(Being an Appeal from the decision of the Learned Honourable Principal Magistrate C. K. Cheptoo in Nairobi CMCC No. E657 of 2020 delivered on 12.04.24)
JUDGMENT
The Respondent filed Milimani CMCC No. 657 of 2020 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA) which occurred on or about the 14 th day of June 2019 in a field off Thika Road at Allsops area.
The accident involved Motor Vehicle Registration No. KCF 886E and the Respondent’s Motorcycle Registration Number KMDK 232U on which the Respondent was lawfully riding when the said Motor Vehicle lost control and rammed into the Respondent’s Motorcycle, and as a result of which the Respondent sustained serious injuries.
The Appellants denied negligence and alleged that on the material day, the 2 nd Appellant was driving to work when all of a sudden, a Motorcycle appeared on the road while being driven on the wrong side on his right-hand side.
The Respondent’s evidence was that the Motor Vehicle Registration Number KCF 886E was being driven at a very high speed when it lost control and hit Motorcycle Registration Number KMDK 232U.
The Respondent testified as PW1 and stated that he suffered the following injuries: -
• Fracture of his hip, left hand, and right leg. He was admitted at St. Peter’s Hospital for two and a half weeks, underwent two surgeries, and was treated and then discharged. He had two metal implants inserted in his left hip, left hand, and right leg.
• It was his testimony that he suffered 20% permanent incapacity.
The Trial Court found the Appellants 80% liable in negligence and awarded damages as follows: -
• General damages for pain and suffering: Kshs. 1,400,000/=.
• Special damages: Kshs. 2,550/=.
• Costs of Future Medication: Kshs. 400,000/=.
The Appellants have appealed to this court against both liability and quantum on the following grounds: -
i. That the Learned Trial Magistrate erred in law and in fact in the way she weighed the evidence adduced before her.
ii. That the Learned Trial Magistrate erred in fact and in law by failing to appreciate the fact that the evidence produced in court was not sufficient to establish blameworthiness and liability on the part of the Defendants/Appellants.
iii. That the Learned Trial Magistrate erred in fact and in law in disregarding the Police Abstract produced by the Defendant though it clearly showed that the respondent was to blame for the accident.
iv. That the Learned Trial Magistrate erred in placing more weight on the respondent’s account of the accident despite the same not being supported by evidence.
v. That the Learned Trial Magistrate erred in awarding Kshs. 400,000/= for future medical expenses, which award was too high.
vi. The Learned Trial Magistrate erred in making an award on general damages that was too high and amounted to a completely wrong estimate in the circumstances.
The parties filed their respective written submissions on the appeal.
The Appellants submitted that the award was excessive given the nature of the injuries, noting that there was no permanent disability.
The Appellants contended that the Trial Court’s award was inordinately high and challenged the Trial Court's apportionment of liability at 80% against the Appellants.
The Appellants noted that the Respondent’s injuries (pleaded in the Plaint and Medical Report by Dr. Wambugu) included a fracture of the left acetabulum, fracture of the left humerus, and fracture of the right proximal tibia.
They further pointed out that the Medical Report by Dr. Wambugu confirmed that the injuries to the arm had healed with no permanent disability.
The Appellants cited the principles from the case of Kenya Power & Lighting Co. Ltd Vs Zakayo Saitoti Naingola (2008) , where the court held that damages must be compensatory, not excessive, and that awards should align with precedents and inflation.
The Appellants maintained that comparative case law supports lower awards (Kshs. 500,000/=–800,000/=) for similar injuries.
In support of their case, the Appellants relied on the following cases: -
i. The case of Pestony Limited & Another Vs Samuel Itonye Kagoko (2022) KEHC 1146 (KLR), where Kshs. 1,400,000/= was substituted with Kshs. 800,000/= on appeal for a fracture on the left femur and a swollen, tender left thigh.
ii. Telkom Orange Kenya Limited Vs I S O (Minor Suing Through His Next Friend and Mother J N (2018) KEHC 1915 (KLR), where Kshs. 950,000/= was reduced to Kshs. 500,000/= for similar injuries.
Consequently, the Appellants seek that the judgment of the Lower Court be set aside and an order be made dismissing the Plaintiff’s case.
The Appellants urged the court to allow the appeal, set aside the trial court’s award, and award them the costs of the appeal.
On the other hand, the Respondent submitted that he was injured in a road accident on 14.06.19 when the Motor Vehicle Registration Number KCF 886E lost control and rammed into his Motorcycle, causing him to sustain serious injuries.
The Respondent contended that a test suit ( Zarina Akbarali Shariff and Another Vs Noshir Pirosesha Sethna and Others ) established the Appellants' 80% liability, which was properly adopted in this case.
The Respondent further submitted that an Appellate Court can only interfere with the exercise of discretion by a Trial Court regarding quantum if the Trial Court applied wrong principles, considered irrelevant factors, ignored relevant evidence, or made an inordinately high or low award.
The Respondent reiterated that his injuries included a fracture of his hip, left hand, and right leg.
He argued that the award of Kshs. 400,000/= being the cost for future medication was reasonable and supported by precedents such as Tracom Limited & Another Vs Hassan Mohammed Adan (2009) .
The Respondent further submitted that the Appellants did not prove that the Trial Magistrate misapplied legal principles or acted unreasonably.
He urged that the mere fact that the award differed from the Appellants’ proposal does not make it excessive.
Consequently, the Respondent maintained that the appeal lacks merit and should be dismissed with costs.
The Respondent concluded that the Trial Court’s award was reasonable, supported by precedent, and within judicial discretion, and urged this Appellate court not to disturb it.
ANALYSIS AND DETERMINATION.
The mandate of a first Appellate Court is well settled under Kenyan jurisprudence. As the last court of facts, this court is under a strict legal duty to re-examine, re-evaluate, and analyze the entire evidence on record both oral and documentary and to arrive at its own independent conclusions on both facts and law.
This principle was famously stated in the Locus Classicus Case of Selle & Another Vs Associated Motor Boat Company Ltd & Others (1968) EA 123 , where the court held:
"An engineering or first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."
This position has been consistently reaffirmed by the Court of Appeal, notably in the case of Abok James Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR , where it was emphasized that a first appellate court must subject the entire evidence to a fresh and exhaustive scrutiny.
The court cannot simply rubber-stamp the findings of the trial Court; it must apply its own mind to the record to determine whether the conclusions reached by the trial magistrate are supported by the evidence.
Similarly, in the case of Mbogo & Another Vs Shah (1968) EA 93 , the court established the boundaries of interfering with a Trial Court’s exercise of judicial discretion. An appellate court will not disturb the findings or awards of a Trial Court unless it is demonstrated that the Trial Court misdirected itself on the law, misapprehended the evidence, took into account irrelevant considerations, omitted relevant matters, or if the decision or award is plainly wrong or a wholly erroneous estimate of the circumstances.
I now proceed to elaborate the key issues for determination in this Appeal which include;
i. Whether or not the learned trial magistrate erred in apportioning liability at 80% in favour of the respondent as against the appellant;
ii. Whether or not the quantum that was awarded was excessive in the circumstances thus warranting interference by this court
Whether the Trial Court was right in finding the Appellants 80% liable in negligence.
Regarding liability, the record establishes that the 1 st Appellant was the Registered Owner of the suit motor vehicle registration number KCF 886E, while the 2 nd Appellant was the driver at the material time.
It is an elementary principle of the law of torts that the Registered Owner of a Motor Vehicle is vicariously liable for the negligence of a driver acting as their servant or agent.
This principle is anchored on the landmark decision in Morgans Vs Launchbury (1973) AC 127 (as adopted domestically by Kenyan courts), which establishes that where a vehicle is being driven by someone other than the owner, a presumption of agency arises if the driver was handling the vehicle on the owner’s behalf or for their joint benefit. In the absence of any evidence to rebut this presumption, the 1 st Appellant remains fully and vicariously liable for the actions of the 2 nd Appellant.
Having re-evaluated the trial record and the circumstances surrounding the collision including the adoption of the liability findings from the related test suit ( Zarina Akbarali Shariff and Another Vs Noshir Pirosesha Sethna and Others) . I find no misdirection by the trial court.
The principles governing an appellate court's interference with a trial court’s apportionment of liability are highly restrictive. As settled in the locus classicus case of Khambi & Another Vs Mahil (1960) EA 268 , an appellate court will not lightly disturb a trial court’s apportionment of liability unless it is demonstrably clear that the trial magistrate misapprehended the law or the facts, acted on a wrong principle, or made a decision that was plainly erroneous.
The evidence on record shows that the Appellants' Vehicle lost control and rammed into the Respondent’s Motorcycle. The Trial Magistrate weighed the evidence of the parties and properly exercised her judicial discretion in apportioning blame. Finding no error of law or fact in that assessment, this court has no basis to displace those findings. Consequently, the trial court's apportionment of liability at 80% against the Appellants and 20% against the Respondent is hereby upheld.
i i. Whether the award of damages was excessive.
The principles upon which an appellate court will interfere with an award of damages are strictly circumscribed. It is a well-settled principle of law that an appellate court will not disturb an award of damages simply because it would have awarded a different sum.
The court must be satisfied that the trial magistrate acted on wrong principles, took into account irrelevant factors, left out relevant factors, or that the award is so inordinately high or low as to represent a wholly erroneous estimate of the damages.
This position was authoritatively stated by the Court of Appeal in the locus classicus case of Butt Vs Khan (1981) KLR 349 , where it was held that: -
"An appellate Court will not disturb an award of general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect."
Furthermore, in assessing general damages for pain and suffering, courts must aim for a reasonable degree of consistency while adjusting for the unique circumstances of each case and the progressive erosion of the value of money due to inflation.
The court observed in the case of Duncan Mwangi Wanjama Vs Republic (2012) eKLR , that, while past precedents serve as an essential guide, they are not rigid straitjackets; rather, they provide a yardstick to ensure broad judicial uniformity and fairness.
In the instant case, the respondent suffered multiple fractures, specifically of the hip (left acetabulum), left hand (humerus), and right leg (proximal tibia). The medical report by Dr. Wambugu, however, explicitly confirmed that these fractures have since healed completely with no residual permanent disability.
In reviewing the comparative authorities, the Appellants cited the case of Pestony Limited & Another Vs Samuel Itonye Kagoko , where an award of Kshs. 1,400,000/= was reduced on appeal to Kshs. 800,000/=.
The Appellants further relied on the case of Telkom Orange Kenya Limited v I S (A Minor ) , where an award was reduced to Kshs. 500,000/= for comparable injuries.
Conversely, the Respondent’s reliance on the case of Kennedy Ooko Ouma Dachi Vs Joseph Maina Kamau & Another (2018) KEHC 7839 (KLR) which yielded an award of Kshs. 1,500,000/= involved injuries that were clearly more severe and carried ongoing complications. Taking into account that the respondent hat fully recovered without a permanent disability, the trial court's award of Kshs. 1,400,000/= was inordinately high and represents a wholly erroneous estimate under the Butt Vs Khan standard. Consequently, this court interferes with that assessment and varies the award for general damages to Kshs. 1,000,000/= .
Turning to the award of Kshs. 400,000/= for the cost of future medication, the law strictly dictates that future medical expenses, like any other item of special damages, must be specifically pleaded and strictly proved by way of clear medical evidence showing the exact necessity, duration, and projected cost of the anticipated medical intervention.
This requirement was reaffirmed by the Court of Appeal in the case of Kenya Commercial Bank Ltd Vs Benjamin Kipkorir Limo [2021] KECA 254 (KLR) , which held that an award for future medical treatment cannot be based on mere conjecture or vague estimates without concrete expert medical support detailing the anticipated procedures and their corresponding financial metrics.
Given that the medical evidence on record indicates the Respondent's fractures had healed but implants inserted in the injured leg required removal at a cost ranging between Kshs 100,000 to 500,000, the trial court's gross award of Kshs. 400,000/= lacks an itemized evidentiary baseline.
Guided by the principles of strict proof of special claims, this court reduces the award under this head to a reasonable sum of Kshs. 300,000/= .
For the foregoing reasons, the upshot of this court’s decision was that the appellant’s appeal that was lodged on 7 th May 2024 is partially merited.
The effect of this is that the Judgment that was entered by the Learned trial Magistrate in Milimani CMCC No E657 of 2020 on 12 th April 2024 in favor of the Respondent herein against the Appellants herein be and is hereby set aside and/or vacated and the same be and is hereby replaced with a decision that Judgment be and is hereby entered in favour of the respondent against the appellants herein as follows: -
a) Liability is maintained at 80% against the appellants.
b) General Damages for pain and suffering are reduced to Kshs. 1,000,000/= .
c) Future Medical Expenses are reduced to Kshs. 300,000/= .
d) Special Damages are maintained at Kshs. 2,550/= .
The total gross award of Kshs. 1,302,550/= shall be subject to the 20% percentage of liability attribution to the Respondent.
Since the appeal has only partially succeeded, I direct that each party shall bear its own costs of this appeal.
Dated, Signed and delivered at KAKAMEGA virtually this 9 th day of July 2026.
D. O. ONYANGO
JUDGE.
2
JUDGMENT
The Respondent filed Milimani CMCC No. 657 of 2020 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA) which occurred on or about the 14 th day of June 2019 in a field off Thika Road at Allsops area.
The accident involved Motor Vehicle Registration No. KCF 886E and the Respondent’s Motorcycle Registration Number KMDK 232U on which the Respondent was lawfully riding when the said Motor Vehicle lost control and rammed into the Respondent’s Motorcycle, and as a result of which the Respondent sustained serious injuries.
The Appellants denied negligence and alleged that on the material day, the 2 nd Appellant was driving to work when all of a sudden, a Motorcycle appeared on the road while being driven on the wrong side on his right-hand side.
The Respondent’s evidence was that the Motor Vehicle Registration Number KCF 886E was being driven at a very high speed when it lost control and hit Motorcycle Registration Number KMDK 232U.
The Respondent testified as PW1 and stated that he suffered the following injuries: -
• Fracture of his hip, left hand, and right leg. He was admitted at St. Peter’s Hospital for two and a half weeks, underwent two surgeries, and was treated and then discharged. He had two metal implants inserted in his left hip, left hand, and right leg.
• It was his testimony that he suffered 20% permanent incapacity.
The Trial Court found the Appellants 80% liable in negligence and awarded damages as follows: -
• General damages for pain and suffering: Kshs. 1,400,000/=.
• Special damages: Kshs. 2,550/=.
• Costs of Future Medication: Kshs. 400,000/=.
The Appellants have appealed to this court against both liability and quantum on the following grounds: -
i. That the Learned Trial Magistrate erred in law and in fact in the way she weighed the evidence adduced before her.
ii. That the Learned Trial Magistrate erred in fact and in law by failing to appreciate the fact that the evidence produced in court was not sufficient to establish blameworthiness and liability on the part of the Defendants/Appellants.
iii. That the Learned Trial Magistrate erred in fact and in law in disregarding the Police Abstract produced by the Defendant though it clearly showed that the respondent was to blame for the accident.
iv. That the Learned Trial Magistrate erred in placing more weight on the respondent’s account of the accident despite the same not being supported by evidence.
v. That the Learned Trial Magistrate erred in awarding Kshs. 400,000/= for future medical expenses, which award was too high.
vi. The Learned Trial Magistrate erred in making an award on general damages that was too high and amounted to a completely wrong estimate in the circumstances.
The parties filed their respective written submissions on the appeal.
The Appellants submitted that the award was excessive given the nature of the injuries, noting that there was no permanent disability.
The Appellants contended that the Trial Court’s award was inordinately high and challenged the Trial Court's apportionment of liability at 80% against the Appellants.
The Appellants noted that the Respondent’s injuries (pleaded in the Plaint and Medical Report by Dr. Wambugu) included a fracture of the left acetabulum, fracture of the left humerus, and fracture of the right proximal tibia.
They further pointed out that the Medical Report by Dr. Wambugu confirmed that the injuries to the arm had healed with no permanent disability.
The Appellants cited the principles from the case of Kenya Power & Lighting Co. Ltd Vs Zakayo Saitoti Naingola (2008) , where the court held that damages must be compensatory, not excessive, and that awards should align with precedents and inflation.
The Appellants maintained that comparative case law supports lower awards (Kshs. 500,000/=–800,000/=) for similar injuries.
In support of their case, the Appellants relied on the following cases: -
i. The case of Pestony Limited & Another Vs Samuel Itonye Kagoko (2022) KEHC 1146 (KLR), where Kshs. 1,400,000/= was substituted with Kshs. 800,000/= on appeal for a fracture on the left femur and a swollen, tender left thigh.
ii. Telkom Orange Kenya Limited Vs I S O (Minor Suing Through His Next Friend and Mother J N (2018) KEHC 1915 (KLR), where Kshs. 950,000/= was reduced to Kshs. 500,000/= for similar injuries.
Consequently, the Appellants seek that the judgment of the Lower Court be set aside and an order be made dismissing the Plaintiff’s case.
The Appellants urged the court to allow the appeal, set aside the trial court’s award, and award them the costs of the appeal.
On the other hand, the Respondent submitted that he was injured in a road accident on 14.06.19 when the Motor Vehicle Registration Number KCF 886E lost control and rammed into his Motorcycle, causing him to sustain serious injuries.
The Respondent contended that a test suit ( Zarina Akbarali Shariff and Another Vs Noshir Pirosesha Sethna and Others ) established the Appellants' 80% liability, which was properly adopted in this case.
The Respondent further submitted that an Appellate Court can only interfere with the exercise of discretion by a Trial Court regarding quantum if the Trial Court applied wrong principles, considered irrelevant factors, ignored relevant evidence, or made an inordinately high or low award.
The Respondent reiterated that his injuries included a fracture of his hip, left hand, and right leg.
He argued that the award of Kshs. 400,000/= being the cost for future medication was reasonable and supported by precedents such as Tracom Limited & Another Vs Hassan Mohammed Adan (2009) .
The Respondent further submitted that the Appellants did not prove that the Trial Magistrate misapplied legal principles or acted unreasonably.
He urged that the mere fact that the award differed from the Appellants’ proposal does not make it excessive.
Consequently, the Respondent maintained that the appeal lacks merit and should be dismissed with costs.
The Respondent concluded that the Trial Court’s award was reasonable, supported by precedent, and within judicial discretion, and urged this Appellate court not to disturb it.
ANALYSIS AND DETERMINATION.
The mandate of a first Appellate Court is well settled under Kenyan jurisprudence. As the last court of facts, this court is under a strict legal duty to re-examine, re-evaluate, and analyze the entire evidence on record both oral and documentary and to arrive at its own independent conclusions on both facts and law.
This principle was famously stated in the Locus Classicus Case of Selle & Another Vs Associated Motor Boat Company Ltd & Others (1968) EA 123 , where the court held:
"An engineering or first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect."
This position has been consistently reaffirmed by the Court of Appeal, notably in the case of Abok James Odera & Associates v. John Patrick Machira T/A Machira & Co. Advocates (2013) eKLR , where it was emphasized that a first appellate court must subject the entire evidence to a fresh and exhaustive scrutiny.
The court cannot simply rubber-stamp the findings of the trial Court; it must apply its own mind to the record to determine whether the conclusions reached by the trial magistrate are supported by the evidence.
Similarly, in the case of Mbogo & Another Vs Shah (1968) EA 93 , the court established the boundaries of interfering with a Trial Court’s exercise of judicial discretion. An appellate court will not disturb the findings or awards of a Trial Court unless it is demonstrated that the Trial Court misdirected itself on the law, misapprehended the evidence, took into account irrelevant considerations, omitted relevant matters, or if the decision or award is plainly wrong or a wholly erroneous estimate of the circumstances.
I now proceed to elaborate the key issues for determination in this Appeal which include;
i. Whether or not the learned trial magistrate erred in apportioning liability at 80% in favour of the respondent as against the appellant;
ii. Whether or not the quantum that was awarded was excessive in the circumstances thus warranting interference by this court
Whether the Trial Court was right in finding the Appellants 80% liable in negligence.
Regarding liability, the record establishes that the 1 st Appellant was the Registered Owner of the suit motor vehicle registration number KCF 886E, while the 2 nd Appellant was the driver at the material time.
It is an elementary principle of the law of torts that the Registered Owner of a Motor Vehicle is vicariously liable for the negligence of a driver acting as their servant or agent.
This principle is anchored on the landmark decision in Morgans Vs Launchbury (1973) AC 127 (as adopted domestically by Kenyan courts), which establishes that where a vehicle is being driven by someone other than the owner, a presumption of agency arises if the driver was handling the vehicle on the owner’s behalf or for their joint benefit. In the absence of any evidence to rebut this presumption, the 1 st Appellant remains fully and vicariously liable for the actions of the 2 nd Appellant.
Having re-evaluated the trial record and the circumstances surrounding the collision including the adoption of the liability findings from the related test suit ( Zarina Akbarali Shariff and Another Vs Noshir Pirosesha Sethna and Others) . I find no misdirection by the trial court.
The principles governing an appellate court's interference with a trial court’s apportionment of liability are highly restrictive. As settled in the locus classicus case of Khambi & Another Vs Mahil (1960) EA 268 , an appellate court will not lightly disturb a trial court’s apportionment of liability unless it is demonstrably clear that the trial magistrate misapprehended the law or the facts, acted on a wrong principle, or made a decision that was plainly erroneous.
The evidence on record shows that the Appellants' Vehicle lost control and rammed into the Respondent’s Motorcycle. The Trial Magistrate weighed the evidence of the parties and properly exercised her judicial discretion in apportioning blame. Finding no error of law or fact in that assessment, this court has no basis to displace those findings. Consequently, the trial court's apportionment of liability at 80% against the Appellants and 20% against the Respondent is hereby upheld.
i i. Whether the award of damages was excessive.
The principles upon which an appellate court will interfere with an award of damages are strictly circumscribed. It is a well-settled principle of law that an appellate court will not disturb an award of damages simply because it would have awarded a different sum.
The court must be satisfied that the trial magistrate acted on wrong principles, took into account irrelevant factors, left out relevant factors, or that the award is so inordinately high or low as to represent a wholly erroneous estimate of the damages.
This position was authoritatively stated by the Court of Appeal in the locus classicus case of Butt Vs Khan (1981) KLR 349 , where it was held that: -
"An appellate Court will not disturb an award of general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect."
Furthermore, in assessing general damages for pain and suffering, courts must aim for a reasonable degree of consistency while adjusting for the unique circumstances of each case and the progressive erosion of the value of money due to inflation.
The court observed in the case of Duncan Mwangi Wanjama Vs Republic (2012) eKLR , that, while past precedents serve as an essential guide, they are not rigid straitjackets; rather, they provide a yardstick to ensure broad judicial uniformity and fairness.
In the instant case, the respondent suffered multiple fractures, specifically of the hip (left acetabulum), left hand (humerus), and right leg (proximal tibia). The medical report by Dr. Wambugu, however, explicitly confirmed that these fractures have since healed completely with no residual permanent disability.
In reviewing the comparative authorities, the Appellants cited the case of Pestony Limited & Another Vs Samuel Itonye Kagoko , where an award of Kshs. 1,400,000/= was reduced on appeal to Kshs. 800,000/=.
The Appellants further relied on the case of Telkom Orange Kenya Limited v I S (A Minor ) , where an award was reduced to Kshs. 500,000/= for comparable injuries.
Conversely, the Respondent’s reliance on the case of Kennedy Ooko Ouma Dachi Vs Joseph Maina Kamau & Another (2018) KEHC 7839 (KLR) which yielded an award of Kshs. 1,500,000/= involved injuries that were clearly more severe and carried ongoing complications. Taking into account that the respondent hat fully recovered without a permanent disability, the trial court's award of Kshs. 1,400,000/= was inordinately high and represents a wholly erroneous estimate under the Butt Vs Khan standard. Consequently, this court interferes with that assessment and varies the award for general damages to Kshs. 1,000,000/= .
Turning to the award of Kshs. 400,000/= for the cost of future medication, the law strictly dictates that future medical expenses, like any other item of special damages, must be specifically pleaded and strictly proved by way of clear medical evidence showing the exact necessity, duration, and projected cost of the anticipated medical intervention.
This requirement was reaffirmed by the Court of Appeal in the case of Kenya Commercial Bank Ltd Vs Benjamin Kipkorir Limo [2021] KECA 254 (KLR) , which held that an award for future medical treatment cannot be based on mere conjecture or vague estimates without concrete expert medical support detailing the anticipated procedures and their corresponding financial metrics.
Given that the medical evidence on record indicates the Respondent's fractures had healed but implants inserted in the injured leg required removal at a cost ranging between Kshs 100,000 to 500,000, the trial court's gross award of Kshs. 400,000/= lacks an itemized evidentiary baseline.
Guided by the principles of strict proof of special claims, this court reduces the award under this head to a reasonable sum of Kshs. 300,000/= .
For the foregoing reasons, the upshot of this court’s decision was that the appellant’s appeal that was lodged on 7 th May 2024 is partially merited.
The effect of this is that the Judgment that was entered by the Learned trial Magistrate in Milimani CMCC No E657 of 2020 on 12 th April 2024 in favor of the Respondent herein against the Appellants herein be and is hereby set aside and/or vacated and the same be and is hereby replaced with a decision that Judgment be and is hereby entered in favour of the respondent against the appellants herein as follows: -
a) Liability is maintained at 80% against the appellants.
b) General Damages for pain and suffering are reduced to Kshs. 1,000,000/= .
c) Future Medical Expenses are reduced to Kshs. 300,000/= .
d) Special Damages are maintained at Kshs. 2,550/= .
The total gross award of Kshs. 1,302,550/= shall be subject to the 20% percentage of liability attribution to the Respondent.
Since the appeal has only partially succeeded, I direct that each party shall bear its own costs of this appeal.
Dated, Signed and delivered at KAKAMEGA virtually this 9 th day of July 2026.
D. O. ONYANGO
JUDGE.
2