1. The appellant was a pedestrian walking along the road when the respondent drove his car recklessly in such a way that it on accident.
2. The appellant moved to court to see compensation as a result of which Judgment was entered in her favour.
3. Dissatisfied with the quantum general and special damages she has moved to this court challenging the same through a Memorandum of Appeal wherein she raised the following grounds:
1) The learned trial Magistrate erred in law and in fact arriving at an award in quantum so low as to be erroneous.
2) The learned Magistrate erred in law and in fact by not fully considering and/or appreciating all the facts before him together with the Plaintiff's pleadings and Submissions hence failing to award the Applicant any compensation for future medical expenses.
3) The learned Magistrate erred in law and in fact by not fully considering and/or appreciating ail the facts before him together with the Plaintiff's pleadings and Submissions hence failing to award the Applicant any compensation for diminished earning capacity.
4) In all the circumstances of the case, the findings of the Eearned trial Magistrate in quantum were characterized with misapplication of the kaw and wrong exercise of discretion.
5) The Learned trial Magistrate erred in law and in fact in relying on authorities not in parity with the facts of the instant case before him.
4. She prays for orders that;
a) The Appeal be allowed.
b) The Judgment and Decree of the learned Magistrate in Milimani — CMCC No. E215 of 2024 be substituted and/or varied.
c) This Honourable Court be pleased to assess general damages awardable in Milimani CMCC No. E215 of 2024.
d) The cost of Appeal and that of the subordinate Court be awarded to the Appellant together with interest.
5. The appeal is unopposed.
Analysis and determination;
6. This court has the jurisdiction to review the evidence is produced by the parties during trial.
7. The court is satisfied that the Appellant does not challenge liability and the court maintains that the respondent is 100% liable for the accident.
8. On general damages the Appellant is seeking the setting side of the amount award. The court has looked at the pleadings and took noted that the nature of the injuries according to medical report of Dr. Okoth Okere the Appellant sustained the following injuries; Fracture of right femur, Pain on the right upper leg and observed that she has difficulty in walking, has a surgical scar on the upper leg laterally, the Implant is insitu, degree of permanent incapacity assessed at 40%.
9. The court is satisfied that she established that indeed she sustained the injuries as set out or pleaded in the plaint.
10. The court has also looked at comparative authorities as riled upon during the hearing by the parties herein and the court is satisfied that the amount that was awarded to her was not adequate to compensate her for the injuries that she sustained. The general damages shall be Kshs. 1 million.
11. The court confirms that the appellant pleaded future medical expense at paragraph 7 of the plaint.
12. On the last paragraph of the medical report, the issue of future medical expenses was specifically provided for as an entry by Dr. Cyprianus Okoth Okere.
13. The trial court's erroneous findings on compensation for future medical expenses is in the circumstances set aside and substituted with an award of Kshs.200,000 as guided by the medical report by Dr. Cyprianus Okoth Okere.
14. The Appellant also pleaded for compensation for diminished earning capacity at paragraph 8 of her Plaint. It was not in doubt that the Appellant herein sustained fracture of the femur, pain on the upper leg with difficulty in walking and the degree of permanent incapacity was assessed at 40% by Dr. Okoth Okere.
15. On this head, the court has looked at the medical report and the nature of the injury sustained and the court is satisfied that the Appellant is entitled to a global award of kshs. 500,000 which I do here by award.
16. Special damages ought to be pleaded and strictly proven. The court has looked the plaint and noted that appellant pleaded special damages.
17. The court has also looked at the evidence that was tendered by the appellant as a result of which the court is satisfied that indeed she proved that she were entitled to special damages as pleaded which is hereby awarded and I so hold.
18. This court cannot issues orders that were not part of the reliefs sought. In this appeal the Appellant prayed for orders that;
a) The Appeal be allowed.
b) The Judgment and Decree of the learned Magistrate in Milimani — CMCC No. E215 of 2024 be substituted and/or varied.
c) This Honourable Court be pleased to assess general damages awardable in Milimani CMCC No. E215 of 2024.
d) The cost of Appeal and that of the subordinate Court be awarded to the Appellant together with interest.
19. The Appellant is entitled cost given that cost to follow the event.
Orders;
1. The Appeal be allowed.
2. The Judgment and Decree of the learned Magistrate in Milimani — CMCC No. E215 of 2024 varied in the following terms.
3. General damages Kshs. 1 Million.
4. The cost of Appeal and that of the subordinate Court be awarded to the Appellant together with interest.
2. The appellant moved to court to see compensation as a result of which Judgment was entered in her favour.
3. Dissatisfied with the quantum general and special damages she has moved to this court challenging the same through a Memorandum of Appeal wherein she raised the following grounds:
1) The learned trial Magistrate erred in law and in fact arriving at an award in quantum so low as to be erroneous.
2) The learned Magistrate erred in law and in fact by not fully considering and/or appreciating all the facts before him together with the Plaintiff's pleadings and Submissions hence failing to award the Applicant any compensation for future medical expenses.
3) The learned Magistrate erred in law and in fact by not fully considering and/or appreciating ail the facts before him together with the Plaintiff's pleadings and Submissions hence failing to award the Applicant any compensation for diminished earning capacity.
4) In all the circumstances of the case, the findings of the Eearned trial Magistrate in quantum were characterized with misapplication of the kaw and wrong exercise of discretion.
5) The Learned trial Magistrate erred in law and in fact in relying on authorities not in parity with the facts of the instant case before him.
4. She prays for orders that;
a) The Appeal be allowed.
b) The Judgment and Decree of the learned Magistrate in Milimani — CMCC No. E215 of 2024 be substituted and/or varied.
c) This Honourable Court be pleased to assess general damages awardable in Milimani CMCC No. E215 of 2024.
d) The cost of Appeal and that of the subordinate Court be awarded to the Appellant together with interest.
5. The appeal is unopposed.
Analysis and determination;
6. This court has the jurisdiction to review the evidence is produced by the parties during trial.
7. The court is satisfied that the Appellant does not challenge liability and the court maintains that the respondent is 100% liable for the accident.
8. On general damages the Appellant is seeking the setting side of the amount award. The court has looked at the pleadings and took noted that the nature of the injuries according to medical report of Dr. Okoth Okere the Appellant sustained the following injuries; Fracture of right femur, Pain on the right upper leg and observed that she has difficulty in walking, has a surgical scar on the upper leg laterally, the Implant is insitu, degree of permanent incapacity assessed at 40%.
9. The court is satisfied that she established that indeed she sustained the injuries as set out or pleaded in the plaint.
10. The court has also looked at comparative authorities as riled upon during the hearing by the parties herein and the court is satisfied that the amount that was awarded to her was not adequate to compensate her for the injuries that she sustained. The general damages shall be Kshs. 1 million.
11. The court confirms that the appellant pleaded future medical expense at paragraph 7 of the plaint.
12. On the last paragraph of the medical report, the issue of future medical expenses was specifically provided for as an entry by Dr. Cyprianus Okoth Okere.
13. The trial court's erroneous findings on compensation for future medical expenses is in the circumstances set aside and substituted with an award of Kshs.200,000 as guided by the medical report by Dr. Cyprianus Okoth Okere.
14. The Appellant also pleaded for compensation for diminished earning capacity at paragraph 8 of her Plaint. It was not in doubt that the Appellant herein sustained fracture of the femur, pain on the upper leg with difficulty in walking and the degree of permanent incapacity was assessed at 40% by Dr. Okoth Okere.
15. On this head, the court has looked at the medical report and the nature of the injury sustained and the court is satisfied that the Appellant is entitled to a global award of kshs. 500,000 which I do here by award.
16. Special damages ought to be pleaded and strictly proven. The court has looked the plaint and noted that appellant pleaded special damages.
17. The court has also looked at the evidence that was tendered by the appellant as a result of which the court is satisfied that indeed she proved that she were entitled to special damages as pleaded which is hereby awarded and I so hold.
18. This court cannot issues orders that were not part of the reliefs sought. In this appeal the Appellant prayed for orders that;
a) The Appeal be allowed.
b) The Judgment and Decree of the learned Magistrate in Milimani — CMCC No. E215 of 2024 be substituted and/or varied.
c) This Honourable Court be pleased to assess general damages awardable in Milimani CMCC No. E215 of 2024.
d) The cost of Appeal and that of the subordinate Court be awarded to the Appellant together with interest.
19. The Appellant is entitled cost given that cost to follow the event.
Orders;
1. The Appeal be allowed.
2. The Judgment and Decree of the learned Magistrate in Milimani — CMCC No. E215 of 2024 varied in the following terms.
3. General damages Kshs. 1 Million.
4. The cost of Appeal and that of the subordinate Court be awarded to the Appellant together with interest.