(Being an Appeal from the Judgment of Hon. J.W. Munene (Adjudicator) delivered on 10 th May 2023 at Milimani Small Claims Court Claim No. E29954 of 2022)
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( J.W. Munene, Adjudicator ) delivered on 10 th May 2023 in SCCC No. E2954 of 2022.
2. On 30 th September 2021, Lucky Charles Wamalwa (the Appellant) sustained injuries following a road accident along Baba Dogo Road. He attributed the accident and resultant injuries to Julius Ndichu Kiarie (the Respondent), who was driving his Motor Vehicle Registration Number KCG 950S without due care and attention.
Factual History
3. By a statement of claim dated 5 th October 2022, the appellant, through his next friend, blamed the respondent for the accident for negligently driving/ controlling his motor vehicle which caused the accident. It was pleaded that the appellant sustained head injuries, lost consciousness and was initially treated at Huruma Nursing Home and later at Mama Lucy Kibaki Hospital, where he was admitted for one day and underwent a scan. Although the respondent catered for the initial medical expenses, the appellant contended that he was subsequently referred to Kenyatta National Hospital for further treatment imaging which was not undertaken due to lack of funds.
4. In support of his claim, the appellant, through his next friend, produced inter alia a police abstract dated 27 th January 2022, a P3 Form dated 26 th January 2022, treatment notes from Mama Lucy Kibaki Hospital and receipts thereof, the appellant’s birth certificate no. A3516139, a motor vehicle copy of records and the receipt thereof, and a medical report prepared by Dr. Wokabi dated 16 th March 2022 and a receipt thereof. According to that report, the appellant sustained a major head injury with loss of consciousness and fractures of both parietal bones of the skull. The report further indicated that, although the fractures were not reflected in the treatment notes, it was said to have been evidence from the x-ray imaging. The doctor opined that while the recurrent headaches would subside over time, the appellant remained predisposed to developing epilepsy.
5. The respondent, on his part, denied liability contesting that the accident was not caused by his negligence. It was his case that on the material day, while driving his motor vehicle at a speed of approximately 20-30 kph along Outering Road towards Baba Dogo Road, a group of minors emerged from the left side between matatus parked at a non-designated point. According to the respondent, he applied emergency brakes and did not hit the appellant, who allegedly fell while attempting to retreat. The respondent nevertheless confirmed that the appellant was rushed to Huruma Medical Clinic and later to Mama Lucy Kibaki Hospital, where he settled the medical bills. He attributed negligence to the appellant and the his mother for failing to exercise proper supervision.
6. By a judgment dated 10 th May 2023, the trial court found that the accident occurred as narrated by the appellant and as corroborated by the police abstract. The court accordingly apportioned 100% liability to the appellant, noting that the appellant was a young child who could not be held contributorily negligent.
7. On quantum, the trial court considered the medical reports from Mama Lucy Kibaki Hospital that indicated that the appellant sustained multiple abrasions on the forehead and swellings on the head. The court, however disregarded Dr. Wokabi’s medical report on the basis that it made reference to x-ray reports that were neither produced at trial nor was there any evidence that there were any x-ray reports from the requesting hospital confirming the fractures to the skull. In addition, the P3 form made no mention on the alleged fractures.
8. Consequently, and relying on Lilian A. Otieno vs Philip Mugoya [2022] eKLR, the court awarded the appellant general damages of Kshs. 120,000/=, special damages of KShs.3,550/=, together with costs and interest.
The Appeal
9. Aggrieved, the appellant filed a Memorandum of Appeal dated 31 st May 2023 raising 5 grounds of appeal, which were subsequently condensed into a singular issue: whether the learned Adjudicator erred in law and fact by disregarding the medical report of Dr. Wokabi .
The Appellant’s Submissions
10. The appellant faulted the learned trial Adjudicator for disregarding Dr. Wokabi’s medical report. Relying on an excerpt from pages 3-5 of The Casebook on Measure of Damages for Bodily Injuries by Richard Kuloba, the appellant maintained that the primary source of information on injuries is the victim, whose account complements medical reports. It was urged that medical reports, on their own, may contain omissions and mistakes, and therefore the victims’ accounts should not be dismissed merely because they conflict with the medical reports.
11. On this basis, the appellant argued that his next friend was not aware of the injuries sustained by the appellant, and mere exclusion from the P3 Form was not proof that the fracture was not sustained. In any event, it was argued that the respondent did not subject the appellant to a second medical opinion nor did they adduce a different medical report to displace Dr. Wokabi’s.
12. Building on this, the appellant submitted that a skull fracture constituted a major head injury, with the attendant risk of developing epilepsy, and not merely soft tissue injuries. On that basis, he prayed that the appeal be allowed and general damages be enhanced to KShs. 900,000/= per the comparative awards in the cases of Edward Kitsau Karabu & Another vs John Sifa Baya [2021] KEHC 1943 (KLR) and Sukari Industries Limited vs Maxwel Omondi Otieno [2017] KEHC 8136 (KLR) .
The Respondent’s Submissions
13. The respondent opposed the appeal vide its submissions dated 13 th March 2026 wherein it raises two issues for determination.
14. As to whether the learned Adjudicator erred in law and fact in the evaluation of the medical evidence tendered by the appellant , the respondent posited that the trial Court duly considered Dr. Wokabi’s medical report but rightly declined to rely on it, as the initial treatment notes or the P3 form did not support the alleged skull fractures It is further urged that the fractures would have been detected and recorded during the first medical examination which was of greater probative value than an assessment conducted six months later.
15. The respondent added that the trial court was not bound by expert opinions but had a duty to juxtapose the same against the evidence on record as held in Shah & Another vs Shah & Others [2003] 1 EA 290 and Dhalay vs Republic [1997] KECA 379 KLR . Accordingly, the respondent took the position that the trial court rightly exercised its discretion in disregarding Dr. Wokabi’s report, which conflicted in part with the medical reports from Mama Lucy Kibaki Hospital.
16. On the issue of whether the award of KShs. 120,000/= as general damages was inordinately low as to warrant interference by this Honourable Court , the respondent posited that according to the decisions in Butt vs Khan [1982-88] KAR 1 and Coast Bus Service Ltd. vs Sisco E. Murunga Ndanyi and 2 Others Civil Appeal Case No. 192 of 1992 , the appellant had the duty of demonstrating that the trial court had proceeded on wrong principles or misapprehended the evidence before her resulting in her arriving in a figure that was manifestly high or low.
17. In the respondent’s view, absent the fractures to the skull, the appellant sustained soft tissue injuries for which an award of between KShs. 80,000/= to KShs. 150,000/= was appropriate. Accordingly, the respondent maintained that the trial court’s award of KShs. 120,000/= was reasonable and commensurate with the injuries proved, and did not warrant interference by this Court. In addition, it observed that the authorities cited by the appellant were with respect to manifestly more serious injuries and hence inapplicable.
18. Therefore, the respondent urged this Court to dismiss the appeal with costs for want of merit.
Analysis and Determination
19. The sole issue arising for determination in this appeal is whether the trial court erred in disregarding the medical report by Dr. Wokabi and whether the resultant award of damages was appropriate.
20. This being a first appeal, I am alive to the principle that the first appellate court is required to re-appraise the evidence, evaluate it and draw its own conclusions making an allowance for the fact that it neither heard nor saw the witnesses testify (see Selle v Associated Motor Boat Company Ltd [1968] E.A. 123, 126 ).
21. I have carefully considered the impugned judgment and the contents of the subject medical report. The bone of contention is whether the appellant sustained fractures of the skull as stated in Dr. Wokabi’s medical report. It is worth noting that Dr. Wokabi was never called to testify in court and to produce the said medical report. It would appear that the parties proceeded under section 30 of the Small Claims Court Act. Consequently, all documents filed by the parties were admitted into evidence without calling the makers.
22. As rightly, submitted by the respondent, expert evidence, though persuasive, is not binding upon the court and the court retains its discretion to evaluate such evidence alongside other material placed before it. This was the holding in Shah & Another v Shah & Others [2003] 1 EA 290 where the court stated as follows:
“The opinion of the expert witness is not binding on the court but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
23. Similarly, in Dhalay v Republic (1997) KLR, the Court of Appeal stated as follows:
“It is now trite that while the courts must give proper respect to the opinion of experts, not, as it were such opinions are binding in the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so.”
24. In my re-evaluation of the evidence on record, I have seen copies of initial treatment notes, an X-ray request form, duly filled P3 form and police abstract. Both the P3 form and the police abstract classify the injuries which the appellant sustained as ‘harm”. The initial treatment notes do not make any reference to fractures. If any X-ray was ever taken as suggested by the X-ray request form, then the results thereof were never availed to the court. Dr. Wokabi only made reference to some X-ray but never produced either the X-ray films or the X-ray reports. Having carefully perused all other available medical records, it is my finding that the reference to fractures by Dr. Wokabi is not supported by any of the primary medical records. Dr. Wokabi was not the treating medical officer and only saw the appellant much later for the purpose of preparing the medical report. Since his medical report is at variance with all the primary medical records, I do hereby find and hold that the learned trial magistrate was right in rejecting the said medical report.
25. On quantum, the trial court made an award of Kshs. 120,000/= for soft tissue injures. This award was within the range of awards for comparable injuries and I find no reason for interfering with the same.
26. Flowing from the foregoing, I do not find any merit in the appeal herein and the same is hereby dismissed with costs to the respondent.
27. It is so ordered.
Dated, signed and delivered virtually this 25 th day of June 2026.
Introduction
1. This appeal arises from the judgment of the Small Claims Court at Milimani ( J.W. Munene, Adjudicator ) delivered on 10 th May 2023 in SCCC No. E2954 of 2022.
2. On 30 th September 2021, Lucky Charles Wamalwa (the Appellant) sustained injuries following a road accident along Baba Dogo Road. He attributed the accident and resultant injuries to Julius Ndichu Kiarie (the Respondent), who was driving his Motor Vehicle Registration Number KCG 950S without due care and attention.
Factual History
3. By a statement of claim dated 5 th October 2022, the appellant, through his next friend, blamed the respondent for the accident for negligently driving/ controlling his motor vehicle which caused the accident. It was pleaded that the appellant sustained head injuries, lost consciousness and was initially treated at Huruma Nursing Home and later at Mama Lucy Kibaki Hospital, where he was admitted for one day and underwent a scan. Although the respondent catered for the initial medical expenses, the appellant contended that he was subsequently referred to Kenyatta National Hospital for further treatment imaging which was not undertaken due to lack of funds.
4. In support of his claim, the appellant, through his next friend, produced inter alia a police abstract dated 27 th January 2022, a P3 Form dated 26 th January 2022, treatment notes from Mama Lucy Kibaki Hospital and receipts thereof, the appellant’s birth certificate no. A3516139, a motor vehicle copy of records and the receipt thereof, and a medical report prepared by Dr. Wokabi dated 16 th March 2022 and a receipt thereof. According to that report, the appellant sustained a major head injury with loss of consciousness and fractures of both parietal bones of the skull. The report further indicated that, although the fractures were not reflected in the treatment notes, it was said to have been evidence from the x-ray imaging. The doctor opined that while the recurrent headaches would subside over time, the appellant remained predisposed to developing epilepsy.
5. The respondent, on his part, denied liability contesting that the accident was not caused by his negligence. It was his case that on the material day, while driving his motor vehicle at a speed of approximately 20-30 kph along Outering Road towards Baba Dogo Road, a group of minors emerged from the left side between matatus parked at a non-designated point. According to the respondent, he applied emergency brakes and did not hit the appellant, who allegedly fell while attempting to retreat. The respondent nevertheless confirmed that the appellant was rushed to Huruma Medical Clinic and later to Mama Lucy Kibaki Hospital, where he settled the medical bills. He attributed negligence to the appellant and the his mother for failing to exercise proper supervision.
6. By a judgment dated 10 th May 2023, the trial court found that the accident occurred as narrated by the appellant and as corroborated by the police abstract. The court accordingly apportioned 100% liability to the appellant, noting that the appellant was a young child who could not be held contributorily negligent.
7. On quantum, the trial court considered the medical reports from Mama Lucy Kibaki Hospital that indicated that the appellant sustained multiple abrasions on the forehead and swellings on the head. The court, however disregarded Dr. Wokabi’s medical report on the basis that it made reference to x-ray reports that were neither produced at trial nor was there any evidence that there were any x-ray reports from the requesting hospital confirming the fractures to the skull. In addition, the P3 form made no mention on the alleged fractures.
8. Consequently, and relying on Lilian A. Otieno vs Philip Mugoya [2022] eKLR, the court awarded the appellant general damages of Kshs. 120,000/=, special damages of KShs.3,550/=, together with costs and interest.
The Appeal
9. Aggrieved, the appellant filed a Memorandum of Appeal dated 31 st May 2023 raising 5 grounds of appeal, which were subsequently condensed into a singular issue: whether the learned Adjudicator erred in law and fact by disregarding the medical report of Dr. Wokabi .
The Appellant’s Submissions
10. The appellant faulted the learned trial Adjudicator for disregarding Dr. Wokabi’s medical report. Relying on an excerpt from pages 3-5 of The Casebook on Measure of Damages for Bodily Injuries by Richard Kuloba, the appellant maintained that the primary source of information on injuries is the victim, whose account complements medical reports. It was urged that medical reports, on their own, may contain omissions and mistakes, and therefore the victims’ accounts should not be dismissed merely because they conflict with the medical reports.
11. On this basis, the appellant argued that his next friend was not aware of the injuries sustained by the appellant, and mere exclusion from the P3 Form was not proof that the fracture was not sustained. In any event, it was argued that the respondent did not subject the appellant to a second medical opinion nor did they adduce a different medical report to displace Dr. Wokabi’s.
12. Building on this, the appellant submitted that a skull fracture constituted a major head injury, with the attendant risk of developing epilepsy, and not merely soft tissue injuries. On that basis, he prayed that the appeal be allowed and general damages be enhanced to KShs. 900,000/= per the comparative awards in the cases of Edward Kitsau Karabu & Another vs John Sifa Baya [2021] KEHC 1943 (KLR) and Sukari Industries Limited vs Maxwel Omondi Otieno [2017] KEHC 8136 (KLR) .
The Respondent’s Submissions
13. The respondent opposed the appeal vide its submissions dated 13 th March 2026 wherein it raises two issues for determination.
14. As to whether the learned Adjudicator erred in law and fact in the evaluation of the medical evidence tendered by the appellant , the respondent posited that the trial Court duly considered Dr. Wokabi’s medical report but rightly declined to rely on it, as the initial treatment notes or the P3 form did not support the alleged skull fractures It is further urged that the fractures would have been detected and recorded during the first medical examination which was of greater probative value than an assessment conducted six months later.
15. The respondent added that the trial court was not bound by expert opinions but had a duty to juxtapose the same against the evidence on record as held in Shah & Another vs Shah & Others [2003] 1 EA 290 and Dhalay vs Republic [1997] KECA 379 KLR . Accordingly, the respondent took the position that the trial court rightly exercised its discretion in disregarding Dr. Wokabi’s report, which conflicted in part with the medical reports from Mama Lucy Kibaki Hospital.
16. On the issue of whether the award of KShs. 120,000/= as general damages was inordinately low as to warrant interference by this Honourable Court , the respondent posited that according to the decisions in Butt vs Khan [1982-88] KAR 1 and Coast Bus Service Ltd. vs Sisco E. Murunga Ndanyi and 2 Others Civil Appeal Case No. 192 of 1992 , the appellant had the duty of demonstrating that the trial court had proceeded on wrong principles or misapprehended the evidence before her resulting in her arriving in a figure that was manifestly high or low.
17. In the respondent’s view, absent the fractures to the skull, the appellant sustained soft tissue injuries for which an award of between KShs. 80,000/= to KShs. 150,000/= was appropriate. Accordingly, the respondent maintained that the trial court’s award of KShs. 120,000/= was reasonable and commensurate with the injuries proved, and did not warrant interference by this Court. In addition, it observed that the authorities cited by the appellant were with respect to manifestly more serious injuries and hence inapplicable.
18. Therefore, the respondent urged this Court to dismiss the appeal with costs for want of merit.
Analysis and Determination
19. The sole issue arising for determination in this appeal is whether the trial court erred in disregarding the medical report by Dr. Wokabi and whether the resultant award of damages was appropriate.
20. This being a first appeal, I am alive to the principle that the first appellate court is required to re-appraise the evidence, evaluate it and draw its own conclusions making an allowance for the fact that it neither heard nor saw the witnesses testify (see Selle v Associated Motor Boat Company Ltd [1968] E.A. 123, 126 ).
21. I have carefully considered the impugned judgment and the contents of the subject medical report. The bone of contention is whether the appellant sustained fractures of the skull as stated in Dr. Wokabi’s medical report. It is worth noting that Dr. Wokabi was never called to testify in court and to produce the said medical report. It would appear that the parties proceeded under section 30 of the Small Claims Court Act. Consequently, all documents filed by the parties were admitted into evidence without calling the makers.
22. As rightly, submitted by the respondent, expert evidence, though persuasive, is not binding upon the court and the court retains its discretion to evaluate such evidence alongside other material placed before it. This was the holding in Shah & Another v Shah & Others [2003] 1 EA 290 where the court stated as follows:
“The opinion of the expert witness is not binding on the court but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
23. Similarly, in Dhalay v Republic (1997) KLR, the Court of Appeal stated as follows:
“It is now trite that while the courts must give proper respect to the opinion of experts, not, as it were such opinions are binding in the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so.”
24. In my re-evaluation of the evidence on record, I have seen copies of initial treatment notes, an X-ray request form, duly filled P3 form and police abstract. Both the P3 form and the police abstract classify the injuries which the appellant sustained as ‘harm”. The initial treatment notes do not make any reference to fractures. If any X-ray was ever taken as suggested by the X-ray request form, then the results thereof were never availed to the court. Dr. Wokabi only made reference to some X-ray but never produced either the X-ray films or the X-ray reports. Having carefully perused all other available medical records, it is my finding that the reference to fractures by Dr. Wokabi is not supported by any of the primary medical records. Dr. Wokabi was not the treating medical officer and only saw the appellant much later for the purpose of preparing the medical report. Since his medical report is at variance with all the primary medical records, I do hereby find and hold that the learned trial magistrate was right in rejecting the said medical report.
25. On quantum, the trial court made an award of Kshs. 120,000/= for soft tissue injures. This award was within the range of awards for comparable injuries and I find no reason for interfering with the same.
26. Flowing from the foregoing, I do not find any merit in the appeal herein and the same is hereby dismissed with costs to the respondent.
27. It is so ordered.
Dated, signed and delivered virtually this 25 th day of June 2026.