1. This appeal emanates from the judgement and decree of Hon. G.C. Serem, Resident Magistrate/Adjudicator delivered on 24th July, 2024 in Kisumu SCCC/E061/2024 G.C.X. v Erick Otieno.
2. This appeal relates solely to the issue of quantum of damages. The trial court’s finding on liability – that the Appellant was 100% liable in negligence – is not contested. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 12th August, 2024, in seeking to set aside the judgment and decree of the trial court with respect to the award on quantum:
i. THAT the learned trial Magistrate erred in law and in fact in awarding general damages of Ksh.400,000/- which award was excessive and not commensurate to the nature of injuries sustained by the Respondent.
ii. THAT the learned trial Magistrate erred in law and in fact in awarding future medical expenses at Ksh.500,000/- which award was excessive in the circumstances.
iii. THAT the learned trial Magistrate erred in law and in fact in failing to pay regard to authorities in the Appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case that she was deciding.
3. The Appellant proposes that the appeal be allowed, that the trial court’s finding and/or assessment on the quantum of damages be set aside, this court proceeds to make its own assessment and that the costs of the appeal be awarded to the Appellant.
4. As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. I will, however, confine my consideration to the evidence relevant to the issue of quantum of damages.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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 demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 28th September, 2023 in which the Respondent (the Claimant before the trial court) sustained bodily injuries.
8. The Respondent sued the Appellant vide the statement of claim dated 30th January, 2024 seeking to recover general damages for pain, suffering and loss of amenities, future medical expenses, interest and costs of the suit, claiming that the accident occurred due to the negligence of the Appellant and/or its servant, employee and/or agent.
9. The Respondent pleaded listed the following particulars of injuries and particulars of special damages in his pleading:
Particulars of injuries:
a. Blunt abdominal trauma with viscera injuries.
b. Injury to the right elbow joint.
c. Injury to the right knee joint.
d. Intestinal perforation.
e. Tenderness on the right elbow.
f. Tenderness on the right knee joint.
g. Injury to the chest.
10. The Appellant resisted the claim and, in that regard, filed a response to the statement of claim 16th February, 2024. In particular, the Appellant denied that the Respondent sustained the nature and extent of injuries as pleaded in the plaint.
11. The Respondent/Minor’s next friend testified before the trial court as CW1 and adopted his witness statement dated 30th January, 2024 as his evidence-in-chief. In that statement, he reiterated that the Respondent sustained the injuries enumerated above as a result of the accident. He further stated that the Respondent was treated in a number of hospitals and underwent corrective surgeries at Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) and Moi Teaching and Referral Hospital (MTRH) and that as at the time of testifying, the Respondent was still attending reviews at MTRH.
12. The witness produced the following documents in support of the Respondent’s case:
- Copy of CW1’s ID.
- Copy of the Respondent’s birth certificate.
- Police abstract.
- P3 form.
- Medical report dated 9th January, 2024.
- Treatment document from Kisumu County Hospital.
- Discharge summary from Africa Inuka Hospital.
- Exemption application from JOOTRH, dated 17th October, 2023.
- Receipt no. 4142604 for Ksh.5,000/-.
- Discharge summary dated 17th October, 2023 from JOOTRH.
- Interim invoice for Ksh.20,000/- from JOOTRH.
- Abdominal scan image and report dated 18th December, 2023
- Inpatient/outpatient continuation sheet from JOOTRH dated 17th October, 2023
- Laboratory report form dated 18th December, 2023 from JOOTRH.
- Laboratory report dated 18th December, 2024.
- Laboratory request form dated 9th October, 2023 from JOOTRH
- Examination request form dated 5th October, 2023 from Africa Inuka Hospital.
- Ultrasound image and report dated 5th October, 2023.
- Discharge summary from MTRH dated 19th December, 2023.
- Radiology request dated 9th November, 2023 from MTRH.
- Radiology request/report form dated 13th November, 2023 from MTRH.
- Radiology request /report form dated 28th October, 2023 from MTRH.
- Radiology request/report form dated 2nd November, 2023 from MTRH.
- NHIF surgical services pre-authorization form dated 9th November, 2023.
- Demand letter to the Appellant and his insures.
- Copy of insurance sticker/certificate.
- Respondent’s statement
13. During cross-examination, CW1 informed the trial court that the Respondent had undergone an intestinal operation. He further testified that the Respondent sustained blunt abdominal trauma as well as injuries to the left elbow joint and the right knee.
14. CW1 further stated that, at the time of giving his testimony, the Respondent was still attending review appointments at MTRH. However, he conceded that he did not have the most recent review documents with him.
15. The Appellant called RW1, Dr. Jennifer Kahotho, a general practitioner. In her testimony before the trial court, RW1 stated that she prepared a medical report after examining the Respondent. She informed the court that, according to the medical records, the Respondent had been treated at Kisumu County Referral Hospital (KCRH), Africa Inuka Hospital, and MTRH. She explained that the Respondent sustained blunt abdominal trauma and was taken to theatre, where a section of his intestine was removed and an anastomosis performed. Subsequently, he underwent a second surgical procedure during which an ileostomy was created to facilitate the passage of faecal matter. After recovery, the Respondent underwent another surgery during which the abdomen was closed.
16. RW1 further testified that at the time of her examination, the Respondent was in fair general condition, recovering well and passing stool normally through the anus. She added that the abdomen had been successfully closed and that no further costly medical treatment was required.
17. During cross-examination, the witness stated that she holds a bachelor’s degree in medicine and clarified that she is not a gastroenterologist. Consequently, she indicated that she was not professionally qualified to provide an expert opinion at the level of a gastroenterologist.
18. RW1 also confirmed that the Respondent had undergone three surgical procedures. In her opinion, the Respondent would not require any further medical intervention in the future.
19. In assessing the quantum of damages, the learned Adjudicator rendered herself as follows in her judgement”
8. On quantum the Claimant stated that he sustained blunt abdominal trauma, injury to the right elbow joint, injury to the right knee joint intestinal obstruction and abdominal surgical scar, tenderness on the right elbow, tenderness to the chest and injury to the chest. CW1 stated that the child went through intestine operations and that they still went to hospital for the reviews.
9. The P3 confirmed that the injuries and stated that the injuries was grievous harm. The medical report by Dr. George Mwita herein confirmed the injuries and further indicated that the patient herein claimant (sic) would need future medical expenses for physical attention, analgesics and physiotherapy for the sum of Ksh.500,000/-. The injuries were equally confirmed by the medical document from Africa Inuka Hospital, discharge summary of JOOTRH and MTRH. The Respondent filled a medical report which stated that the claimant suffered blunt abdominal injury with gut perforation and soft tissue injuries.
10. The court has given due consideration to the case law quoted and provided by the parties herein and made comparisons on the injuries the plaintiffs therein sustained and those the Claimant herein sustained. I am accordingly guided by the decisions of the superior courts in determining how much the Plaintiff should be awarded as compensation. I also note the injuries the Plaintiff sustained as a result of the accident. They were soft tissue injuries and blunt injury to the abdomen with abdominal trauma. The court has equally considered the passage of time and rate of inflation and find Ksh.400,000/- to be sufficient compensation. Nguku Joseph & another v Gerald Kihiu Maina [2020] eKLR where the appellate court awarded similar damages for the similar injuries of the claimant in this matter.
11. On future medical expenses, the report by Dr George Mwita stated that there was a future medical expense of Ksh.500,000/- for physical attention, nutrition needs, analgesics and physiotherapy. The Respondent’s report did not comment on the future medical expenses .When RW1 testified she stated that from her examination the stoma was already closed and he did not need further procedure.
12. The court of appeal in Tracom Limited & v Hasssan Mohamed Adan [2009] eKLR held as follows: -
“...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 v 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 place 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...”.
13. The Respondent herein did state that here was no more surgery needed and further the stoma was closed. The medical report was herein clear that the same was not for a specific surgery it was for physical attention and nutrition needs and physiotherapy. The Claimant pleaded future medical expenses of Ksh.500,000/- and this was confirmed by the report by George Mwita hence the same is awarded as prayed.
20. This court directed that the appeal be canvassed by way of written submissions and both parties filed their respective submissions.
21. In his submissions, the Appellant proffers the position that the learned trial Magistrate erred in law and fact in awarding general damages of Kshs. 400,000 to the Respondent, arguing that the amount is excessive given that the Respondent primarily sustained soft tissue injuries.
22. The Appellant contends that the assessment of general damages is a discretionary exercise that must be exercised judicially, with due regard to relevant legal principles and that the discretion may be interfered with where the trial court considered irrelevant factors, ignored relevant factors or awarded a sum so disproportionate that it constitutes a wholly erroneous estimate.
23. The Appellant further submits that the award of future medical expenses of Ksh.500,000/- was similarly erroneous as evidence from Dr. Jennifer Kahotho and Dr. George Mwita shows that the Respondent had recovered fully, with the stoma closed, normal bowel function restored and no leakage detected in a barium enema examination and that the Respondent does not therefore require any further costly medical interventions, making the award unjustified.
24. The Appellant emphasizes that damages must be within consistent limits and guided by awards in comparable cases. He relies on the authority of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR, as cited in Michael Okello v Priscilla Atieno [2021] eKLR, where the courts held that comparable injuries should as far as possible receive comparable compensation, keeping in mind the prevailing levels of awards in similar cases. He further relies on the case of Kigaraari v Aya (1982-88) 1 KAR 768, as cited in Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR, where it was held that damages must remain within limits set by prior cases and courts must avoid imposing an undue burden through inflated awards.
25. The Appellant refers to the Respondent’s treatment records from KCRH, JOOTRH, Africa Inuka Hospital and MTRH, which he states indicate treatment for minor bruises, abdominal trauma and post-ileostomy recovery, with full recovery noted. Based on these records, the Appellant submits that the Respondent’s injuries do not justify the high awards made by the trial court.
26. The Appellant notes that in Muhiu v Obare (Civil Appeal E212 of 2022) [2024] KEHC 11225 (KLR), the High Court reduced an award of Ksh.900,000/- for a blunt abdominal injury and fracture to Ksh.250,000/-, emphasizing that awards should reflect the nature and severity of the injuries sustained. Applying similar reasoning, the Appellant submits that a maximum award of Ksh.250,000/- would be appropriate in the present case.
27. In conclusion, the Appellant urges this Court to disturb the trial court’s findings entirely, or in the alternative, to substantially revise the quantum of general and future medical damages, as both awards were excessive and unsupported by the medical evidence.
28. On his part, the Respondent submits that the trial court’s decision on quantum was fair and sound and that there is no cogent reason advanced by the Appellant to warrant setting aside the award of general and future medical damages. He fully supports the trial court’s analysis of quantum, stating that the trial court clearly explained how it arrived at the award.
29. The Respondent submits that the trial court correctly found that the award of Ksh.400,000/- for general damages aligns with the nature of the injuries sustained, which he states were confirmed by the Respondent’s medical documents, the second medical report and the testimony of the Respondent’s witness.
30. Regarding future medical expenses, the Respondent notes that the trial court relied on the decision in Tracom Limited v Hassan Mohammed Adan [2009] eKLR, observing that such expenses were specifically pleaded and proved by the evidence of Dr. George Mwita and that the trial court recognized that the funds were necessary for ongoing physical care, physiotherapy and nutrition, rather than surgery, due to the effects of the three prior surgeries on the minor. Consequently, he urges that the award of Ksh.500,000/- for future medical expenses was reasonable and should not be disturbed.
31. The Respondent further submits that the trial court arrived at its decision after considering the testimony of both the Respondent and the medical experts. He further submits that the Appellant’s assertion that the trial court failed to consider submissions filed by the parties is incorrect and states that the court explicitly acknowledged in its judgement that it had considered the case law and submissions provided by the parties and had compared the injuries sustained by the Respondent with those in cited cases to guide the award.
32. The Respondent asserts that the Appellant has not identified any specific issue that the trial court allegedly overlooked and that there is therefore no justification to disturb the trial court’s findings on quantum and seeks that the appeal be dismissed with costs.
33. Having carefully considered the record of appeal, the judgement of the trial court and the respective submissions by the parties, it is evident that the appeal before this Court is confined solely to the question of quantum of damages. Liability was determined by the trial court at 100% against the Appellant and that finding has not been challenged on appeal. Consequently, the Court is only called upon to determine whether the awards made by the trial court were proper in the circumstances.
34. In light of the grounds of appeal and the arguments advanced by the parties, two issues arise for determination. The first issue is whether the award of Ksh.400,000/- as general damages for pain, suffering and loss of amenities was excessive in view of the nature and extent of the injuries sustained by the Respondent. In determining this issue, the Court must consider the medical evidence on record as well as comparable authorities relied upon by the parties and assess whether the trial court exercised its discretion judiciously.
35. The second issue for determination is whether the award of Ksh.500,000/- for future medical expenses was justified based on the evidence presented before the trial court. In this regard, the Court must examine whether the claim for future medical expenses was properly pleaded and proved, and whether the medical evidence supported the need for such an award in the circumstances of this case.
36. The Court will therefore proceed to consider each of the above issues in turn.
37. The question for determination under the first issue is whether the award of Ksh.400,000/- as general damages for pain, suffering and loss of amenities was so excessive as to warrant interference by this Court.
38. It is settled law that the assessment of general damages lies within the discretion of the trial court and that an appellate court will only interfere with such an award in limited circumstances. The guiding principles were laid down by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No. 2) where the court 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… to be that it must be satisfied that either the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
39. The same principle was reiterated by the Court of Appeal in Butt v Khan [1981] KLR 349 where it was held that:
“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 misapprehended the evidence in some material respect.”
40. In the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] KECA 528 (KLR) the court emphasized the importance of consistency in awards for comparable injuries, stating:
“Comparable injuries should as far as possible be compensated by comparable awards while keeping in mind the correct level of awards in similar cases.”
41. Guided by the foregoing authorities, this Court must determine whether the learned trial magistrate misdirected herself in assessing the award at Ksh.400,000/-.
42. The medical evidence on record shows that the Respondent sustained blunt abdominal trauma with gut perforation. The evidence further demonstrates that the Respondent underwent surgical intervention which included removal of a section of the intestine, the creation of an ileostomy and subsequent closure of the abdomen. The Appellant’s own witness, RW1, confirmed during testimony that the Respondent underwent three surgical procedures arising from the injuries sustained in the accident.
43. In my view, these injuries cannot reasonably be classified as minor soft tissue injuries as suggested by the Appellant. The Respondent sustained significant abdominal trauma which necessitated multiple surgical interventions and hospitalization. Such injuries inevitably occasion substantial pain, suffering and disruption of normal bodily functions. The fact that the Respondent eventually recovered well does not diminish the seriousness of the injuries sustained or the pain endured during treatment and recovery.
44. The record further shows that the learned trial Magistrate expressly stated that she considered the authorities cited by the parties and compared the injuries sustained by the Respondent with those in the cited cases before arriving at the award. The trial court also considered the passage of time and inflation, which are legitimate factors in the assessment of damages. There is therefore nothing on record to demonstrate that the trial court took into account irrelevant considerations or failed to consider relevant ones.
45. Having reviewed the evidence and the reasoning of the trial court, I am not persuaded that the award of Ksh.400,000/- was inordinately high or that it represents a wholly erroneous estimate of the damages suffered by the Respondent. On the contrary, considering the nature of the abdominal injuries and the multiple surgical procedures undertaken, the award falls within a reasonable range of compensation.
46. The Appellant has not demonstrated that the trial court acted on wrong principles or misapprehended the evidence in arriving at the award. As stated in Butt v Khan, an appellate court should not substitute its own assessment merely because it might have awarded a different sum.
47. In the circumstances, I find no basis upon which to interfere with the award of Ksh.400,000/- as general damages for pain, suffering and loss of amenities. The award made by the trial court under this head is therefore upheld.
48. The second issue for determination is whether the award of Ksh.500,000/- for future medical expenses was justified in the circumstances of this case.
49. The Appellant contends that the Respondent had substantially recovered and that the evidence did not support the need for future medical care. The Respondent, on the other hand, maintains that the claim for future medical expenses was properly pleaded and supported by medical evidence and that the trial court therefore exercised its discretion properly in making the award.
50. The law regarding claims for future medical expenses is well settled. Although such expenses are awarded under the head of general damages, they must be specifically pleaded and supported by evidence demonstrating the need for the future treatment. The Court of Appeal addressed this principle in Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR) where it stated:
“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.”
51. The Court of Appeal of East Africa further elaborated on the pleading requirement in Kenya Bus Services Ltd v Gituma (2004) 1 EA 91 where it held:
“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.”
52. It is evident from the record that the Respondent expressly pleaded a claim for future medical expenses in the sum of Ksh.500,000/- in his statement of claim. The pleading therefore satisfied the requirement that such a claim must be specifically pleaded before evidence can be led in support of it.
53. The record further shows that the Respondent produced a medical report prepared by Dr. George Mwita which indicated that the Respondent would require future medical attention including physiotherapy, nutritional support, analgesics and ongoing physical care due to the abdominal injuries sustained. The doctor estimated the cost of such future medical care at Ksh.500,000/-. That report was produced before the trial court as part of the Respondent’s documentary evidence.
54. Although the Appellant’s witness, RW1, expressed the view that no further costly medical procedures would be required, the same witness acknowledged that the Respondent had previously undergone three surgical procedures following the intestinal injury. The trial court was therefore faced with two medical opinions and was required to evaluate the evidence and determine which opinion it found more persuasive.
55. It is trite that where expert opinions differ, the court retains the discretion to evaluate the evidence and adopt the opinion it finds more credible in light of the entire record. In the present case, the trial court carefully considered the competing medical evidence and was satisfied that the Respondent would require future care related to the abdominal injury and the surgeries previously undertaken.
56. It is also noteworthy that the award made by the trial court was not for a specific future surgical procedure but rather for continued medical attention, physiotherapy, nutritional support and analgesics. In light of the nature of the injuries sustained, particularly the intestinal perforation and the surgical procedures performed, the trial court cannot be faulted for concluding that some level of future medical care may reasonably be required.
57. Having reviewed the pleadings, the medical evidence and the reasoning of the trial court, I am satisfied that the Respondent both pleaded and proved the claim for future medical expenses as required by law. The Appellant has therefore not demonstrated that the trial court acted on a wrong principle or misapprehended the evidence in awarding the sum of Ksh.500,000/- under this head.
58. In the circumstances, I find no basis upon which this Court can interfere with the award of Ksh.500,000/- for future medical expenses. The award made by the trial court under this head is therefore upheld.
59. In light of the foregoing determinations, this court finds that the instant appeal lacks merit and is hereby dismissed in its entirety.
60. On the issue of costs, Section 27 of the Civil Procedure Act dictates that costs follow the event, unless for stated reasons the court orders otherwise. Accordingly, the Appellant is hereby condemned to pay the costs of this appeal to the Respondent, which I assess at Ksh25,000/-.
61. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. This appeal relates solely to the issue of quantum of damages. The trial court’s finding on liability – that the Appellant was 100% liable in negligence – is not contested. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 12th August, 2024, in seeking to set aside the judgment and decree of the trial court with respect to the award on quantum:
i. THAT the learned trial Magistrate erred in law and in fact in awarding general damages of Ksh.400,000/- which award was excessive and not commensurate to the nature of injuries sustained by the Respondent.
ii. THAT the learned trial Magistrate erred in law and in fact in awarding future medical expenses at Ksh.500,000/- which award was excessive in the circumstances.
iii. THAT the learned trial Magistrate erred in law and in fact in failing to pay regard to authorities in the Appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case that she was deciding.
3. The Appellant proposes that the appeal be allowed, that the trial court’s finding and/or assessment on the quantum of damages be set aside, this court proceeds to make its own assessment and that the costs of the appeal be awarded to the Appellant.
4. As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. I will, however, confine my consideration to the evidence relevant to the issue of quantum of damages.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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 demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 28th September, 2023 in which the Respondent (the Claimant before the trial court) sustained bodily injuries.
8. The Respondent sued the Appellant vide the statement of claim dated 30th January, 2024 seeking to recover general damages for pain, suffering and loss of amenities, future medical expenses, interest and costs of the suit, claiming that the accident occurred due to the negligence of the Appellant and/or its servant, employee and/or agent.
9. The Respondent pleaded listed the following particulars of injuries and particulars of special damages in his pleading:
Particulars of injuries:
a. Blunt abdominal trauma with viscera injuries.
b. Injury to the right elbow joint.
c. Injury to the right knee joint.
d. Intestinal perforation.
e. Tenderness on the right elbow.
f. Tenderness on the right knee joint.
g. Injury to the chest.
10. The Appellant resisted the claim and, in that regard, filed a response to the statement of claim 16th February, 2024. In particular, the Appellant denied that the Respondent sustained the nature and extent of injuries as pleaded in the plaint.
11. The Respondent/Minor’s next friend testified before the trial court as CW1 and adopted his witness statement dated 30th January, 2024 as his evidence-in-chief. In that statement, he reiterated that the Respondent sustained the injuries enumerated above as a result of the accident. He further stated that the Respondent was treated in a number of hospitals and underwent corrective surgeries at Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) and Moi Teaching and Referral Hospital (MTRH) and that as at the time of testifying, the Respondent was still attending reviews at MTRH.
12. The witness produced the following documents in support of the Respondent’s case:
- Copy of CW1’s ID.
- Copy of the Respondent’s birth certificate.
- Police abstract.
- P3 form.
- Medical report dated 9th January, 2024.
- Treatment document from Kisumu County Hospital.
- Discharge summary from Africa Inuka Hospital.
- Exemption application from JOOTRH, dated 17th October, 2023.
- Receipt no. 4142604 for Ksh.5,000/-.
- Discharge summary dated 17th October, 2023 from JOOTRH.
- Interim invoice for Ksh.20,000/- from JOOTRH.
- Abdominal scan image and report dated 18th December, 2023
- Inpatient/outpatient continuation sheet from JOOTRH dated 17th October, 2023
- Laboratory report form dated 18th December, 2023 from JOOTRH.
- Laboratory report dated 18th December, 2024.
- Laboratory request form dated 9th October, 2023 from JOOTRH
- Examination request form dated 5th October, 2023 from Africa Inuka Hospital.
- Ultrasound image and report dated 5th October, 2023.
- Discharge summary from MTRH dated 19th December, 2023.
- Radiology request dated 9th November, 2023 from MTRH.
- Radiology request/report form dated 13th November, 2023 from MTRH.
- Radiology request /report form dated 28th October, 2023 from MTRH.
- Radiology request/report form dated 2nd November, 2023 from MTRH.
- NHIF surgical services pre-authorization form dated 9th November, 2023.
- Demand letter to the Appellant and his insures.
- Copy of insurance sticker/certificate.
- Respondent’s statement
13. During cross-examination, CW1 informed the trial court that the Respondent had undergone an intestinal operation. He further testified that the Respondent sustained blunt abdominal trauma as well as injuries to the left elbow joint and the right knee.
14. CW1 further stated that, at the time of giving his testimony, the Respondent was still attending review appointments at MTRH. However, he conceded that he did not have the most recent review documents with him.
15. The Appellant called RW1, Dr. Jennifer Kahotho, a general practitioner. In her testimony before the trial court, RW1 stated that she prepared a medical report after examining the Respondent. She informed the court that, according to the medical records, the Respondent had been treated at Kisumu County Referral Hospital (KCRH), Africa Inuka Hospital, and MTRH. She explained that the Respondent sustained blunt abdominal trauma and was taken to theatre, where a section of his intestine was removed and an anastomosis performed. Subsequently, he underwent a second surgical procedure during which an ileostomy was created to facilitate the passage of faecal matter. After recovery, the Respondent underwent another surgery during which the abdomen was closed.
16. RW1 further testified that at the time of her examination, the Respondent was in fair general condition, recovering well and passing stool normally through the anus. She added that the abdomen had been successfully closed and that no further costly medical treatment was required.
17. During cross-examination, the witness stated that she holds a bachelor’s degree in medicine and clarified that she is not a gastroenterologist. Consequently, she indicated that she was not professionally qualified to provide an expert opinion at the level of a gastroenterologist.
18. RW1 also confirmed that the Respondent had undergone three surgical procedures. In her opinion, the Respondent would not require any further medical intervention in the future.
19. In assessing the quantum of damages, the learned Adjudicator rendered herself as follows in her judgement”
8. On quantum the Claimant stated that he sustained blunt abdominal trauma, injury to the right elbow joint, injury to the right knee joint intestinal obstruction and abdominal surgical scar, tenderness on the right elbow, tenderness to the chest and injury to the chest. CW1 stated that the child went through intestine operations and that they still went to hospital for the reviews.
9. The P3 confirmed that the injuries and stated that the injuries was grievous harm. The medical report by Dr. George Mwita herein confirmed the injuries and further indicated that the patient herein claimant (sic) would need future medical expenses for physical attention, analgesics and physiotherapy for the sum of Ksh.500,000/-. The injuries were equally confirmed by the medical document from Africa Inuka Hospital, discharge summary of JOOTRH and MTRH. The Respondent filled a medical report which stated that the claimant suffered blunt abdominal injury with gut perforation and soft tissue injuries.
10. The court has given due consideration to the case law quoted and provided by the parties herein and made comparisons on the injuries the plaintiffs therein sustained and those the Claimant herein sustained. I am accordingly guided by the decisions of the superior courts in determining how much the Plaintiff should be awarded as compensation. I also note the injuries the Plaintiff sustained as a result of the accident. They were soft tissue injuries and blunt injury to the abdomen with abdominal trauma. The court has equally considered the passage of time and rate of inflation and find Ksh.400,000/- to be sufficient compensation. Nguku Joseph & another v Gerald Kihiu Maina [2020] eKLR where the appellate court awarded similar damages for the similar injuries of the claimant in this matter.
11. On future medical expenses, the report by Dr George Mwita stated that there was a future medical expense of Ksh.500,000/- for physical attention, nutrition needs, analgesics and physiotherapy. The Respondent’s report did not comment on the future medical expenses .When RW1 testified she stated that from her examination the stoma was already closed and he did not need further procedure.
12. The court of appeal in Tracom Limited & v Hasssan Mohamed Adan [2009] eKLR held as follows: -
“...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 v 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 place 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...”.
13. The Respondent herein did state that here was no more surgery needed and further the stoma was closed. The medical report was herein clear that the same was not for a specific surgery it was for physical attention and nutrition needs and physiotherapy. The Claimant pleaded future medical expenses of Ksh.500,000/- and this was confirmed by the report by George Mwita hence the same is awarded as prayed.
20. This court directed that the appeal be canvassed by way of written submissions and both parties filed their respective submissions.
21. In his submissions, the Appellant proffers the position that the learned trial Magistrate erred in law and fact in awarding general damages of Kshs. 400,000 to the Respondent, arguing that the amount is excessive given that the Respondent primarily sustained soft tissue injuries.
22. The Appellant contends that the assessment of general damages is a discretionary exercise that must be exercised judicially, with due regard to relevant legal principles and that the discretion may be interfered with where the trial court considered irrelevant factors, ignored relevant factors or awarded a sum so disproportionate that it constitutes a wholly erroneous estimate.
23. The Appellant further submits that the award of future medical expenses of Ksh.500,000/- was similarly erroneous as evidence from Dr. Jennifer Kahotho and Dr. George Mwita shows that the Respondent had recovered fully, with the stoma closed, normal bowel function restored and no leakage detected in a barium enema examination and that the Respondent does not therefore require any further costly medical interventions, making the award unjustified.
24. The Appellant emphasizes that damages must be within consistent limits and guided by awards in comparable cases. He relies on the authority of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR, as cited in Michael Okello v Priscilla Atieno [2021] eKLR, where the courts held that comparable injuries should as far as possible receive comparable compensation, keeping in mind the prevailing levels of awards in similar cases. He further relies on the case of Kigaraari v Aya (1982-88) 1 KAR 768, as cited in Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR, where it was held that damages must remain within limits set by prior cases and courts must avoid imposing an undue burden through inflated awards.
25. The Appellant refers to the Respondent’s treatment records from KCRH, JOOTRH, Africa Inuka Hospital and MTRH, which he states indicate treatment for minor bruises, abdominal trauma and post-ileostomy recovery, with full recovery noted. Based on these records, the Appellant submits that the Respondent’s injuries do not justify the high awards made by the trial court.
26. The Appellant notes that in Muhiu v Obare (Civil Appeal E212 of 2022) [2024] KEHC 11225 (KLR), the High Court reduced an award of Ksh.900,000/- for a blunt abdominal injury and fracture to Ksh.250,000/-, emphasizing that awards should reflect the nature and severity of the injuries sustained. Applying similar reasoning, the Appellant submits that a maximum award of Ksh.250,000/- would be appropriate in the present case.
27. In conclusion, the Appellant urges this Court to disturb the trial court’s findings entirely, or in the alternative, to substantially revise the quantum of general and future medical damages, as both awards were excessive and unsupported by the medical evidence.
28. On his part, the Respondent submits that the trial court’s decision on quantum was fair and sound and that there is no cogent reason advanced by the Appellant to warrant setting aside the award of general and future medical damages. He fully supports the trial court’s analysis of quantum, stating that the trial court clearly explained how it arrived at the award.
29. The Respondent submits that the trial court correctly found that the award of Ksh.400,000/- for general damages aligns with the nature of the injuries sustained, which he states were confirmed by the Respondent’s medical documents, the second medical report and the testimony of the Respondent’s witness.
30. Regarding future medical expenses, the Respondent notes that the trial court relied on the decision in Tracom Limited v Hassan Mohammed Adan [2009] eKLR, observing that such expenses were specifically pleaded and proved by the evidence of Dr. George Mwita and that the trial court recognized that the funds were necessary for ongoing physical care, physiotherapy and nutrition, rather than surgery, due to the effects of the three prior surgeries on the minor. Consequently, he urges that the award of Ksh.500,000/- for future medical expenses was reasonable and should not be disturbed.
31. The Respondent further submits that the trial court arrived at its decision after considering the testimony of both the Respondent and the medical experts. He further submits that the Appellant’s assertion that the trial court failed to consider submissions filed by the parties is incorrect and states that the court explicitly acknowledged in its judgement that it had considered the case law and submissions provided by the parties and had compared the injuries sustained by the Respondent with those in cited cases to guide the award.
32. The Respondent asserts that the Appellant has not identified any specific issue that the trial court allegedly overlooked and that there is therefore no justification to disturb the trial court’s findings on quantum and seeks that the appeal be dismissed with costs.
33. Having carefully considered the record of appeal, the judgement of the trial court and the respective submissions by the parties, it is evident that the appeal before this Court is confined solely to the question of quantum of damages. Liability was determined by the trial court at 100% against the Appellant and that finding has not been challenged on appeal. Consequently, the Court is only called upon to determine whether the awards made by the trial court were proper in the circumstances.
34. In light of the grounds of appeal and the arguments advanced by the parties, two issues arise for determination. The first issue is whether the award of Ksh.400,000/- as general damages for pain, suffering and loss of amenities was excessive in view of the nature and extent of the injuries sustained by the Respondent. In determining this issue, the Court must consider the medical evidence on record as well as comparable authorities relied upon by the parties and assess whether the trial court exercised its discretion judiciously.
35. The second issue for determination is whether the award of Ksh.500,000/- for future medical expenses was justified based on the evidence presented before the trial court. In this regard, the Court must examine whether the claim for future medical expenses was properly pleaded and proved, and whether the medical evidence supported the need for such an award in the circumstances of this case.
36. The Court will therefore proceed to consider each of the above issues in turn.
37. The question for determination under the first issue is whether the award of Ksh.400,000/- as general damages for pain, suffering and loss of amenities was so excessive as to warrant interference by this Court.
38. It is settled law that the assessment of general damages lies within the discretion of the trial court and that an appellate court will only interfere with such an award in limited circumstances. The guiding principles were laid down by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No. 2) where the court 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… to be that it must be satisfied that either the judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
39. The same principle was reiterated by the Court of Appeal in Butt v Khan [1981] KLR 349 where it was held that:
“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 misapprehended the evidence in some material respect.”
40. In the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] KECA 528 (KLR) the court emphasized the importance of consistency in awards for comparable injuries, stating:
“Comparable injuries should as far as possible be compensated by comparable awards while keeping in mind the correct level of awards in similar cases.”
41. Guided by the foregoing authorities, this Court must determine whether the learned trial magistrate misdirected herself in assessing the award at Ksh.400,000/-.
42. The medical evidence on record shows that the Respondent sustained blunt abdominal trauma with gut perforation. The evidence further demonstrates that the Respondent underwent surgical intervention which included removal of a section of the intestine, the creation of an ileostomy and subsequent closure of the abdomen. The Appellant’s own witness, RW1, confirmed during testimony that the Respondent underwent three surgical procedures arising from the injuries sustained in the accident.
43. In my view, these injuries cannot reasonably be classified as minor soft tissue injuries as suggested by the Appellant. The Respondent sustained significant abdominal trauma which necessitated multiple surgical interventions and hospitalization. Such injuries inevitably occasion substantial pain, suffering and disruption of normal bodily functions. The fact that the Respondent eventually recovered well does not diminish the seriousness of the injuries sustained or the pain endured during treatment and recovery.
44. The record further shows that the learned trial Magistrate expressly stated that she considered the authorities cited by the parties and compared the injuries sustained by the Respondent with those in the cited cases before arriving at the award. The trial court also considered the passage of time and inflation, which are legitimate factors in the assessment of damages. There is therefore nothing on record to demonstrate that the trial court took into account irrelevant considerations or failed to consider relevant ones.
45. Having reviewed the evidence and the reasoning of the trial court, I am not persuaded that the award of Ksh.400,000/- was inordinately high or that it represents a wholly erroneous estimate of the damages suffered by the Respondent. On the contrary, considering the nature of the abdominal injuries and the multiple surgical procedures undertaken, the award falls within a reasonable range of compensation.
46. The Appellant has not demonstrated that the trial court acted on wrong principles or misapprehended the evidence in arriving at the award. As stated in Butt v Khan, an appellate court should not substitute its own assessment merely because it might have awarded a different sum.
47. In the circumstances, I find no basis upon which to interfere with the award of Ksh.400,000/- as general damages for pain, suffering and loss of amenities. The award made by the trial court under this head is therefore upheld.
48. The second issue for determination is whether the award of Ksh.500,000/- for future medical expenses was justified in the circumstances of this case.
49. The Appellant contends that the Respondent had substantially recovered and that the evidence did not support the need for future medical care. The Respondent, on the other hand, maintains that the claim for future medical expenses was properly pleaded and supported by medical evidence and that the trial court therefore exercised its discretion properly in making the award.
50. The law regarding claims for future medical expenses is well settled. Although such expenses are awarded under the head of general damages, they must be specifically pleaded and supported by evidence demonstrating the need for the future treatment. The Court of Appeal addressed this principle in Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR) where it stated:
“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.”
51. The Court of Appeal of East Africa further elaborated on the pleading requirement in Kenya Bus Services Ltd v Gituma (2004) 1 EA 91 where it held:
“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.”
52. It is evident from the record that the Respondent expressly pleaded a claim for future medical expenses in the sum of Ksh.500,000/- in his statement of claim. The pleading therefore satisfied the requirement that such a claim must be specifically pleaded before evidence can be led in support of it.
53. The record further shows that the Respondent produced a medical report prepared by Dr. George Mwita which indicated that the Respondent would require future medical attention including physiotherapy, nutritional support, analgesics and ongoing physical care due to the abdominal injuries sustained. The doctor estimated the cost of such future medical care at Ksh.500,000/-. That report was produced before the trial court as part of the Respondent’s documentary evidence.
54. Although the Appellant’s witness, RW1, expressed the view that no further costly medical procedures would be required, the same witness acknowledged that the Respondent had previously undergone three surgical procedures following the intestinal injury. The trial court was therefore faced with two medical opinions and was required to evaluate the evidence and determine which opinion it found more persuasive.
55. It is trite that where expert opinions differ, the court retains the discretion to evaluate the evidence and adopt the opinion it finds more credible in light of the entire record. In the present case, the trial court carefully considered the competing medical evidence and was satisfied that the Respondent would require future care related to the abdominal injury and the surgeries previously undertaken.
56. It is also noteworthy that the award made by the trial court was not for a specific future surgical procedure but rather for continued medical attention, physiotherapy, nutritional support and analgesics. In light of the nature of the injuries sustained, particularly the intestinal perforation and the surgical procedures performed, the trial court cannot be faulted for concluding that some level of future medical care may reasonably be required.
57. Having reviewed the pleadings, the medical evidence and the reasoning of the trial court, I am satisfied that the Respondent both pleaded and proved the claim for future medical expenses as required by law. The Appellant has therefore not demonstrated that the trial court acted on a wrong principle or misapprehended the evidence in awarding the sum of Ksh.500,000/- under this head.
58. In the circumstances, I find no basis upon which this Court can interfere with the award of Ksh.500,000/- for future medical expenses. The award made by the trial court under this head is therefore upheld.
59. In light of the foregoing determinations, this court finds that the instant appeal lacks merit and is hereby dismissed in its entirety.
60. On the issue of costs, Section 27 of the Civil Procedure Act dictates that costs follow the event, unless for stated reasons the court orders otherwise. Accordingly, the Appellant is hereby condemned to pay the costs of this appeal to the Respondent, which I assess at Ksh25,000/-.
61. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 12th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: No appearance.
FOR RESPONDENT: No appearance.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.