(Appeal from the Judgment and decree of Hon. Mathias Okuche Senior Principal Magistrate, delivered on 15.10.2025 in Migori MCCC E057 of 2023.)
JUDGMENT.
1. This is an appeal from the Judgment and decree of Hon. M. Okuche, Senior Principal Magistrate, delivered on 15.10.2025 in Migori MCCC No. E057 of 2023 . The Appellant was the Plaintiff in the lower court.
2. In the plaint dated the 11 th day of April , the Appellant claimed that he was lawfully riding Motor Cycle Registration Number KMFW 653 M Boxer along the Osiri – Nyakweri road when the Respondents, their driver, servant, employee and/or agent drove the aforestated motor vehicle registration number KTCC 414 E John Deere wheel/ Tractor so recklessly and carelessly in such a manner that the motor vehicle violently hit motor cycle registration number KMFW 653 M Boxer from behind thereby causing serious injuries to the Appellant. The Appellant therefore sought general damages, special damages of Kshs. 9,260.00, future medical expenses of Kshs. 180,000.00 costs of the suit and interests.
3. In a defence dated the 12 th day of May, 2023, the Respondent denied the respondent’s claim in its entirety and put him to strict proof. Without prejudice, the appellant further pleaded that the accident was wholly caused by, and/or was substantially contributed to, by the negligence of the Appellant and the owner of the Motor cycle.
4. Parties recorded a consent on liability in the ratio of 80:20 and the trial court subsequently rendered a judgment in which the Appellant was awarded Kshs. 100,000.00, special damages of Kshs. 3,050.00 but did not award future medical expenses.
5. This decision has triggered this appeal. Through the Amended Memorandum of Appeal dated the 8 th November, 2025 the appellant raised Seven (7) grounds reproduced verbatim as follows.
1) The learned trial magistrate erred in fact and in law in the assessment of quantum by awarding Kshs. 100,000.00 for general damages an award which was too low and an erroneous estimate of the damages awardable.
2) The learned trial magistrate erred in fact and in law to consider the plaintiff’s submissions and authorities supplied on the issue of quantum.
3) The learned trial magistrate erred in fact and in law in the assessment of future medical expenses by failing to award Kshs. 180,000.00 for the same and which failing was tantamount to an erroneous assessment of expert evidence and interpretation of law.
4) The learned trial magistrate erred in law and fact in failing to consider the evidence that was tendered on quantum and future medical expenses during the hearing of the suit.
5) The learned trial magistrate erred in law and in fact in failing to pay regards to authorities in the Plaintiff’s submissions that were guiding in the amount of quantum and future medical expenses that were appropriate and applicable in similar cases.
6) That the learned trial magistrate’s exercise of discretion in assessment of quantum and future medical expenses was injudicious.
7) Other grounds as may be argued with leave of this Honourable Court .
6. Consequently, the appellant prays for the appeal to be allowed and for orders that the finding of the trial magistrate on quantum be set aside, reviewed and/or revised or substituted with this Honourable Court’s own assessment, that the general damages be assessed according to a figure that corresponds with the injuries suffered by the Plaintiff based on comparable past decisions, that future medical expenses be awarded as pleaded, any further deemed fit to be awarded with costs.
7. The Appellant filed written submissions dated the 16 th day of March, 2026 in support of the Appeal, whereas the Respondents filed their written submissions dated the 27 th day of March, 2026 in rebuttal. I have summarized these submissions below;
Appellants submissions
8. The Appellant faulted the trial court that it misapprehended the law, the appellants evidence and authorities of comparable awards in awarding a manifestly low amount in respect to general damages and that it failed to adequately address the Appellant’s claim for future medical expenses.
9. The Appellant submitted that an award of Kshs. 450,000.00 is reasonable in consideration of the Appellant’s serious injuries and he relied on the case of AA of Kenya & Another vs Nyinsenga (Civil Appeal E111 of 2023) [2023] KEHC 25216 (KLR) (10 November 2023) (Judgment), Ng’ang’a John & Another vs David Ogot Agola [2021] KEHC 804 (KLR), Kato v Mwema [2023] KEHC 24976 (KLR ) .
10. The Appellant further submitted that the Trial Court should not have relied on the evidence of a lay person in respect to whether the said person required future medical treatment and the same was a medical question which cannot be reliably answered by the Appellant. He contended that where a medical report has been availed and the same recommends future treatment and an estimation of the same has been availed then the court should give credence to such evidence. The Appellant relied on the case of Michael Hubert Kloss & another vs David Seroney & 5 others [2009] KECA 146 (KLR ) under this limb.
11. On the issue of costs of the Appeal, the Appellant relied on Section 27 of the Civil Procedure Act, CAP 21.
12. In conclusion, the appellant urges this court to set aside the trial court’s judgment on quantum and to re-assess the general damages payable to the Appellant, award future medical expenses and costs of the Appeal.
Respondents’ submissions
13. The respondent submits that the award of Kshs. 100,000.00 was not excessive given the injuries sustained were soft tissue in nature. He relied on the case of Eva Karemi & 5 Others v Koskei Kieng & Another [2020] KEHC 5940 (KLR ) where the trial court awarded Kshs. 70,000.00 and the case of Onsase vs Omosa [2022] KEHC 13953 (KLR) where equally the trial court awarded Kshs. 70,000.00. It was the Respondent’s submissions that the injuries on the two authorities were similar to the instant case.
14. In respect to future medical expenses, the Respondents submitted that future medical expenses are imaginary and futuristic and cannot be ascertained that the same will ever be incurred and should therefore not be entertained. Reliance was placed on the case of Zacharia Waweru Thumbi vs Samuel Njoroge Thuku [2006] KEHC 2976 (KLR) .
15. On the issue of costs of the Appeal, the Respondents equally relied on Section 27 of the Civil Procedure Act, CAP 21. The respondents conclude by urging this court to dismiss the appeal with costs, as it lacks merit.
Analysis and Determination
16. I have considered the grounds of appeal, examined the record of appeal and reviewed the submissions of the parties. It is clear that this appeal challenges the quantum of damages awarded by the trial court and the failure of the trial court to award damages for future treatment expenses.
17. Accordingly, the issues for determination by this court are whether the awards for general damages of Ksh. 100,000.00 and failure to grant future medical expenses by the trial court were erroneous, unjustified and/or excessive in the circumstances of this case.
18. This being a first appeal, the principles in Selle v. Associated Motor Boat Co. Ltd [1968] EA apply. The appellate court has a duty to re-valuate both law and facts subjecting the evidence to fresh and exhaustive scrutiny, while bearing in mind the fact that it did not have the advantage of seeing and hearing the witnesses first hand.
19. Turning to the award of general damages, the trial court granted Ksh. 100,000.00 as general damages. The appellants argue that this amount is manifestly low while the respondent maintain that the award was proper.
20. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) [1985] eKLR is categorical that:
“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.”
21. Additionally, in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 arrive at a figure which was either inordinately high or low.”
22. The principles are therefore settled. Interference is warranted only where the award is manifestly excessive or inadequate, or where irrelevant considerations were applied. The question, then, is whether the award of Kshs. 100,000.00 was manifestly low and unjustified.
23. In this case the Appellant pleaded the following as particulars of injuries in their Plaint:
i. Swollen lower lip.
ii. Loosely attached two lower incisor teeth.
iii. Gum surrounded with hyre-emic.
iv. Lacerations and bruises on left upper hand extending from the delloid region with tenderness.
v. Laceration on the left thumb, index finger with tenderness.
vi. Laceration on the left thump, index finger with tenderness.
vii. Oozing purulent discharge with limited movement of left knee joint.
viii. Bruises on the left knee.
ix. Swollen laceration on ankle joint anteriorly measuring 4cm with tenderness .
24. The Discharge Summary produced by the Appellant from Sori Lakeside Hospital and upon my perusal indicated that the diagnosis was ‘soft tissues injuries and mild head injury’ from a road traffic accident, on physical examination it has been noted as follows ‘been on the Hospital for management, has respondent well on medication. No new complaint’
25. The Medical report produced by the Appellant prepared by Dr. James Obondi Otieno stated that the particular of injuries sustained were:
a) Bruises on the left hand.
b) Bruises on the left arm and forehead.
c) Bruises on the left knee .
26. It is not disputed that the Appellant sustained injuries following the accident. The medical report relied upon also indicated that the Appellant sustained friction burns which had healed with scars and assessed the degree of permanent disability at 5%. These are relevant issues which this Court must take into account in determining whether the award made by the trial court was manifestly inadequate. The presence of residual scarring and an assessment of permanent disability distinguish the case from one involving transient soft-tissue injuries which healed without any residual effects.
27. However, I must also consider the entirety of the medical evidence rather than the medical report in isolation. The injuries pleaded in the Plaint were considerably more extensive. They included a swollen lower lip, loosely attached lower incisor teeth, lacerations and bruises to the left upper limb, lacerations to the thumb and index finger, injury to the left knee accompanied by purulent discharge and limited movement, bruises to the left knee and a swollen laceration to the ankle joint measuring approximately 4 cm.
28. The discharge summary from Sori Lakeside Hospital, however, records the diagnosis as “soft tissue injuries and mild head injury” arising from a road traffic accident. On physical examination, it is recorded that the Appellant had been admitted for management, had responded well to medication and had no new complaint. The discharge summary does not particularize the extensive injuries pleaded in the Plaint.
29. Similarly, the medical report prepared by Dr. James Obondi Otieno particularizes the injuries as bruises on the left hand, bruises on the left arm and forehead, and bruises on the left knee. It does not specifically refer to the alleged loosely attached lower incisor teeth, the lacerations to the thumb and index finger, purulent discharge or limited movement of the left knee, or the 4 cm laceration to the ankle.
30. Therefore, it is my considered opinion that there exists a material discrepancy between the injuries pleaded, the hospital record and the injuries particularized in the medical report. This discrepancy is significant because the assessment of general damages must be based upon injuries proved by evidence and not merely those pleaded.
31. I have also considered the Appellant's contention that the medical report assessed permanent disability at 5% and noted healed friction burns with scars. The fact of scarring and the medical assessment of disability are undoubtedly relevant and ought not to be disregarded. Nevertheless, an assessment of 5% disability does not in itself dictate a particular award of general damages. The Court must consider the nature and extent of the injuries, the treatment undertaken, the residual effects and the comparable awards for reasonably similar injuries.
32. The assessment of damages is intended to compensate an injured party and not to enrich him. At the same time, I have to ensure that the award is fair and reasonably commensurate with the injuries proved.
33. In Koech & Another v Muse [2024] KEHC 6737 (KLR ) , the Court reiterated that an appellate court should not interfere with an award unless the trial court proceeded on wrong principles or misapprehended the evidence in a material respect, resulting in an inordinately high or low award. The Court further emphasized the compensatory nature of general damages.
34. In the present case, the Appellant has not demonstrated that the learned trial magistrate ignored the evidence of the injuries or the residual effects thereof. Neither has the Appellant demonstrated that the trial court proceeded on a wrong principle of law. The fact that the medical report assessed 5% disability, does not establish that an award of Kshs. 100,000.00 was so inordinately low as to amount to an erroneous estimate.
35. It is my considered view that the discrepancies between the pleaded injuries, the discharge summary and the medical report make it unsafe for this Court to assess damages on the basis of all the injuries pleaded in the Plaint. The more serious injuries pleaded are not consistently supported by the medical evidence.
36. I am therefore not persuaded that the award of Kshs. 100,000.00 was so inordinately low as to warrant appellate interference.
37. Accordingly, the appeal on this limb is consequently dismissed.
38. On the award of future medical expenses, I am guided by the case of Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR ) , where the Court of Appeal stated that:
“ The award for future medical expenses is challenged on two fronts. First, that it was not specifically pleaded and strictly proved .”
39. The Court further affirmed the principle from Kenya Bus Services Ltd v Gituma (2004) 1 EA 91 that:
“ the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. ”
40. In the present case, although the medical report was specifically pleaded and produced by the consent of the parties herein which recommended skin grafting at a cost of Kshs. 180,000.00, the doctor who prepared the report did not testify to explain the basis, necessity or estimated cost of the proposed procedure. Further, in cross-examination, the Appellant stated that he did not know what the Kshs. 180,000.00 was for and that he had not given the doctor instructions in that regard.
41. I am of the considered view that while the medical report was properly admitted by consent, the amount stated therein was not thereby made conclusive. In the circumstances and considering that the Appellant himself could not explain the basis of the proposed treatment or its cost, I find that the claim for Kshs. 180,000.00 was not sufficiently proved and therefore I find no basis to interfere with the trial court's decision.
42. The next issue is costs. Costs are governed by Section 27 of the Civil Procedure Act , which provides as follows:
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen percent per annum, and such interest shall be added to the costs and shall be recoverable as such”.
43. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:
“It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.
44. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR , as follows:
“(18) It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or Respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
45. The appellant having lost the appeal, it will thus follow that the Respondents are entitled to the costs of the appeal.
Determination
46. In the upshot, I make the following orders:
x. The appeal is dismissed.
xi. The Respondents shall have costs of the appeal.
xii. 30 days stay of execution.
xiii. The file is closed .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th day of August 2026.
HCCA NO. E136 OF 2025 MOSES O. BALA VS STEPHANIE A. ONYANGO & ANO. JUDT Pg. 12
JUDGMENT.
1. This is an appeal from the Judgment and decree of Hon. M. Okuche, Senior Principal Magistrate, delivered on 15.10.2025 in Migori MCCC No. E057 of 2023 . The Appellant was the Plaintiff in the lower court.
2. In the plaint dated the 11 th day of April , the Appellant claimed that he was lawfully riding Motor Cycle Registration Number KMFW 653 M Boxer along the Osiri – Nyakweri road when the Respondents, their driver, servant, employee and/or agent drove the aforestated motor vehicle registration number KTCC 414 E John Deere wheel/ Tractor so recklessly and carelessly in such a manner that the motor vehicle violently hit motor cycle registration number KMFW 653 M Boxer from behind thereby causing serious injuries to the Appellant. The Appellant therefore sought general damages, special damages of Kshs. 9,260.00, future medical expenses of Kshs. 180,000.00 costs of the suit and interests.
3. In a defence dated the 12 th day of May, 2023, the Respondent denied the respondent’s claim in its entirety and put him to strict proof. Without prejudice, the appellant further pleaded that the accident was wholly caused by, and/or was substantially contributed to, by the negligence of the Appellant and the owner of the Motor cycle.
4. Parties recorded a consent on liability in the ratio of 80:20 and the trial court subsequently rendered a judgment in which the Appellant was awarded Kshs. 100,000.00, special damages of Kshs. 3,050.00 but did not award future medical expenses.
5. This decision has triggered this appeal. Through the Amended Memorandum of Appeal dated the 8 th November, 2025 the appellant raised Seven (7) grounds reproduced verbatim as follows.
1) The learned trial magistrate erred in fact and in law in the assessment of quantum by awarding Kshs. 100,000.00 for general damages an award which was too low and an erroneous estimate of the damages awardable.
2) The learned trial magistrate erred in fact and in law to consider the plaintiff’s submissions and authorities supplied on the issue of quantum.
3) The learned trial magistrate erred in fact and in law in the assessment of future medical expenses by failing to award Kshs. 180,000.00 for the same and which failing was tantamount to an erroneous assessment of expert evidence and interpretation of law.
4) The learned trial magistrate erred in law and fact in failing to consider the evidence that was tendered on quantum and future medical expenses during the hearing of the suit.
5) The learned trial magistrate erred in law and in fact in failing to pay regards to authorities in the Plaintiff’s submissions that were guiding in the amount of quantum and future medical expenses that were appropriate and applicable in similar cases.
6) That the learned trial magistrate’s exercise of discretion in assessment of quantum and future medical expenses was injudicious.
7) Other grounds as may be argued with leave of this Honourable Court .
6. Consequently, the appellant prays for the appeal to be allowed and for orders that the finding of the trial magistrate on quantum be set aside, reviewed and/or revised or substituted with this Honourable Court’s own assessment, that the general damages be assessed according to a figure that corresponds with the injuries suffered by the Plaintiff based on comparable past decisions, that future medical expenses be awarded as pleaded, any further deemed fit to be awarded with costs.
7. The Appellant filed written submissions dated the 16 th day of March, 2026 in support of the Appeal, whereas the Respondents filed their written submissions dated the 27 th day of March, 2026 in rebuttal. I have summarized these submissions below;
Appellants submissions
8. The Appellant faulted the trial court that it misapprehended the law, the appellants evidence and authorities of comparable awards in awarding a manifestly low amount in respect to general damages and that it failed to adequately address the Appellant’s claim for future medical expenses.
9. The Appellant submitted that an award of Kshs. 450,000.00 is reasonable in consideration of the Appellant’s serious injuries and he relied on the case of AA of Kenya & Another vs Nyinsenga (Civil Appeal E111 of 2023) [2023] KEHC 25216 (KLR) (10 November 2023) (Judgment), Ng’ang’a John & Another vs David Ogot Agola [2021] KEHC 804 (KLR), Kato v Mwema [2023] KEHC 24976 (KLR ) .
10. The Appellant further submitted that the Trial Court should not have relied on the evidence of a lay person in respect to whether the said person required future medical treatment and the same was a medical question which cannot be reliably answered by the Appellant. He contended that where a medical report has been availed and the same recommends future treatment and an estimation of the same has been availed then the court should give credence to such evidence. The Appellant relied on the case of Michael Hubert Kloss & another vs David Seroney & 5 others [2009] KECA 146 (KLR ) under this limb.
11. On the issue of costs of the Appeal, the Appellant relied on Section 27 of the Civil Procedure Act, CAP 21.
12. In conclusion, the appellant urges this court to set aside the trial court’s judgment on quantum and to re-assess the general damages payable to the Appellant, award future medical expenses and costs of the Appeal.
Respondents’ submissions
13. The respondent submits that the award of Kshs. 100,000.00 was not excessive given the injuries sustained were soft tissue in nature. He relied on the case of Eva Karemi & 5 Others v Koskei Kieng & Another [2020] KEHC 5940 (KLR ) where the trial court awarded Kshs. 70,000.00 and the case of Onsase vs Omosa [2022] KEHC 13953 (KLR) where equally the trial court awarded Kshs. 70,000.00. It was the Respondent’s submissions that the injuries on the two authorities were similar to the instant case.
14. In respect to future medical expenses, the Respondents submitted that future medical expenses are imaginary and futuristic and cannot be ascertained that the same will ever be incurred and should therefore not be entertained. Reliance was placed on the case of Zacharia Waweru Thumbi vs Samuel Njoroge Thuku [2006] KEHC 2976 (KLR) .
15. On the issue of costs of the Appeal, the Respondents equally relied on Section 27 of the Civil Procedure Act, CAP 21. The respondents conclude by urging this court to dismiss the appeal with costs, as it lacks merit.
Analysis and Determination
16. I have considered the grounds of appeal, examined the record of appeal and reviewed the submissions of the parties. It is clear that this appeal challenges the quantum of damages awarded by the trial court and the failure of the trial court to award damages for future treatment expenses.
17. Accordingly, the issues for determination by this court are whether the awards for general damages of Ksh. 100,000.00 and failure to grant future medical expenses by the trial court were erroneous, unjustified and/or excessive in the circumstances of this case.
18. This being a first appeal, the principles in Selle v. Associated Motor Boat Co. Ltd [1968] EA apply. The appellate court has a duty to re-valuate both law and facts subjecting the evidence to fresh and exhaustive scrutiny, while bearing in mind the fact that it did not have the advantage of seeing and hearing the witnesses first hand.
19. Turning to the award of general damages, the trial court granted Ksh. 100,000.00 as general damages. The appellants argue that this amount is manifestly low while the respondent maintain that the award was proper.
20. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) [1985] eKLR is categorical that:
“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.”
21. Additionally, in Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 arrive at a figure which was either inordinately high or low.”
22. The principles are therefore settled. Interference is warranted only where the award is manifestly excessive or inadequate, or where irrelevant considerations were applied. The question, then, is whether the award of Kshs. 100,000.00 was manifestly low and unjustified.
23. In this case the Appellant pleaded the following as particulars of injuries in their Plaint:
i. Swollen lower lip.
ii. Loosely attached two lower incisor teeth.
iii. Gum surrounded with hyre-emic.
iv. Lacerations and bruises on left upper hand extending from the delloid region with tenderness.
v. Laceration on the left thumb, index finger with tenderness.
vi. Laceration on the left thump, index finger with tenderness.
vii. Oozing purulent discharge with limited movement of left knee joint.
viii. Bruises on the left knee.
ix. Swollen laceration on ankle joint anteriorly measuring 4cm with tenderness .
24. The Discharge Summary produced by the Appellant from Sori Lakeside Hospital and upon my perusal indicated that the diagnosis was ‘soft tissues injuries and mild head injury’ from a road traffic accident, on physical examination it has been noted as follows ‘been on the Hospital for management, has respondent well on medication. No new complaint’
25. The Medical report produced by the Appellant prepared by Dr. James Obondi Otieno stated that the particular of injuries sustained were:
a) Bruises on the left hand.
b) Bruises on the left arm and forehead.
c) Bruises on the left knee .
26. It is not disputed that the Appellant sustained injuries following the accident. The medical report relied upon also indicated that the Appellant sustained friction burns which had healed with scars and assessed the degree of permanent disability at 5%. These are relevant issues which this Court must take into account in determining whether the award made by the trial court was manifestly inadequate. The presence of residual scarring and an assessment of permanent disability distinguish the case from one involving transient soft-tissue injuries which healed without any residual effects.
27. However, I must also consider the entirety of the medical evidence rather than the medical report in isolation. The injuries pleaded in the Plaint were considerably more extensive. They included a swollen lower lip, loosely attached lower incisor teeth, lacerations and bruises to the left upper limb, lacerations to the thumb and index finger, injury to the left knee accompanied by purulent discharge and limited movement, bruises to the left knee and a swollen laceration to the ankle joint measuring approximately 4 cm.
28. The discharge summary from Sori Lakeside Hospital, however, records the diagnosis as “soft tissue injuries and mild head injury” arising from a road traffic accident. On physical examination, it is recorded that the Appellant had been admitted for management, had responded well to medication and had no new complaint. The discharge summary does not particularize the extensive injuries pleaded in the Plaint.
29. Similarly, the medical report prepared by Dr. James Obondi Otieno particularizes the injuries as bruises on the left hand, bruises on the left arm and forehead, and bruises on the left knee. It does not specifically refer to the alleged loosely attached lower incisor teeth, the lacerations to the thumb and index finger, purulent discharge or limited movement of the left knee, or the 4 cm laceration to the ankle.
30. Therefore, it is my considered opinion that there exists a material discrepancy between the injuries pleaded, the hospital record and the injuries particularized in the medical report. This discrepancy is significant because the assessment of general damages must be based upon injuries proved by evidence and not merely those pleaded.
31. I have also considered the Appellant's contention that the medical report assessed permanent disability at 5% and noted healed friction burns with scars. The fact of scarring and the medical assessment of disability are undoubtedly relevant and ought not to be disregarded. Nevertheless, an assessment of 5% disability does not in itself dictate a particular award of general damages. The Court must consider the nature and extent of the injuries, the treatment undertaken, the residual effects and the comparable awards for reasonably similar injuries.
32. The assessment of damages is intended to compensate an injured party and not to enrich him. At the same time, I have to ensure that the award is fair and reasonably commensurate with the injuries proved.
33. In Koech & Another v Muse [2024] KEHC 6737 (KLR ) , the Court reiterated that an appellate court should not interfere with an award unless the trial court proceeded on wrong principles or misapprehended the evidence in a material respect, resulting in an inordinately high or low award. The Court further emphasized the compensatory nature of general damages.
34. In the present case, the Appellant has not demonstrated that the learned trial magistrate ignored the evidence of the injuries or the residual effects thereof. Neither has the Appellant demonstrated that the trial court proceeded on a wrong principle of law. The fact that the medical report assessed 5% disability, does not establish that an award of Kshs. 100,000.00 was so inordinately low as to amount to an erroneous estimate.
35. It is my considered view that the discrepancies between the pleaded injuries, the discharge summary and the medical report make it unsafe for this Court to assess damages on the basis of all the injuries pleaded in the Plaint. The more serious injuries pleaded are not consistently supported by the medical evidence.
36. I am therefore not persuaded that the award of Kshs. 100,000.00 was so inordinately low as to warrant appellate interference.
37. Accordingly, the appeal on this limb is consequently dismissed.
38. On the award of future medical expenses, I am guided by the case of Tracom Limited & Another v Hassan Mohamed Adan [2009] KECA 48 (KLR ) , where the Court of Appeal stated that:
“ The award for future medical expenses is challenged on two fronts. First, that it was not specifically pleaded and strictly proved .”
39. The Court further affirmed the principle from Kenya Bus Services Ltd v Gituma (2004) 1 EA 91 that:
“ the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award in respect thereof. ”
40. In the present case, although the medical report was specifically pleaded and produced by the consent of the parties herein which recommended skin grafting at a cost of Kshs. 180,000.00, the doctor who prepared the report did not testify to explain the basis, necessity or estimated cost of the proposed procedure. Further, in cross-examination, the Appellant stated that he did not know what the Kshs. 180,000.00 was for and that he had not given the doctor instructions in that regard.
41. I am of the considered view that while the medical report was properly admitted by consent, the amount stated therein was not thereby made conclusive. In the circumstances and considering that the Appellant himself could not explain the basis of the proposed treatment or its cost, I find that the claim for Kshs. 180,000.00 was not sufficiently proved and therefore I find no basis to interfere with the trial court's decision.
42. The next issue is costs. Costs are governed by Section 27 of the Civil Procedure Act , which provides as follows:
“(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen percent per annum, and such interest shall be added to the costs and shall be recoverable as such”.
43. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:
“It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.
44. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR , as follows:
“(18) It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or Respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.
45. The appellant having lost the appeal, it will thus follow that the Respondents are entitled to the costs of the appeal.
Determination
46. In the upshot, I make the following orders:
x. The appeal is dismissed.
xi. The Respondents shall have costs of the appeal.
xii. 30 days stay of execution.
xiii. The file is closed .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th day of August 2026.
HCCA NO. E136 OF 2025 MOSES O. BALA VS STEPHANIE A. ONYANGO & ANO. JUDT Pg. 12