent mandatory awards is befuddled by their
different conceptions of the value of money. The facts to this appeal
demonstrate such differing attributes for measuring pain and suffering as in
the cross appeal a request has been made for enhancement of damages to 2.5
million whereas the appellant has moved the court for reduction of the award
on general damages from 1.2 million to a lesser figure as the price for
compensating the claimant/plaintiff. This is what one of the learned authors
professor Ingher in his article Rethinking Intangible Injuries: A Remedy, 73
Calif. L. Rev.772, 809-10 (1995); Morris, Liability of Pain and Suffering, 59
Colum L. Rev. 476, 476-477 (1959) had this to say:
Without some basis for calculating loss, damage awards are apt in many
cases to be unfair to one of the other parties. But no such standards have
been developed. Juries are left with nothing but their consciences to guide
them. Consequently, wide variations in monetary awards result, and there
remains the danger that juries may be responding to irrelevant or even
illegitimate distinctions in the cases.
28. In the tort of negligence particularly on Road Traffic Accident Claims the
purpose of award of damages for pain and suffering and other limbs is to put
the plaintiff or claimant in the position he/she would have been if the tort
could not have been committed. In essence damages are not awarded to overenrich the plaintiff or claimant far beyond his/her actual losses. The reverse
is also true essentially that the plaintiff or claimant should not get far less
than his/her actual loss during the accident.
29. This being a first appeal there must be strong evidence that judicial
discretion exercised by the court below misapplied the law on the evidence
and as such arrived at a wrong decision which demand review or interference
with this court. It has been said all over again and again by the various courts
that the trail court has the advantage of observing the demeanor of witnesses
and having to hear each evidence in the first instance. This is not the case for
an appeals court and for it to substitute that decision their must be
overwhelming evidence that if the decision is left to stand it would occasion
an erroneous estimate of damages which is supported with no evidence.
30. I have reviewed the evidence before the trial court and now the issues raised
in the main appeal together with the cross appeal and of the view no concrete
or cogent evidence exist to form the legal basis upon which the award on
general damages on Kshs 1.2 million should be interfered with to either a
lower quantum or enhanced to a higher figure of compensation. The main
appeal and cross appeal there find no room in navigating that litigation
landscape for any relief or remedy to be awarded as prayed for in their
respective memorandum of appeals.
(ii) Special damages
31. It is trite that special damages must be specifically pleaded and strictly
proved: Hahn v Singh KLR 716. The respondent pleaded and was awarded
Kshs. 190,560/=, comprising Kshs. 180,560/= said to be medical expenses
and Kshs. 10,000/= for legal fees for the demand letter.
32. Two difficulties attend this award. First, the respondent produced an invoice
for Kshs. 162,060/= and admitted on cross-examination, as captured at page
89 of the record, that NHIF paid Kshs. 150,000/= as part of the medical bill.
A plaintiff is entitled to recover as special damages only such expenses as he
has himself incurred or for which he remains liable. The sum of Kshs.
150,000/= having been settled by the National Hospital Insurance Fund, it
was not an out-of-pocket loss to the respondent, and to award it to him would
be to over-compensate him for an expense he never bore. Second, beyond the
invoice, no receipts were produced evidencing payment of the balance or of
the further sums making up the pleaded Kshs. 180,560/=. The difference
between the pleaded medical expenses and the invoice was left unexplained.
33. Generally, strict proof does not, however, invariably demand a receipt where
credible documentary evidence establishes that the liability was incurred. The
invoice for Kshs. 162,060/=, produced and unchallenged as to its
authenticity, establishes the medical liability incurred; of that, Kshs.
150,000/= was borne by NHIF, leaving a balance of Kshs. 12,060/= borne by
the respondent. The legal fees of Kshs. 10,000/= for the demand letter were
conceded by the appellants in their submissions as recoverable.
34. Accordingly, the award of Kshs. 190,560/= is set aside and substituted with
special damages of Kshs. 22,060/= (being Kshs. 12,060/= unpaid balance of
the medical invoice and Kshs. 10,000/= legal fees), subject to apportionment
as set out in this judgment.
(iii) Future medical expenses
35. An award for future medical expenses must rest on medical evidence
establishing, on a balance of probabilities, that further treatment is
reasonably required, and giving the court some basis for quantifying it. Here,
the respondent produced no specialist recommendation for physiotherapy, no
quotation, and no treatment plan. The claim as pleaded, a round figure of
Kshs. 50,000/=, appears to have been premised on the raised shoe and
physiotherapy said to be necessitated by the limb discrepancy and the 25%
disability index, the latter of which I have found unproved. Dr. Mbaruku's
report of 11th April 2023 noted that the hip fracture was still healing and
recorded the length discrepancy, but did not quantify or particularise any
future treatment; Dr. Oketch found the respondent healed.
36. Whilst I accept that the respondent underwent hip surgery and that some
continuing management (such as a shoe raise) is plausible on Dr. Mbaruku's
findings, plausibility is not proof. Nevertheless, where the fact of future
expense is established but its quantum is incapable of precise proof, a modest
global award is permissible. The trial court's figure of Kshs. 50,000/= was
itself modest and tethered to the pleaded sum. Weighing the conflicting
medical evidence, I am not persuaded that the trial magistrate erred in
principle in making a modest award under this head; the sum of Kshs.
50,000/= is neither inordinately high nor devoid of foundation given the
undisputed surgery and Dr. Mbaruku's observations. The award of Kshs.
50,000/= for future medical expenses is upheld, subject to apportionment.
(iv) Liability
37. The parties recorded a consent apportioning liability at 80:20 in favour of the
respondent. It is settled that where liability is apportioned, the apportionment
applies to the entire award — general damages, special damages and future
medical expenses alike — since the plaintiff's recovery abates to the extent of
his contribution. The trial court applied the 20% reduction only to general
damages. That was an error. All heads of damage shall be subjected to the
20% reduction contributory negligence.
(v) Costs and interest
38. The appeal has succeeded in part and the cross-appeal has failed. Costs
follow the event, but tempered by the partial nature of the appellants' success.
E. Disposition
39. In the result: (a) The appeal in HCCA No. E006 of 2025, entirely fails and the
judgement of the Lower court is affirmed on both general damages and future
medical expenses with a partial review on special damages based on the
compelling reason by this court. Likewise, the cross-appeal, HCCA No. E007
of 2025, is also dismissed for want of merit. It is also recognized under Section
27 of the CPA that costs shall follow the event and this appeal costs shall be
awarded to the respondents respectively with interest chargeable on the
decretal sum at 14% until payment in full. Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.
M/s Akwala & Co. Advocates
M/s M.A Okumu & Co. Advocates
JUDGMENT
Introduction and Background
1. Before this Court are two consolidated appeals arising from the judgment of
Hon. Beryl M. A. Omollo, SRM, delivered on 29th January 2025 in Vihiga
SPMCC No. E210 of 2022. In Civil Appeal No. E006 of 2025, the defendants
in the suit below (hereinafter "the appellants") challenge the quantum of
damages awarded as inordinately high. In the consolidated cross-appeal, Civil
Appeal No. E007 of 2025, the plaintiff below (hereinafter "the respondent")
seeks enhancement of the award of general damages from Kshs. 1,200,000/=
to Kshs. 2,500,000/=.
2. The claim before the subordinate court arose from a road traffic accident
which occurred on or about 20th May 2022 along the Kisumu-Kakamega
Road. The respondent was a pillion passenger aboard motorcycle registration
number KMFX 958X TVS, owned by the 1st appellant and ridden by its rider,
agent and/or servant, when the rider made a drastic turn to the right in the
middle of the road, causing the motorcycle to be run down by a trailing
vehicle.
3. Liability was not contested at trial. By consent of the parties, liability was
apportioned in the ratio of 80:20 in favour of the respondent.
4. The respondent pleaded that he sustained the following injuries: tenderness
on the chest; swellings and bruises on the head; tenderness on the shoulder;
fracture of the right femoral head; and an impacted medial sub-condylar tibial
fracture on the right knee joint. He further pleaded continuing injuries
including inability to weight-bear, walking with the aid of crutches, inability
to sit, walk or stand for long, pain in the right limb, inability to step down on
the right lower limb, and a right limb length discrepancy of 3 cm, and pleaded
a permanent incapacitation of 25%.
5. Upon hearing the suit, the learned trial magistrate entered judgment for the
respondent against the appellants jointly and severally as follows:
a) General damages for pain and suffering: Kshs. 1,200,000/=, less 20% =
Kshs. 960,000/=;
b) Special damages: Kshs. 190,560/=;
c) Future medical expenses: Kshs. 50,000/=;
d) Costs of the suit and interest.
The Appeal and Cross-Appeal
6. The appellants' memorandum of appeal raises five grounds which may be
summarized as follows: that the award of Kshs. 1,200,000/= in general
damages was too high, excessive, unmerited and unjustified; that the award
of Kshs. 50,000/= for future medical expenses was excessive and without
basis, the respondent having healed with no resultant permanent
incapacitation, and the alleged tibial (knee) fracture having admittedly been
sustained in a previous, unrelated accident; that special damages of Kshs.
190,560/= were not strictly proved; that the trial court failed to subject the
awards for future medical expenses, special damages and costs to the agreed
contributory apportionment; and that the trial magistrate considered
irrelevant factors and ignored relevant ones, arriving at excessive and
indefensible awards.
7. The appellants submit that the trial magistrate expressly treated the impacted
medial sub-condylar tibial fracture of the right knee joint as one of the injuries
"not in doubt", yet on cross-examination the respondent admitted that the
knee injury was sustained at an earlier date and was unrelated to the
accident. They propose that an award of Kshs. 300,000/= at full liability
would be adequate for the femoral neck fracture, relying on Reamic
Investment Limited v Joaz Amenya Samuel (2021) eKLR and Bhachu Industries
Ltd v Peter Kariuki Mutura (2015) eKLR. On special damages, they submit that
the respondent's invoice for Kshs. 162,060/= was substantially settled by
NHIF, which paid Kshs. 150,000/= — a fact the respondent admitted in crossexamination — and that there were no receipts proving payment of the
balance of Kshs. 12,060/=; they urge substitution with Kshs. 10,000/=. On
future medical expenses, they contend there was no specialist
recommendation, quotation or treatment plan, and that the disability index
of 25% in the Betterstream Care report was unexplained and unfounded, Dr.
Protas Oketch having found the respondent healed with no permanent
incapacitation.
8. The respondent, for his part, submits that the award only befitted the fracture
of the right femoral head and its consequences, and urges enhancement to
Kshs. 2,500,000/=. He relies on the report of Dr. Neema Mbaruku, who
observed a leg shortening of 3cm attributable to the femoral neck fracture, a
surgical scar at the hip, and continuing healing; the fact that he was still
ambulating on crutches when he testified on 17th September 2024; his
reassignment to lighter duties at work; the likelihood of future surgeries for
maintenance or replacement of the hip prosthesis; and a series of comparable
authorities including Margaret Wothaya Kirweya & Another v James Muchai
Muchiri KLR (Kshs. 1,800,000/= for a hip fracture requiring total hip
replacement with 30% incapacitation), Kahindi Wambugu & Another v
Jeremiah Wanyiri Wambugu eKLR (Kshs. 1,200,000/= upheld for an oblique
fracture of the medial femoral condyle), Jackline Kamunyi Kamau v Simon
Kiiru Njoki KLR (Kshs. 1,200,000/= for a femur fracture managed by K-nail
insertion), Sosines Orindo v Emkay Builders Limited eKLR and Kiiru v Muiruri
KLR on the need to account for inflation.
Duty of the First Appellate Court
9. This being a first appeal, the duty of this Court is as set out in Selle & Another
v Associated Motor Boat Co. Ltd & Others EA 123: to reconsider and reevaluate the evidence on record afresh and draw its own conclusions, bearing
in mind that it neither saw nor heard the witnesses and making due
allowance in that respect.
10. On quantum, the principles upon which an appellate court may interfere
with an award of damages are well settled. In Kemfro Africa Limited t/a
Meru Express Services & Another v Lubia & Another (No. 2) eKLR and
Butt v Khan KLR 349, it was held that an appellate court will disturb an
award of damages only where the trial court took into account an irrelevant
factor, or left out of account a relevant one, or where the award is so
inordinately high or so inordinately low as to represent an entirely erroneous
estimate of the damage.
11. The issues for determination are therefore: (i) whether the trial magistrate
took into account an irrelevant factor, namely the pre-existing knee fracture,
in assessing general damages, and if so, what award ought to be substituted;
(ii) whether the award of special damages of Kshs. 190,560/= was strictly
proved; (iii) whether the award of Kshs. 50,000/= for future medical expenses
was justified; (iv) whether all heads of damage ought to have been subjected
to the agreed 80:20 apportionment; and (v) who bears the costs.
Analysis and Determination
12. First and foremost, the claim here is based under the tort negligence in which
the plaintiff or claimant must prove three core elements, a duty of care, a
breach of that duty and resulting damages. The fundamental principles on
this area of law fall within the following parameters:
• The Burden of Proof: In matters of negligence, the burden of proof rests
primarily on the plaintiff under Section 107 of the Evidence Act. The court
in Kiema Mutuku vs Kenya Cargo Hauling Services Ltd
(1991) established that there is no liability without fault in Kenya; a
plaintiff must specifically plead and prove negligence.
• Police Abstracts vs. Evidence: High Court rulings, such as those
affirmed in Orioki v Kevian Kenya Limited [2025] KEHC (Civil Appeal
341 of 2019), note that a police abstract is merely a record of an initial
report and does not constitute conclusive proof of liability or fault.
Independent evidence, such as eyewitness testimony or an official traffic
sketch map, is required.
• Vicarious Liability: In cases involving employers or vehicle owners, the
High Court follows the principle that vicarious liability is a rule of evidence.
As observed in Tabitha Nduhi Kinyua v. Francis Mutua Mbuvi &
Another [2014], a plaintiff must demonstrate that the employee or driver
was acting within the scope of their employment. Once agency is
established, the onus shifts to the registered vehicle owner to displace the
presumption that they are liable.
• Medical Negligence: In medical negligence claims (e.g., Kusa v Mama
Lucy Kibaki Hospital [2025] KEHC 8593), the High Court reiterates
that the plaintiff must prove that the medical practitioner's actions fell
below standard medical practice and that this specific breach caused the
injury.
13. The concept of negligence in Halsbury’s Laws of England 3rd Edition Vol. 28
pp. 3-5 is formulated as hereunder:
“Negligence is a specific tort and in any given circumstances is the failure to
exercise that care which the circumstances demand. What amounts to
negligence depends on the facts of each particular case and the categories
of negligence are never closed. It may consist in omitting to do something
which ought to be done or in doing something which ought to be done either
in a different manner or not at all. When there is no duty to exercise care,
negligence in popular sense has no legal consequence. When there is a duty
to exercise care, reasonable care must be taken to avoid acts or omissions
which can be reasonably foreseen to be likely to cause physical injury to
person or property. The duty of care owed to that person by whom injury
can reasonably be foreseen and not necessarily to all persons in the same
situation The material considerations are the absence of the care which is
on the part of the defendant due to the plaintiff in the circumstances of the
case and damage suffered by the plaintiff, together with a demonstrable
relation of cause and effect between the two."
14. The development of the law on the tort of negligence is well captured by Lord
Denning M.R in his treatise; The Discipline of Law at page 227 where he
writes:-
“of all the developments in the 20th century by the judges, the greatest has
been in the law of negligence at the beginning of the 19th century the rules
of law were all derived from the forms of actions….the judges of the
19th century formulated a series of particular rules as to when the
defendant were under duty to the plaintiff and what was the extent of that
duty. These particular rules do not satisfy the social necessities and social
opinion of the 20th century. In a series of decisions from 1932 onwards the
courts evolved negligence as an independent and vigorous wrong. It has
come to dominate the whole field of civil liability. In particular there’s been
a remarkable extension of liability of professional men and of public
authorities”
15. The elements of negligence even on appeal and this being a first appeals
court, the jurisdiction is well set out as provided in the case of Mbogo v Shah
[1968] EA 93 at 96 A Court of Appeal should not interfere with the exercise of
the discretion of a judge unless it is satisfied that the judge in exercising his
discretion has misdirected himself in some matter and as a result has arrived
at a wrong decision, or unless it is manifest from the case as a whole that the
judge has been clearly wrong in the exercise of his discretion and that as a
result there has been misjustice.
• In addition, Selle and Another v. Associated Motor Boat Company
[1968] EA 123: This is the foundational precedent. The Court established
that a first appellate court is not a rubber stamp and has a mandatory
duty to reconsider the evidence, evaluate it, and draw its own conclusions,
while acknowledging the trial court’s advantage in seeing witnesses
testify.
• Jabane v. Olenja [1968] KLR 661: The Court affirmed that an appellate
court will not disturb factual findings unless they are entirely unsupported
by the evidence or arrived at via a flawed legal interpretation.
• Kamau v. Republic: A leading criminal case defining the High Court’s
appellate duty to assess trial records afresh in criminal convictions,
independently checking the magistrate’s findings while deferring on
witness demeanor.
16. Given the above the background an appellant appeal is to be tested is within
the scope of this principles to ensure that the impugned judgement is not to
be overturned at whim or captiously. Fortunately for this appeal, liability was
not contested due to the consent filed in which apportionment was based at
80%:40% for the claimant/respondent to this appeal. The borne of contention
is on assessment of damages.
17. The starting point is the trial magistrate's own language. In her judgment
she stated that "the averments that the Plaintiff suffered a tenderness on the
chest, swellings and bruises on the head, tenderness on the shoulder,
fracture of the right femoral head and impacted medial sub condylar tibia
fracture on the right knee joint is not in doubt." It is common ground — indeed
it was admitted by the respondent on cross-examination, as captured at page
89 of the record of appeal — that the impacted medial sub-condylar tibial
fracture of the right knee joint was sustained in an earlier incident unrelated
to the accident the subject of the suit. Dr. Neema Mbaruku herself, in her
report of 11th April 2023, noted that the knee fracture was not related to the
suit accident and confined her final impression to the hip fracture.
18. It follows that the learned trial magistrate, in reciting the knee fracture
among the injuries occasioned by the accident and proceeding to assess
general damages globally without excluding it, took into account an irrelevant
factor. That misdirection entitles this Court to interfere with the award and
to reassess general damages afresh, confining itself to the injuries
attributable to the accident.
19. The injuries properly attributable to the accident are: the fracture of the right
femoral head, together with soft tissue injuries (tenderness of the chest and
shoulder, swellings and bruises on the head). The femoral head fracture was
a serious injury. The discharge summary from Port/St. Florence Community
Hospital confirms the fracture of the femoral neck; the respondent underwent
surgery, evidenced by the surgical scar at the hip noted by both Dr. Neema
Mbaruku and Dr. Protas Oketch; and Dr. Mbaruku attributed a limb
shortening of 3 cm to the femoral neck fracture on the right leg — not to the
unrelated tibial fracture.
20. The medical evidence on the sequelae was conflicting. Dr. Oketch, examining
the respondent on 6th November 2023, some seven months after Dr.
Mbaruku, found that the respondent had healed with a surgical scar on the
hip, that the body was grossly normal, and that there was no resultant
permanent incapacitation; he made no mention of any limb length
discrepancy. The Betterstream Care report assessed a disability index of 25%
but, as the appellants correctly point out, offered no explanation of how that
index was arrived at, contrary to the methodology contemplated by the
Schedule to the Work Injury Benefits Act, and it was premised in part on the
unrelated knee fracture. I therefore approach the pleaded 25% permanent
incapacitation with considerable caution and decline to adopt it as proved.
21. That said, I am unable to accept the appellants' invitation to treat the
respondent as having made a complete and uneventful recovery. Making due
allowance for the fact that the trial court saw and heard the respondent, the
record shows that as at the hearing on 17th September 2024 he presented
ambulating on a crutch, testified while seated because he could not stand for
long, and complained of continuing pain at the fracture site. A femoral
head/neck fracture managed surgically, with a credible (even if contested)
observation of residual limb shortening by one of two equally qualified
orthopaedic examiners, is not a trivial injury.
22. In Rahima Tayab & Others v Anna Mary Kinanu KLR 114, cited by the trial
court, the Court of Appeal, adopting H. West & Son Ltd v Shephard AC 326,
observed that money cannot renew a shattered physical frame and that all
courts can do is award sums which must be regarded as giving reasonable
compensation, comparable injuries being so far as possible compensated by
comparable awards.
23. In awarding damages, the court ought to assess the general picture, the whole
circumstances, the effect of the injuries, the particular person concerned and
uniformity. The court must be guided by recent awards in comparable cases in
the local courts. See Tayab v Kinanu [1983] KLR 114. An appellate court can
only disturb an award of damages when the trial court has taken into account
a factor it ought not to have taken into account or failed to take into account
something it ought to have taken into account or the award is so high or so low
that it amounts to an erroneous estimate. See Bildad Mwangi Gichuki v Tm-
Am Construction Group (Africa), civil appeal number152 of 2001;
Jackson Amwoka v Abdulhalim Salyani, civil appeal number 288 of
1998.
24. Turning to the comparable awards placed before me: for femur/femoral
fractures without the aggravating features of hip replacement, awards have
ranged from Kshs. 300,000/= (Bhachu Industries, 2015, K-nail fixation) and
Kshs. 350,000/= (Reamic Investment, 2021, on appeal) at the lower end,
through Kshs. 900,000/= (Sosines Orindo, reinstated by the Court of Appeal
in 2019), Kshs. 1,000,000/= (Wycliffe Momanyi Mosaremo, 2024, enhanced
from Kshs. 650,000/=; Kiiru v Muiruri, 2022, tibia-fibula fracture with 10%
disability, enhanced expressly on account of inflation), to Kshs. 1,200,000/=
(Jackline Kamunyi, 2018, femur fracture managed by K-nail; Kahindi
Wambugu, 2020, femoral condyle fracture). The higher awards of Kshs.
1,800,000/= to Kshs. 3,000,000/= (Margaret Wothaya; Anne Delorie; Linos
Shisakha) involved either total hip replacement coupled with additional
fractures, or substantially proved permanent incapacitation of 20-30% —
features which, on the evidence as I have assessed it, were not established
here to the required standard.
25. The authorities relied upon by the appellants sit at the very bottom of the
range of awards and were decided some years back. In this same
circumstances the Court of Appeal in Sosines Orindo v Emkay Builders
Limited eKLR restated the need for every court to take inflation into account
when making awards. An award of Kshs. 300,000/= in the year 2025 for a
surgically managed femoral head fracture with the residual complaints
described above would, in my view, be inordinately low. Equally, the
respondent's proposal of Kshs. 2,500,000/= presupposes a proved 25%
permanent incapacitation and an established need for prosthesis
replacement, neither of which was demonstrated by cogent evidence; the
submissions on prosthesis maintenance were counsel's conjecture
unsupported by any medical opinion on record.
26. I have stated elsewhere in this judgment about the decision in the seminal
cases in which an appeals court should rely upon in applying the evidence,
the law to the facts on assemnet of damages so as to arrive at a fair and
reasonable compensation. Compensation road traffic accident claims aims to
restore the victim, although court recognized at the same time that money
cannot perfectly erase physical or emotional trauma. The current process for
measuring pain and damages in my considered view within our legal system
fails to serve the compensation and the accident avoidance goals of tort law.
one has to get undertake a sample size of decisions in our repository to see
lack of standards for judges to apply to mitigate the widely varying pain and
suffering awards that leave claimants wondering what differenced in the cases
justified the disparity. It is also trite that in road accident claims
compensation has long been a primary goal of the total negligence. The
meaning of just and proper compensation seems to differ from case to case
when applied to pain and suffering damages compared to other items of
damages recognized by tort law. It always been premised that just
compensation and in the pain and suffering represents society measurement
of the gravity of the claimants, or victims or the plaintiff physical pain and
accompany mental suffering attributable to the wrongful inflicted injuries.
27. The question which arises and presents itself in this formulation of the
compensatory function of pain and suffering is how in a wrongfully inflicted
injury to what extent and in what versions should the law take account of the
resulting human suffering? This are concerns in which sometimes the law
does not address when it comes to cases of damages assessment involving
the degree of the claimant or plaintiff pains upon which the standards
applicable on assessment might not adequately compensate claimant or
plaintiff. Although judges and magistrates in our legal system may be
motivated by shared knowledge in law and values, the translational of that
knowledge and values into consistent mandatory awards is befuddled by their
different conceptions of the value of money. The facts to this appeal
demonstrate such differing attributes for measuring pain and suffering as in
the cross appeal a request has been made for enhancement of damages to 2.5
million whereas the appellant has moved the court for reduction of the award
on general damages from 1.2 million to a lesser figure as the price for
compensating the claimant/plaintiff. This is what one of the learned authors
professor Ingher in his article Rethinking Intangible Injuries: A Remedy, 73
Calif. L. Rev.772, 809-10 (1995); Morris, Liability of Pain and Suffering, 59
Colum L. Rev. 476, 476-477 (1959) had this to say:
Without some basis for calculating loss, damage awards are apt in many
cases to be unfair to one of the other parties. But no such standards have
been developed. Juries are left with nothing but their consciences to guide
them. Consequently, wide variations in monetary awards result, and there
remains the danger that juries may be responding to irrelevant or even
illegitimate distinctions in the cases.
28. In the tort of negligence particularly on Road Traffic Accident Claims the
purpose of award of damages for pain and suffering and other limbs is to put
the plaintiff or claimant in the position he/she would have been if the tort
could not have been committed. In essence damages are not awarded to overenrich the plaintiff or claimant far beyond his/her actual losses. The reverse
is also true essentially that the plaintiff or claimant should not get far less
than his/her actual loss during the accident.
29. This being a first appeal there must be strong evidence that judicial
discretion exercised by the court below misapplied the law on the evidence
and as such arrived at a wrong decision which demand review or interference
with this court. It has been said all over again and again by the various courts
that the trail court has the advantage of observing the demeanor of witnesses
and having to hear each evidence in the first instance. This is not the case for
an appeals court and for it to substitute that decision their must be
overwhelming evidence that if the decision is left to stand it would occasion
an erroneous estimate of damages which is supported with no evidence.
30. I have reviewed the evidence before the trial court and now the issues raised
in the main appeal together with the cross appeal and of the view no concrete
or cogent evidence exist to form the legal basis upon which the award on
general damages on Kshs 1.2 million should be interfered with to either a
lower quantum or enhanced to a higher figure of compensation. The main
appeal and cross appeal there find no room in navigating that litigation
landscape for any relief or remedy to be awarded as prayed for in their
respective memorandum of appeals.
(ii) Special damages
31. It is trite that special damages must be specifically pleaded and strictly
proved: Hahn v Singh KLR 716. The respondent pleaded and was awarded
Kshs. 190,560/=, comprising Kshs. 180,560/= said to be medical expenses
and Kshs. 10,000/= for legal fees for the demand letter.
32. Two difficulties attend this award. First, the respondent produced an invoice
for Kshs. 162,060/= and admitted on cross-examination, as captured at page
89 of the record, that NHIF paid Kshs. 150,000/= as part of the medical bill.
A plaintiff is entitled to recover as special damages only such expenses as he
has himself incurred or for which he remains liable. The sum of Kshs.
150,000/= having been settled by the National Hospital Insurance Fund, it
was not an out-of-pocket loss to the respondent, and to award it to him would
be to over-compensate him for an expense he never bore. Second, beyond the
invoice, no receipts were produced evidencing payment of the balance or of
the further sums making up the pleaded Kshs. 180,560/=. The difference
between the pleaded medical expenses and the invoice was left unexplained.
33. Generally, strict proof does not, however, invariably demand a receipt where
credible documentary evidence establishes that the liability was incurred. The
invoice for Kshs. 162,060/=, produced and unchallenged as to its
authenticity, establishes the medical liability incurred; of that, Kshs.
150,000/= was borne by NHIF, leaving a balance of Kshs. 12,060/= borne by
the respondent. The legal fees of Kshs. 10,000/= for the demand letter were
conceded by the appellants in their submissions as recoverable.
34. Accordingly, the award of Kshs. 190,560/= is set aside and substituted with
special damages of Kshs. 22,060/= (being Kshs. 12,060/= unpaid balance of
the medical invoice and Kshs. 10,000/= legal fees), subject to apportionment
as set out in this judgment.
(iii) Future medical expenses
35. An award for future medical expenses must rest on medical evidence
establishing, on a balance of probabilities, that further treatment is
reasonably required, and giving the court some basis for quantifying it. Here,
the respondent produced no specialist recommendation for physiotherapy, no
quotation, and no treatment plan. The claim as pleaded, a round figure of
Kshs. 50,000/=, appears to have been premised on the raised shoe and
physiotherapy said to be necessitated by the limb discrepancy and the 25%
disability index, the latter of which I have found unproved. Dr. Mbaruku's
report of 11th April 2023 noted that the hip fracture was still healing and
recorded the length discrepancy, but did not quantify or particularise any
future treatment; Dr. Oketch found the respondent healed.
36. Whilst I accept that the respondent underwent hip surgery and that some
continuing management (such as a shoe raise) is plausible on Dr. Mbaruku's
findings, plausibility is not proof. Nevertheless, where the fact of future
expense is established but its quantum is incapable of precise proof, a modest
global award is permissible. The trial court's figure of Kshs. 50,000/= was
itself modest and tethered to the pleaded sum. Weighing the conflicting
medical evidence, I am not persuaded that the trial magistrate erred in
principle in making a modest award under this head; the sum of Kshs.
50,000/= is neither inordinately high nor devoid of foundation given the
undisputed surgery and Dr. Mbaruku's observations. The award of Kshs.
50,000/= for future medical expenses is upheld, subject to apportionment.
(iv) Liability
37. The parties recorded a consent apportioning liability at 80:20 in favour of the
respondent. It is settled that where liability is apportioned, the apportionment
applies to the entire award — general damages, special damages and future
medical expenses alike — since the plaintiff's recovery abates to the extent of
his contribution. The trial court applied the 20% reduction only to general
damages. That was an error. All heads of damage shall be subjected to the
20% reduction contributory negligence.
(v) Costs and interest
38. The appeal has succeeded in part and the cross-appeal has failed. Costs
follow the event, but tempered by the partial nature of the appellants' success.
E. Disposition
39. In the result: (a) The appeal in HCCA No. E006 of 2025, entirely fails and the
judgement of the Lower court is affirmed on both general damages and future
medical expenses with a partial review on special damages based on the
compelling reason by this court. Likewise, the cross-appeal, HCCA No. E007
of 2025, is also dismissed for want of merit. It is also recognized under Section
27 of the CPA that costs shall follow the event and this appeal costs shall be
awarded to the respondents respectively with interest chargeable on the
decretal sum at 14% until payment in full. Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.