REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E059 OF 2024
CAR & GENERAL (TRADING LTD) …………………….…….…... 1 ST APPELLANT
BELVIN USIDE………………………………………………………….2 ND APPELLANT
VERSUS
BENJAMIN TABANE AMAUWA …………..…..…………………….. RESPONDENT
(Being an appeal from the Judgment and Decree of Hon Beryl M.A. Omollo (SRM) delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No E147 of 2022 on 15 th October 2024)
JUDGMENT
INTRODUCTION
1. In her decision of 15 th October 2024, the Learned Trial Magistrate, Hon Beryl M.A. Omollo, Senior Resident Magistrate, entered Judgment in favour of the Respondent against the Appellants in the following terms: -
General damages Kshs 900,000/=
Less 20% liability Kshs 180,000/=
Kshs 720,000/=
Special damages Kshs 1,520/=
Future medical expenses Kshs 700,000/=
Kshs 1,421,520/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellants herein filed a Memorandum of Appeal dated and filed on 28 th October 2024. They relied on three (3) grounds of appeal.
3. Their Written Submissions were dated 8 th October 2025 and filed on 16 th October 2025 while those of the Respondent were dated 24 th November 2025 and filed on 26 th November 2025. The Judgment herein is based on the said Written Submissions, which all parties relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the Trial Court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having considered the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the issue that had been placed before it for determination was whether or not the awards on quantum were reasonable in the circumstances. The grounds of appeal were dealt with under the distinct and separate heads as shown hereinbelow.
I. GENERAL DAMAGES
7. Grounds of Appeal Nos (1) and (3) were considered together as they were related .
8. The Appellants pointed out that liability had been compromised at the ratio of 80% against 20% in favour of the Respondent, leaving the issue of quantum for determination.
9. They submitted that an appellate court could only interfere with an award where it was too high or too low as to be an erroneous estimate, or where the Trial Court failed to consider material particulars or the correct principles. They stated that the Respondent was aged seventy-nine (79) years of age at the material time of the accident. They averred that Dr Neema Mbaruku examined him on 17 th March 2023 and listed his injuries as soft tissue injuries and a fracture of the right lateral tibia plateau and, which healed with a malunion of the tibia plateau.
10. They contended that upon subsequent re-examination on 28 th August 2023, Dr Protas Were Oketch found a “grossly normal right knee” and a “clinically united and healed fracture of the tibia plateau laterally.” They submitted that the said doctor concluded that the Respondent had fully healed from his injuries with no resultant permanent incapacity. They added that there was no further or subsequent medical evidence challenging or controverting those findings.
11. They asserted that the conclusion by Dr Protas Were Oketch was the last prognosis or opinion and hence, ought to have informed the Trial Court’s awards on quantum. They contended that the Trial Court, however, did not mention or consider his Medical Report and only considered that of Dr Neema Mbaruku and awarded a sum of Kshs 900,000/= for pain, suffering and loss of amenities. It was their submission that had the Trial Court considered the Medical Report of Dr Protas Were Oketch, it would have appreciated that save for the fracture of the right tibial plateau, which had healed, the rest of the Respondent's injuries were minor soft tissue injuries. They proposed an award of Kshs 400,000/= general damages at full liability .
12. They relied on the following cases:-
1. Simon Kimote vs Agro Solutions Ltd Machakos HCCA No 90 of 2016 (KLR citation not given)
The claimant (sic) therein sustained a fracture of the right femur, lower 1/3 tibia plateau fracture, blunt head injury and blunt neck injury and an award of Kshs 350,000/= was upheld in 2021
2. Harun Muyoma Boge vs Dr. Daniel Otieno Agulo Migori HCCA No 7 of 2015 (KLR citation not given)
The plaintiff therein suffered blunt chest injuries, cut wounds to the right wrist, a deep cut wound to the right foot, fracture of the tibia and soft tissue injuries and was awarded a sum of Kshs 300,000/= general damages.
13. They submitted that the claimants (sic) in the authorities cited hereinabove suffered graver and more debilitating injuries than what the Respondent in the present case herein sustained.
14. On his part, the Respondent herein relied on Butt vs Khan, Civil Appeal No. 40 of 1997 , Omar vs Ngowa & Another 2024 eKLR , Elias Kayaga Moturi & Another vs Dolphin Kwamboka [2023] eKLR , Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR and Shreeji Enterprises Limited vs John Mungai Chai [2020] eKLR where the common thread was that an appellate court would not interfere with an award of damages merely because it would have awarded a different figure, unless the award was inordinately high or low or the trial court had proceeded on wrong principles or misapprehended the evidence in a material respect.
15. He submitted that he had sustained a fracture of the right lateral tibia condylar joint at the knee, together with swelling on the forehead, tenderness on the neck, chest tenderness and backache, tenderness and bruises on the elbow, a swollen right knee and a cut wound on the right leg. He submitted that, at the time of the hearing, he had not fully healed, he had continued to experience pain in the right leg at the knee joint, he had been unable to bear weight on the limb and required crutches to ambulate due to the deformity at the fractured site, which was visible during the hearing of the suit, two (2) years after the occurrence of the accident.
16. He contended that despite concurring on the injuries he sustained as per the treatment chits, Dr Neema Mbaruku’s Medical Report and the X-ray Report by Dr Kouko, Dr Protas Were Oketch did not address the aspect of the osteoarthritis in his Medical Report dated 28 th August 2023. He submitted that although the said doctor noted that he had healed without any permanent incapacitations, he was in court walking with crutches.
17. He averred that Dr Neema Mbaruku had noted a mal-union and increased severity of the osteoarthritis, which necessitated the use of crutches, whereas four (4) months later, Dr Protas Were Oketch, did not address the malunion, incapacitation, increased severity of the osteoarthritis, any operative procedure to correct the deformity or the need and cost of knee replacement.
18. He relied on the following cases:-
1. Hellen Mwende Makau & 2 Others vs Boniface Mitira Nandwa [2025] eKLR
An award of Kshs 1,300,000/= was upheld for a fracture of the tibial plateau, metallic implants in situ and loss of an upper incisor tooth, with incapacitation of five per cent (5%)– ten per cent (10%) and future medical expenses as was indicated in the earlier medical report.
2. Thairu & Another vs Aliea [2023] eKLR
An award of Kshs. 1,200,000/= was upheld for a tibia fibula fracture which healed with twenty per cent (20%) incapacitation.
3. Beth Wanjiru Kariuki alias Beth Wanduku vs Wikika Saving & Credit Co-operative Society [2019] eKLR
An award of Kshs 1,500,000/= was reduced to Kshs. 900,000/= for a right tibia plateau fracture on the condyle aspect with eight per cent (8%) incapacitation and need for knee replacement.
19. He submitted that, although the injuries in the case of Hellen Mwende Makau & 2 Others vs Boniface Mitira Nandwa were slightly more severe due to the loss of a tooth, his injuries were aggravated by the deformity of the fractured leg and increased severity of the osteoarthritis, hence the need for knee replacement. He submitted that the sum of Kshs 900,000/= was reasonable and within range, given the effects of the injuries sustained vis-à-vis his age of seventy (70) years at the material time.
20. A perusal of both the Plaint dated 21 st July 2022 and filed on 26 th July 2022 and the undated Amended Plaint filed on 16 th May 2023 showed that the Respondent sustained the following injuries: -
a. Swelling on the forehead
b. Tenderness on the neck
c. Chest tenderness and backache
d. Tenderness and bruises on the elbow
e. Swollen right knee joint
f. Stitched cut wound on the right leg
g. Fracture on the right lateral Tibia Condylar bones
21. The Respondent adopted his undated Witness Statement filed on 26 th July 2022 as his evidence in chief. He produced a Medical Report dated 17 th March 2023 by Dr Neema Mbaruku which indicated that he had lateral tibia plateau fracture with impression of malunion of the lateral tibia plateau, right side, with resultant increased severity of right knee osteoarthritis. The said Medical Report recommended total knee replacement, subsequent physiotherapy, anticoagulation therapy and follow-up, and anaelgesics, at an estimated cost of Kshs 700,000/=.
22. The Appellants produced a Medical Report dated 28 th August 2023 by Dr Protas Were Oketch. The said Medical Report showed the Respondent’s injuries as blunt injury to the right knee and cut wound on the right leg. It indicated under title treatment that the Respondent sustained a fracture of the lateral tibial condyle of the right knee, and a cut wound on the right leg and that he had since healed from the injuries.
23. It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury.
24. However, this assessment is not without limits. A court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court must therefore be guided by precedents.
25. Indeed, in the case of Kigaraari vs Aya (1982-88) 1 KAR 768 it was stated as follows: -
“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”
26. Notably, the Appellants did not adduce any oral evidence. They did not also call Dr Protas Were Okech to tender in evidence his Medical Report. His Medical Report was produced from the bar and marked as Defendants’ Exhibit 1. This court carefully perused the proceedings and did not see any consent between the Appellants and the Respondent herein for the Respondent’s advocate to tender in evidence the said Medical Report on behalf of Dr Protas Were Oketch. Nonetheless, the Respondent’s counsel did not object to the said Medical Report being tendered in the manner that it was. This court could only deem the Respondent’s silence and/or failure to object as acquiescence.
27. The Trial Court awarded Kshs 900,000/= as general damages. Taking into account the aspect of inflation, it was the considered view that the said sum of Kshs 900,000/= general damages was fair and reasonable. In arriving at the said figure, this court had due regard to the following cases: -
1. Kariuki alias Beth Wanduku vs Wikika Saving & Credit Co-operative Society Limited KEHC 18725 (KLR)
The court therein awarded a sum of Kshs 900,000/= where the plaintiff therein had suffered a fracture of the tibia plateau, a fracture of the lateral femoral condyle, and a fracture of the right patella.
2. Ombati vs Mainda & Another KEHC 15491 (KLR)
The court therein awarded a sum of Kshs. 700,000/= as general damages where the appellant therein had suffered a right tibia plateau fracture, swelling on the head, chest tenderness and severe back contusions.
3. Akoko vs Masudi [2026] KEHC 8928 (KLR)
The court therein awarded a sum of Kshs 900,000/= where the respondent therein had suffered an open fracture of the right tibia/fibula, bruises on the left forearm, right shoulder, right chest and left forehead, multiple soft tissue injuries of the upper limbs, head and chest, and the fracture had healed with a bony deformity of the right leg due to malunited fractures of the tibia and fibula bones with excessive callus and multiple scars.
28. As was held in the case of Selle vs Associated Motor Boat Company Ltd (Supra) , an appellate court ought not to interfere with an award for damages merely because it could have awarded a lower figure. As this court found the said sum of Kshs 900,000/= fair and reasonable, this court left the said sum undisturbed.
29. In the premises foregoing, Grounds of Appeal Nos (1) and (3) were not merited and the same be and are hereby dismissed.
II. FUTURE MEDICAL COSTS
30. Ground of Appeal No (2) was dealt with under this head.
31. The Appellants made reference to the Medical Report of Dr Neema Mbaruku in which the said doctor recommended total knee replacement at Kshs 700,000/=. They contended that the said award of Kshs 700,000/= was not only too high and or excessive but was also unjustified. They were emphatic that no award should be made for future medical expenses. They asserted that at the time of trial, the Respondent had not undergone a knee replacement and, according to Dr Protas Were Oketch, he had fully healed with a hypopigmented ovoid scar on the mid-lateral aspect of the right leg but with no permanent incapacity. They averred that the said doctor did not make any reference to the Respondent having a knee replacement, future surgery or medication or future medical expenses.
32. They therefore added that no basis for the award and urged the court to vacate and quash in entirety.
33. On his part, the Respondent submitted that Dr Neema Mbaruku’s Medical Report, made one (1) year after the occurrence of the accident, noted that the mal-united leg required revision surgery and total knee replacement at a cost of Kshs 700,000/= and assessed his incapacitation at fifteen (15%) per cent. He therefore urged the court to adopt Dr. Neema Mbaruku’s medical report and uphold the award of Kshs. 700,000/= for knee replacement.
34. The Medical Report tendered by the Respondent in evidence indicated that he would require total knee replacement, subsequent physiotherapy, anticoagulation therapy and anaelgesics at an estimated cost of Kshs 700,000/=. The Medical Report that was prepared by Dr Oketch Protas Were and produced by the Appellants indicated that the Respondent had healed with no resultant permanent incapacitation.
35. It was evident that the two (2) Medical Reports alluded to the Respondent having been examined for the injuries sustained to the right lower limb and that he had healed. Notably, the Trial Court awarded a sum of Kshs. 700,000/= for future medical expenses on the ground that the same was prayed for and authorities attached. This court noted that the Appellants had not produced any evidence to the contrary and that their doctor had not stated the estimated future costs.
36. In his undated Amended Plaint, the Respondent pleaded and prayed for future medical expenses of Kshs 700,000/=. The Medical Report by Dr Neema Mbaruku was dated 17 th March 2023. It was therefore clear that, as at the time of filing the initial Plaint dated 21 st July 2022, he was not aware of the cost of future medical expenses and subsequently filed a Supplementary List of Documents dated 18 th September 2023.
37. Future medical expenses were a special damage claim and had to be pleaded. Putting the sum in the body of the Amended Plaint and as a relief was deemed to be sufficient pleading. The claim for future medical expenses was sought as a relief in the Amended Plaint. The Appellants ought to have called Dr Protas Were Oketch to expound on his prognosis of the Respondent’s injuries and counter the evidence of Dr Neema Mbaruku and Dr J.O. Kouko.
38. Indeed, Dr Neema Mbaruku had noted that the Respondent was in valgus deformity with limitation of full range motion. On the other hand, Dr J. O. Kouko also observed that the Respondent had knee joint osteoarthritis and reduction of space in his lateral tibia femoral joint. In the absence of his contrary evidence regarding the future medical expenses, this court came to the firm conclusion that the Trial Court did not err when it held and awarded the claim for future medical expenses as the same had been pleaded and proved.
39. However, there was no documentary evidence showing the cost of knee replacement. The figure of Kshs 700,000/= was unsupported. This court was, therefore, hesitant to award the Respondent the entire figure and found it fair to award half of that amount.
40. Based on the foregoing, it was the view of this court that the award of Kshs 700,000/= be and is hereby set aside and replaced with a figure of Kshs 350,000/= for future medical expenses. In the premises, Ground of Appeal No (2) was partially merited and the same be and is hereby allowed to the extent of the reduced sum of future medical expenses.
III. SPECIAL DAMAGES
41. Although the issue of special damages was not raised as a ground of appeal, the duty of this court was to re-evaluate the evidence and come to its independent conclusion. This court was required to re-examine the conclusion that the Trial Court arrived at regarding how special damages were to be calculated in the Respondent’s claim against the Appellant herein. Indeed, as this court had both original and appellate jurisdiction, it could critically look at the proceedings of the Trial Court to correct any irregularities and/or misapplication of principles by it.
42. In this regard, this court found that the Trial Court erred in not having subjected special damages to contributory negligence of twenty per cent (20%) as was required by the law.
IV. INTEREST
43. The Appellants did not raise any issue regarding the interest as a ground of appeal herein. That notwithstanding, this court also found it prudent to address the same as it noted an anomaly in the way interest on special damages was to be calculated.
44. The Respondent prayed for the dismissal of the appeal with costs and interest at the rate of fourteen per cent (14%). The Trial Court awarded him costs of the suit together with interest on general damages from the date of judgment until payment in full. However, the Trial Court did not explain why it did not award interest on special damages. This was erroneous, as claimants were generally entitled to interest on special damages from the date of filing suit until payment in full, and interest on general damages from the date of judgment until payment in full.
45. As the Respondent was kept away from monies incurred as a result of the accident from the time he filed the suit, special damages were to accrue interest from the date of filing suit until payment in full. On the other hand, general damages were to accrue interest from 15 th October 2024, which was the date of judgment and not 16 th October 2024 as was indicated in the Decree, until payment in full interest.
DISPOSITION
46. For the foregoing reasons, the upshot of this court’s decision was that the Appellants’ Appeal, dated and filed on 28 th October 2024, was partially merited. The Judgment of the Trial Court delivered at Vihiga in SPMCC No E147 of 2022 on 15 th October 2024 is and is hereby set aside and/or vacated and replaced with an order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 1,001,216/= made up as follows:-
General damages Kshs 900,000/=
Future medical expenses Kshs 350,000/=
Special damages Kshs 1,520/=
Kshs 1,251,520/=
Less 20% contributory negligence Kshs 250,304/=
Kshs 1,001,216/=
Plus costs of the suit and interest thereon at court rates.
47. For the avoidance of doubt, interest on special damages and future medical expenses will be from the date of filing the suit until payment in full while the interest on general damages will be from the date of the judgment of the Trial Court until payment in full.
48. As the Appellants were partially successful in this Appeal, each party will bear its own costs of this appeal.
49. It is so ordered.
DATED and DELIVERED at VIHIGA this 17 th day of September 2026
J. KAMAU
JUDGE
HCCA NO E059 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E059 OF 2024
CAR & GENERAL (TRADING LTD) …………………….…….…... 1 ST APPELLANT
BELVIN USIDE………………………………………………………….2 ND APPELLANT
VERSUS
BENJAMIN TABANE AMAUWA …………..…..…………………….. RESPONDENT
(Being an appeal from the Judgment and Decree of Hon Beryl M.A. Omollo (SRM) delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No E147 of 2022 on 15 th October 2024)
JUDGMENT
INTRODUCTION
1. In her decision of 15 th October 2024, the Learned Trial Magistrate, Hon Beryl M.A. Omollo, Senior Resident Magistrate, entered Judgment in favour of the Respondent against the Appellants in the following terms: -
General damages Kshs 900,000/=
Less 20% liability Kshs 180,000/=
Kshs 720,000/=
Special damages Kshs 1,520/=
Future medical expenses Kshs 700,000/=
Kshs 1,421,520/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellants herein filed a Memorandum of Appeal dated and filed on 28 th October 2024. They relied on three (3) grounds of appeal.
3. Their Written Submissions were dated 8 th October 2025 and filed on 16 th October 2025 while those of the Respondent were dated 24 th November 2025 and filed on 26 th November 2025. The Judgment herein is based on the said Written Submissions, which all parties relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the Trial Court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having considered the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the issue that had been placed before it for determination was whether or not the awards on quantum were reasonable in the circumstances. The grounds of appeal were dealt with under the distinct and separate heads as shown hereinbelow.
I. GENERAL DAMAGES
7. Grounds of Appeal Nos (1) and (3) were considered together as they were related .
8. The Appellants pointed out that liability had been compromised at the ratio of 80% against 20% in favour of the Respondent, leaving the issue of quantum for determination.
9. They submitted that an appellate court could only interfere with an award where it was too high or too low as to be an erroneous estimate, or where the Trial Court failed to consider material particulars or the correct principles. They stated that the Respondent was aged seventy-nine (79) years of age at the material time of the accident. They averred that Dr Neema Mbaruku examined him on 17 th March 2023 and listed his injuries as soft tissue injuries and a fracture of the right lateral tibia plateau and, which healed with a malunion of the tibia plateau.
10. They contended that upon subsequent re-examination on 28 th August 2023, Dr Protas Were Oketch found a “grossly normal right knee” and a “clinically united and healed fracture of the tibia plateau laterally.” They submitted that the said doctor concluded that the Respondent had fully healed from his injuries with no resultant permanent incapacity. They added that there was no further or subsequent medical evidence challenging or controverting those findings.
11. They asserted that the conclusion by Dr Protas Were Oketch was the last prognosis or opinion and hence, ought to have informed the Trial Court’s awards on quantum. They contended that the Trial Court, however, did not mention or consider his Medical Report and only considered that of Dr Neema Mbaruku and awarded a sum of Kshs 900,000/= for pain, suffering and loss of amenities. It was their submission that had the Trial Court considered the Medical Report of Dr Protas Were Oketch, it would have appreciated that save for the fracture of the right tibial plateau, which had healed, the rest of the Respondent's injuries were minor soft tissue injuries. They proposed an award of Kshs 400,000/= general damages at full liability .
12. They relied on the following cases:-
1. Simon Kimote vs Agro Solutions Ltd Machakos HCCA No 90 of 2016 (KLR citation not given)
The claimant (sic) therein sustained a fracture of the right femur, lower 1/3 tibia plateau fracture, blunt head injury and blunt neck injury and an award of Kshs 350,000/= was upheld in 2021
2. Harun Muyoma Boge vs Dr. Daniel Otieno Agulo Migori HCCA No 7 of 2015 (KLR citation not given)
The plaintiff therein suffered blunt chest injuries, cut wounds to the right wrist, a deep cut wound to the right foot, fracture of the tibia and soft tissue injuries and was awarded a sum of Kshs 300,000/= general damages.
13. They submitted that the claimants (sic) in the authorities cited hereinabove suffered graver and more debilitating injuries than what the Respondent in the present case herein sustained.
14. On his part, the Respondent herein relied on Butt vs Khan, Civil Appeal No. 40 of 1997 , Omar vs Ngowa & Another 2024 eKLR , Elias Kayaga Moturi & Another vs Dolphin Kwamboka [2023] eKLR , Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR and Shreeji Enterprises Limited vs John Mungai Chai [2020] eKLR where the common thread was that an appellate court would not interfere with an award of damages merely because it would have awarded a different figure, unless the award was inordinately high or low or the trial court had proceeded on wrong principles or misapprehended the evidence in a material respect.
15. He submitted that he had sustained a fracture of the right lateral tibia condylar joint at the knee, together with swelling on the forehead, tenderness on the neck, chest tenderness and backache, tenderness and bruises on the elbow, a swollen right knee and a cut wound on the right leg. He submitted that, at the time of the hearing, he had not fully healed, he had continued to experience pain in the right leg at the knee joint, he had been unable to bear weight on the limb and required crutches to ambulate due to the deformity at the fractured site, which was visible during the hearing of the suit, two (2) years after the occurrence of the accident.
16. He contended that despite concurring on the injuries he sustained as per the treatment chits, Dr Neema Mbaruku’s Medical Report and the X-ray Report by Dr Kouko, Dr Protas Were Oketch did not address the aspect of the osteoarthritis in his Medical Report dated 28 th August 2023. He submitted that although the said doctor noted that he had healed without any permanent incapacitations, he was in court walking with crutches.
17. He averred that Dr Neema Mbaruku had noted a mal-union and increased severity of the osteoarthritis, which necessitated the use of crutches, whereas four (4) months later, Dr Protas Were Oketch, did not address the malunion, incapacitation, increased severity of the osteoarthritis, any operative procedure to correct the deformity or the need and cost of knee replacement.
18. He relied on the following cases:-
1. Hellen Mwende Makau & 2 Others vs Boniface Mitira Nandwa [2025] eKLR
An award of Kshs 1,300,000/= was upheld for a fracture of the tibial plateau, metallic implants in situ and loss of an upper incisor tooth, with incapacitation of five per cent (5%)– ten per cent (10%) and future medical expenses as was indicated in the earlier medical report.
2. Thairu & Another vs Aliea [2023] eKLR
An award of Kshs. 1,200,000/= was upheld for a tibia fibula fracture which healed with twenty per cent (20%) incapacitation.
3. Beth Wanjiru Kariuki alias Beth Wanduku vs Wikika Saving & Credit Co-operative Society [2019] eKLR
An award of Kshs 1,500,000/= was reduced to Kshs. 900,000/= for a right tibia plateau fracture on the condyle aspect with eight per cent (8%) incapacitation and need for knee replacement.
19. He submitted that, although the injuries in the case of Hellen Mwende Makau & 2 Others vs Boniface Mitira Nandwa were slightly more severe due to the loss of a tooth, his injuries were aggravated by the deformity of the fractured leg and increased severity of the osteoarthritis, hence the need for knee replacement. He submitted that the sum of Kshs 900,000/= was reasonable and within range, given the effects of the injuries sustained vis-à-vis his age of seventy (70) years at the material time.
20. A perusal of both the Plaint dated 21 st July 2022 and filed on 26 th July 2022 and the undated Amended Plaint filed on 16 th May 2023 showed that the Respondent sustained the following injuries: -
a. Swelling on the forehead
b. Tenderness on the neck
c. Chest tenderness and backache
d. Tenderness and bruises on the elbow
e. Swollen right knee joint
f. Stitched cut wound on the right leg
g. Fracture on the right lateral Tibia Condylar bones
21. The Respondent adopted his undated Witness Statement filed on 26 th July 2022 as his evidence in chief. He produced a Medical Report dated 17 th March 2023 by Dr Neema Mbaruku which indicated that he had lateral tibia plateau fracture with impression of malunion of the lateral tibia plateau, right side, with resultant increased severity of right knee osteoarthritis. The said Medical Report recommended total knee replacement, subsequent physiotherapy, anticoagulation therapy and follow-up, and anaelgesics, at an estimated cost of Kshs 700,000/=.
22. The Appellants produced a Medical Report dated 28 th August 2023 by Dr Protas Were Oketch. The said Medical Report showed the Respondent’s injuries as blunt injury to the right knee and cut wound on the right leg. It indicated under title treatment that the Respondent sustained a fracture of the lateral tibial condyle of the right knee, and a cut wound on the right leg and that he had since healed from the injuries.
23. It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury.
24. However, this assessment is not without limits. A court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court must therefore be guided by precedents.
25. Indeed, in the case of Kigaraari vs Aya (1982-88) 1 KAR 768 it was stated as follows: -
“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”
26. Notably, the Appellants did not adduce any oral evidence. They did not also call Dr Protas Were Okech to tender in evidence his Medical Report. His Medical Report was produced from the bar and marked as Defendants’ Exhibit 1. This court carefully perused the proceedings and did not see any consent between the Appellants and the Respondent herein for the Respondent’s advocate to tender in evidence the said Medical Report on behalf of Dr Protas Were Oketch. Nonetheless, the Respondent’s counsel did not object to the said Medical Report being tendered in the manner that it was. This court could only deem the Respondent’s silence and/or failure to object as acquiescence.
27. The Trial Court awarded Kshs 900,000/= as general damages. Taking into account the aspect of inflation, it was the considered view that the said sum of Kshs 900,000/= general damages was fair and reasonable. In arriving at the said figure, this court had due regard to the following cases: -
1. Kariuki alias Beth Wanduku vs Wikika Saving & Credit Co-operative Society Limited KEHC 18725 (KLR)
The court therein awarded a sum of Kshs 900,000/= where the plaintiff therein had suffered a fracture of the tibia plateau, a fracture of the lateral femoral condyle, and a fracture of the right patella.
2. Ombati vs Mainda & Another KEHC 15491 (KLR)
The court therein awarded a sum of Kshs. 700,000/= as general damages where the appellant therein had suffered a right tibia plateau fracture, swelling on the head, chest tenderness and severe back contusions.
3. Akoko vs Masudi [2026] KEHC 8928 (KLR)
The court therein awarded a sum of Kshs 900,000/= where the respondent therein had suffered an open fracture of the right tibia/fibula, bruises on the left forearm, right shoulder, right chest and left forehead, multiple soft tissue injuries of the upper limbs, head and chest, and the fracture had healed with a bony deformity of the right leg due to malunited fractures of the tibia and fibula bones with excessive callus and multiple scars.
28. As was held in the case of Selle vs Associated Motor Boat Company Ltd (Supra) , an appellate court ought not to interfere with an award for damages merely because it could have awarded a lower figure. As this court found the said sum of Kshs 900,000/= fair and reasonable, this court left the said sum undisturbed.
29. In the premises foregoing, Grounds of Appeal Nos (1) and (3) were not merited and the same be and are hereby dismissed.
II. FUTURE MEDICAL COSTS
30. Ground of Appeal No (2) was dealt with under this head.
31. The Appellants made reference to the Medical Report of Dr Neema Mbaruku in which the said doctor recommended total knee replacement at Kshs 700,000/=. They contended that the said award of Kshs 700,000/= was not only too high and or excessive but was also unjustified. They were emphatic that no award should be made for future medical expenses. They asserted that at the time of trial, the Respondent had not undergone a knee replacement and, according to Dr Protas Were Oketch, he had fully healed with a hypopigmented ovoid scar on the mid-lateral aspect of the right leg but with no permanent incapacity. They averred that the said doctor did not make any reference to the Respondent having a knee replacement, future surgery or medication or future medical expenses.
32. They therefore added that no basis for the award and urged the court to vacate and quash in entirety.
33. On his part, the Respondent submitted that Dr Neema Mbaruku’s Medical Report, made one (1) year after the occurrence of the accident, noted that the mal-united leg required revision surgery and total knee replacement at a cost of Kshs 700,000/= and assessed his incapacitation at fifteen (15%) per cent. He therefore urged the court to adopt Dr. Neema Mbaruku’s medical report and uphold the award of Kshs. 700,000/= for knee replacement.
34. The Medical Report tendered by the Respondent in evidence indicated that he would require total knee replacement, subsequent physiotherapy, anticoagulation therapy and anaelgesics at an estimated cost of Kshs 700,000/=. The Medical Report that was prepared by Dr Oketch Protas Were and produced by the Appellants indicated that the Respondent had healed with no resultant permanent incapacitation.
35. It was evident that the two (2) Medical Reports alluded to the Respondent having been examined for the injuries sustained to the right lower limb and that he had healed. Notably, the Trial Court awarded a sum of Kshs. 700,000/= for future medical expenses on the ground that the same was prayed for and authorities attached. This court noted that the Appellants had not produced any evidence to the contrary and that their doctor had not stated the estimated future costs.
36. In his undated Amended Plaint, the Respondent pleaded and prayed for future medical expenses of Kshs 700,000/=. The Medical Report by Dr Neema Mbaruku was dated 17 th March 2023. It was therefore clear that, as at the time of filing the initial Plaint dated 21 st July 2022, he was not aware of the cost of future medical expenses and subsequently filed a Supplementary List of Documents dated 18 th September 2023.
37. Future medical expenses were a special damage claim and had to be pleaded. Putting the sum in the body of the Amended Plaint and as a relief was deemed to be sufficient pleading. The claim for future medical expenses was sought as a relief in the Amended Plaint. The Appellants ought to have called Dr Protas Were Oketch to expound on his prognosis of the Respondent’s injuries and counter the evidence of Dr Neema Mbaruku and Dr J.O. Kouko.
38. Indeed, Dr Neema Mbaruku had noted that the Respondent was in valgus deformity with limitation of full range motion. On the other hand, Dr J. O. Kouko also observed that the Respondent had knee joint osteoarthritis and reduction of space in his lateral tibia femoral joint. In the absence of his contrary evidence regarding the future medical expenses, this court came to the firm conclusion that the Trial Court did not err when it held and awarded the claim for future medical expenses as the same had been pleaded and proved.
39. However, there was no documentary evidence showing the cost of knee replacement. The figure of Kshs 700,000/= was unsupported. This court was, therefore, hesitant to award the Respondent the entire figure and found it fair to award half of that amount.
40. Based on the foregoing, it was the view of this court that the award of Kshs 700,000/= be and is hereby set aside and replaced with a figure of Kshs 350,000/= for future medical expenses. In the premises, Ground of Appeal No (2) was partially merited and the same be and is hereby allowed to the extent of the reduced sum of future medical expenses.
III. SPECIAL DAMAGES
41. Although the issue of special damages was not raised as a ground of appeal, the duty of this court was to re-evaluate the evidence and come to its independent conclusion. This court was required to re-examine the conclusion that the Trial Court arrived at regarding how special damages were to be calculated in the Respondent’s claim against the Appellant herein. Indeed, as this court had both original and appellate jurisdiction, it could critically look at the proceedings of the Trial Court to correct any irregularities and/or misapplication of principles by it.
42. In this regard, this court found that the Trial Court erred in not having subjected special damages to contributory negligence of twenty per cent (20%) as was required by the law.
IV. INTEREST
43. The Appellants did not raise any issue regarding the interest as a ground of appeal herein. That notwithstanding, this court also found it prudent to address the same as it noted an anomaly in the way interest on special damages was to be calculated.
44. The Respondent prayed for the dismissal of the appeal with costs and interest at the rate of fourteen per cent (14%). The Trial Court awarded him costs of the suit together with interest on general damages from the date of judgment until payment in full. However, the Trial Court did not explain why it did not award interest on special damages. This was erroneous, as claimants were generally entitled to interest on special damages from the date of filing suit until payment in full, and interest on general damages from the date of judgment until payment in full.
45. As the Respondent was kept away from monies incurred as a result of the accident from the time he filed the suit, special damages were to accrue interest from the date of filing suit until payment in full. On the other hand, general damages were to accrue interest from 15 th October 2024, which was the date of judgment and not 16 th October 2024 as was indicated in the Decree, until payment in full interest.
DISPOSITION
46. For the foregoing reasons, the upshot of this court’s decision was that the Appellants’ Appeal, dated and filed on 28 th October 2024, was partially merited. The Judgment of the Trial Court delivered at Vihiga in SPMCC No E147 of 2022 on 15 th October 2024 is and is hereby set aside and/or vacated and replaced with an order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 1,001,216/= made up as follows:-
General damages Kshs 900,000/=
Future medical expenses Kshs 350,000/=
Special damages Kshs 1,520/=
Kshs 1,251,520/=
Less 20% contributory negligence Kshs 250,304/=
Kshs 1,001,216/=
Plus costs of the suit and interest thereon at court rates.
47. For the avoidance of doubt, interest on special damages and future medical expenses will be from the date of filing the suit until payment in full while the interest on general damages will be from the date of the judgment of the Trial Court until payment in full.
48. As the Appellants were partially successful in this Appeal, each party will bear its own costs of this appeal.
49. It is so ordered.
DATED and DELIVERED at VIHIGA this 17 th day of September 2026
J. KAMAU
JUDGE
HCCA NO E059 OF 20242