'
(Being an appeal from the judgment of Hon. E Kimaiyo Suter (Principal Magistrate) delivered on 25th January 2024 in PMCC No. E565 of 2021 at Mavoko Law Courts)
Background
1. The appellants seek to overturn the judgment on quantum delivered on 25th January 2024 Mavoko Principal Magistrates Court Civil Case No. E565 of 2021.
2. The genesis of this case is traced to a plaint dated 6th August 2021 where the 1st respondent herein sued the appellants seeking general damages, special damages of Kshs. 280,225, future medical expenses of Kshs. 500,000, costs of the suit together with interest.
3. The parties recorded a consent on 16th November 2023 where liability was apportioned in the ratio of 80:20 in favour of the 1st respondent against the appellants. As such, the only issue for determination by the trial court was on quantum and costs.
4. In the judgment dated 25th January 2024, the trial court, upon hearing both parties, awarded Kshs 750,000 as general damages, Kshs 500,000 for future medical expenses and Kshs 280,225 as special damages. After considering liability the court total award was Ksh 1, 280,225/-. Additionally, the 1st respondent was awarded costs and interest: on general damages from the date of judgment, and on special damages from the date of filing the suit.
The appeal
5. The Memorandum of Appeal dated 30th January 2024 raises six (6) grounds reproduced verbatim as follows. That-:
(1) The learned magistrate erred in fact and in law in awarding the respondent judgment as against the respondent in the sum of Kshs 1,000,000/- general damages for pain and suffering and loss of amenities, Kshs 280,225.00 being special damages and shs 500.000/- being the cost of future medical expenses and thereby arrived at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.
(2) The learned magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing general damages thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the general damages in the circumstances of the case.
(3) The learned magistrate erred in law and in fact in failing to pay regard to submissions and decisions filed by the defendant/appellant that were guiding in the amounts of quantum that is appropriate and applicable on similar injuries as the case he was deciding.
(4) The learned magistrate erred and misdirected herself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.
(5) The award of general damages awarded to the respondent was manifestly and inordinately excessive in the circumstance.
(6) The learned trial court erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practice thus reaching an award on quantum so inordinately high in the circumstances.
6. Consequently, the appellants pray for the appeal to be allowed the award of the quantum be set aside and vacated and a fresh award based on the proper application of the law, evidence, facts and principles be entered; and for costs in this application and in the lower court.
7. The appeal was canvassed by way of written submissions. The appellants filed written submissions dated 22nd August 2025 to support their appeal. The 1st respondent filed written submissions dated 15th June 2025 in rebuttal. I have summarised these submissions below.
Appellants’ submissions
8. The appellant submits that the issues for determination are (a) whether the trial court erred in its findings on general damages and future medical expenses of Kshs 500,000; and (b) who should bear the costs of the appeal.
9. It is submitted that there was no justification for Ksh 500,000 for plastic surgery and this award should be dismissed.
10. It is the appellants case that the award of Ksh 750,000 for general damages was excessive. It is submitted that courts have held that damages should not be too large to the extent of crippling the economy. The decisions in Jackline Syombua -vs- BOG & Ekalakala Secondary School Embu HCCC No. 118 of 2006 (UR) and Kigaraari v. Aya (1982-88)1KAR 768 are relied on to support this submission.
11. It is opined that Ksh 150,000 is adequate for general damages for pain and suffering. The decisions in FM (Minor suing through Mother and next friend MWM) v JNM & another [20201 eKLR, Rege v La (minor suing through her father and next friend GAA) (Civil Appeal E111 of 2021) [2022] KEHC 16634 (KLR) (20 December 2022) (Judgment), Njenga & Another V Kinyanjui (Civil Appeal E117 of 2021)[20241 KEHC 3810 (KLR) (12 April 2024) (judgment), Onsongo V Owino & Another (Civil Appeal E102 of 2023) [2024] KEHC 2483 (KLR) (12 March 2024) (judgment) and Otieno & Another V Odhiambo (Civil Appeal E027 of 2024)[2024] KEHC 7688 (KLR) (25 June 2024) (judgment) are relied on to buttress this opinion.
12. The appellants conclude by urging this court to award them the costs of this appeal pursuant to section 27 of the Civil Procedure Act.
1st respondent’s submissions
13. It is submitted that the Memorandum of Appeal has the quantum of the trial court’s award wrong. It is submitted that the court awarded general damages of Kshs. 750,000, future medical expenses of Kshs 500,000 Special Damages of Kshs 280, 225 and subjected the general damages and future medical expenses to the apportionment of liability at 80:20 against the appellants as was consented to by the parties, rightly leaving out the special damages.
14. It is submitted that the Medical Report of Dr. Wokabi noted that the 1st respondent underwent several surgeries and he was admitted in hospital severally.
15. It is urged that the trial court awarded Kshs. 750,000 having considered authorities submitted by both parties and found that the 1st respondent suffered several complications including hematoma requiring drainage twice and formation of keloids that required further surgery.
16. It is contended that the trial court considered the submissions of the appellants and found the authorities thereto not to be comparable as the soft tissue injuries therein healed without complications.
17. It is urged that the trial court also considered the rate of inflation at the time of issuing the awards therefore the awards are not inordinately high.
18. It is submitted that there is no justification to interfere with the general damages and the 1st respondent relies on the Court of Appeal decision in Catholic Diocese of Kisumu vs Sophia Achieng Tele, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, to buttress this submission.
19. On the special damages award, it is contended that the 1st respondent specifically proved and pleaded damages of Ksh 280,225 and the receipts for all the special damages were produced by consent as is indicated in the proceedings of 16th November 2023.
20. The 1st respondent relies on the decision in Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR to refute the contention that the receipts are invalid because they do not have revenue stamps.
21. It is submitted that the Medical Report by Dr. Wokabi highlights the unsightly nature of scars bore by the 1st respondent and the need to undergo plastic surgery to make them smaller and less prominent, which surgery is to be followed with superficial radiotherapy and medication to minimize chances of recurrence of keloids, at a cost of Kshs 500,000.
22. It is urged that the second medical report by the appellants does not contest the need for future medical intervention nor does it provide an alternative cost estimate.
23. The 1st respondent concludes by urging that this appeal lacks merit as the appellants have failed to demonstrate that the trial court relied on wrong principles of law, or relied on irrelevant facts, or failed to consider relevant facts when arriving at the final awards and therefore it should be dismissed with costs to the 1st respondent.
Analysis and determination
24. I have considered the grounds of appeal, reviewed the record of appeal and examined the submissions of both parties. It is evident that this appeal challenges only the quantum of damages awarded by the trial court.
25. Accordingly, the issues for determination by this court are whether the awards for Ksh 750,000/- general damages, Ksh 500,000/-for future medical expenses and Ksh 280,225/- for special damages were erroneous unjustified or excessive in the circumstances of this case.
26. This being a first appeal, the principles laid out in Selle v. Associated Motor Boat Co. Ltd [1968] EA apply. As the first appellate court, I am obligated to examine matters of both law and facts, subject the entire evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis while bearing in mind that the court did not have an opportunity to see and hear the witnesses first hand.
27. With this in mind, I turn to the award for general damages. The trial court awarded Ksh 750,000 for pain and suffering. The appellants argue that this amount is excessive and propose a reduction to Ksh 150,000. The 1st respondent however, maintains that the trial magistrate’s award was appropriate.
28. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is stated 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.”
29. Similarly 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.”
30. These decisions affirm that an appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court considered irrelevant factors or failed to consider relevant ones in assessing the damages.
31. The question, therefore, is whether the trial court’s award of Ksh 750,000 was excessive and unjustified as claimed by the appellants.
32. The Medical Report of Dr. Wokabi dated 22nd July 2021 indicated that the 1st respondent sustained blunt soft tissue injuries to the head and neck, chest and back, extensive lacerations on the right forearm, blunt impact injury on the right thigh causing a large hematoma (blood collection), abrasions on the right upper shin. It also stated that all the lacerations were stitched. The 1st respondent was admitted to A.I.C Kijabe Hospital, underwent surgery to drain the hematoma, which later re- accumulated necessitating a second drainage. A keloid scar developed on the right forearm, which was surgically excised. He was also given local injections to prevent recurrence of the keloid.
33. Dr. Wokabi opined that the 1st respondent suffered a lot of pain from the multiple soft tissue injuries and subsequent surgical procedures. He noted the presence of unsightly scars on the right forearm and right thigh and recommended plastic surgery to reduce their prominence. This would involve superficial radiotherapy and medications to minimise chances of recurrence of keloid and would cost an estimated Ksh 500,000.
34. Dr. Madhiwala for the appellants corroborated the injuries in Dr. Wokabi’s report. His Medical Report is dated 26th November 2021. He also observed well healed surgical scar on the right forearm on the palmar aspect 16cm long with no keloid formation, no pain, swelling or tenderness found at the time of examination. He noted that there was a well healed surgical scar on the right thigh, lateral aspect 14cm long of two incision and drainage operation. He observed that there was no associated complaints. He stated that there were healed small scars on the right lower leg but no pain, swelling or tenderness found.
35. I am mindful of the Court of Appeal’s guidance in Denshire Muteti Wambua – v- Kenya Power & Lighting Co, Ltd. Civil Appeal No. 60 of 2004, which emphasized that:
“..awards have to make sense and have to have regard to the context in which they are made. They cannot be too high or too low but they have to strike a chord of fairness” and as was stated by Lord Denning in Kim Pho Choo – v – Camden & Islingtom Area Health Authority, (1979) 1 All ER 332, that in assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation for both the plaintiff and the defendant.
36. I am further guided by the Court of Appeal decision in Simon Taveta v Mercy Mutitu Njeru [2014] KECA 755 (KLR), which emphasized at paragraph 18 that “the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
37. In this regard, the decision in Easy Coach Limited v Emily Nyangasi [2017] KEHC 5131 (KLR) is instructive. The respondent in that case suffered serious injuries on the right hand which healed with a 10 cm scar with keloid formation on the elbow and on the right leg which was treated through grafting and healed with healed 18cm scar right thigh, 26 cm scar right leg, 28 cm scar right leg below the knee and 12 cm scar right foot with keloid formation. The court upheld an award of Kshs. 700,000.
38. In the present the injuries sustained by the 1st respondent were more than soft tissue injuries. He underwent two surgeries, then developed a keloid that required surgery to excise and endured a lot of pain. He also bears visible scars on the right forearm and right thigh as confirmed by both the medical reports.
39. For this reason, I am not persuaded by the authorities cited by the appellants, as they all pertain soft tissue injuries and are not comparable to the circumstances of this case. I therefore find that the trial court’s award of Ksh 750,000 was neither excessive nor unjustified. The trial court appropriately considered comparable awards made in the past and based the award on them. Accordingly, I find no reason to disturb the award of Ksh 750,000.
40. On the award of Ksh 500,000 for future medical expenses, I am guided by the Court of Appeal decision in Mbaka Nguru & Another - v- James George Rakwar, Court of Appeal Civil Appeal No. 133 of 1998, which held that claims for future medical expenses must be pleaded and proved as a special damage claims.
41. In the instant case, I note that the amount of Ksh 500,000 for future medical expenses was pleaded and proved through the Medical Report of Dr. Wokabi. He recommended plastic surgery to excise the scars and reduce their prominence The Appellant medical report also confirms the existence of these scars. Furthermore, the evidence indicating that surgical removal of the scars would cost kshs 500,000 has not been controverted. As such, I uphold the finding under this head.
42. On the award of special damages, the trial court awarded Ksh 280,225. The appellants, in their first ground of appeal argue that this amount is manifestly and inordinately high constituting an entirely erroneous estimate of the damages in the circumstances of the case. The respondents contend that the trial court made a correct finding on special damages save that it failed to subject it to the 20 percent liability agreed upon by the parties.
43. It is well established that special damages must be specifically pleaded and strictly proved, before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
44. In this case the respondents claimed special damages amounting to Ksh 280,225 being Motor vehicle search KCQ 467L at Ksh 550, Motor vehicle search KCJ 646M/ZF 7004 at Ksh 550, Medical report Dr Wokabi at Ksh 3,000, Medical report AlC Kijabe at Ksh 6,500, Medical expenses totalling Ksh 159,625 and transport expenses at Ksh 110,000. Having gone through the record, I have determined that the special damages pleaded and proved were indeed of Ksh 280,225 with all the requisite receipts attached. Thus, the trial court’s finding on special damages can therefore not be faulted.
45. Having re-evaluated the evidence afresh, I find that the appellants have failed to establish their case. I affirm the decision of the trial court save to correct that the award of special damages will be subjected to the 20 per cent liability. Thus, the award will be as follows
a. Kshs 750,000 General damages
b. Kshs 500,000 Future medical
c. Special damages kshs 280,225
d. Total 1,530,225 less 20%
e. Total 1, 224,180
46. The upshot is that save for the arithmetic correction, the appeal fails and is dismissed with costs to the 1st respondent.
It is so ordered.
Delivered, Dated and Signed this 6th day of November 2025
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(Being an appeal from the judgment of Hon. E Kimaiyo Suter (Principal Magistrate) delivered on 25th January 2024 in PMCC No. E565 of 2021 at Mavoko Law Courts)
Background
1. The appellants seek to overturn the judgment on quantum delivered on 25th January 2024 Mavoko Principal Magistrates Court Civil Case No. E565 of 2021.
2. The genesis of this case is traced to a plaint dated 6th August 2021 where the 1st respondent herein sued the appellants seeking general damages, special damages of Kshs. 280,225, future medical expenses of Kshs. 500,000, costs of the suit together with interest.
3. The parties recorded a consent on 16th November 2023 where liability was apportioned in the ratio of 80:20 in favour of the 1st respondent against the appellants. As such, the only issue for determination by the trial court was on quantum and costs.
4. In the judgment dated 25th January 2024, the trial court, upon hearing both parties, awarded Kshs 750,000 as general damages, Kshs 500,000 for future medical expenses and Kshs 280,225 as special damages. After considering liability the court total award was Ksh 1, 280,225/-. Additionally, the 1st respondent was awarded costs and interest: on general damages from the date of judgment, and on special damages from the date of filing the suit.
The appeal
5. The Memorandum of Appeal dated 30th January 2024 raises six (6) grounds reproduced verbatim as follows. That-:
(1) The learned magistrate erred in fact and in law in awarding the respondent judgment as against the respondent in the sum of Kshs 1,000,000/- general damages for pain and suffering and loss of amenities, Kshs 280,225.00 being special damages and shs 500.000/- being the cost of future medical expenses and thereby arrived at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.
(2) The learned magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing general damages thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the general damages in the circumstances of the case.
(3) The learned magistrate erred in law and in fact in failing to pay regard to submissions and decisions filed by the defendant/appellant that were guiding in the amounts of quantum that is appropriate and applicable on similar injuries as the case he was deciding.
(4) The learned magistrate erred and misdirected herself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.
(5) The award of general damages awarded to the respondent was manifestly and inordinately excessive in the circumstance.
(6) The learned trial court erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practice thus reaching an award on quantum so inordinately high in the circumstances.
6. Consequently, the appellants pray for the appeal to be allowed the award of the quantum be set aside and vacated and a fresh award based on the proper application of the law, evidence, facts and principles be entered; and for costs in this application and in the lower court.
7. The appeal was canvassed by way of written submissions. The appellants filed written submissions dated 22nd August 2025 to support their appeal. The 1st respondent filed written submissions dated 15th June 2025 in rebuttal. I have summarised these submissions below.
Appellants’ submissions
8. The appellant submits that the issues for determination are (a) whether the trial court erred in its findings on general damages and future medical expenses of Kshs 500,000; and (b) who should bear the costs of the appeal.
9. It is submitted that there was no justification for Ksh 500,000 for plastic surgery and this award should be dismissed.
10. It is the appellants case that the award of Ksh 750,000 for general damages was excessive. It is submitted that courts have held that damages should not be too large to the extent of crippling the economy. The decisions in Jackline Syombua -vs- BOG & Ekalakala Secondary School Embu HCCC No. 118 of 2006 (UR) and Kigaraari v. Aya (1982-88)1KAR 768 are relied on to support this submission.
11. It is opined that Ksh 150,000 is adequate for general damages for pain and suffering. The decisions in FM (Minor suing through Mother and next friend MWM) v JNM & another [20201 eKLR, Rege v La (minor suing through her father and next friend GAA) (Civil Appeal E111 of 2021) [2022] KEHC 16634 (KLR) (20 December 2022) (Judgment), Njenga & Another V Kinyanjui (Civil Appeal E117 of 2021)[20241 KEHC 3810 (KLR) (12 April 2024) (judgment), Onsongo V Owino & Another (Civil Appeal E102 of 2023) [2024] KEHC 2483 (KLR) (12 March 2024) (judgment) and Otieno & Another V Odhiambo (Civil Appeal E027 of 2024)[2024] KEHC 7688 (KLR) (25 June 2024) (judgment) are relied on to buttress this opinion.
12. The appellants conclude by urging this court to award them the costs of this appeal pursuant to section 27 of the Civil Procedure Act.
1st respondent’s submissions
13. It is submitted that the Memorandum of Appeal has the quantum of the trial court’s award wrong. It is submitted that the court awarded general damages of Kshs. 750,000, future medical expenses of Kshs 500,000 Special Damages of Kshs 280, 225 and subjected the general damages and future medical expenses to the apportionment of liability at 80:20 against the appellants as was consented to by the parties, rightly leaving out the special damages.
14. It is submitted that the Medical Report of Dr. Wokabi noted that the 1st respondent underwent several surgeries and he was admitted in hospital severally.
15. It is urged that the trial court awarded Kshs. 750,000 having considered authorities submitted by both parties and found that the 1st respondent suffered several complications including hematoma requiring drainage twice and formation of keloids that required further surgery.
16. It is contended that the trial court considered the submissions of the appellants and found the authorities thereto not to be comparable as the soft tissue injuries therein healed without complications.
17. It is urged that the trial court also considered the rate of inflation at the time of issuing the awards therefore the awards are not inordinately high.
18. It is submitted that there is no justification to interfere with the general damages and the 1st respondent relies on the Court of Appeal decision in Catholic Diocese of Kisumu vs Sophia Achieng Tele, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, to buttress this submission.
19. On the special damages award, it is contended that the 1st respondent specifically proved and pleaded damages of Ksh 280,225 and the receipts for all the special damages were produced by consent as is indicated in the proceedings of 16th November 2023.
20. The 1st respondent relies on the decision in Swalleh C. Kariuki & another v Viloet Owiso Okuyu [2021] eKLR to refute the contention that the receipts are invalid because they do not have revenue stamps.
21. It is submitted that the Medical Report by Dr. Wokabi highlights the unsightly nature of scars bore by the 1st respondent and the need to undergo plastic surgery to make them smaller and less prominent, which surgery is to be followed with superficial radiotherapy and medication to minimize chances of recurrence of keloids, at a cost of Kshs 500,000.
22. It is urged that the second medical report by the appellants does not contest the need for future medical intervention nor does it provide an alternative cost estimate.
23. The 1st respondent concludes by urging that this appeal lacks merit as the appellants have failed to demonstrate that the trial court relied on wrong principles of law, or relied on irrelevant facts, or failed to consider relevant facts when arriving at the final awards and therefore it should be dismissed with costs to the 1st respondent.
Analysis and determination
24. I have considered the grounds of appeal, reviewed the record of appeal and examined the submissions of both parties. It is evident that this appeal challenges only the quantum of damages awarded by the trial court.
25. Accordingly, the issues for determination by this court are whether the awards for Ksh 750,000/- general damages, Ksh 500,000/-for future medical expenses and Ksh 280,225/- for special damages were erroneous unjustified or excessive in the circumstances of this case.
26. This being a first appeal, the principles laid out in Selle v. Associated Motor Boat Co. Ltd [1968] EA apply. As the first appellate court, I am obligated to examine matters of both law and facts, subject the entire evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis while bearing in mind that the court did not have an opportunity to see and hear the witnesses first hand.
27. With this in mind, I turn to the award for general damages. The trial court awarded Ksh 750,000 for pain and suffering. The appellants argue that this amount is excessive and propose a reduction to Ksh 150,000. The 1st respondent however, maintains that the trial magistrate’s award was appropriate.
28. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is stated 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.”
29. Similarly 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.”
30. These decisions affirm that an appellate court will only interfere with an award of damages if it is satisfied that the award is inordinately low or high, or that the trial court considered irrelevant factors or failed to consider relevant ones in assessing the damages.
31. The question, therefore, is whether the trial court’s award of Ksh 750,000 was excessive and unjustified as claimed by the appellants.
32. The Medical Report of Dr. Wokabi dated 22nd July 2021 indicated that the 1st respondent sustained blunt soft tissue injuries to the head and neck, chest and back, extensive lacerations on the right forearm, blunt impact injury on the right thigh causing a large hematoma (blood collection), abrasions on the right upper shin. It also stated that all the lacerations were stitched. The 1st respondent was admitted to A.I.C Kijabe Hospital, underwent surgery to drain the hematoma, which later re- accumulated necessitating a second drainage. A keloid scar developed on the right forearm, which was surgically excised. He was also given local injections to prevent recurrence of the keloid.
33. Dr. Wokabi opined that the 1st respondent suffered a lot of pain from the multiple soft tissue injuries and subsequent surgical procedures. He noted the presence of unsightly scars on the right forearm and right thigh and recommended plastic surgery to reduce their prominence. This would involve superficial radiotherapy and medications to minimise chances of recurrence of keloid and would cost an estimated Ksh 500,000.
34. Dr. Madhiwala for the appellants corroborated the injuries in Dr. Wokabi’s report. His Medical Report is dated 26th November 2021. He also observed well healed surgical scar on the right forearm on the palmar aspect 16cm long with no keloid formation, no pain, swelling or tenderness found at the time of examination. He noted that there was a well healed surgical scar on the right thigh, lateral aspect 14cm long of two incision and drainage operation. He observed that there was no associated complaints. He stated that there were healed small scars on the right lower leg but no pain, swelling or tenderness found.
35. I am mindful of the Court of Appeal’s guidance in Denshire Muteti Wambua – v- Kenya Power & Lighting Co, Ltd. Civil Appeal No. 60 of 2004, which emphasized that:
“..awards have to make sense and have to have regard to the context in which they are made. They cannot be too high or too low but they have to strike a chord of fairness” and as was stated by Lord Denning in Kim Pho Choo – v – Camden & Islingtom Area Health Authority, (1979) 1 All ER 332, that in assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation for both the plaintiff and the defendant.
36. I am further guided by the Court of Appeal decision in Simon Taveta v Mercy Mutitu Njeru [2014] KECA 755 (KLR), which emphasized at paragraph 18 that “the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
37. In this regard, the decision in Easy Coach Limited v Emily Nyangasi [2017] KEHC 5131 (KLR) is instructive. The respondent in that case suffered serious injuries on the right hand which healed with a 10 cm scar with keloid formation on the elbow and on the right leg which was treated through grafting and healed with healed 18cm scar right thigh, 26 cm scar right leg, 28 cm scar right leg below the knee and 12 cm scar right foot with keloid formation. The court upheld an award of Kshs. 700,000.
38. In the present the injuries sustained by the 1st respondent were more than soft tissue injuries. He underwent two surgeries, then developed a keloid that required surgery to excise and endured a lot of pain. He also bears visible scars on the right forearm and right thigh as confirmed by both the medical reports.
39. For this reason, I am not persuaded by the authorities cited by the appellants, as they all pertain soft tissue injuries and are not comparable to the circumstances of this case. I therefore find that the trial court’s award of Ksh 750,000 was neither excessive nor unjustified. The trial court appropriately considered comparable awards made in the past and based the award on them. Accordingly, I find no reason to disturb the award of Ksh 750,000.
40. On the award of Ksh 500,000 for future medical expenses, I am guided by the Court of Appeal decision in Mbaka Nguru & Another - v- James George Rakwar, Court of Appeal Civil Appeal No. 133 of 1998, which held that claims for future medical expenses must be pleaded and proved as a special damage claims.
41. In the instant case, I note that the amount of Ksh 500,000 for future medical expenses was pleaded and proved through the Medical Report of Dr. Wokabi. He recommended plastic surgery to excise the scars and reduce their prominence The Appellant medical report also confirms the existence of these scars. Furthermore, the evidence indicating that surgical removal of the scars would cost kshs 500,000 has not been controverted. As such, I uphold the finding under this head.
42. On the award of special damages, the trial court awarded Ksh 280,225. The appellants, in their first ground of appeal argue that this amount is manifestly and inordinately high constituting an entirely erroneous estimate of the damages in the circumstances of the case. The respondents contend that the trial court made a correct finding on special damages save that it failed to subject it to the 20 percent liability agreed upon by the parties.
43. It is well established that special damages must be specifically pleaded and strictly proved, before they can be awarded by the court. The Court of Appeal in Hahn V. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, at P. 717, and 721 held: “Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
44. In this case the respondents claimed special damages amounting to Ksh 280,225 being Motor vehicle search KCQ 467L at Ksh 550, Motor vehicle search KCJ 646M/ZF 7004 at Ksh 550, Medical report Dr Wokabi at Ksh 3,000, Medical report AlC Kijabe at Ksh 6,500, Medical expenses totalling Ksh 159,625 and transport expenses at Ksh 110,000. Having gone through the record, I have determined that the special damages pleaded and proved were indeed of Ksh 280,225 with all the requisite receipts attached. Thus, the trial court’s finding on special damages can therefore not be faulted.
45. Having re-evaluated the evidence afresh, I find that the appellants have failed to establish their case. I affirm the decision of the trial court save to correct that the award of special damages will be subjected to the 20 per cent liability. Thus, the award will be as follows
a. Kshs 750,000 General damages
b. Kshs 500,000 Future medical
c. Special damages kshs 280,225
d. Total 1,530,225 less 20%
e. Total 1, 224,180
46. The upshot is that save for the arithmetic correction, the appeal fails and is dismissed with costs to the 1st respondent.
It is so ordered.
Delivered, Dated and Signed this 6th day of November 2025
'