1. By a plaint dated 20th February 2023, the respondent instituted a suit against the appellants seeking general damages, future medical expenses, special damages, costs and interest arising from a road traffic accident which occurred on 31st December 2022 involving motor vehicle registration number KDJ 997X.
2. The appellants entered appearance and filed a statement of defence denying the occurrence of the accident, negligence and the injuries pleaded by the respondent. In the alternative, they pleaded contributory negligence on the part of the respondent.
3. Subsequently, the issue of liability was settled by consent at 100% against the appellants, leaving only the issue of quantum of damages for determination by the trial court.
4. Upon hearing the parties on quantum, the learned trial magistrate delivered judgment on 12th February 2025 and awarded the respondent KES.1,000,000 as general damages, KES.200,000 as future medical expenses and KES.9,190 as special damages together with costs and interest.
5. Being dissatisfied with the said judgment, the appellants filed the present appeal through an amended memorandum of appeal dated 18th September 2025. The appellants raised the following grounds of appeal:
1) That the learned trial magistrate erred in law and fact by making an award of general damages that was excessive and inordinately high as to amount to an injustice.
2) That the learned trial magistrate erred in law and fact by failing to take into account the nature of the injuries suffered by the respondent thereby arriving at an erroneous estimate of damages.
3) That the learned trial magistrate exercised discretion injudiciously in the assessment of damages.
4) That the learned trial magistrate failed to take into account comparable authorities involving similar injuries for purposes of uniformity and predictability of awards.
6. The appeal was canvassed through written submissions. Learned counsel for the appellants, Ouma Njoga & Co. Advocates, filed submissions dated 27th April 2026 in which counsel submitted that the learned trial magistrate failed to properly evaluate the medical evidence and the nature of the injuries sustained by the respondent and consequently arrived at an excessive award of general damages. Counsel further submitted that the evidence tendered before the trial court showed that the respondent had substantially healed from the injuries sustained and that the claim for future medical expenses was not sufficiently proved. Counsel therefore urged the court to interfere with the awards made by the subordinate court.
7. Learned counsel for the respondent, Gogi & Associates Advocates, filed submissions dated 23rd March 2026 opposing the appeal and maintaining that the injuries sustained by the minor were serious and fully supported by the treatment records, P3 Form and medical evidence produced before the trial court. Counsel submitted that the awards made by the learned trial magistrate were reasonable in the circumstances and urged the court not to interfere with the exercise of discretion by the subordinate court.
8. This being a first appeal, this court is under a duty to reconsider and re-evaluate the evidence tendered before the subordinate court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. See Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123.
9. Having considered the pleadings, evidence and submissions on record, the issues arising for determination are:
1) Whether the award of KES.1,000,000 as general damages was excessive and warranted interference by this court.
2) Whether the award of KES.200,000 for future medical expenses was specifically pleaded and proved.
10. The respondent produced outpatient treatment records from Nyamira District Hospital dated 31st December 2022 showing that upon examination, the minor had bruises on the right scalp, swollen and tender left mid clavicle, moderate tenderness on the left hip, compromised left extensor mechanism and fracture of the left clavicle. The records further showed that the respondent underwent closed reduction, cleaning and dressing of wounds and was administered analgesics, antibiotics and tetanus injection.
11. The respondent also produced a P3 Form dated 31st January 2023 which documented tenderness and swelling around the left shoulder region and classified the degree of injury as harm. In addition, the respondent produced a medical report prepared by Dr. Peter Morebu Momanyi dated 31st January 2023 confirming fracture of the left clavicle together with blood loss, physical and psychological pain, bruises on the frontal region of the head, chest contusion, multiple cut wounds, lacerations and bruises affecting both the upper and lower limbs. The doctor assessed permanent disability at 10% and recommended future surgery estimated at KES.200,000
12. PW1, Dr. Ombati Timothy, testified before the trial court on 22nd January 2024 and confirmed that according to the P3 Form, the respondent sustained injuries to the face, occipital region of the head, chest contusion, tenderness of the pubic region and multiple lacerations and bruises affecting both upper and lower limbs. During cross-examination, the witness testified that the respondent did not sustain a pelvic fracture and further stated that the injuries ought to have healed with scar formation only. PW3 equally testified that by the time of hearing, the minor had healed and was living as a normal child.
13. Upon re-evaluating the evidence on record, I am satisfied that fracture of the left clavicle was proved on a balance of probabilities. The outpatient treatment records dated 31st December 2022 expressly recorded fracture of the left clavicle and the same injury was subsequently reflected in the P3 Form dated 31st January 2023 and the medical report prepared by Dr. Peter Morebu Momanyi dated 31st January 2023.
14. Whereas the authority relied upon by the respondent involved injuries broadly comparable to those sustained herein, the claimant therein sustained more extensive head injuries in addition to the clavicle fracture. On the other hand, the authorities relied upon by the appellants involved injuries that were slightly less severe than those sustained by the respondent herein. I have also taken into account the evidence of PW1, Dr. Ombati Timothy, who testified that the injuries sustained by the respondent ought to have healed with scar formation only together with the evidence of PW3 that the minor had healed and was living normally.
15. Guided by the comparable authorities cited by the parties and the principles that assessment of damages is dependent on the peculiar facts and circumstances of each case, I am persuaded that the award of KES.1,000,000 made by the trial court slightly exceeded the reasonable range disclosed by the authorities cited before it and therefore warrants interference by this court.
16. Doing the best I can in the circumstances and taking into account the injuries proved, comparable awards and inflationary trends, I find that an award of KES.850,000 for pain, suffering and loss of amenities would constitute fair and reasonable compensation.
17. On the issue of future medical expenses, the respondent pleaded in the plaint dated 20th February 2023 that the minor would require future surgery estimated at KES.200,000 while Dr. Peter Morebu Momanyi recommended future surgery for correction and alignment of the fracture.
18. The appellants however submitted that future medical expenses must not only be specifically pleaded but also strictly proved. In the present case, the outpatient treatment record and the discharge summary did not indicate that metallic implants had been inserted or that future surgery had been scheduled or medically necessitated by the injuries sustained.
19. Further, the evidence tendered before the trial court showed that the respondent had substantially healed from the injuries sustained. Consequently, I find that the claim for future medical expenses was not proved to the required standard and the learned trial magistrate erred in awarding KES.200,000 under that head.
20. In the result, the appeal partially succeeds and in the following terms:
1) The award of KES.1,000,000 for general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KES.850,000.
2) The award of KES.200,000 for future medical expenses is hereby set aside and substituted with an order dismissing the claim under that head.
3) The award of KES.9,190 as special damages is hereby upheld.
4) Each party shall bear its own costs of the appeal.
2. The appellants entered appearance and filed a statement of defence denying the occurrence of the accident, negligence and the injuries pleaded by the respondent. In the alternative, they pleaded contributory negligence on the part of the respondent.
3. Subsequently, the issue of liability was settled by consent at 100% against the appellants, leaving only the issue of quantum of damages for determination by the trial court.
4. Upon hearing the parties on quantum, the learned trial magistrate delivered judgment on 12th February 2025 and awarded the respondent KES.1,000,000 as general damages, KES.200,000 as future medical expenses and KES.9,190 as special damages together with costs and interest.
5. Being dissatisfied with the said judgment, the appellants filed the present appeal through an amended memorandum of appeal dated 18th September 2025. The appellants raised the following grounds of appeal:
1) That the learned trial magistrate erred in law and fact by making an award of general damages that was excessive and inordinately high as to amount to an injustice.
2) That the learned trial magistrate erred in law and fact by failing to take into account the nature of the injuries suffered by the respondent thereby arriving at an erroneous estimate of damages.
3) That the learned trial magistrate exercised discretion injudiciously in the assessment of damages.
4) That the learned trial magistrate failed to take into account comparable authorities involving similar injuries for purposes of uniformity and predictability of awards.
6. The appeal was canvassed through written submissions. Learned counsel for the appellants, Ouma Njoga & Co. Advocates, filed submissions dated 27th April 2026 in which counsel submitted that the learned trial magistrate failed to properly evaluate the medical evidence and the nature of the injuries sustained by the respondent and consequently arrived at an excessive award of general damages. Counsel further submitted that the evidence tendered before the trial court showed that the respondent had substantially healed from the injuries sustained and that the claim for future medical expenses was not sufficiently proved. Counsel therefore urged the court to interfere with the awards made by the subordinate court.
7. Learned counsel for the respondent, Gogi & Associates Advocates, filed submissions dated 23rd March 2026 opposing the appeal and maintaining that the injuries sustained by the minor were serious and fully supported by the treatment records, P3 Form and medical evidence produced before the trial court. Counsel submitted that the awards made by the learned trial magistrate were reasonable in the circumstances and urged the court not to interfere with the exercise of discretion by the subordinate court.
8. This being a first appeal, this court is under a duty to reconsider and re-evaluate the evidence tendered before the subordinate court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. See Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123.
9. Having considered the pleadings, evidence and submissions on record, the issues arising for determination are:
1) Whether the award of KES.1,000,000 as general damages was excessive and warranted interference by this court.
2) Whether the award of KES.200,000 for future medical expenses was specifically pleaded and proved.
10. The respondent produced outpatient treatment records from Nyamira District Hospital dated 31st December 2022 showing that upon examination, the minor had bruises on the right scalp, swollen and tender left mid clavicle, moderate tenderness on the left hip, compromised left extensor mechanism and fracture of the left clavicle. The records further showed that the respondent underwent closed reduction, cleaning and dressing of wounds and was administered analgesics, antibiotics and tetanus injection.
11. The respondent also produced a P3 Form dated 31st January 2023 which documented tenderness and swelling around the left shoulder region and classified the degree of injury as harm. In addition, the respondent produced a medical report prepared by Dr. Peter Morebu Momanyi dated 31st January 2023 confirming fracture of the left clavicle together with blood loss, physical and psychological pain, bruises on the frontal region of the head, chest contusion, multiple cut wounds, lacerations and bruises affecting both the upper and lower limbs. The doctor assessed permanent disability at 10% and recommended future surgery estimated at KES.200,000
12. PW1, Dr. Ombati Timothy, testified before the trial court on 22nd January 2024 and confirmed that according to the P3 Form, the respondent sustained injuries to the face, occipital region of the head, chest contusion, tenderness of the pubic region and multiple lacerations and bruises affecting both upper and lower limbs. During cross-examination, the witness testified that the respondent did not sustain a pelvic fracture and further stated that the injuries ought to have healed with scar formation only. PW3 equally testified that by the time of hearing, the minor had healed and was living as a normal child.
13. Upon re-evaluating the evidence on record, I am satisfied that fracture of the left clavicle was proved on a balance of probabilities. The outpatient treatment records dated 31st December 2022 expressly recorded fracture of the left clavicle and the same injury was subsequently reflected in the P3 Form dated 31st January 2023 and the medical report prepared by Dr. Peter Morebu Momanyi dated 31st January 2023.
14. Whereas the authority relied upon by the respondent involved injuries broadly comparable to those sustained herein, the claimant therein sustained more extensive head injuries in addition to the clavicle fracture. On the other hand, the authorities relied upon by the appellants involved injuries that were slightly less severe than those sustained by the respondent herein. I have also taken into account the evidence of PW1, Dr. Ombati Timothy, who testified that the injuries sustained by the respondent ought to have healed with scar formation only together with the evidence of PW3 that the minor had healed and was living normally.
15. Guided by the comparable authorities cited by the parties and the principles that assessment of damages is dependent on the peculiar facts and circumstances of each case, I am persuaded that the award of KES.1,000,000 made by the trial court slightly exceeded the reasonable range disclosed by the authorities cited before it and therefore warrants interference by this court.
16. Doing the best I can in the circumstances and taking into account the injuries proved, comparable awards and inflationary trends, I find that an award of KES.850,000 for pain, suffering and loss of amenities would constitute fair and reasonable compensation.
17. On the issue of future medical expenses, the respondent pleaded in the plaint dated 20th February 2023 that the minor would require future surgery estimated at KES.200,000 while Dr. Peter Morebu Momanyi recommended future surgery for correction and alignment of the fracture.
18. The appellants however submitted that future medical expenses must not only be specifically pleaded but also strictly proved. In the present case, the outpatient treatment record and the discharge summary did not indicate that metallic implants had been inserted or that future surgery had been scheduled or medically necessitated by the injuries sustained.
19. Further, the evidence tendered before the trial court showed that the respondent had substantially healed from the injuries sustained. Consequently, I find that the claim for future medical expenses was not proved to the required standard and the learned trial magistrate erred in awarding KES.200,000 under that head.
20. In the result, the appeal partially succeeds and in the following terms:
1) The award of KES.1,000,000 for general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KES.850,000.
2) The award of KES.200,000 for future medical expenses is hereby set aside and substituted with an order dismissing the claim under that head.
3) The award of KES.9,190 as special damages is hereby upheld.
4) Each party shall bear its own costs of the appeal.