( Being an appeal from the Judgement of Hon. B. F Xavier, dated 20.6.2025 in Kakamega SCCC Number E363/2024)
The respondent sued the appellants vide a statement of claim dated 23.9.2024 alleging negligence on the part of the appellant for an accident which occurred on 15.8.2024 when he was lawfully riding motor cycle registration number KMFC 236W along Kakamega - Mumias Highway when at Frikers area he was knocked down by motor vehicle registration number KDB 826E which was negligently driven by the appellant and/or his driver. The respondent sustained bodily injuries as a result of the accident.
The appellant entered appearance and filed a response to the statement of claim. In the response dated 5.11.2024, the respondent denied all material allegations of facts advanced against him. The suit was determined and by a judgement dated 20.6.25, the court found in favour of the respondent against the appellant in the following terms;
(a) Liability – 90:10 in favour of the claimant.
(b) General damages – Kshs 400,000
(c) Special damages – Kshs 20,550
(d) Future medical expenses – Kshs 292,000
Subtotal – Kshs 712,550
Less 10% contributory negligence
The appellant, aggrieved by the decision of the trial court, appealed to this court citing five grounds of appeal but which can be condensed into one ground. The only ground of appeal is that the learned adjudicator erred in law and fact by awarding Kshs 292,000 for future medical expenses when the same was not pleaded.
The appellant submitted that the adjudicator erred in law by awarding the sum of Kshs 292,000 as future medical expenses when the same had not been specifically pleaded. The appellant cited the case of Tracom Ltd & another -v- Hassan Mohamed Adan (2009) eKLR for the proposition that future medical expenses are special damages which must be pleaded if evidence thereon is to be led.
The appellant submitted that the trial magistrate erred in law by relying on a medical report as the basis for the award for future medical expenses when the same had not been specifically pleaded by the respondent. The appellant further submitted that the trial court erred by failing to consider the 2nd medical report by Dr. Gaya dated 12.5.25, which report did not indicate that the respondent would require further treatment and that the report by Dr. Gaya had indicated that the respondent had healed and there was therefore no need for further treatment.
The respondent submitted that the sum of Kshs 292,000 for future medical expenses was specifically pleaded and strictly proved through a medical report dated 7.2.25 issued by Lirhembe Clinic. The appellant submitted that the award was based on an uncontradicted medical testimony and there is no basis to interfere with the trial court's discretion. The respondent cited the case of Butt -v- Khan (1982–88) 1 KAR 5, for the proposition that an appellate court will not interfere with an award of damages made by the trial court unless it is demonstrated that the trial court acted on wrong principles of law, misapprehended the evidence, took into account irrelevant factors, failed to consider relevant factors or where the award is so inordinately high or so inordinately low that it represents an entirely erroneous estimate of the damages payable.
ANALYSIS AND DETERMINATION
This being an appeal from the Small Claims Court, the jurisdiction of the court is circumscribed in Section 38 of the Small Claims Court Act .
Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in subsection (1) shall be final.
The above provision means that the court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this court is essentially limited to points of law.
The appeal herein turns on the issue whether the learned trial magistrate correctly addressed his mind to the law on special damages. In the case of Tracom Ltd & Another -v- Hassan Mohamed Adan (2009) eKLR , it was settled that future medical expenses must be specifically pleaded and proved. Did the respondent specifically plead special damages of future medical expenses? In my considered view, to specifically plead means the claimant must list the claim with exact figures in the statement of claim or plaint.
In the statement of claim, the claimant pleaded particulars of special damages and indicated the exact figures in paragraph 5 of the statement of claim. However, when it came to future medical expenses, the claimant stated "to be stated in court."
It is therefore not disputed that the claim for future medical expenses was not specifically pleaded in the body of the statement of claim. No quantification of any sort was made in the body of the statement of claim and it is my finding that the claimant(respondent) failed to specifically plead the claim for future medical expenses.
It was not enough to state that the claim would be stated in court. The purpose of pleading special damages is to prevent unfair surprise at trial, ensure fairness to the defendant and prevent exaggerated financial claims. To plead that the claim would be stated in court defeats the purpose of pleading special damages with specificity.
I also note that the trial magistrate relied on a medical report by one M.I Martin, a registered medical practitioner whose area of specialisation is not known but totally ignored the findings of Dr. Z. Gaya , consultant surgeon, who examined the claimant three months later and concluded that he had healed well though with small palpable callus deformity. There was no mention of a need for future medical treatment.
Based on the foregoing, this court finds that the trial adjudicator erred in law in making an award for special damages which was not specifically pleaded.
The appeal succeeds with costs to the appellant, assessed at Kshs. 30,000 .
DATED, SIGNED AND DELIVERED this 30th day of July, 2026 .
D. O. ONYANGO
JUDGE
The respondent sued the appellants vide a statement of claim dated 23.9.2024 alleging negligence on the part of the appellant for an accident which occurred on 15.8.2024 when he was lawfully riding motor cycle registration number KMFC 236W along Kakamega - Mumias Highway when at Frikers area he was knocked down by motor vehicle registration number KDB 826E which was negligently driven by the appellant and/or his driver. The respondent sustained bodily injuries as a result of the accident.
The appellant entered appearance and filed a response to the statement of claim. In the response dated 5.11.2024, the respondent denied all material allegations of facts advanced against him. The suit was determined and by a judgement dated 20.6.25, the court found in favour of the respondent against the appellant in the following terms;
(a) Liability – 90:10 in favour of the claimant.
(b) General damages – Kshs 400,000
(c) Special damages – Kshs 20,550
(d) Future medical expenses – Kshs 292,000
Subtotal – Kshs 712,550
Less 10% contributory negligence
The appellant, aggrieved by the decision of the trial court, appealed to this court citing five grounds of appeal but which can be condensed into one ground. The only ground of appeal is that the learned adjudicator erred in law and fact by awarding Kshs 292,000 for future medical expenses when the same was not pleaded.
The appellant submitted that the adjudicator erred in law by awarding the sum of Kshs 292,000 as future medical expenses when the same had not been specifically pleaded. The appellant cited the case of Tracom Ltd & another -v- Hassan Mohamed Adan (2009) eKLR for the proposition that future medical expenses are special damages which must be pleaded if evidence thereon is to be led.
The appellant submitted that the trial magistrate erred in law by relying on a medical report as the basis for the award for future medical expenses when the same had not been specifically pleaded by the respondent. The appellant further submitted that the trial court erred by failing to consider the 2nd medical report by Dr. Gaya dated 12.5.25, which report did not indicate that the respondent would require further treatment and that the report by Dr. Gaya had indicated that the respondent had healed and there was therefore no need for further treatment.
The respondent submitted that the sum of Kshs 292,000 for future medical expenses was specifically pleaded and strictly proved through a medical report dated 7.2.25 issued by Lirhembe Clinic. The appellant submitted that the award was based on an uncontradicted medical testimony and there is no basis to interfere with the trial court's discretion. The respondent cited the case of Butt -v- Khan (1982–88) 1 KAR 5, for the proposition that an appellate court will not interfere with an award of damages made by the trial court unless it is demonstrated that the trial court acted on wrong principles of law, misapprehended the evidence, took into account irrelevant factors, failed to consider relevant factors or where the award is so inordinately high or so inordinately low that it represents an entirely erroneous estimate of the damages payable.
ANALYSIS AND DETERMINATION
This being an appeal from the Small Claims Court, the jurisdiction of the court is circumscribed in Section 38 of the Small Claims Court Act .
Section 38 of the Small Claims Court Act provides as follows:
1. A person aggrieved by the decision or an order of the court may appeal against that decision or an order to the High Court on matters of law.
2. An appeal from any decision or order referred to in subsection (1) shall be final.
The above provision means that the court can only intervene if the evidence on record does not reasonably support the conclusions made by the trial court. More specifically, an appeal before this court is essentially limited to points of law.
The appeal herein turns on the issue whether the learned trial magistrate correctly addressed his mind to the law on special damages. In the case of Tracom Ltd & Another -v- Hassan Mohamed Adan (2009) eKLR , it was settled that future medical expenses must be specifically pleaded and proved. Did the respondent specifically plead special damages of future medical expenses? In my considered view, to specifically plead means the claimant must list the claim with exact figures in the statement of claim or plaint.
In the statement of claim, the claimant pleaded particulars of special damages and indicated the exact figures in paragraph 5 of the statement of claim. However, when it came to future medical expenses, the claimant stated "to be stated in court."
It is therefore not disputed that the claim for future medical expenses was not specifically pleaded in the body of the statement of claim. No quantification of any sort was made in the body of the statement of claim and it is my finding that the claimant(respondent) failed to specifically plead the claim for future medical expenses.
It was not enough to state that the claim would be stated in court. The purpose of pleading special damages is to prevent unfair surprise at trial, ensure fairness to the defendant and prevent exaggerated financial claims. To plead that the claim would be stated in court defeats the purpose of pleading special damages with specificity.
I also note that the trial magistrate relied on a medical report by one M.I Martin, a registered medical practitioner whose area of specialisation is not known but totally ignored the findings of Dr. Z. Gaya , consultant surgeon, who examined the claimant three months later and concluded that he had healed well though with small palpable callus deformity. There was no mention of a need for future medical treatment.
Based on the foregoing, this court finds that the trial adjudicator erred in law in making an award for special damages which was not specifically pleaded.
The appeal succeeds with costs to the appellant, assessed at Kshs. 30,000 .
DATED, SIGNED AND DELIVERED this 30th day of July, 2026 .
D. O. ONYANGO
JUDGE