' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E109 OF 2024
NEW PROMISE CONTRACTORS………………….…………APPELLANT
VERSUS
DANIEL KIPYAKUT KONES…………………………….….RESPONDENT
(Being an appeal from the judgment and order of the Resident Magistrate, Sirisia Principal Magistrate’s Law Courts in Civil Case No. E020 of 2023 delivered by Hon. J.O Manasses (RM) on 13th June 2024.)
JUDGMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on strictly quantum. The Appellant seeks that the appeal be allowed and judgment on quantum of the lower Court be set aside in its entirety, the costs of the appeal and of the Court below.
2. By a Plaint dated 16th January 2023, filed in Court on 7th February 2023, in Sirisia Principal Magistrate’s Court No. E020 of 2023, the Respondent herein (Plaintiff in the trial Court) sued the Appellant herein (Defendant in the trial Court) for general damages, special damages cists and future medical of Kshs. 280,130/=, costs of the suit, and interest for bodily injuries sustained out of a road accident that occurred on 19th June 2022, along Cheptais-Tulienge road at Kapsitet area.
3. The Respondent claimed that he was lawfully riding a motorcycle along Cheptais-Tulienge road when at Kapsitet area, motor vehicle registration Number KCX 010 Q, which was driven by the Appellant himself, his servant, agent or driver in a negligent, careless and reckless manner lost control and rammed into the motor cycle causing him to sustain serious injuries.
4. The Appellant in his response denied the ownership of the alleged motor vehicle registration Number KCX 010 Q and the particulars of negligence attributed to it and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent and urged this Court to dismiss the suit.
5. In response to the Statemnet of Defence, the Respondent denied contributing to the accident as alleged. He pleaded the doctrine of res ispa loquitor and vehemently denied the applicability of the doctrine of volenti non fit injuria and placed the Appellant on strict proof.
6. During the hearing, both the Respondent testified, but did not call any witnesses, while the Appellant did not testify but called one witness.
7. After hearing and an in-depth analysis of the evidence before Court, the trial Court found both the parties liable for the said accident and proceeded to apportion liability 70:30 in favour of the Respondent. The trial Court proceeded to award the following: -
i. General damages
pain and suffering Kshs. 1,500, 000/=
ii. Future medical expenses Kshs. 200,000/=
iii. Special damages Kshs. 281,000 /=
Sub-Total Kshs. 1,981,180/=
Less 30% contribution
Total Kshs. 1,386,826/=
iv. Plus, costs and interests on damages at Court rate.
The Appeal
8. The memorandum of appeal dated 10th July 2024, filed in Court on 12th July 2024 is based on Seven (7) grounds of appeal as follows: -
a. That the learned trial magistrate erred in law and in fact in making the award of general damages that were manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the Respondent (Plaintiff).
b. That the learned trial magistrate erred in law and in fact in entering judgement for general damages without considering the applicable principles as established by the precedent that comparable injuries ought to attract comparable damages and by so doing reached a figure of damages that is ordinately high, arbitrary and unsupportable.
c. That the learned trial magistrate erred in law and in fact in awarding general damages of Kshs. 1,500,000/= which award was excessive and not commensurate to the nature of injuries sustained by the Respondent.
d. That the learned trial magistrate erred in law and in fact in awarding future medical costs of Kshs. 200,000/= which amount was not proved by the Plaintiff.
e. That the learned trial magistrate erred in law and in fact in awarding special damages of Kshs. 281,800/= which amount was not proved.
f. That the learned trial magistrate erred in law and in fact in failing to pay regard to authorities in the Defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was deciding.
g. That the learned trial magistrate’s exercise of discretion in assessment of quantum and future medical costs was injudicious.
9. Reasons whereof, the Appellant prayed for the following reliefs: - appeal be allowed; an order to issue setting aside the decree of Hon. J.M. Manasses; this Court to re-assess the evidence on record of the Subordinate Court on quantum and award with its own decision; costs of the appeal be awarded to the Appellant.
10. The Appeal was canvassed by way of written submissions. On my perusal of the Court record it was clear that both parties to the appeal herein did comply with the Court directives.
Appellant’s Submissions
11. The Appellant submits on three issues namely: whether the trial Court erred in making an award of Kshs. 1,500,000/= under general damages; whether the trial magistrate erred in awarding future medical costs of Kshs. 200,000/=; whether the trial magistrate erred in law and fact in awarding special damages of Kshs. 281,180/=.
12. On the first issue, the Appellant submits that assessment of damages in a suit is more of a judicial discretion and that the Court ought to determine the appropriate level of compensation bearing in mind that comparable injuries should as far as possible be compensated by comparable awards. He placed reliance on the cases of Bashir Ahmed Butt vs Uwais Ahmend Khan (1982-88) KAR and Simon Taveta vs Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 (2014) eKLR.
13. According to the Appellant, the particulars of the injuries as per the Plaint are: fracture of the right femur, fracture of the right tibia/fibula, degloving the injury to the right foot and dislocation of the right shoulder. The discharge summary as availed by the Respondent from Optimum Hill Medical Centre (PEXH 3) did not indicate any dislocation or degloving injuries and this was duly confirmed by the medical report of Dr. Steve (DEXH 1). The Appellant argues that the Respondent suffered a fracture of the right femur, tibia/fibula and the said had re-united and did not have any deformity, thus no disability. The Appellants submits that an award of Kshs. 600,000/= is reasonable in this circumstance and placed reliance on the cases of Jitan Nagra vs Abednego Nyandusi Oigo (2018) eKLR and Godfrey Mungicholas Mwiti Mwiruba vs Marcella Mpaka Kiambi (2022) eKLR.
14. On the second issue, the Appellant submits that the Respondent pleaded for future medical costs of Kshs. 200,000/= and relied on the medical report of Dr. Mulianga who stated that the Respondent would require the removal of the meatl plates at a cost of Kshs. 200,000/= and no basis for this amount was laid. The Appellant submits that Dr. Steve Ochieng also testified stating that such a procedure required between Kshs. 24,000-80,000/= in a public hospital and the medical reports and attachments from Machakos Level 4 hospital were produced to confirm the amounts required for removal of implants as per the medical report. Also, the Appellant argue that as per the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016 indicate that the removal of implants in hospitals should be charges at Kshs. 24,000-60,000/=. The Appellant submits that future medical expenses being a special claim ought to be specifically pleaded and proved before a Court can award it. They placed reliance on the case of Kenya Bus Services Ltd vs Gituma (2004) 1 EA 91. The Appellant urged this Court to make an award of Kshs. 80,000/= despite the Respondent failure to avail any documentary evidence or hospital quotation to confirm the amount quoted by his doctor.
15. On the third issue, the Appellant submits that special damages ought to be pleaded and proved. The Respondent pleaded Kshs. 280, 130/=, but the same was never proved. They argue that the Respondent only availed receipts of Kshs. 6,000/= dated 17th October 2022, for the medical report, Kshs. 257,000/= for medical treatments. The Appellant urged this Court to only make an award of Kshs. 263,000/- and that was the only amount the Respondent proved.
16. In conclusion, the Appellant urged this Court to allow their appeal with costs in this appeal and the trial Court as prayed.
Respondent’s Submissions
17. Opposing the appeal, the Respondent submits on two issues namely: whether the learned trial magistrate reached the right conclusion on the award of damages under quantum and who should bear the costs of the appeal. He argues that the trial Court’s decision did not take into account any wrong principles in arriving at his decision and placed reliance on the case of Bashir Ahmed Butt vs Uwais Ahmend Khan (1982-88) KAR.
18. On the first issue, the Respondent submits that the award of the trial Court was proper and given the fact that it is a matter of the Court’s discretion, it was also a conventional award at the Court’s discretion. He argues that he suffered multiple fractures on the right femur, tibia/fibula, degloving injury to the right foot and dislocation of the right shoulder and that the trial Court was guided by the decision of H. West & Son Ltd vs Shepherd (1964) A.C 3269 in making its award. He submits that Dr. Sokobe who examined him on 17th October 2022, stated in his medical report that he will require future medical expenses for the removal of metallic implants at a cost of Kshs. 200,000/= and that after his re-examination by the Appellant’s doctor, Dr. Ochieng, he did not dispute the same and noted that the Respondent will eventually require future medical expenses. According to him, the trial Magistrate relied legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016 which provides for a figure of Kshs. 144,000/= for removal of implants which notice factors one fracture as compared to multiple fractures as sustained by the Respondent herein, thus the award of Kshs. 200,000/= as stipulated by the doctor.
19. The Appellant urged this Court to dismiss the Appellant’s appeal with costs and that the trial Court’s decision was no error.
Analysis and Determination
20. This appeal is on quantum hence the only issue for determination is whether the trial magistrate made a correct assessment of the damages in relation to the injuries sustained by the Respondent. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
21. Similarly, in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR the Court of Appeal restated principles applicable on appeal against quantum of damages as follows;
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A 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 that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
22. This is the 1st Appellant Court and the mandate of this Court was well captured in Selle – Vs- Associated Motor Boat Co [1968] EA 123 where the Court of appeal observed as follows:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
23. Assessment of damages is a discretionary matter and generally an appellate Court would rarely interfere with the exercise of discretion unless it is demonstrated that in assessment of damages the Court took into account as irrelevant factor or left out a relevant issue or that the award is so inordinately low or high as to represent erroneous estimate.
24. In this instance the Respondent pleaded the following injuries:
a. Fracture right femur.
b. Fracture right tibia/fibula.
c. Degloving injury to the right foot.
d. Dislocation of the right shoulder.
25. In the medical report by Dr. Joseph C. Sokobe dated 17th October 2022, tendered by the Respondent, injuries sustained by the Respondent are as particularized in the Plaint. On the section on opinion and prognosis, the doctor opined as follows;
“Daniel Kones sustained severe soft & skeletal (fractures) tissue injuries from which he has not fully recovered. He requires further treatment i.e removal of implants at an estimate cost of Kshs. 200,000/= (two hundred thousand).”
26. Going by the 2nd medical opinion by Doctor Steve Ochieng, in his medical report dated 25th July 2007, the doctor concurred with the Respondent’s doctor’s report on the injuries as he examined the initial x-ray reports, which confirmed the fractures and equally did examine an x-ray that confirmed the presence of a metal implant. He opined that the Respondent will require future costs of treatments for removal of the metal implant and estimated the procedure to cost Kshs. 80,000/= and in his testimony as DW1 he obliged the trial Court to refer to the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016.
27. The most significant injuries sustained by the Respondent in the present matter are the fracture of the right femur and right tibia/fibula while the rest were severe soft tissue injuries which had healed. I do note, in his lower Court submissions, the Respondent relied on the case of Guardial Singh Ghataurhae v Parminder Singh Manku & 3 others [2018] eKLR where the plaintiff suffered far serious injuries of comminuted intra articular fracture of the right tibial plateau and metaphysic, Fracture right patella, Comminuted fracture of right distal radius, Osteoarthritis of right knee, Fracture of four ribs on right side and Severe lacerations, bruising and scarring, the court awarded general damages of Kshs. 2,500,000. I do note that this authority as sited by the Respondent is not comparable to the present case as the injuries in this case were slightly serious compared to his. Similarly, in the case referred to by the trial Court, Damaris Wamucii Kagechu v Joseph Kirui & another [2019] eKLR, the Plaintiff sustained fractures on both legs which led to inconvenience in movement associated with pain. Mbogholi J awarded a sum of Kshs 1,500,000/= in general damages for pain suffering and loss of amenities in 2019.
28. In the case of Mutisya v Demamoe (Civil Appeal E033 of 2021) [2023] KEHC 24470 (KLR) (30 October 2023) (Judgment) the Appellant sustained a displaced fracture of the right femur, a tear of extensor tendon of the right hand, tear of the extensor tendon on the left hand and degloving injury on the right leg. MOHOCHI S.M. J interfered with the award of Kshs. 500,000/= in general damages as made by the trial Court holding that the same was inordinately low and that an award of Kshs. 1,500,000/= is adequate in the circumstances.
29. The trial Court awarded the Respondent herein Kshs.1,500,000/= as general damages I find that, there was misdirection of fact or law in not awarding general damages-pain and suffering as the same was subject to comparable injuries and authorities. The ground of Appeal thus fails.
30. On the issue of special damages-future medical expenses, The Appellant was dissatisfied with the quantum for future medical expenses, the Appellant faulted the trial Court for awarding an excessive of Kshs. 200,000/= that was not proved by the Respondent’s doctor and contrary to the estimations of the Appellant’s doctor and the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016.
31. The Court of Appeal in the case of Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR 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……” (emphasis mine).
32. Therefore, the law on future medical expenses is well settled and that it has to be pleaded and proven.
33. The Appellant at paragraph 8 of the Plaint dated 16th January 2023, stated:
As a result of the accident, the Plaintiff sustained severe bodily injuries from which he would require further treatment i.e removal of implants at an estimated cost of Kshs. 200,000/= (two hundred) thousand) which amount the Plaintiff claims as future medical expenses….
34. I find this was well pleaded. As to whether the same was proven, there is the medical report on record of Dr. Joseph C. Sokobe. The doctor in his medical report dated 17th October 2022 assessed the costs of medical expenses in future at Kshs. 200,000 for removal of the metal implants. This was challenged by the evidence and report of Dr. Steve Ochieng dated 25th July 2023, who told the Court that the same procedure costs Kshs. 80,000/= and on been referred to the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016 that gave an estimation between Kshs. 100,000-200,000/=, he told the Court that the same was released in 2016 but failed to avail any amended legal notice for the year 2022.
35. According to the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules,a 2016, the removal of metal implants costing is provided for one fracture site and it is elaborate from the evidence in the lower Court record that the Respondent suffered multiple fractures. I don’t see why the cost of future medical expenses should change or reduce without evidence to controvert it. I do find that under this head, the Respondent sufficiently proved his claim for Future Medical Expenses. The ground of Appeal thus fails.
36. On the issue of special damages, the Appellant argues that the Respondent only proved special damages of Kshs. 263,000/= only and not Kshs. 281, 180/= as awarded by the trial Court.
37. Vide consent of the parties dated 1st February 2024, the bundle of receipts totaling to Kshs. 257,800/= was produced in Court as PEXH. 4. On perusal of the lower Court record, the Respondent availed the following receipts:
a. Receipt for the Medical report (PEXH 8)-Kshs. 6,000/=.
b. 2 receipts from Bungoma County Referral Hospital (PEXH 2)-Kshs. 16,830/=.
c. 4 receipts from Optimum Hill Hospital (PEXH 11)-Kshs. 257,800/=
d. Reciept for copy of records (PEXH 10)-Kshs. 550/=
38. On my addition of the amounts as stated hereinabove the same amounts to Kshs. 281,180/= as the proper award for special damages as pleaded and proved. I cannot fault the trial Court in making the award under this head as I do find that the Respondent specifically pleaded and proved his claim for special damages. That ground of Appeal thus fails.
39. In a nutshell, the appeal herein against quantum of damages fails and the same is dismissed with costs to the Respondent.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
………………………………FOR APPELLANT
………………………………FOR RESPONDENT
Peter Machoni COURT ASSISTANT
'
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E109 OF 2024
NEW PROMISE CONTRACTORS………………….…………APPELLANT
VERSUS
DANIEL KIPYAKUT KONES…………………………….….RESPONDENT
(Being an appeal from the judgment and order of the Resident Magistrate, Sirisia Principal Magistrate’s Law Courts in Civil Case No. E020 of 2023 delivered by Hon. J.O Manasses (RM) on 13th June 2024.)
JUDGMENT
1. This is an Appeal seeking to set aside the decision of the trial Court on strictly quantum. The Appellant seeks that the appeal be allowed and judgment on quantum of the lower Court be set aside in its entirety, the costs of the appeal and of the Court below.
2. By a Plaint dated 16th January 2023, filed in Court on 7th February 2023, in Sirisia Principal Magistrate’s Court No. E020 of 2023, the Respondent herein (Plaintiff in the trial Court) sued the Appellant herein (Defendant in the trial Court) for general damages, special damages cists and future medical of Kshs. 280,130/=, costs of the suit, and interest for bodily injuries sustained out of a road accident that occurred on 19th June 2022, along Cheptais-Tulienge road at Kapsitet area.
3. The Respondent claimed that he was lawfully riding a motorcycle along Cheptais-Tulienge road when at Kapsitet area, motor vehicle registration Number KCX 010 Q, which was driven by the Appellant himself, his servant, agent or driver in a negligent, careless and reckless manner lost control and rammed into the motor cycle causing him to sustain serious injuries.
4. The Appellant in his response denied the ownership of the alleged motor vehicle registration Number KCX 010 Q and the particulars of negligence attributed to it and stated that if the accident occurred the same was wholly caused by the negligence of the Respondent and urged this Court to dismiss the suit.
5. In response to the Statemnet of Defence, the Respondent denied contributing to the accident as alleged. He pleaded the doctrine of res ispa loquitor and vehemently denied the applicability of the doctrine of volenti non fit injuria and placed the Appellant on strict proof.
6. During the hearing, both the Respondent testified, but did not call any witnesses, while the Appellant did not testify but called one witness.
7. After hearing and an in-depth analysis of the evidence before Court, the trial Court found both the parties liable for the said accident and proceeded to apportion liability 70:30 in favour of the Respondent. The trial Court proceeded to award the following: -
i. General damages
pain and suffering Kshs. 1,500, 000/=
ii. Future medical expenses Kshs. 200,000/=
iii. Special damages Kshs. 281,000 /=
Sub-Total Kshs. 1,981,180/=
Less 30% contribution
Total Kshs. 1,386,826/=
iv. Plus, costs and interests on damages at Court rate.
The Appeal
8. The memorandum of appeal dated 10th July 2024, filed in Court on 12th July 2024 is based on Seven (7) grounds of appeal as follows: -
a. That the learned trial magistrate erred in law and in fact in making the award of general damages that were manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the Respondent (Plaintiff).
b. That the learned trial magistrate erred in law and in fact in entering judgement for general damages without considering the applicable principles as established by the precedent that comparable injuries ought to attract comparable damages and by so doing reached a figure of damages that is ordinately high, arbitrary and unsupportable.
c. That the learned trial magistrate erred in law and in fact in awarding general damages of Kshs. 1,500,000/= which award was excessive and not commensurate to the nature of injuries sustained by the Respondent.
d. That the learned trial magistrate erred in law and in fact in awarding future medical costs of Kshs. 200,000/= which amount was not proved by the Plaintiff.
e. That the learned trial magistrate erred in law and in fact in awarding special damages of Kshs. 281,800/= which amount was not proved.
f. That the learned trial magistrate erred in law and in fact in failing to pay regard to authorities in the Defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was deciding.
g. That the learned trial magistrate’s exercise of discretion in assessment of quantum and future medical costs was injudicious.
9. Reasons whereof, the Appellant prayed for the following reliefs: - appeal be allowed; an order to issue setting aside the decree of Hon. J.M. Manasses; this Court to re-assess the evidence on record of the Subordinate Court on quantum and award with its own decision; costs of the appeal be awarded to the Appellant.
10. The Appeal was canvassed by way of written submissions. On my perusal of the Court record it was clear that both parties to the appeal herein did comply with the Court directives.
Appellant’s Submissions
11. The Appellant submits on three issues namely: whether the trial Court erred in making an award of Kshs. 1,500,000/= under general damages; whether the trial magistrate erred in awarding future medical costs of Kshs. 200,000/=; whether the trial magistrate erred in law and fact in awarding special damages of Kshs. 281,180/=.
12. On the first issue, the Appellant submits that assessment of damages in a suit is more of a judicial discretion and that the Court ought to determine the appropriate level of compensation bearing in mind that comparable injuries should as far as possible be compensated by comparable awards. He placed reliance on the cases of Bashir Ahmed Butt vs Uwais Ahmend Khan (1982-88) KAR and Simon Taveta vs Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 (2014) eKLR.
13. According to the Appellant, the particulars of the injuries as per the Plaint are: fracture of the right femur, fracture of the right tibia/fibula, degloving the injury to the right foot and dislocation of the right shoulder. The discharge summary as availed by the Respondent from Optimum Hill Medical Centre (PEXH 3) did not indicate any dislocation or degloving injuries and this was duly confirmed by the medical report of Dr. Steve (DEXH 1). The Appellant argues that the Respondent suffered a fracture of the right femur, tibia/fibula and the said had re-united and did not have any deformity, thus no disability. The Appellants submits that an award of Kshs. 600,000/= is reasonable in this circumstance and placed reliance on the cases of Jitan Nagra vs Abednego Nyandusi Oigo (2018) eKLR and Godfrey Mungicholas Mwiti Mwiruba vs Marcella Mpaka Kiambi (2022) eKLR.
14. On the second issue, the Appellant submits that the Respondent pleaded for future medical costs of Kshs. 200,000/= and relied on the medical report of Dr. Mulianga who stated that the Respondent would require the removal of the meatl plates at a cost of Kshs. 200,000/= and no basis for this amount was laid. The Appellant submits that Dr. Steve Ochieng also testified stating that such a procedure required between Kshs. 24,000-80,000/= in a public hospital and the medical reports and attachments from Machakos Level 4 hospital were produced to confirm the amounts required for removal of implants as per the medical report. Also, the Appellant argue that as per the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016 indicate that the removal of implants in hospitals should be charges at Kshs. 24,000-60,000/=. The Appellant submits that future medical expenses being a special claim ought to be specifically pleaded and proved before a Court can award it. They placed reliance on the case of Kenya Bus Services Ltd vs Gituma (2004) 1 EA 91. The Appellant urged this Court to make an award of Kshs. 80,000/= despite the Respondent failure to avail any documentary evidence or hospital quotation to confirm the amount quoted by his doctor.
15. On the third issue, the Appellant submits that special damages ought to be pleaded and proved. The Respondent pleaded Kshs. 280, 130/=, but the same was never proved. They argue that the Respondent only availed receipts of Kshs. 6,000/= dated 17th October 2022, for the medical report, Kshs. 257,000/= for medical treatments. The Appellant urged this Court to only make an award of Kshs. 263,000/- and that was the only amount the Respondent proved.
16. In conclusion, the Appellant urged this Court to allow their appeal with costs in this appeal and the trial Court as prayed.
Respondent’s Submissions
17. Opposing the appeal, the Respondent submits on two issues namely: whether the learned trial magistrate reached the right conclusion on the award of damages under quantum and who should bear the costs of the appeal. He argues that the trial Court’s decision did not take into account any wrong principles in arriving at his decision and placed reliance on the case of Bashir Ahmed Butt vs Uwais Ahmend Khan (1982-88) KAR.
18. On the first issue, the Respondent submits that the award of the trial Court was proper and given the fact that it is a matter of the Court’s discretion, it was also a conventional award at the Court’s discretion. He argues that he suffered multiple fractures on the right femur, tibia/fibula, degloving injury to the right foot and dislocation of the right shoulder and that the trial Court was guided by the decision of H. West & Son Ltd vs Shepherd (1964) A.C 3269 in making its award. He submits that Dr. Sokobe who examined him on 17th October 2022, stated in his medical report that he will require future medical expenses for the removal of metallic implants at a cost of Kshs. 200,000/= and that after his re-examination by the Appellant’s doctor, Dr. Ochieng, he did not dispute the same and noted that the Respondent will eventually require future medical expenses. According to him, the trial Magistrate relied legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016 which provides for a figure of Kshs. 144,000/= for removal of implants which notice factors one fracture as compared to multiple fractures as sustained by the Respondent herein, thus the award of Kshs. 200,000/= as stipulated by the doctor.
19. The Appellant urged this Court to dismiss the Appellant’s appeal with costs and that the trial Court’s decision was no error.
Analysis and Determination
20. This appeal is on quantum hence the only issue for determination is whether the trial magistrate made a correct assessment of the damages in relation to the injuries sustained by the Respondent. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages as follows:
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
21. Similarly, in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR the Court of Appeal restated principles applicable on appeal against quantum of damages as follows;
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A 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 that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
22. This is the 1st Appellant Court and the mandate of this Court was well captured in Selle – Vs- Associated Motor Boat Co [1968] EA 123 where the Court of appeal observed as follows:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
23. Assessment of damages is a discretionary matter and generally an appellate Court would rarely interfere with the exercise of discretion unless it is demonstrated that in assessment of damages the Court took into account as irrelevant factor or left out a relevant issue or that the award is so inordinately low or high as to represent erroneous estimate.
24. In this instance the Respondent pleaded the following injuries:
a. Fracture right femur.
b. Fracture right tibia/fibula.
c. Degloving injury to the right foot.
d. Dislocation of the right shoulder.
25. In the medical report by Dr. Joseph C. Sokobe dated 17th October 2022, tendered by the Respondent, injuries sustained by the Respondent are as particularized in the Plaint. On the section on opinion and prognosis, the doctor opined as follows;
“Daniel Kones sustained severe soft & skeletal (fractures) tissue injuries from which he has not fully recovered. He requires further treatment i.e removal of implants at an estimate cost of Kshs. 200,000/= (two hundred thousand).”
26. Going by the 2nd medical opinion by Doctor Steve Ochieng, in his medical report dated 25th July 2007, the doctor concurred with the Respondent’s doctor’s report on the injuries as he examined the initial x-ray reports, which confirmed the fractures and equally did examine an x-ray that confirmed the presence of a metal implant. He opined that the Respondent will require future costs of treatments for removal of the metal implant and estimated the procedure to cost Kshs. 80,000/= and in his testimony as DW1 he obliged the trial Court to refer to the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016.
27. The most significant injuries sustained by the Respondent in the present matter are the fracture of the right femur and right tibia/fibula while the rest were severe soft tissue injuries which had healed. I do note, in his lower Court submissions, the Respondent relied on the case of Guardial Singh Ghataurhae v Parminder Singh Manku & 3 others [2018] eKLR where the plaintiff suffered far serious injuries of comminuted intra articular fracture of the right tibial plateau and metaphysic, Fracture right patella, Comminuted fracture of right distal radius, Osteoarthritis of right knee, Fracture of four ribs on right side and Severe lacerations, bruising and scarring, the court awarded general damages of Kshs. 2,500,000. I do note that this authority as sited by the Respondent is not comparable to the present case as the injuries in this case were slightly serious compared to his. Similarly, in the case referred to by the trial Court, Damaris Wamucii Kagechu v Joseph Kirui & another [2019] eKLR, the Plaintiff sustained fractures on both legs which led to inconvenience in movement associated with pain. Mbogholi J awarded a sum of Kshs 1,500,000/= in general damages for pain suffering and loss of amenities in 2019.
28. In the case of Mutisya v Demamoe (Civil Appeal E033 of 2021) [2023] KEHC 24470 (KLR) (30 October 2023) (Judgment) the Appellant sustained a displaced fracture of the right femur, a tear of extensor tendon of the right hand, tear of the extensor tendon on the left hand and degloving injury on the right leg. MOHOCHI S.M. J interfered with the award of Kshs. 500,000/= in general damages as made by the trial Court holding that the same was inordinately low and that an award of Kshs. 1,500,000/= is adequate in the circumstances.
29. The trial Court awarded the Respondent herein Kshs.1,500,000/= as general damages I find that, there was misdirection of fact or law in not awarding general damages-pain and suffering as the same was subject to comparable injuries and authorities. The ground of Appeal thus fails.
30. On the issue of special damages-future medical expenses, The Appellant was dissatisfied with the quantum for future medical expenses, the Appellant faulted the trial Court for awarding an excessive of Kshs. 200,000/= that was not proved by the Respondent’s doctor and contrary to the estimations of the Appellant’s doctor and the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016.
31. The Court of Appeal in the case of Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR 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……” (emphasis mine).
32. Therefore, the law on future medical expenses is well settled and that it has to be pleaded and proven.
33. The Appellant at paragraph 8 of the Plaint dated 16th January 2023, stated:
As a result of the accident, the Plaintiff sustained severe bodily injuries from which he would require further treatment i.e removal of implants at an estimated cost of Kshs. 200,000/= (two hundred) thousand) which amount the Plaintiff claims as future medical expenses….
34. I find this was well pleaded. As to whether the same was proven, there is the medical report on record of Dr. Joseph C. Sokobe. The doctor in his medical report dated 17th October 2022 assessed the costs of medical expenses in future at Kshs. 200,000 for removal of the metal implants. This was challenged by the evidence and report of Dr. Steve Ochieng dated 25th July 2023, who told the Court that the same procedure costs Kshs. 80,000/= and on been referred to the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules, 2016 that gave an estimation between Kshs. 100,000-200,000/=, he told the Court that the same was released in 2016 but failed to avail any amended legal notice for the year 2022.
35. According to the legal notice no. 131 of 2016, the Medical Practitioners and Dentist (Professional fee) Rules,a 2016, the removal of metal implants costing is provided for one fracture site and it is elaborate from the evidence in the lower Court record that the Respondent suffered multiple fractures. I don’t see why the cost of future medical expenses should change or reduce without evidence to controvert it. I do find that under this head, the Respondent sufficiently proved his claim for Future Medical Expenses. The ground of Appeal thus fails.
36. On the issue of special damages, the Appellant argues that the Respondent only proved special damages of Kshs. 263,000/= only and not Kshs. 281, 180/= as awarded by the trial Court.
37. Vide consent of the parties dated 1st February 2024, the bundle of receipts totaling to Kshs. 257,800/= was produced in Court as PEXH. 4. On perusal of the lower Court record, the Respondent availed the following receipts:
a. Receipt for the Medical report (PEXH 8)-Kshs. 6,000/=.
b. 2 receipts from Bungoma County Referral Hospital (PEXH 2)-Kshs. 16,830/=.
c. 4 receipts from Optimum Hill Hospital (PEXH 11)-Kshs. 257,800/=
d. Reciept for copy of records (PEXH 10)-Kshs. 550/=
38. On my addition of the amounts as stated hereinabove the same amounts to Kshs. 281,180/= as the proper award for special damages as pleaded and proved. I cannot fault the trial Court in making the award under this head as I do find that the Respondent specifically pleaded and proved his claim for special damages. That ground of Appeal thus fails.
39. In a nutshell, the appeal herein against quantum of damages fails and the same is dismissed with costs to the Respondent.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 30th day of September 2025.
M.S.Shariff
Judge
In the presence of:
………………………………FOR APPELLANT
………………………………FOR RESPONDENT
Peter Machoni COURT ASSISTANT
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