Coram: Before Justice R. Nyakundi
M/S Kariah & Co. Advocates
M/S Siganga & Co. Advocates
1. This appeal arises out of claim touching on the road traffic accident involving one Daniel Otieno Hassan as the Claimant as against the defendant James Odenyo Ombogo at the original trial in the plaint dated 27th of December 2022, the claimant had filed suit seeking general damages, special damages of Kshs 9,705, costs of the suit and interest of both limbs on damages. The claim was based on averment in the plaint which stated as follows: That on or about 23rd November, 2022, the Plaintiff was a lawful rider riding Motor Cycle Registration Number KMFJ 974 D BOXER along the Kisumu-Busia Road at Kefri Area when the Defendant, his driver, servant, employee and/or agent drove the said Motor Vehicle Registration Number KCF 610 X TOYOTA FIELDER sorecklessly and carelessly in such a manner that the said motor vehicle violently hit Motorcycle Registration KMFJ 974 D BOXER which was on its rightful lane thereby causing serious injuries to the Plaintiff. The Defendant is thus being held wholly liable for the said loss and damages.
2. According to the plaint allegedly the claimant now the Appellant before the High Court suffered physical injuries comprising of; cut wound on the occipital, bruises on the scrotum, bruises on the abdomen with tenderness, bruises on the right fingers, right hip dislocation with a lot of tenderness, bruises on the left thigh. The offending vehicle was identified to be registration number KCF 610X Toyota Fielder.
3. The claim was tried by the learned Magistrate who ventilated the issues on both liability and damages and consequently entered judgment against the respondent/defendant jointly and severally in the following terms:
Liability agreed by consent and apportion at 75:25% in favour of the claimant/appellant as against the defendant/respondent
General damages for pain and suffering in the sum of Kshs 700,000/= less 25% at Kshs 525,000/=
I award special damages in the sum of Kshs 12,205
I also award the costs of this suit to the plaintiff/claimant
Interest on general damages from the date of this judgment until payment in full
4. The plaintiff/claimant was aggrieved with the assessment of damages in which he preferred an appeal based on the following memorandum of appeal:
a. The Learned Trial Magistrate erred in fact and law in the assessment of future medical expenses by failing to award Kshs 2,500,000/= for the same and which failing was tantamount to an erroneous assessment of expert evidence and interpretation of law.
b. The Learned Trial Magistrate erred in law and fact in failing to consider the evidence that was tendered on future medical expenses during the hearing of the suit.
c. The Learned Trial Magistrate erred in law and fact in failing to pay regards to authorities in the Plaintiff's submissions that were guiding in future medical expenses that were appropriate and applicable in similar cases.
d. The Learned Trial Magistrate's exercise of discretion in assessment of future medical expenses was injudicious.
e. Other grounds as may be argued with leave of this Honourable Court.
f. REASONS WHEREOF the Appellant prays that this appeal be allowed and for ORDERS: -
a) THAT future medical expenses be awarded as pleaded in accordance with the expert evidence tendered and comparable authorities relied on.
b) THAT this Honorable Court do make such further orders as it may deem fit.
c) THAT this Appeal be allowed with costs to the Appellant.
5. This appeal was canvassed by way of written submission in which the Appellant learned counsel argued that the trial Court failed to award feature medical expenses which in his view from the list of document as exhibited from 1 to 6(a-b), the medical reports dated 21st January 2023 by Dr. James Obondi Otieno and other supplementary evidential material which were not captured in the judgment of the trial Court in favour of the appellant. It was the contention by learned counsel for the appellant that there was no evidence to controvert the medical evidence and the injuries suffered which required feature medical expenses. In support of the submission learned counsel relied on the following authorities: Mbogo & Anotehr v Shah [1968] EA 93, Tracom Ltd & Another v Hassan Mohamed Adan [2009] KECA 48 KLR, Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2004] eKLR, East Africa Portland Cement, CFC Stanbic Ltd & Another v Peter Ividah Muliro [2019] eKLR, Moses Theuri Ndumia vs I G Transporters Ltd & Another [2018] eKLR, Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] KECA 146 KLR and Macharia v Ambe [2025] KEHC 14583 KLR.
6. In the circumstances the appellant reiterated that the Court erred in fact and law in ignoring the evidential material which was necessary and relevant on assessment of damages totaling Kshs 2,500,000. Unfortunately for reason which are not very clear form the online portal and the manual record the respondent never favored the Court with his submission on the issues which were being canvass on this appeal. The Court recalls that on 27th of July 2026 both counsels were present when the appeal was admitted for hearing and an order that the appeal be canvassed by way of written submissions. Given that the policy of litigation following automation of the case management system each litigant has a duty of care to track the elements or metrics of the case so that he/she can take the necessary steps for the fair and proportionate administration of justice.
Decision
7. In this appeal I am guided by the principles in the cases of Selle vs Associated Motor Boat Co. [1968] EA 123 and restated in Abok James Odera T/A Odera & Associates vs John Patrick Macharia T/A Machiria & Co. Advocates [2013] eKLR where the Court stated inter alia:
"This being the first Appeal, we are reminded of our primary role as a first appellate Court namely, to re-evaluate, re-assess and re analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way."
8. In the same vein the Court in Jabane v Olinja [1986] KLR 664 further stated:
“In the first appeal the Court is mandated to reconsider and re-evaluate the evidence adduced by the witnesses before the trial Magistrate’s Court so as to arrive at an independent decision whether or not to uphold the decision of the trial Magistrate. “It can also be emphasized that it's important that, sitting in the appellate court, one of the consideration is to bear in mind the advantages enjoyed of a trial Magistrate who saw and heard the witnesses and were in all in an incompatibly better position that the appeal Court to assess the significant of what was said, and equally important what was not said."
9. In addition, in Bradshaw v McEwans Ply Ltd {1956) 94 CLR 470 the Court held:
“In a civil cause, you need only circumstances raising a more probable inference in favour of what is alleged ..... Where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference. They must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture. All that is necessary is that according to the course of common experience them more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendants negligence, by more probable is meant no more that on a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood”
10. It is therefore abundant clear that the claimant/appellant discharged the burden of proof with regard to liability which was entered by consent and now it was his turn to present both direct and circumstantial evidence with regard to assessment of damage. The bone of contention is on feature medicals. The law is now clear as to what stage or level does an appeal Court interfere with decision of a trial Court on assessment on damages. This is what the Courts have insisted and emphasizes in articulating the law. Thus:
The appellate Court only interferes with the trial Court's findings of fact if it is shown that he took into account facts or factors which he should not have taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did. See Mwangi v Wambugu [1982-1988] 1 KAR 278; Mwanasokoni v Kenya Bus Services and others [1982-1988] 1 KAR 870. For the Court of Appeal to interfere with an award of damages it must be shown that the sum awarded is demonstrably wrong or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred. See Idi Ayub Omari Shabani and another v City Council of Nairobi and another, civil appeal number 52 of 1984 [1985] 1 KAR 681.
11. In Kemfro Africa Ltd T/a Meru Express Services & Another v A. M. Lubia & Another [1982-88] 1 KAR 727 the Court added its voice to this principle:
“An appellate Court will not disturb an award of damages unless it is inordinately high or low as to represent on entirety erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he or she has apprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
12. At the outset it has to be borne in mind that compensation for personal injury claim by an act of negligence committed by the wrong doer in our highways and motorable roads is not expected to be a windfall or a bonanza nor should it be niggardly and both courts have a duty to weigh the various factors so as to quantify the amount of compensation in damages which should be said to be fair, just and proportionate. What would be just compensation is a vexed question. That is why I hold the view that there can be no golden rule to all cases for measuring the value of human life or a limb which has been damaged partially or completely permanent without any hope of restoration. This is what the persuasive Court in R.D Hattangadi v Pest Control (India) Pvt. Ltd & Ors (1995) 1 SCC 551 held that:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
13. The appeal is basically on feature medical expenses which was sufficient pleaded in the amended plaint dated 24th June 2023, which was the subject of litigation between the claimant/appellant and the defendant. It is also clear from the record of the trial Court that under Section 48 of the Evidence Act a medical report by Dr. James Obondi Otieno an Orthopaedic surgeon dated 21st January 2023 was shared with the defendant/respondent and in his prognosis he had this to say: As a result of RTA of 23/11/2022, Daniel suffered posterior right hip dislocation and posterior acetabular wall fracture. The acetabular will need open reduction and reconstruction. The hip dislocation will need total hip replacement at a total cost of 2.5 million. The injury amounted to harm.
14. In the instant appeal, there was specific evidence as stated above from Dr. James Obondi Otieno in which he stated very clearly the need and necessity for the Appellant to require and continua to feature treatment session which was estimated at 2.5 million. There was neither mention of this claim with completeness as the law requires the trial Court to do nor its dismissal and reasons given by the learned trial Magistrate. This was exercise of discretion exercised in breach of the law in terms of the laid down principles when computing compensation in reference to a claim arising from the motor vehicle accident. It is clear that the amount on account of future medical had annexures or relation with the accident injury suffered by the Appellant. It cannot therefore be wished away to defeat the just compensation in which legitimately the claimant is entitled for the loss suffered and eth permanency of eth limb which was once normal but now disfigured due to eth accident. It is trite and clear in our legal system that the awards in road traffic accident claims trial courts must endeavor to be just, which means that compensation should to the extent possible, fully and adequately restore the claimant/plaintiff to the position he/she was prior to the accident. The main objective of awarding damages in accident claims is to make loss suffered as a result of a wrong done by the tortfeasor as far as money can do so, in a fair, reasonable and equitable manner. In my view, the claim for future medicals should not have been excluded from consideration from it was not speculative or fancy. The evidence on disability was corroborated by the medical doctor whose medical report was admitted in evidence without any variation or a second medical report to controvert it. In this space of compensatory damages for physical injuries suffered, courts must remember and bear in mind that there are victims like the appellant whom must be compensated for his inability to lead a full life which bars him from enjoying those normal amenities which he could have enjoyed but for the accident. The construction of this limb on account of the accident which would require future medical expenses of 2.5 million cannot be said to farfetched to be ignored by the trial court. This medical expenses which may be required by the appellant in the future cannot be paid from his own account but by the wrong doer who is the respondent to this appeal. This is what I see as to the position taken by the medical doctor a specialist in orthopaedic in the medical field. The prognosis can fall within the following dimensional definition.
15. Thus disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident.
16. I am therefore of the considered view that principles develop in the cases of Kemfro (supra) and Idi Ayub Omari Shabani (supra) are applicable to this appeal to warrant an appeals court to review the original judgment on grounds that award on future medical was omitted by error or mistake on the face of the record. To that extent the judgment ought to be interfered with for the claim of 2.5 million less 25% contributory negligence to be part of the compensation legitimately entitled to the appellant. The final judgment of this appeal shall read as follows:
a. Liability agreed by consent and apportion at 75:25% in favour of the claimant/appellant as against the defendant/respondent
b. General damages for pain and suffering in the sum of Kshs 700,000/= less 25% at Kshs 525,000/=
c. Future medical awards at 2,500,000 less 25% apportionment on liability
d. I award special damages in the sum of Kshs 12,205
e. I also award the costs of this suit to the plaintiff/claimant
f. Interest on general damages from the date of this judgment until payment in full
Orders accordingly.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 21ST DAY OF SEPTEMBER 2026.
M/S Kariah & Co. Advocates
M/S Siganga & Co. Advocates
1. This appeal arises out of claim touching on the road traffic accident involving one Daniel Otieno Hassan as the Claimant as against the defendant James Odenyo Ombogo at the original trial in the plaint dated 27th of December 2022, the claimant had filed suit seeking general damages, special damages of Kshs 9,705, costs of the suit and interest of both limbs on damages. The claim was based on averment in the plaint which stated as follows: That on or about 23rd November, 2022, the Plaintiff was a lawful rider riding Motor Cycle Registration Number KMFJ 974 D BOXER along the Kisumu-Busia Road at Kefri Area when the Defendant, his driver, servant, employee and/or agent drove the said Motor Vehicle Registration Number KCF 610 X TOYOTA FIELDER sorecklessly and carelessly in such a manner that the said motor vehicle violently hit Motorcycle Registration KMFJ 974 D BOXER which was on its rightful lane thereby causing serious injuries to the Plaintiff. The Defendant is thus being held wholly liable for the said loss and damages.
2. According to the plaint allegedly the claimant now the Appellant before the High Court suffered physical injuries comprising of; cut wound on the occipital, bruises on the scrotum, bruises on the abdomen with tenderness, bruises on the right fingers, right hip dislocation with a lot of tenderness, bruises on the left thigh. The offending vehicle was identified to be registration number KCF 610X Toyota Fielder.
3. The claim was tried by the learned Magistrate who ventilated the issues on both liability and damages and consequently entered judgment against the respondent/defendant jointly and severally in the following terms:
Liability agreed by consent and apportion at 75:25% in favour of the claimant/appellant as against the defendant/respondent
General damages for pain and suffering in the sum of Kshs 700,000/= less 25% at Kshs 525,000/=
I award special damages in the sum of Kshs 12,205
I also award the costs of this suit to the plaintiff/claimant
Interest on general damages from the date of this judgment until payment in full
4. The plaintiff/claimant was aggrieved with the assessment of damages in which he preferred an appeal based on the following memorandum of appeal:
a. The Learned Trial Magistrate erred in fact and law in the assessment of future medical expenses by failing to award Kshs 2,500,000/= for the same and which failing was tantamount to an erroneous assessment of expert evidence and interpretation of law.
b. The Learned Trial Magistrate erred in law and fact in failing to consider the evidence that was tendered on future medical expenses during the hearing of the suit.
c. The Learned Trial Magistrate erred in law and fact in failing to pay regards to authorities in the Plaintiff's submissions that were guiding in future medical expenses that were appropriate and applicable in similar cases.
d. The Learned Trial Magistrate's exercise of discretion in assessment of future medical expenses was injudicious.
e. Other grounds as may be argued with leave of this Honourable Court.
f. REASONS WHEREOF the Appellant prays that this appeal be allowed and for ORDERS: -
a) THAT future medical expenses be awarded as pleaded in accordance with the expert evidence tendered and comparable authorities relied on.
b) THAT this Honorable Court do make such further orders as it may deem fit.
c) THAT this Appeal be allowed with costs to the Appellant.
5. This appeal was canvassed by way of written submission in which the Appellant learned counsel argued that the trial Court failed to award feature medical expenses which in his view from the list of document as exhibited from 1 to 6(a-b), the medical reports dated 21st January 2023 by Dr. James Obondi Otieno and other supplementary evidential material which were not captured in the judgment of the trial Court in favour of the appellant. It was the contention by learned counsel for the appellant that there was no evidence to controvert the medical evidence and the injuries suffered which required feature medical expenses. In support of the submission learned counsel relied on the following authorities: Mbogo & Anotehr v Shah [1968] EA 93, Tracom Ltd & Another v Hassan Mohamed Adan [2009] KECA 48 KLR, Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2004] eKLR, East Africa Portland Cement, CFC Stanbic Ltd & Another v Peter Ividah Muliro [2019] eKLR, Moses Theuri Ndumia vs I G Transporters Ltd & Another [2018] eKLR, Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] KECA 146 KLR and Macharia v Ambe [2025] KEHC 14583 KLR.
6. In the circumstances the appellant reiterated that the Court erred in fact and law in ignoring the evidential material which was necessary and relevant on assessment of damages totaling Kshs 2,500,000. Unfortunately for reason which are not very clear form the online portal and the manual record the respondent never favored the Court with his submission on the issues which were being canvass on this appeal. The Court recalls that on 27th of July 2026 both counsels were present when the appeal was admitted for hearing and an order that the appeal be canvassed by way of written submissions. Given that the policy of litigation following automation of the case management system each litigant has a duty of care to track the elements or metrics of the case so that he/she can take the necessary steps for the fair and proportionate administration of justice.
Decision
7. In this appeal I am guided by the principles in the cases of Selle vs Associated Motor Boat Co. [1968] EA 123 and restated in Abok James Odera T/A Odera & Associates vs John Patrick Macharia T/A Machiria & Co. Advocates [2013] eKLR where the Court stated inter alia:
"This being the first Appeal, we are reminded of our primary role as a first appellate Court namely, to re-evaluate, re-assess and re analyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way."
8. In the same vein the Court in Jabane v Olinja [1986] KLR 664 further stated:
“In the first appeal the Court is mandated to reconsider and re-evaluate the evidence adduced by the witnesses before the trial Magistrate’s Court so as to arrive at an independent decision whether or not to uphold the decision of the trial Magistrate. “It can also be emphasized that it's important that, sitting in the appellate court, one of the consideration is to bear in mind the advantages enjoyed of a trial Magistrate who saw and heard the witnesses and were in all in an incompatibly better position that the appeal Court to assess the significant of what was said, and equally important what was not said."
9. In addition, in Bradshaw v McEwans Ply Ltd {1956) 94 CLR 470 the Court held:
“In a civil cause, you need only circumstances raising a more probable inference in favour of what is alleged ..... Where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference. They must do more than give rise to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture. All that is necessary is that according to the course of common experience them more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendants negligence, by more probable is meant no more that on a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood”
10. It is therefore abundant clear that the claimant/appellant discharged the burden of proof with regard to liability which was entered by consent and now it was his turn to present both direct and circumstantial evidence with regard to assessment of damage. The bone of contention is on feature medicals. The law is now clear as to what stage or level does an appeal Court interfere with decision of a trial Court on assessment on damages. This is what the Courts have insisted and emphasizes in articulating the law. Thus:
The appellate Court only interferes with the trial Court's findings of fact if it is shown that he took into account facts or factors which he should not have taken into account, or that he failed to take into account matters of which he should have taken into account, that he misapprehended the effect of the evidence or that he demonstrably acted on wrong principles in reaching the findings he did. See Mwangi v Wambugu [1982-1988] 1 KAR 278; Mwanasokoni v Kenya Bus Services and others [1982-1988] 1 KAR 870. For the Court of Appeal to interfere with an award of damages it must be shown that the sum awarded is demonstrably wrong or that the award was based on a wrong principle or is so manifestly excessive or inadequate that a wrong principle may be inferred. See Idi Ayub Omari Shabani and another v City Council of Nairobi and another, civil appeal number 52 of 1984 [1985] 1 KAR 681.
11. In Kemfro Africa Ltd T/a Meru Express Services & Another v A. M. Lubia & Another [1982-88] 1 KAR 727 the Court added its voice to this principle:
“An appellate Court will not disturb an award of damages unless it is inordinately high or low as to represent on entirety erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he or she has apprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.
12. At the outset it has to be borne in mind that compensation for personal injury claim by an act of negligence committed by the wrong doer in our highways and motorable roads is not expected to be a windfall or a bonanza nor should it be niggardly and both courts have a duty to weigh the various factors so as to quantify the amount of compensation in damages which should be said to be fair, just and proportionate. What would be just compensation is a vexed question. That is why I hold the view that there can be no golden rule to all cases for measuring the value of human life or a limb which has been damaged partially or completely permanent without any hope of restoration. This is what the persuasive Court in R.D Hattangadi v Pest Control (India) Pvt. Ltd & Ors (1995) 1 SCC 551 held that:
"9. Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. So far non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters i.e. on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
13. The appeal is basically on feature medical expenses which was sufficient pleaded in the amended plaint dated 24th June 2023, which was the subject of litigation between the claimant/appellant and the defendant. It is also clear from the record of the trial Court that under Section 48 of the Evidence Act a medical report by Dr. James Obondi Otieno an Orthopaedic surgeon dated 21st January 2023 was shared with the defendant/respondent and in his prognosis he had this to say: As a result of RTA of 23/11/2022, Daniel suffered posterior right hip dislocation and posterior acetabular wall fracture. The acetabular will need open reduction and reconstruction. The hip dislocation will need total hip replacement at a total cost of 2.5 million. The injury amounted to harm.
14. In the instant appeal, there was specific evidence as stated above from Dr. James Obondi Otieno in which he stated very clearly the need and necessity for the Appellant to require and continua to feature treatment session which was estimated at 2.5 million. There was neither mention of this claim with completeness as the law requires the trial Court to do nor its dismissal and reasons given by the learned trial Magistrate. This was exercise of discretion exercised in breach of the law in terms of the laid down principles when computing compensation in reference to a claim arising from the motor vehicle accident. It is clear that the amount on account of future medical had annexures or relation with the accident injury suffered by the Appellant. It cannot therefore be wished away to defeat the just compensation in which legitimately the claimant is entitled for the loss suffered and eth permanency of eth limb which was once normal but now disfigured due to eth accident. It is trite and clear in our legal system that the awards in road traffic accident claims trial courts must endeavor to be just, which means that compensation should to the extent possible, fully and adequately restore the claimant/plaintiff to the position he/she was prior to the accident. The main objective of awarding damages in accident claims is to make loss suffered as a result of a wrong done by the tortfeasor as far as money can do so, in a fair, reasonable and equitable manner. In my view, the claim for future medicals should not have been excluded from consideration from it was not speculative or fancy. The evidence on disability was corroborated by the medical doctor whose medical report was admitted in evidence without any variation or a second medical report to controvert it. In this space of compensatory damages for physical injuries suffered, courts must remember and bear in mind that there are victims like the appellant whom must be compensated for his inability to lead a full life which bars him from enjoying those normal amenities which he could have enjoyed but for the accident. The construction of this limb on account of the accident which would require future medical expenses of 2.5 million cannot be said to farfetched to be ignored by the trial court. This medical expenses which may be required by the appellant in the future cannot be paid from his own account but by the wrong doer who is the respondent to this appeal. This is what I see as to the position taken by the medical doctor a specialist in orthopaedic in the medical field. The prognosis can fall within the following dimensional definition.
15. Thus disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human-being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person’s inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person’s inability to perform any avocation or employment related activities as a result of the accident.
16. I am therefore of the considered view that principles develop in the cases of Kemfro (supra) and Idi Ayub Omari Shabani (supra) are applicable to this appeal to warrant an appeals court to review the original judgment on grounds that award on future medical was omitted by error or mistake on the face of the record. To that extent the judgment ought to be interfered with for the claim of 2.5 million less 25% contributory negligence to be part of the compensation legitimately entitled to the appellant. The final judgment of this appeal shall read as follows:
a. Liability agreed by consent and apportion at 75:25% in favour of the claimant/appellant as against the defendant/respondent
b. General damages for pain and suffering in the sum of Kshs 700,000/= less 25% at Kshs 525,000/=
c. Future medical awards at 2,500,000 less 25% apportionment on liability
d. I award special damages in the sum of Kshs 12,205
e. I also award the costs of this suit to the plaintiff/claimant
f. Interest on general damages from the date of this judgment until payment in full
Orders accordingly.
DATED, SIGNED AND DELIVERED AT VIHIGA THIS 21ST DAY OF SEPTEMBER 2026.