(Being an Appeal from the judgment and decree of Hon. S. N. Muchungi (SRM) in Milimani Magistrates Courts CMCC No. 504 of 2020 delivered on 16th September 2022)
Background
1. The appellant Doha Boudzia has filed this appeal through a memorandum of appeal dated 12th October 2022. The appeal relates to the issue of quantum of damages only.
2. The respondent was the plaintiff before the trial court. Her claim through her plaint dated 23rd January 2020 was that she was injured following a road traffic accident that occurred on 29th January 2019. The accident occurred while she was a pillion passenger on motor cycle registration number KMER 476W along Rhapta road heading towards Westlands. It was the respondent’s case that the accident occurred at some cross-roads where the appellant’s motor vehicle registration number KCK 700V Toyota station wagon being driven in the opposite direction in a negligent or careless manner without due care and attention hit the motorcycle thereby causing the accident and as a result the respondent sustained severe injuries, loss and damage. The injuries were compound fracture of right femur, degloving injury on right foot heel and blood loss.
3. The respondent claimed for general damages for pain and suffering and special damages of KShs 1,685,072/=.
4. The appellant filed a statement of defence dated 21st June 2020 and denied the occurrence of the accident as alleged by the respondent and in the alternative pleaded that the rider of the motor cycle was to blame for the accident.
5. The respondent testified at the trial as PW 1 and produced the following documents as per her list of documents as exhibits: i) Copy of Motor Vehicle Search. ii) Copy of Police Abstract iii) Copy of P3 form. iv). Copy of letter from Delsco Enterprises. v). Copy of Doctor's Report dated 19th March, 2019. vi). Copy of Invoices from Nairobi West Hospital. vii). Copy of Discharge Summary from Nairobi west Hospital. viii). Copy of Consultation/Referral Note from Mariakani Cottage. ix). Copy of Receipt from Mariakani Cottage Hospital: x). Copy of Agreement Service letter between Jacqueline Koki and Lucyida Mwanza. xi). Copy of Agreement of service for house help 'at Kshs 12,000/= from February, 2019 to June, 2019. xii). Copies of receipts for physiotherapy sessions at Ngong Physiotherapy & Rehabilitation Services. xiii). Copies of receipts for taxi services by Benlink Travells. xiv). Copy of Demand letter. She called one witness, Dr. Maina Ruga, PW 2. The appellant did not adduce any evidence at the trial.
6. In the course of trial, learned counsel for the appellant stated that they were not disputing the occurrence of the accident.
7. After trial the learned magistrate in her judgment found the appellant wholly liable for the accident and awarded the appellant general damages KShs 1,000,000/=, future medical expenses KShs 200,000/=, loss of earnings KShs 300,000/= and special damages KShs 910,842/= together with costs and interest.
8. The appellant was dissatisfied with that decision and has filed the present appeal based on five grounds that:
a. The learned trial magistrate erred in fact and in law in awarding special damages which had not been specifically proven by the respondent.
b. The learned trial magistrate erred in fact and in law in awarding damages for loss of income that was not supported by evidence adduced in court and resulted in a misapprehension of the law and evidence.
c. The learned trial magistrate’s application of the guiding principles in the assessment of damages was flawed thereby resulting in the award of excessive damages which finding/award was not supported by any legal authority.
d. The learned trial magistrate erred in fact and in law in awarding general damages which were manifestly high in view of the nature and extent of injuries suffered thereby resulting in a miscarriage of justice.
e. The learned trial magistrate erred in fact and in law in disregarding the appellant’s written submissions and authorities thereof on the assessment of liability and quantum of damages
9. The appellant therefore prays for this court to set aside the judgment of the lower court and substitute it with a judgment awarding damages commensurate to the injuries suffered, the award of special damages to be set aside entirely and the costs of the appeal to be awarded to the appellant.
10. The appeal was disposed of by way of written submissions filed by learned counsels for the parties. The same is considered in the analysis that follows.
11. This being a first appeal, the duty of the court is to re-consider the evidence, evaluate and analyze it and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Analysis and Determination
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
13. There is no dispute on the injuries sustained by the respondent. The respondent gave evidence on the injuries she sustained and the same were confirmed by the medical report of Dr. Maina Ruga dated 19th March 2019 to be:
a. Compound fracture of right femur.
b. Degloving injury on right foot heel.
c. Blood loss.
14. The medical report indicates further that the respondent was admitted at Nairobi West hospital on 28th January 2019 to 15th February 2019. The report notes that the respondent “was ambulated and she gets physiotherapy.” At the time of examination, about one and a half months after the accident, the respondent was getting pain on the right thigh and had a wound on the heel. She was in fair general condition and using two arm crutches for support. She had three surgical scars of the lateral aspect of thigh, tenderness on palpation and bandaged wound on right heel.
15. The doctor’s opinion was that the respondent besides the injuries the respondent had suffered from a lot of pain, discomfort and blood loss. The report went on, “she is not able to carry out her usual work and will remain on temporary incapacity for up to four months. She is still continuing with treatment and follow up and this will take about one to two years. She would then be assessed for any permanent incapacity. She may require further surgery in future for removal of metal I.M. nail and screws at an estimated cost of KShs 200,000/=”.
16. In her submissions before the trial court, the respondent did not make any proposal on the award of general damages that would be suitable compensation for pain, suffering and loss of amenities. She submitted the assessment of such damages is at the discretion of the trial court. She however prayed that the trial court should award the sum of KShs 1,685,072/= special damages as the same had been pleaded and proved.
17. The appellant on his part proposed KShs 300,000/= general damages and relied on the case of H. Young Construction Company Ltd v Richard Kyule Ndolo [2014] KEHC 3152 (KLR) where the High Court on Appeal revised an award of KShs 350,000/= by the trial court with an award of KShs 250,000/= for degloving injury to the left leg with loss of skin over the calf muscles and blunt injury to the left ankle joint.
18. The appellant vehemently opposed the special damages awarded by the trial court.
19. In awarding the respondent KShs 1,000,000/= general damages for pain, suffering and loss of amenities, the learned trial magistrate relied on the following authorities:
a. Reuben Mongare Keba v L P N [2016] KEHC 749 (KLR) where the injuries were a fracture of the tibia-fibula bones of the right leg, fracture of the right femur, dislocation of the right hip joint, degloving injury of the right leg, and bruises on the chin, and the award was KShs. 800,000.00.
b. Tononoka Rolling Mills Ltd v James To Boso Were [2015] KEHC 7562 (KLR) where the plaintiff sustained degloving injury to the left thigh, compound commutated fracture mid third left femur X-ray, soft tissue injuries, pains and blood loss and functional disability assessed at 15% and was awarded Kshs 850,000/-
20. Learned counsel for the appellant submits that these authorities are not relevant as the injuries sustained by the plaintiffs therein were more severe than in the present case. He is now proposing that the court should have relied on the following cases, when in the first place he never made them available to the trial court:
a. MAW (Suing as The Mother and Next Friend to) IM (Minor) v Solomon Kabiriri Mwangi [2021] eKLR Kakamega HCCA No.76 of 2019 where the Plaintiff sustained severe head injuries, a segmented fracture of the left femur, a segmented fracture of the right femur and a fracture right radius and ulna. He was unable to walk or run, and could not use his arm well due to the accident. The High Court awarded him general damages of Kshs 700,000.00.
b. Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR Kisii HCCA 74 of 2016 where the respondent sustained injuries involving: lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, and a segmental distal fracture of the right femur. He could not walk without crutches, and permanent disability was anticipated. The High Court awarded him general damages of Kshs. 450,000/- in October 2018.
21. Learned counsel for the appellant has termed the award of KShs 1,000,000/= by the trial court to be excessive.
22. Learned counsel for the respondent defends the award as being fair submitting that no error was made by the trial court. She relies on the case of Wahinya v Lucheveleli [2022] KEHC 13762 (KLR) where the case of for the holding that:
“In assessing general damages, courts must have presence of mind to ascertain the sum of general damages that other courts and especially appellate courts would ordinarily award in respect of a particular injury. A plaintiff’s compensation ought to be comparable to awards by the other courts. In view of the aforesaid, a court must therefore be guided by precedents…”
“An appellate court can only disturb an award of damages made by a trial court if it was satisfied that it was either inordinately high or low as to justify an inference that it represented an erroneous estimate of the damage suffered; or that the trial court took into account irrelevant factors or omitted to take into account relevant ones or acted on wrong legal principles in arriving at the award.”
23. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same. The Court of Appeal in the case of Butt v Khan [1978] KECA 24 (KLR) pronounced itself on the issue as follows:
“An appellate court will not disturb an award of 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, and so arrived at a figure which was either inordinately high or low.”
24. The principles under which an appellate court may interfere with an award of quantum of damages made by a lower court were stated by the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) where Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K). This Court follows the same principles.”
25. In the present case, the appeal is based on the ground that the amount of damages awarded was so inordinately high that it represents an erroneous award.
26. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
27. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
28. Besides the cases relied upon by the trial court, I have looked up the case of Stanley Gicheru Njogo v Kijara Joseph Kagu & another [2018] KECA 749 (KLR) where the Court of Appeal in 2018 reversed a decision of the High Court which had reduced an award made by the magistrate’s court from Ksh.700,000/= to 400,000/=. The Court of Appeal reinstated the award of KShs 700,000/= where the plaintiff before the lower court had according to the medical report of Dr. Wokabi showed that he had sustained fracture of the left femur requiring internal fracture (I believe fixation) and would require removal at a cost of KShs. 70,000/-.
29. I have considered the cases relied upon by the trial court as well as the case above and I am satisfied that they bear comparable injuries to those sustained by the respondent in this case. I find that the trial court was well guided in its assessment of damages by following precedent on comparable cases. Considering the injuries sustained by the respondent and the cosmetic effect and self-esteem left upon her by the injuries, I find that the damages were not too high as to represent an erroneous estimate altogether. In the case of Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated that:
“... it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
30. Therefore, although the amount appears a little higher than this court would have been inclined to award had the case been before it as the trial court, I find that the exercise of discretion by the trial court cannot be faulted seeing that the amount awarded is in the range of awards for comparable injuries made by higher courts. Consequently, I find no reason to upset the decision of the trial court. The same is affirmed.
31. On special damages, this is highly contested by the appellant and it is proper that the particulars as laid down by the respondent in the plaint be set out for their full purport and meaning.
Particulars of Special damages
a. Nairobi West hospital in-patient bill KShs 656,120/=
b. Ambulance services from Red Cross KShs 5,000/=.
c. Professional Services at Mariakani Cottage hospital KShs 12,000/=
d. Agreement for service for nurse care
for 75 days 15th Feb. 2019 to 30th April 2019 KShs 75,000/=.
e. Agreement of service for house help
Feb. 2019 – June 2019 KShs 48,000/=.
f. X-ray services at Nairobi West hospital KShs 3,780/=
g. Patient services at Nairobi West hospital KShs 5,672/=
h. Medical examination by Dr. Maina Ruga KShs 6,000/=
i. Further surgery to remove metal I.M. nail screw KShs 200,000/=
j. Physiotherapy sessions KShs 189,000/=
k. Taxi services to Nairobi West hospital KShs 84,500/=
l. Loss of income, salary February to September KShs 400,000/=.
Total KShs 1,685,072/=
32. Among these items, the learned trial magistrate found various items proved and awarded them as follows:
a. Future medical expenses KShs 200,000/=.
33. The appellant submits that this ought to have been awarded as part of the general damages. He relies on the case of Tracom Limited & another v Hassan Mohamed Adan [2016] KECA 150 (KLR) where the Court of Appeal considering the issue stated thus;
"We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated:
"And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person's legal right should be pleaded."
We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the placе where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require..."
34. I think the submission by learned counsel is a misinterpretation of this decision which according to me never said that future medical expenses should always be assessed and awarded within general damages and not separately. The Court of Appeal clearly stated that, “... the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it” and further that “... the plaintiff may not need to specially state what amount it will be ...” For me the court said that although it is under general damages it ought to be specifically pleaded and strictly proved. In that case, it has to be separated from the other general damages for pain, suffering and loss of amenities.
35. The claim in this case was specifically pleaded and proved by the report of Dr. Ruga and therefore the submission finds no favour in this court. I find that the trial court was correct to award it.
b. Loss of income KShs 300,000/= for incapacitation for 6 months.
36. The appellant has seriously contested this amount submitting that first there was no payslip produced to show that the respondent was earning KShs 50,000/= per month. However, that submission cannot be correct because the contents of the letter dated 25th February 2019 from Delsco Contract Services Program not having been challenged, it was proof both that the respondent was employed and was earning an average sum of KShs 50,000/= per month as indicated therein.
37. The appellant submits further that as per the letter tendered in evidence from Delsco Contract Services Program, the respondent’s contract was about to come to an end at the end of February 2019 and there was no evidence tendered before the trial Court that the said contract had been renewed and/or extended. However, that is not entirely true as the letter also said that Commercial Bank of Africa (CBA) had requested that it be extended for a further six months. Given that the respondent had been working since 2014, chances that the extension was going to be granted were very high.
38. However, I note the court’s finding that incapacitation was going to be for 6 months. This was based on the doctor’s recommendation. However, the employer had indicated in its letter dated 25th February 2019, about one month after the accident that she was expected to be absent for 8 weeks within which period her replacement would be required. That would make a total of 12 weeks’ absence from work. This was in line with the doctor who had discharged her from hospital on an off-duty of six weeks. It was therefore erroneous for the learned magistrate to base her calculations on 6 months (24 weeks) absence instead of 12 weeks in which case the loss of income would be 150,000/=. The finding of the trial court under this head is therefore set aside and substituted with a sum of KShs 150,000/=.
c. Physiotherapy KShs 168,000/= and Taxi services KShs 62,500/=.
39. The appellant submits that these expenses were unjustified. For the medical service of physiotherapy, he submits that the same was not prescribed by doctors. However, that is not correct. Although there was no particular prescription, Dr. Ruga noted that at the time he was examining the respondent she was undergoing physiotherapy. There was no evidence to counter the respondent’s evidence that physiotherapy was necessary for her healing. The respondent was on crutches and that in itself meant her foot was not in effective use and so she required physiotherapy to put ii back to good use. I am satisfied that this claim was properly awarded by the trial court and the sum of KShs 168,000/= is affirmed.
40. For the taxi services the appellant submits that, the distance of service where the respondent was picked from and the destination was not shown. That in this era of online taxis, the respondent ought to have mitigated her losses if any, by engaging cheaper transport which are justifiable. The appellant did not however provide any price comparison of what such an online taxi would have charged as being different from what the respondent had submitted as what she incurred. In that case, that submission finds no favour before this court and it is dismissed. The trial court’s award of KShs 62,500/= is affirmed.
d. Medical expenses Nairobi West hospital KShs 656,120/= and KShs 5,672/=.
41. Learned counsel for the appellant submits that invoices rather than receipts for payment for these serbices were tendered in evidence and therefore these sums were not strictly proved. He relied on the cases of Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited vs Janevans Limited (2015) eKLR it was held that;
"special damages can only be proved by way of receipts and not invoices." and
42. Zacharia Waweru Thumbi vs Samuel Njoroge Thuku (2006) eKLR, it was held that;
"Given the requirement of strict proof, an invoice does not suffice as evidence but only a receipt will meet the test."
43. Indeed, the respondent confirmed in her testimony in court that she had only provided invoices as proof of payment for the services. The trial court went ahead to rely on the invoices rather than receipts as proof of payment for the services received at Nairobi West hospital. I find that was an error. and that ward must be and is hereby set aside. The Court of Appeal has consistently found that invoices without an endorsement that the same had been paid cannot be proof of special damages. See the case of Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] KECA 822 (KLR).
e. Copy of records KShs 550/=.
44. This was not pleaded and should not have been awarded. It was an error for the trial court to have awarded it. The award is set aside.
45. The trial court disallowed the expenses for nursing care and househelp on grounds that no documents had been produced to prove their payment. However, I note that the appellant had conceded to two months’ payment for nursing care for reasons that for that period the respondent was under a sick-off period. The same should have been allowed in the sum of KShs 60,000/=. This court awards the same.
46. The following awards by the trial court were not challenged before the trial court and before this court. Indeed, the appellant conceded to them before the trial court and they remain as awarded by the trial court.
a. Medical report by Dr. Maina Ruga KShs 6,000/=.
b. Medical expenses, Mariakani Cottage hospital KShs 12,000/=
47. Consequently, I find that the appeal partly succeeds and party fails as outlined above. The judgment of the trial court is this varied in terms of the findings above.
48. In summary the awards are varied and/or affirmed as follows:
a. General damages KShs 1,000,000/=.
b. Future medical expenses KShs 200,000/=
c. Loss of earnings KShs 150,000/=
d. Medical report by Dr. Maina Ruga KShs 6,000/=.
e. Medical expenses, Mariakani Cottage hospital KShs 12,000/=
f. Physiotherapy KShs168,000/=,
g. Taxi services KShs 62,500/=.
h. Nursing care KShs 60,000/=
Total KShs 1,658,500/=.
49. The appeal is successful to that extend.
50. Each party will bear its own costs of the appeal.
51. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 18th of February 2026 in the presence of:
N/A for the appellant.
Wanjiku for the respondent.
Ummu h/b for Amina: Court assistant.
Background
1. The appellant Doha Boudzia has filed this appeal through a memorandum of appeal dated 12th October 2022. The appeal relates to the issue of quantum of damages only.
2. The respondent was the plaintiff before the trial court. Her claim through her plaint dated 23rd January 2020 was that she was injured following a road traffic accident that occurred on 29th January 2019. The accident occurred while she was a pillion passenger on motor cycle registration number KMER 476W along Rhapta road heading towards Westlands. It was the respondent’s case that the accident occurred at some cross-roads where the appellant’s motor vehicle registration number KCK 700V Toyota station wagon being driven in the opposite direction in a negligent or careless manner without due care and attention hit the motorcycle thereby causing the accident and as a result the respondent sustained severe injuries, loss and damage. The injuries were compound fracture of right femur, degloving injury on right foot heel and blood loss.
3. The respondent claimed for general damages for pain and suffering and special damages of KShs 1,685,072/=.
4. The appellant filed a statement of defence dated 21st June 2020 and denied the occurrence of the accident as alleged by the respondent and in the alternative pleaded that the rider of the motor cycle was to blame for the accident.
5. The respondent testified at the trial as PW 1 and produced the following documents as per her list of documents as exhibits: i) Copy of Motor Vehicle Search. ii) Copy of Police Abstract iii) Copy of P3 form. iv). Copy of letter from Delsco Enterprises. v). Copy of Doctor's Report dated 19th March, 2019. vi). Copy of Invoices from Nairobi West Hospital. vii). Copy of Discharge Summary from Nairobi west Hospital. viii). Copy of Consultation/Referral Note from Mariakani Cottage. ix). Copy of Receipt from Mariakani Cottage Hospital: x). Copy of Agreement Service letter between Jacqueline Koki and Lucyida Mwanza. xi). Copy of Agreement of service for house help 'at Kshs 12,000/= from February, 2019 to June, 2019. xii). Copies of receipts for physiotherapy sessions at Ngong Physiotherapy & Rehabilitation Services. xiii). Copies of receipts for taxi services by Benlink Travells. xiv). Copy of Demand letter. She called one witness, Dr. Maina Ruga, PW 2. The appellant did not adduce any evidence at the trial.
6. In the course of trial, learned counsel for the appellant stated that they were not disputing the occurrence of the accident.
7. After trial the learned magistrate in her judgment found the appellant wholly liable for the accident and awarded the appellant general damages KShs 1,000,000/=, future medical expenses KShs 200,000/=, loss of earnings KShs 300,000/= and special damages KShs 910,842/= together with costs and interest.
8. The appellant was dissatisfied with that decision and has filed the present appeal based on five grounds that:
a. The learned trial magistrate erred in fact and in law in awarding special damages which had not been specifically proven by the respondent.
b. The learned trial magistrate erred in fact and in law in awarding damages for loss of income that was not supported by evidence adduced in court and resulted in a misapprehension of the law and evidence.
c. The learned trial magistrate’s application of the guiding principles in the assessment of damages was flawed thereby resulting in the award of excessive damages which finding/award was not supported by any legal authority.
d. The learned trial magistrate erred in fact and in law in awarding general damages which were manifestly high in view of the nature and extent of injuries suffered thereby resulting in a miscarriage of justice.
e. The learned trial magistrate erred in fact and in law in disregarding the appellant’s written submissions and authorities thereof on the assessment of liability and quantum of damages
9. The appellant therefore prays for this court to set aside the judgment of the lower court and substitute it with a judgment awarding damages commensurate to the injuries suffered, the award of special damages to be set aside entirely and the costs of the appeal to be awarded to the appellant.
10. The appeal was disposed of by way of written submissions filed by learned counsels for the parties. The same is considered in the analysis that follows.
11. This being a first appeal, the duty of the court is to re-consider the evidence, evaluate and analyze it and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Analysis and Determination
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
13. There is no dispute on the injuries sustained by the respondent. The respondent gave evidence on the injuries she sustained and the same were confirmed by the medical report of Dr. Maina Ruga dated 19th March 2019 to be:
a. Compound fracture of right femur.
b. Degloving injury on right foot heel.
c. Blood loss.
14. The medical report indicates further that the respondent was admitted at Nairobi West hospital on 28th January 2019 to 15th February 2019. The report notes that the respondent “was ambulated and she gets physiotherapy.” At the time of examination, about one and a half months after the accident, the respondent was getting pain on the right thigh and had a wound on the heel. She was in fair general condition and using two arm crutches for support. She had three surgical scars of the lateral aspect of thigh, tenderness on palpation and bandaged wound on right heel.
15. The doctor’s opinion was that the respondent besides the injuries the respondent had suffered from a lot of pain, discomfort and blood loss. The report went on, “she is not able to carry out her usual work and will remain on temporary incapacity for up to four months. She is still continuing with treatment and follow up and this will take about one to two years. She would then be assessed for any permanent incapacity. She may require further surgery in future for removal of metal I.M. nail and screws at an estimated cost of KShs 200,000/=”.
16. In her submissions before the trial court, the respondent did not make any proposal on the award of general damages that would be suitable compensation for pain, suffering and loss of amenities. She submitted the assessment of such damages is at the discretion of the trial court. She however prayed that the trial court should award the sum of KShs 1,685,072/= special damages as the same had been pleaded and proved.
17. The appellant on his part proposed KShs 300,000/= general damages and relied on the case of H. Young Construction Company Ltd v Richard Kyule Ndolo [2014] KEHC 3152 (KLR) where the High Court on Appeal revised an award of KShs 350,000/= by the trial court with an award of KShs 250,000/= for degloving injury to the left leg with loss of skin over the calf muscles and blunt injury to the left ankle joint.
18. The appellant vehemently opposed the special damages awarded by the trial court.
19. In awarding the respondent KShs 1,000,000/= general damages for pain, suffering and loss of amenities, the learned trial magistrate relied on the following authorities:
a. Reuben Mongare Keba v L P N [2016] KEHC 749 (KLR) where the injuries were a fracture of the tibia-fibula bones of the right leg, fracture of the right femur, dislocation of the right hip joint, degloving injury of the right leg, and bruises on the chin, and the award was KShs. 800,000.00.
b. Tononoka Rolling Mills Ltd v James To Boso Were [2015] KEHC 7562 (KLR) where the plaintiff sustained degloving injury to the left thigh, compound commutated fracture mid third left femur X-ray, soft tissue injuries, pains and blood loss and functional disability assessed at 15% and was awarded Kshs 850,000/-
20. Learned counsel for the appellant submits that these authorities are not relevant as the injuries sustained by the plaintiffs therein were more severe than in the present case. He is now proposing that the court should have relied on the following cases, when in the first place he never made them available to the trial court:
a. MAW (Suing as The Mother and Next Friend to) IM (Minor) v Solomon Kabiriri Mwangi [2021] eKLR Kakamega HCCA No.76 of 2019 where the Plaintiff sustained severe head injuries, a segmented fracture of the left femur, a segmented fracture of the right femur and a fracture right radius and ulna. He was unable to walk or run, and could not use his arm well due to the accident. The High Court awarded him general damages of Kshs 700,000.00.
b. Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR Kisii HCCA 74 of 2016 where the respondent sustained injuries involving: lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, and a segmental distal fracture of the right femur. He could not walk without crutches, and permanent disability was anticipated. The High Court awarded him general damages of Kshs. 450,000/- in October 2018.
21. Learned counsel for the appellant has termed the award of KShs 1,000,000/= by the trial court to be excessive.
22. Learned counsel for the respondent defends the award as being fair submitting that no error was made by the trial court. She relies on the case of Wahinya v Lucheveleli [2022] KEHC 13762 (KLR) where the case of for the holding that:
“In assessing general damages, courts must have presence of mind to ascertain the sum of general damages that other courts and especially appellate courts would ordinarily award in respect of a particular injury. A plaintiff’s compensation ought to be comparable to awards by the other courts. In view of the aforesaid, a court must therefore be guided by precedents…”
“An appellate court can only disturb an award of damages made by a trial court if it was satisfied that it was either inordinately high or low as to justify an inference that it represented an erroneous estimate of the damage suffered; or that the trial court took into account irrelevant factors or omitted to take into account relevant ones or acted on wrong legal principles in arriving at the award.”
23. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same. The Court of Appeal in the case of Butt v Khan [1978] KECA 24 (KLR) pronounced itself on the issue as follows:
“An appellate court will not disturb an award of 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, and so arrived at a figure which was either inordinately high or low.”
24. The principles under which an appellate court may interfere with an award of quantum of damages made by a lower court were stated by the Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) where Kneller J.A. stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K). This Court follows the same principles.”
25. In the present case, the appeal is based on the ground that the amount of damages awarded was so inordinately high that it represents an erroneous award.
26. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
27. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
28. Besides the cases relied upon by the trial court, I have looked up the case of Stanley Gicheru Njogo v Kijara Joseph Kagu & another [2018] KECA 749 (KLR) where the Court of Appeal in 2018 reversed a decision of the High Court which had reduced an award made by the magistrate’s court from Ksh.700,000/= to 400,000/=. The Court of Appeal reinstated the award of KShs 700,000/= where the plaintiff before the lower court had according to the medical report of Dr. Wokabi showed that he had sustained fracture of the left femur requiring internal fracture (I believe fixation) and would require removal at a cost of KShs. 70,000/-.
29. I have considered the cases relied upon by the trial court as well as the case above and I am satisfied that they bear comparable injuries to those sustained by the respondent in this case. I find that the trial court was well guided in its assessment of damages by following precedent on comparable cases. Considering the injuries sustained by the respondent and the cosmetic effect and self-esteem left upon her by the injuries, I find that the damages were not too high as to represent an erroneous estimate altogether. In the case of Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated that:
“... it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
30. Therefore, although the amount appears a little higher than this court would have been inclined to award had the case been before it as the trial court, I find that the exercise of discretion by the trial court cannot be faulted seeing that the amount awarded is in the range of awards for comparable injuries made by higher courts. Consequently, I find no reason to upset the decision of the trial court. The same is affirmed.
31. On special damages, this is highly contested by the appellant and it is proper that the particulars as laid down by the respondent in the plaint be set out for their full purport and meaning.
Particulars of Special damages
a. Nairobi West hospital in-patient bill KShs 656,120/=
b. Ambulance services from Red Cross KShs 5,000/=.
c. Professional Services at Mariakani Cottage hospital KShs 12,000/=
d. Agreement for service for nurse care
for 75 days 15th Feb. 2019 to 30th April 2019 KShs 75,000/=.
e. Agreement of service for house help
Feb. 2019 – June 2019 KShs 48,000/=.
f. X-ray services at Nairobi West hospital KShs 3,780/=
g. Patient services at Nairobi West hospital KShs 5,672/=
h. Medical examination by Dr. Maina Ruga KShs 6,000/=
i. Further surgery to remove metal I.M. nail screw KShs 200,000/=
j. Physiotherapy sessions KShs 189,000/=
k. Taxi services to Nairobi West hospital KShs 84,500/=
l. Loss of income, salary February to September KShs 400,000/=.
Total KShs 1,685,072/=
32. Among these items, the learned trial magistrate found various items proved and awarded them as follows:
a. Future medical expenses KShs 200,000/=.
33. The appellant submits that this ought to have been awarded as part of the general damages. He relies on the case of Tracom Limited & another v Hassan Mohamed Adan [2016] KECA 150 (KLR) where the Court of Appeal considering the issue stated thus;
"We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated:
"And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person's legal right should be pleaded."
We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the placе where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require..."
34. I think the submission by learned counsel is a misinterpretation of this decision which according to me never said that future medical expenses should always be assessed and awarded within general damages and not separately. The Court of Appeal clearly stated that, “... the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it” and further that “... the plaintiff may not need to specially state what amount it will be ...” For me the court said that although it is under general damages it ought to be specifically pleaded and strictly proved. In that case, it has to be separated from the other general damages for pain, suffering and loss of amenities.
35. The claim in this case was specifically pleaded and proved by the report of Dr. Ruga and therefore the submission finds no favour in this court. I find that the trial court was correct to award it.
b. Loss of income KShs 300,000/= for incapacitation for 6 months.
36. The appellant has seriously contested this amount submitting that first there was no payslip produced to show that the respondent was earning KShs 50,000/= per month. However, that submission cannot be correct because the contents of the letter dated 25th February 2019 from Delsco Contract Services Program not having been challenged, it was proof both that the respondent was employed and was earning an average sum of KShs 50,000/= per month as indicated therein.
37. The appellant submits further that as per the letter tendered in evidence from Delsco Contract Services Program, the respondent’s contract was about to come to an end at the end of February 2019 and there was no evidence tendered before the trial Court that the said contract had been renewed and/or extended. However, that is not entirely true as the letter also said that Commercial Bank of Africa (CBA) had requested that it be extended for a further six months. Given that the respondent had been working since 2014, chances that the extension was going to be granted were very high.
38. However, I note the court’s finding that incapacitation was going to be for 6 months. This was based on the doctor’s recommendation. However, the employer had indicated in its letter dated 25th February 2019, about one month after the accident that she was expected to be absent for 8 weeks within which period her replacement would be required. That would make a total of 12 weeks’ absence from work. This was in line with the doctor who had discharged her from hospital on an off-duty of six weeks. It was therefore erroneous for the learned magistrate to base her calculations on 6 months (24 weeks) absence instead of 12 weeks in which case the loss of income would be 150,000/=. The finding of the trial court under this head is therefore set aside and substituted with a sum of KShs 150,000/=.
c. Physiotherapy KShs 168,000/= and Taxi services KShs 62,500/=.
39. The appellant submits that these expenses were unjustified. For the medical service of physiotherapy, he submits that the same was not prescribed by doctors. However, that is not correct. Although there was no particular prescription, Dr. Ruga noted that at the time he was examining the respondent she was undergoing physiotherapy. There was no evidence to counter the respondent’s evidence that physiotherapy was necessary for her healing. The respondent was on crutches and that in itself meant her foot was not in effective use and so she required physiotherapy to put ii back to good use. I am satisfied that this claim was properly awarded by the trial court and the sum of KShs 168,000/= is affirmed.
40. For the taxi services the appellant submits that, the distance of service where the respondent was picked from and the destination was not shown. That in this era of online taxis, the respondent ought to have mitigated her losses if any, by engaging cheaper transport which are justifiable. The appellant did not however provide any price comparison of what such an online taxi would have charged as being different from what the respondent had submitted as what she incurred. In that case, that submission finds no favour before this court and it is dismissed. The trial court’s award of KShs 62,500/= is affirmed.
d. Medical expenses Nairobi West hospital KShs 656,120/= and KShs 5,672/=.
41. Learned counsel for the appellant submits that invoices rather than receipts for payment for these serbices were tendered in evidence and therefore these sums were not strictly proved. He relied on the cases of Total (Kenya) Limited formerly Caltex Oil (Kenya) Limited vs Janevans Limited (2015) eKLR it was held that;
"special damages can only be proved by way of receipts and not invoices." and
42. Zacharia Waweru Thumbi vs Samuel Njoroge Thuku (2006) eKLR, it was held that;
"Given the requirement of strict proof, an invoice does not suffice as evidence but only a receipt will meet the test."
43. Indeed, the respondent confirmed in her testimony in court that she had only provided invoices as proof of payment for the services. The trial court went ahead to rely on the invoices rather than receipts as proof of payment for the services received at Nairobi West hospital. I find that was an error. and that ward must be and is hereby set aside. The Court of Appeal has consistently found that invoices without an endorsement that the same had been paid cannot be proof of special damages. See the case of Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] KECA 822 (KLR).
e. Copy of records KShs 550/=.
44. This was not pleaded and should not have been awarded. It was an error for the trial court to have awarded it. The award is set aside.
45. The trial court disallowed the expenses for nursing care and househelp on grounds that no documents had been produced to prove their payment. However, I note that the appellant had conceded to two months’ payment for nursing care for reasons that for that period the respondent was under a sick-off period. The same should have been allowed in the sum of KShs 60,000/=. This court awards the same.
46. The following awards by the trial court were not challenged before the trial court and before this court. Indeed, the appellant conceded to them before the trial court and they remain as awarded by the trial court.
a. Medical report by Dr. Maina Ruga KShs 6,000/=.
b. Medical expenses, Mariakani Cottage hospital KShs 12,000/=
47. Consequently, I find that the appeal partly succeeds and party fails as outlined above. The judgment of the trial court is this varied in terms of the findings above.
48. In summary the awards are varied and/or affirmed as follows:
a. General damages KShs 1,000,000/=.
b. Future medical expenses KShs 200,000/=
c. Loss of earnings KShs 150,000/=
d. Medical report by Dr. Maina Ruga KShs 6,000/=.
e. Medical expenses, Mariakani Cottage hospital KShs 12,000/=
f. Physiotherapy KShs168,000/=,
g. Taxi services KShs 62,500/=.
h. Nursing care KShs 60,000/=
Total KShs 1,658,500/=.
49. The appeal is successful to that extend.
50. Each party will bear its own costs of the appeal.
51. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 18th of February 2026 in the presence of:
N/A for the appellant.
Wanjiku for the respondent.
Ummu h/b for Amina: Court assistant.