A. Introduction
1. This is a first appeal from the judgment of the Principal Magistrate's Court at Kimilili (Hon. Gladys Adhiambo, SPM) delivered on 11th April 2023 in PMCC No. 195 of 2019. The trial court found the Appellant, West Kenya Sugar Co. Ltd, 100% vicariously liable for a road traffic accident that occurred on 14th August 2018 along the Kamukuywa–Ndivisi road at Nakalila area, involving motor vehicle (tractor) registration No. KTCB 852T, owned by the Appellant and driven by its employee Tom Avomba (DW1), and motorcycle registration No. KMEB 834Y ridden by the Respondent, Samuel Wekesa Walunywa. The trial court awarded the Respondent general damages of Kshs. 1,800,000/=, special damages of Kshs. 29,300/=, and future medical expenses of Kshs. 400,000/=, together with costs and interest.
2. Being aggrieved, the Appellant lodged this appeal by way of a Memorandum of Appeal dated 26th April 2023, raising seven grounds directed at (i) the finding of 100% liability, and (ii) the quantum of general damages awarded. By consent and directions of this Court, the appeal was canvassed by way of written submissions.
B. Grounds of Appeal
3. The Memorandum of Appeal raises the following grounds, which may conveniently be grouped under two heads:
Liability (Grounds 1, 2, 3 and 7): that the trial magistrate erred in law and fact in holding the Appellant 100% liable, in failing to apportion liability to the Respondent, in failing to analyse the evidence before making a determination on liability, and in failing to consider the Appellant's submissions on liability.
Quantum (Grounds 4, 5, 6 and 7): that the trial magistrate erred in adopting wrong principles in assessing damages, in failing to consider comparable authorities, in taking into account irrelevant factors, and in failing to consider the Appellant's submissions on quantum, thereby making an excessive award of general damages.
C. The Duty of a First Appellate Court
4. It is trite that this being a first appeal, this Court is under a duty to re-evaluate, re-assess and re-analyse the entirety of the evidence on record and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify, and giving allowance for that disadvantage. This is the settled position in
"...the Court of Appeal in an appeal from a trial by a judge without a jury has jurisdiction to review the evidence in order to determine whether the conclusions originally reached upon that evidence should stand; but this jurisdiction is exercised with caution... it is not enough that there may have been a mere difference of view; there must have been some blemish in the trial judge's treatment of the question of fact." – Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123.
5. With that principle in mind, this Court has independently gone through the pleadings, the recorded evidence of PW1, PW2, PW3 and DW1, the exhibits produced, the submissions of both counsel, and the impugned judgment and decree. Before turning to the issues for determination, it is convenient to set out, in summary, what each witness said, and to analyse the documentary evidence produced.
D. Summary of the Evidence and Analysis of the Documents Produced
(a) The Plaintiff's (Respondent's) Case
6. PW1 – Samuel Wekesa Walunywa (the Respondent): His witness statement dated 24/4/2019 was adopted as his evidence in chief. He testified that on 14/8/2018, at about 9.00 a.m., he was riding motorcycle registration No. KMEB 834Y, carrying one pillion passenger, along the Kamukuywa–Ndivisi road at Nakalila area, on the correct (left-hand) side of the road, heading towards Kamukuywa. An oncoming tractor, travelling at high speed, lost control and veered onto his side of the road, colliding head-on with his motorcycle. The tractor, registration No. KTCB 852T, stopped at the scene. As a result of the accident he sustained injuries to the head, right hand, a broken finger and the left hip/joint, and was admitted at Bungoma County Referral Hospital for 16 days and thereafter at Lugulu Mission Hospital for a further 4 days, incurring medical expenses of Kshs. 13,690/= and Kshs. 9,370/= respectively at the two hospitals. He recorded a statement at Kimilili Police Station, was issued with a P3 form, and upon its completion was issued a police abstract confirming the occurrence of the accident and that the tractor belonged to the Appellant. He was examined by Dr. Sokobe, to whom he paid Kshs. 4,000/= (later reflected as Kshs. 6,000/= for the medical report), and blamed the tractor driver for driving at high speed without due care, causing the vehicle to veer into his lane. On cross-examination, he maintained that although the road had corners generally, there was no corner at the specific point of impact; he confirmed he was wearing a helmet and carrying one pillion passenger; he conceded he could not state the tractor's exact speed but maintained it was high; he denied riding at high speed himself and denied contributing to the accident, while admitting that his injuries had left him unable to do strenuous work and support his family as before.
7. PW2 – Christine Munyendo, Clinical Officer, Kimilili Sub-County Hospital (Reg. No. 11367): She produced the treatment notes and P3 form of the Respondent (patient No. 1392579), though she was not the doctor who personally examined him. She testified that the patient presented with multiple injuries to the head and a fracture of the femur, and was treated for head injury at Bungoma District Hospital before being referred to Lugulu Mission Hospital, with a total hospitalisation of approximately 13 days (14/8/2018 to 27/8/2018). She produced the discharge summary and P3 form as exhibits. On cross-examination, she named the ward doctor (Dr. Ombogi) and the discharging doctor (Dr. Rodgers Ndombi), and confirmed that a CT scan done in Eldoret revealed severe soft tissue injury to the head with small intracranial bleeding. This Court notes, without treating it as significant, an inconsistency in terminology between PW2's reference to a fracture of the "femur" and the medical reports of Dr. Sokobe and Dr. Adero, which speak of a fracture of the left acetabulum with hip dislocation; as a mere records clerk producing hospital documents rather than the treating clinician, PW2's evidence is properly read as corroborative of the fact and extent of hospitalisation, while the medical reports of Dr. Sokobe and Dr. Adero remain the authoritative and more detailed evidence on the precise orthopaedic diagnosis.
8. PW3 – No. 75112 PC Edwin Kemboi: He attended court pursuant to summons issued to the Base Commander, Kimilili Traffic Base, in relation to the accident of 14/8/2018 involving tractor KTCB 852T and motorcycle KMEB 834Y. He testified that the accident was reported at Kimilili Traffic Base and was investigated by PC Ndegwa, from whom he took over the file; that the tractor belonged to the Appellant; and that two persons were injured. He testified that, per the contents of the police file, the Investigating Officer charged the driver, Tom Avomba, with careless driving in Traffic Case No. 796 of 2018, in which he was convicted and fined Kshs. 20,000/=. He produced the police abstract. On cross-examination, he conceded that he had not personally visited the scene (that had been done by the initial investigating officer, PC Ndegwa); that the sketch map indicated the tractor had veered off the road to its left while facing Kimilili; that the motorcycle's certificate of insurance was not in the police file; that the file did not indicate whether the rider and pillion wore helmets; and that the rider's driving licence was likewise not in the file. He maintained that the file indicated the driver was ordered to pay a fine of Kshs. 20,000/=, in default 2 months' imprisonment.
(b) The Defendant's (Appellant's) Case
9. DW1 – Tom Avomba: He adopted his witness statement filed on 8/6/2020 as his evidence in chief. He testified that on 14/8/2018 he was driving the Appellant's tractor and, on reaching Lubokha, two motorcycles approached from the opposite direction "racing against each other" at a blind corner; that on seeing them he applied emergency brakes, causing the tractor to swerve to the left side of the road; and that the overtaking motorcycle then struck the tractor's front guard. He stated that he parked the vehicle, ran from the scene for his own safety, and called his supervisor, who took over the matter. He produced, as Dexhibit 1, a second medical report on the Respondent prepared by Dr. Walter S. Adero and dated 12/11/2020, commissioned by the defence. On cross-examination, he confirmed that the tractor was inspected following the accident, that he was charged with careless driving, and that he was fined Kshs. 20,000/=. He further conceded that the police officer who attended the scene found him to blame for the accident. On re-examination, he reiterated his position that it was the motorcycle that left its lane and entered the tractor's lane.
(c) Analysis of the Documentary Evidence
10. On behalf of the Respondent, the following exhibits were produced: (i) the discharge summary from Bungoma County Referral Hospital (Pexhibit 1a and 1b); (ii) the discharge summary from Lugulu Mission Hospital (Pexhibit 2); (iii) the police abstract (Pexhibit 3); (iv) the P3 form (Pexhibit 4); (v) the statutory demand notice (Pexhibit 5); (vi) the medical report of Dr. Joseph Sokobe together with the receipt for Kshs. 6,000/= (Pexhibit 6a and 6b); and (vii) receipts for medical expenses totalling Kshs. 13,690/=, Kshs. 500/= and Kshs. 9,240/= (Pexhibit 7a–c). On behalf of the Appellant, the following were produced: (i) a copy of DW1's identity card (Dexhibit 1); (ii) DW1's driving licence (Dexhibit 2); and (iii) the second medical report by Dr. Walter S. Adero dated 12/11/2020 (Dexhibit 3).
11. Two features of the documentary record merit particular comment. First, the police abstract, on its face, is silent as to fault; it records the occurrence of the accident and the particulars of the vehicles and persons involved, but does not itself pronounce on culpability, and no formal certified extract of the proceedings or judgment in Traffic Case No. 796 of 2018 was produced as an exhibit. Nor was the sketch plan referred to by PW3 produced as a stand-alone document. The Appellant is correct that this is a gap in the documentary proof of the fact and outcome of the traffic prosecution. That gap is not, however, fatal to the Respondent's case, because DW1 himself admitted on oath, both in cross-examination and on re-examination, that he was charged with careless driving and fined Kshs. 20,000/=. An admission by a party against his own interest is direct evidence of the fact admitted and requires no further documentary proof; the absence of the charge sheet or a certified extract of the criminal proceedings therefore does not undermine the finding that DW1 was convicted, since that fact was independently established through DW1's own testimony.
12. Second, and significantly, the second medical report obtained by the defence itself, that of Dr. Walter S. Adero (Dexhibit 3), does not assist the Appellant's case on either liability or quantum: it corroborates, rather than contradicts, the injuries described by Dr. Sokobe (severe head injury, left hip dislocation, left acetabular fracture and soft tissue injuries), independently recommends the same total hip replacement, and assesses a permanent disability of 12%, a figure not materially distant from Dr. Sokobe's 15%. Having commissioned its own medical opinion and having found it substantially consistent with the Respondent's case, the Appellant was left, in effect, without any documentary or expert evidence capable of contradicting either the nature of the injuries or the recommended course of treatment. The documentary record, taken as a whole, therefore corroborates the Respondent's case on both the occurrence and mechanism of the accident and the extent of his injuries, and does not disclose any exhibit tending to support the Appellant's version that the Respondent or another rider caused or contributed to the accident.
E. Issues for Determination
13. The issues that fall for determination are:
i. Whether the trial magistrate erred in holding the Appellant 100% liable for the accident, or whether liability ought to have been apportioned between the parties;
ii. Whether the general damages of Kshs. 1,800,000/= awarded by the trial court were manifestly excessive in the circumstances;
iii. Whether the awards of future medical expenses (Kshs. 400,000/=) and special damages (Kshs. 29,300/=) were properly made; and
iv. What orders this Court should make, including as to the reviewed/supplementary decree brought onto the record.
F. Issue (i): Liability
14. It is common ground, and was expressly conceded in DW1's evidence, that on 14th August 2018 the Appellant's tractor KTCB 852T, driven by its employee DW1 in the course of his employment, was involved in a head-on collision with the Respondent's motorcycle KMEB 834Y. The rival versions of how the collision occurred are as set out in the summary of evidence above.
15. The trial magistrate, having considered both versions, held that DW1's account that "it is the motorcycle that left its lane and went to the lane of the tractor" remained a bare, unproved allegation, and that DW1's failure to appeal his conviction meant he was "no longer disputing that he drove the said tractor carelessly." The Learned Magistrate accordingly found the Appellant 100% vicariously liable.
16. Before this Court, the Appellant contends that a criminal conviction is not, by itself, conclusive proof of civil liability, relying on Alex Njoroge & Another v. Florence Nduku Mutua [2021] eKLR, where the Court of Appeal observed that:
"It must always be remembered that the decision of who to charge where there is a collision occurs rests on the police and the parties have no control over that decision. Therefore, the fact that the police decide to charge one driver and not the other cannot be taken to be conclusive evidence of who between the two drivers is culpable."
The Appellant further relies on Calistus Ochieng Oyalo & Others v. Mr. & Mrs. Aoko, Civil Appeal No. 130 of 1996, and on a line of authorities in which liability was apportioned equally between two drivers where the court was faced with two irreconcilable versions and no independent means of preferring one over the other — Hussein Omar Farah v. Lento Agencies [2006] eKLR, Matunda Fruits Bus Services Ltd v. Moses Wangila & Another [2018] eKLR, and Eliud Papoi Papa v. Jigneshkumar Rameshbai Patel & Another [2017] eKLR.
17. This Court accepts, as a statement of principle, that a criminal conviction does not automatically translate into a finding of civil liability; the two proceedings serve different purposes, are subject to different standards of proof, and a conviction is, at best, material that a civil court may take into account together with the rest of the evidence. Indeed, Section 47A of the Evidence Act (Cap. 80) provides that an unappealed final judgment of conviction "shall ... be taken as conclusive evidence that the person so convicted was guilty of that offence as charged" — no more, and no less. This qualification was explained in the East African authority of Robinson v. Oluoch (1971) EA 376, where it was held that "careless driving necessarily connotes some degree of negligence ... but that is a very different matter from saying that a conviction for an offence involving negligent driving is conclusive evidence that the convicted person was the only person whose negligence caused the accident", such that a convicted driver remains entitled to plead that the plaintiff, or another person, also contributed to the accident. The same principle was applied by the Court of Appeal, in circumstances involving another sugar company defendant, in Phillip Keipto Chemwolo & Mumias Sugar Company Ltd v. Augustine Kubende (1982–88) 1 KAR 1036, where the Court observed that both parties to a collision might each be guilty of some carelessness, and that "despite [the] conviction, the issue of contributory negligence may still be alive if the facts warrant it." This Court readily accepts that DW1's conviction did not, as a matter of law, foreclose the Appellant from raising contributory negligence; the true question is whether that plea was made out on the evidence actually adduced, not whether it was legally available in principle. The question, therefore, is not simply whether the trial court treated the conviction as conclusive in the abstract, but whether, on the whole of the evidence, the Respondent discharged the burden resting on him under Sections 107 to 109 of the Evidence Act to prove his case on a balance of probabilities, and whether the Appellant discharged the burden resting on it, as the party alleging contributory negligence, to adduce credible evidence in support of that plea.
18. On that evidence, this Court finds no misdirection. First, the Respondent's account was consistent with the physical fact, common ground, that the tractor ended up on the Respondent's side of the road, and was corroborated to the extent that an independent investigation, culminating in a conviction which stands unchallenged to date, attributed fault to DW1 rather than to the Respondent. Second, and critically, DW1's version that two motorcycles were "racing against each other" is not corroborated by any other witness, is inconsistent with the unchallenged evidence that the Respondent was riding a single motorcycle carrying one pillion passenger (not racing another rider), and was not put to the Respondent in a manner that displaced his account. It is well settled, per Kiema Mutuku v. Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, that "there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence" — a principle that applies with equal force to a defendant who bears the onus of proving a plea of contributory negligence it has itself raised. That case also endorses, quoting Lord Reid in Stapley v. Gypsum Mines Ltd [1953] AC 663 at 681, the caution that "to determine what caused an accident from the point of view of legal liability is a most difficult task" and that the determination of liability in a road traffic case "is not a scientific affair"; a court is not required to achieve mathematical certainty, but to reach a reasoned, common-sense conclusion on the totality of the material before it. A bare assertion, uncorroborated and materially inconsistent with the rest of the record, does not discharge the burden resting on a party who raises contributory negligence.
19. The authorities relied upon by the Appellant are, with respect, distinguishable. In Hussein Omar Farah, Matunda Fruits Bus Services and Eliud Papoi Papa, apportionment followed because the courts were confronted with two genuinely irreconcilable and equally weighted versions, with no conviction or other independent finding pointing more probably to one driver than the other. Here, by contrast, there exists an unappealed conviction following an independent police investigation, squarely attributing fault for careless driving to the Appellant's own driver, in circumstances where the Appellant has not put forward any credible, corroborated basis for a contrary finding. This distinction was recognised in materially identical circumstances in POA Link Services Co. Ltd & Another v. Sindani Boaz Bonzemo, Bungoma HCA No. 17 of 2019 (S.N. Riechi, J.), where the appellant driver had likewise been convicted in a traffic case and had not appealed, and had likewise failed to adduce evidence of the plaintiff's contribution; the High Court declined to apportion liability and upheld the trial court's finding of 100% liability against the appellant. The circumstances of the present case are, in all material respects, the same.
20. This conclusion is further fortified by the Court of Appeal's own decision in Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others, Civil Appeal No. 310 of 2005 [2013] eKLR, an authority not cited by either party but squarely on point. There, the trial court had apportioned liability 70:30 between a convicted driver and the plaintiff's driver, notwithstanding an unappealed conviction of the former for a driving offence connected with the accident. On appeal, the Court of Appeal held that the conviction was, under Section 47A of the Evidence Act, conclusive evidence of the convicted driver's guilt, and set aside the apportionment because there was no evidence to sustain a finding of contributory negligence against the other driver. The present case is on all fours with that authority: an unappealed conviction stands unrebutted by any corroborated evidence of fault on the Respondent's part, and the trial court's refusal to apportion liability accordingly cannot be faulted.
21. As to the complaint (Ground 3) that the trial magistrate failed to analyse the facts, this Court does not accept that characterisation. The judgment expressly sets out the competing pleadings, frames the issues for determination, weighs DW1's version against the unchallenged conviction, and gives reasons, however concisely expressed, for preferring the Respondent's account. Brevity of reasoning is not, without more, a failure to analyse.
22. Accordingly, Grounds 1, 2, 3 and 7, insofar as they relate to liability, fail. The finding of the trial court that the Appellant is 100% vicariously liable for the accident is affirmed.
G. Issue (ii): Quantum of General Damages
23. The applicable threshold for appellate interference with an award of general damages is well established, and its foundation lies in the Court of Appeal's decision in Kemfro Africa Limited t/a Meru Express Services (1976) & Another v. A.M. Lubia and Olive Lubia (1982–88) 1 KAR 727, where Kneller JA held:
"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 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."
24. The same threshold, earlier stated in Butt v. Khan (1981) KLR 349, has since been consistently restated, including in Catholic Diocese of Kisumu v. Sophia Achieng Tete [2004] 2 KLR 55, where the Court of Appeal held:
"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 ... or misapprehended the evidence and so arrived at a figure which was either inordinately high or so low as to make it an entirely erroneous estimate."
A like statement appears in Jane Chelagat Bor v. Andrew Otieno Onduu [1988–92] 2 KAR 288, that the scale must go down heavily against the figure attacked before an appellate court interferes, whether on the ground of excess or insufficiency. As to the related principle of comparability relied upon by the Appellant, this Court also draws on William J. Butler v. Maura Kathleen Butler [1984] KLR, in which the Court of Appeal held that in awarding damages a court should have regard to the overall circumstances of the case and the effect of the injuries on the claimant, while striving to maintain a degree of uniformity by reference to recent and comparable local decisions — a restatement, by the Court of Appeal itself, of the same principle the Appellant draws from the older East African authority of Bhogal v. Burbridge, and one this Court has applied in the comparison undertaken below.
25. It is common ground, borne out by the medical reports of Dr. Joseph Sokobe (dated 11/3/2021) and Dr. Walter S. Adero (dated 12/11/2020), that the Respondent sustained: (a) a severe head injury with loss of consciousness, since resolved; (b) blunt injury and bruising to the left hand; (c) dislocation of the left hip; and (d) a fracture of the left acetabulum. Dr. Sokobe assessed permanent disability at 15%, and Dr. Adero at 12%. Both doctors are agreed that the Respondent requires a total hip replacement, a procedure that had not yet been performed at the time of trial, at an estimated cost of Kshs. 400,000/=.
26. The trial magistrate was guided by Cold Car Hire & Tour Limited & 2 Others v. Elizabeth Wambui Mathew [2015] eKLR, in which the respondent, having sustained a comminuted fracture of the right acetabulum and dislocation of the right hip resulting in a total hip replacement already performed, was awarded Kshs. 1,400,000/= in general damages (upheld on appeal), and by Fred Ogada Ozere & Another v. Ezekiel Kiarie Ngaya [2019] eKLR, where a trial award of Kshs. 1,800,000/= for a comminuted fracture of the right acetabulum, posterior dislocation of the right hip and other soft tissue injuries was reduced on appeal to Kshs. 1,400,000/=.
27. The Appellant submits that these authorities are distinguishable because the injuries there were described as "comminuted" fractures of the acetabulum, a more severe fracture pattern, whereas the Respondent's medical reports describe simply a "fracture" of the left acetabulum. This is a legitimate observation and one this Court has weighed carefully. It is correct, per Bhogal v. Burbridge & Another (1975) EA 285, that "some degree of uniformity must be sought in the award of general damages and recent awards in comparable cases in local courts may be looked at," and per Kigaraari v. Aya (1982–88) 1 KAR 768, that damages must remain within the limits set by decided cases and what the economy can bear. Comparable injuries should, as a matter of consistency, attract comparable awards, and a court should be alert to a meaningful difference in the severity of a fracture pattern.
28. That said, this Court is not persuaded that the distinction, on its own, renders the trial court's award so inordinately high as to amount to a wholly erroneous estimate. Three considerations weigh against the Appellant's position. First, unlike the comparators where the hip replacement had already been carried out by the date of assessment, the Respondent here had not yet undergone that surgery; his pain, immobility and loss of amenity were, and at the time of judgment remained, ongoing and open-ended, a factor that in principle offsets, at least in part, the absence of the "comminuted" qualifier. Second, the Cold Car Hire figure of Kshs. 1,400,000/= was fixed in 2015 and the Fred Ogada Ozere appellate figure of Kshs. 1,400,000/= in 2019; the present award was made in April 2023, several years later, and some allowance for the depreciation of the shilling over that period is legitimate and unremarkable. Third, the comparator relied upon by the Appellant, Civicon Limited v. Richard Njomo Omwancha & 2 Others [2019] eKLR (Kshs. 450,000/= general damages), involved a materially different and, on the whole, less severe injury profile — a fracture of the tibia and fibula together with a hip dislocation, rather than an acetabular fracture with hip dislocation and a head injury — and is accordingly of limited comparative value.
29. Weighing the foregoing, this Court finds that the trial court's award of Kshs. 1,800,000/= in general damages, while at the upper end of what might have been awarded, was not shown to proceed from a wrong principle, an irrelevant consideration, or a misapprehension of the evidence such as to make it a wholly erroneous estimate under the Kemfro Africa / Catholic Diocese of Kisumu test. A difference of view as to the precise figure is not, by itself, a sufficient basis for appellate interference. Grounds 4, 5, 6 and 7, insofar as they relate to quantum, accordingly fail, and the award of Kshs. 1,800,000/= as general damages is affirmed.
H. Future Medical Expenses and Special Damages
30. The sum of Kshs. 400,000/= for future medical expenses (the projected cost of a total hip replacement) was specifically pleaded in the Amended Plaint and supported by the uncontroverted opinion of Dr. Sokobe, corroborated by Dr. Adero's recommendation of the same procedure. No contrary medical opinion was called by the Appellant, and this head of damages was therefore properly awarded.
31. The special damages of Kshs. 29,300/= (Kshs. 23,300/= medical expenses and Kshs. 6,000/= for the medical report) were specifically pleaded and strictly proved by way of receipts produced as exhibits, consistently with the requirement that special damages be both pleaded and strictly proved. This award, which was in any event not seriously contested on appeal, is affirmed.
I. Observation on the Reviewed/Supplementary Decree
32. This Court notes, from the record, that the operative paragraph of the original judgment expressly awarded future medical expenses of Kshs. 400,000/= in its body, yet the summary "upshot" computation at the foot of the judgment, and the decree extracted from it, totalled only Kshs. 1,829,300/= (general and special damages alone), omitting that sum. This was self-evidently an arithmetical or clerical slip rather than a deliberate omission, since the future medical expenses had already been found due and payable in the substantive part of the judgment. The trial court subsequently corrected this, upon applicati
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1. This is a first appeal from the judgment of the Principal Magistrate's Court at Kimilili (Hon. Gladys Adhiambo, SPM) delivered on 11th April 2023 in PMCC No. 195 of 2019. The trial court found the Appellant, West Kenya Sugar Co. Ltd, 100% vicariously liable for a road traffic accident that occurred on 14th August 2018 along the Kamukuywa–Ndivisi road at Nakalila area, involving motor vehicle (tractor) registration No. KTCB 852T, owned by the Appellant and driven by its employee Tom Avomba (DW1), and motorcycle registration No. KMEB 834Y ridden by the Respondent, Samuel Wekesa Walunywa. The trial court awarded the Respondent general damages of Kshs. 1,800,000/=, special damages of Kshs. 29,300/=, and future medical expenses of Kshs. 400,000/=, together with costs and interest.
2. Being aggrieved, the Appellant lodged this appeal by way of a Memorandum of Appeal dated 26th April 2023, raising seven grounds directed at (i) the finding of 100% liability, and (ii) the quantum of general damages awarded. By consent and directions of this Court, the appeal was canvassed by way of written submissions.
B. Grounds of Appeal
3. The Memorandum of Appeal raises the following grounds, which may conveniently be grouped under two heads:
Liability (Grounds 1, 2, 3 and 7): that the trial magistrate erred in law and fact in holding the Appellant 100% liable, in failing to apportion liability to the Respondent, in failing to analyse the evidence before making a determination on liability, and in failing to consider the Appellant's submissions on liability.
Quantum (Grounds 4, 5, 6 and 7): that the trial magistrate erred in adopting wrong principles in assessing damages, in failing to consider comparable authorities, in taking into account irrelevant factors, and in failing to consider the Appellant's submissions on quantum, thereby making an excessive award of general damages.
C. The Duty of a First Appellate Court
4. It is trite that this being a first appeal, this Court is under a duty to re-evaluate, re-assess and re-analyse the entirety of the evidence on record and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses testify, and giving allowance for that disadvantage. This is the settled position in
"...the Court of Appeal in an appeal from a trial by a judge without a jury has jurisdiction to review the evidence in order to determine whether the conclusions originally reached upon that evidence should stand; but this jurisdiction is exercised with caution... it is not enough that there may have been a mere difference of view; there must have been some blemish in the trial judge's treatment of the question of fact." – Selle & Another v. Associated Motor Boat Co. Ltd & Others [1968] EA 123.
5. With that principle in mind, this Court has independently gone through the pleadings, the recorded evidence of PW1, PW2, PW3 and DW1, the exhibits produced, the submissions of both counsel, and the impugned judgment and decree. Before turning to the issues for determination, it is convenient to set out, in summary, what each witness said, and to analyse the documentary evidence produced.
D. Summary of the Evidence and Analysis of the Documents Produced
(a) The Plaintiff's (Respondent's) Case
6. PW1 – Samuel Wekesa Walunywa (the Respondent): His witness statement dated 24/4/2019 was adopted as his evidence in chief. He testified that on 14/8/2018, at about 9.00 a.m., he was riding motorcycle registration No. KMEB 834Y, carrying one pillion passenger, along the Kamukuywa–Ndivisi road at Nakalila area, on the correct (left-hand) side of the road, heading towards Kamukuywa. An oncoming tractor, travelling at high speed, lost control and veered onto his side of the road, colliding head-on with his motorcycle. The tractor, registration No. KTCB 852T, stopped at the scene. As a result of the accident he sustained injuries to the head, right hand, a broken finger and the left hip/joint, and was admitted at Bungoma County Referral Hospital for 16 days and thereafter at Lugulu Mission Hospital for a further 4 days, incurring medical expenses of Kshs. 13,690/= and Kshs. 9,370/= respectively at the two hospitals. He recorded a statement at Kimilili Police Station, was issued with a P3 form, and upon its completion was issued a police abstract confirming the occurrence of the accident and that the tractor belonged to the Appellant. He was examined by Dr. Sokobe, to whom he paid Kshs. 4,000/= (later reflected as Kshs. 6,000/= for the medical report), and blamed the tractor driver for driving at high speed without due care, causing the vehicle to veer into his lane. On cross-examination, he maintained that although the road had corners generally, there was no corner at the specific point of impact; he confirmed he was wearing a helmet and carrying one pillion passenger; he conceded he could not state the tractor's exact speed but maintained it was high; he denied riding at high speed himself and denied contributing to the accident, while admitting that his injuries had left him unable to do strenuous work and support his family as before.
7. PW2 – Christine Munyendo, Clinical Officer, Kimilili Sub-County Hospital (Reg. No. 11367): She produced the treatment notes and P3 form of the Respondent (patient No. 1392579), though she was not the doctor who personally examined him. She testified that the patient presented with multiple injuries to the head and a fracture of the femur, and was treated for head injury at Bungoma District Hospital before being referred to Lugulu Mission Hospital, with a total hospitalisation of approximately 13 days (14/8/2018 to 27/8/2018). She produced the discharge summary and P3 form as exhibits. On cross-examination, she named the ward doctor (Dr. Ombogi) and the discharging doctor (Dr. Rodgers Ndombi), and confirmed that a CT scan done in Eldoret revealed severe soft tissue injury to the head with small intracranial bleeding. This Court notes, without treating it as significant, an inconsistency in terminology between PW2's reference to a fracture of the "femur" and the medical reports of Dr. Sokobe and Dr. Adero, which speak of a fracture of the left acetabulum with hip dislocation; as a mere records clerk producing hospital documents rather than the treating clinician, PW2's evidence is properly read as corroborative of the fact and extent of hospitalisation, while the medical reports of Dr. Sokobe and Dr. Adero remain the authoritative and more detailed evidence on the precise orthopaedic diagnosis.
8. PW3 – No. 75112 PC Edwin Kemboi: He attended court pursuant to summons issued to the Base Commander, Kimilili Traffic Base, in relation to the accident of 14/8/2018 involving tractor KTCB 852T and motorcycle KMEB 834Y. He testified that the accident was reported at Kimilili Traffic Base and was investigated by PC Ndegwa, from whom he took over the file; that the tractor belonged to the Appellant; and that two persons were injured. He testified that, per the contents of the police file, the Investigating Officer charged the driver, Tom Avomba, with careless driving in Traffic Case No. 796 of 2018, in which he was convicted and fined Kshs. 20,000/=. He produced the police abstract. On cross-examination, he conceded that he had not personally visited the scene (that had been done by the initial investigating officer, PC Ndegwa); that the sketch map indicated the tractor had veered off the road to its left while facing Kimilili; that the motorcycle's certificate of insurance was not in the police file; that the file did not indicate whether the rider and pillion wore helmets; and that the rider's driving licence was likewise not in the file. He maintained that the file indicated the driver was ordered to pay a fine of Kshs. 20,000/=, in default 2 months' imprisonment.
(b) The Defendant's (Appellant's) Case
9. DW1 – Tom Avomba: He adopted his witness statement filed on 8/6/2020 as his evidence in chief. He testified that on 14/8/2018 he was driving the Appellant's tractor and, on reaching Lubokha, two motorcycles approached from the opposite direction "racing against each other" at a blind corner; that on seeing them he applied emergency brakes, causing the tractor to swerve to the left side of the road; and that the overtaking motorcycle then struck the tractor's front guard. He stated that he parked the vehicle, ran from the scene for his own safety, and called his supervisor, who took over the matter. He produced, as Dexhibit 1, a second medical report on the Respondent prepared by Dr. Walter S. Adero and dated 12/11/2020, commissioned by the defence. On cross-examination, he confirmed that the tractor was inspected following the accident, that he was charged with careless driving, and that he was fined Kshs. 20,000/=. He further conceded that the police officer who attended the scene found him to blame for the accident. On re-examination, he reiterated his position that it was the motorcycle that left its lane and entered the tractor's lane.
(c) Analysis of the Documentary Evidence
10. On behalf of the Respondent, the following exhibits were produced: (i) the discharge summary from Bungoma County Referral Hospital (Pexhibit 1a and 1b); (ii) the discharge summary from Lugulu Mission Hospital (Pexhibit 2); (iii) the police abstract (Pexhibit 3); (iv) the P3 form (Pexhibit 4); (v) the statutory demand notice (Pexhibit 5); (vi) the medical report of Dr. Joseph Sokobe together with the receipt for Kshs. 6,000/= (Pexhibit 6a and 6b); and (vii) receipts for medical expenses totalling Kshs. 13,690/=, Kshs. 500/= and Kshs. 9,240/= (Pexhibit 7a–c). On behalf of the Appellant, the following were produced: (i) a copy of DW1's identity card (Dexhibit 1); (ii) DW1's driving licence (Dexhibit 2); and (iii) the second medical report by Dr. Walter S. Adero dated 12/11/2020 (Dexhibit 3).
11. Two features of the documentary record merit particular comment. First, the police abstract, on its face, is silent as to fault; it records the occurrence of the accident and the particulars of the vehicles and persons involved, but does not itself pronounce on culpability, and no formal certified extract of the proceedings or judgment in Traffic Case No. 796 of 2018 was produced as an exhibit. Nor was the sketch plan referred to by PW3 produced as a stand-alone document. The Appellant is correct that this is a gap in the documentary proof of the fact and outcome of the traffic prosecution. That gap is not, however, fatal to the Respondent's case, because DW1 himself admitted on oath, both in cross-examination and on re-examination, that he was charged with careless driving and fined Kshs. 20,000/=. An admission by a party against his own interest is direct evidence of the fact admitted and requires no further documentary proof; the absence of the charge sheet or a certified extract of the criminal proceedings therefore does not undermine the finding that DW1 was convicted, since that fact was independently established through DW1's own testimony.
12. Second, and significantly, the second medical report obtained by the defence itself, that of Dr. Walter S. Adero (Dexhibit 3), does not assist the Appellant's case on either liability or quantum: it corroborates, rather than contradicts, the injuries described by Dr. Sokobe (severe head injury, left hip dislocation, left acetabular fracture and soft tissue injuries), independently recommends the same total hip replacement, and assesses a permanent disability of 12%, a figure not materially distant from Dr. Sokobe's 15%. Having commissioned its own medical opinion and having found it substantially consistent with the Respondent's case, the Appellant was left, in effect, without any documentary or expert evidence capable of contradicting either the nature of the injuries or the recommended course of treatment. The documentary record, taken as a whole, therefore corroborates the Respondent's case on both the occurrence and mechanism of the accident and the extent of his injuries, and does not disclose any exhibit tending to support the Appellant's version that the Respondent or another rider caused or contributed to the accident.
E. Issues for Determination
13. The issues that fall for determination are:
i. Whether the trial magistrate erred in holding the Appellant 100% liable for the accident, or whether liability ought to have been apportioned between the parties;
ii. Whether the general damages of Kshs. 1,800,000/= awarded by the trial court were manifestly excessive in the circumstances;
iii. Whether the awards of future medical expenses (Kshs. 400,000/=) and special damages (Kshs. 29,300/=) were properly made; and
iv. What orders this Court should make, including as to the reviewed/supplementary decree brought onto the record.
F. Issue (i): Liability
14. It is common ground, and was expressly conceded in DW1's evidence, that on 14th August 2018 the Appellant's tractor KTCB 852T, driven by its employee DW1 in the course of his employment, was involved in a head-on collision with the Respondent's motorcycle KMEB 834Y. The rival versions of how the collision occurred are as set out in the summary of evidence above.
15. The trial magistrate, having considered both versions, held that DW1's account that "it is the motorcycle that left its lane and went to the lane of the tractor" remained a bare, unproved allegation, and that DW1's failure to appeal his conviction meant he was "no longer disputing that he drove the said tractor carelessly." The Learned Magistrate accordingly found the Appellant 100% vicariously liable.
16. Before this Court, the Appellant contends that a criminal conviction is not, by itself, conclusive proof of civil liability, relying on Alex Njoroge & Another v. Florence Nduku Mutua [2021] eKLR, where the Court of Appeal observed that:
"It must always be remembered that the decision of who to charge where there is a collision occurs rests on the police and the parties have no control over that decision. Therefore, the fact that the police decide to charge one driver and not the other cannot be taken to be conclusive evidence of who between the two drivers is culpable."
The Appellant further relies on Calistus Ochieng Oyalo & Others v. Mr. & Mrs. Aoko, Civil Appeal No. 130 of 1996, and on a line of authorities in which liability was apportioned equally between two drivers where the court was faced with two irreconcilable versions and no independent means of preferring one over the other — Hussein Omar Farah v. Lento Agencies [2006] eKLR, Matunda Fruits Bus Services Ltd v. Moses Wangila & Another [2018] eKLR, and Eliud Papoi Papa v. Jigneshkumar Rameshbai Patel & Another [2017] eKLR.
17. This Court accepts, as a statement of principle, that a criminal conviction does not automatically translate into a finding of civil liability; the two proceedings serve different purposes, are subject to different standards of proof, and a conviction is, at best, material that a civil court may take into account together with the rest of the evidence. Indeed, Section 47A of the Evidence Act (Cap. 80) provides that an unappealed final judgment of conviction "shall ... be taken as conclusive evidence that the person so convicted was guilty of that offence as charged" — no more, and no less. This qualification was explained in the East African authority of Robinson v. Oluoch (1971) EA 376, where it was held that "careless driving necessarily connotes some degree of negligence ... but that is a very different matter from saying that a conviction for an offence involving negligent driving is conclusive evidence that the convicted person was the only person whose negligence caused the accident", such that a convicted driver remains entitled to plead that the plaintiff, or another person, also contributed to the accident. The same principle was applied by the Court of Appeal, in circumstances involving another sugar company defendant, in Phillip Keipto Chemwolo & Mumias Sugar Company Ltd v. Augustine Kubende (1982–88) 1 KAR 1036, where the Court observed that both parties to a collision might each be guilty of some carelessness, and that "despite [the] conviction, the issue of contributory negligence may still be alive if the facts warrant it." This Court readily accepts that DW1's conviction did not, as a matter of law, foreclose the Appellant from raising contributory negligence; the true question is whether that plea was made out on the evidence actually adduced, not whether it was legally available in principle. The question, therefore, is not simply whether the trial court treated the conviction as conclusive in the abstract, but whether, on the whole of the evidence, the Respondent discharged the burden resting on him under Sections 107 to 109 of the Evidence Act to prove his case on a balance of probabilities, and whether the Appellant discharged the burden resting on it, as the party alleging contributory negligence, to adduce credible evidence in support of that plea.
18. On that evidence, this Court finds no misdirection. First, the Respondent's account was consistent with the physical fact, common ground, that the tractor ended up on the Respondent's side of the road, and was corroborated to the extent that an independent investigation, culminating in a conviction which stands unchallenged to date, attributed fault to DW1 rather than to the Respondent. Second, and critically, DW1's version that two motorcycles were "racing against each other" is not corroborated by any other witness, is inconsistent with the unchallenged evidence that the Respondent was riding a single motorcycle carrying one pillion passenger (not racing another rider), and was not put to the Respondent in a manner that displaced his account. It is well settled, per Kiema Mutuku v. Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, that "there is as yet no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence" — a principle that applies with equal force to a defendant who bears the onus of proving a plea of contributory negligence it has itself raised. That case also endorses, quoting Lord Reid in Stapley v. Gypsum Mines Ltd [1953] AC 663 at 681, the caution that "to determine what caused an accident from the point of view of legal liability is a most difficult task" and that the determination of liability in a road traffic case "is not a scientific affair"; a court is not required to achieve mathematical certainty, but to reach a reasoned, common-sense conclusion on the totality of the material before it. A bare assertion, uncorroborated and materially inconsistent with the rest of the record, does not discharge the burden resting on a party who raises contributory negligence.
19. The authorities relied upon by the Appellant are, with respect, distinguishable. In Hussein Omar Farah, Matunda Fruits Bus Services and Eliud Papoi Papa, apportionment followed because the courts were confronted with two genuinely irreconcilable and equally weighted versions, with no conviction or other independent finding pointing more probably to one driver than the other. Here, by contrast, there exists an unappealed conviction following an independent police investigation, squarely attributing fault for careless driving to the Appellant's own driver, in circumstances where the Appellant has not put forward any credible, corroborated basis for a contrary finding. This distinction was recognised in materially identical circumstances in POA Link Services Co. Ltd & Another v. Sindani Boaz Bonzemo, Bungoma HCA No. 17 of 2019 (S.N. Riechi, J.), where the appellant driver had likewise been convicted in a traffic case and had not appealed, and had likewise failed to adduce evidence of the plaintiff's contribution; the High Court declined to apportion liability and upheld the trial court's finding of 100% liability against the appellant. The circumstances of the present case are, in all material respects, the same.
20. This conclusion is further fortified by the Court of Appeal's own decision in Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others, Civil Appeal No. 310 of 2005 [2013] eKLR, an authority not cited by either party but squarely on point. There, the trial court had apportioned liability 70:30 between a convicted driver and the plaintiff's driver, notwithstanding an unappealed conviction of the former for a driving offence connected with the accident. On appeal, the Court of Appeal held that the conviction was, under Section 47A of the Evidence Act, conclusive evidence of the convicted driver's guilt, and set aside the apportionment because there was no evidence to sustain a finding of contributory negligence against the other driver. The present case is on all fours with that authority: an unappealed conviction stands unrebutted by any corroborated evidence of fault on the Respondent's part, and the trial court's refusal to apportion liability accordingly cannot be faulted.
21. As to the complaint (Ground 3) that the trial magistrate failed to analyse the facts, this Court does not accept that characterisation. The judgment expressly sets out the competing pleadings, frames the issues for determination, weighs DW1's version against the unchallenged conviction, and gives reasons, however concisely expressed, for preferring the Respondent's account. Brevity of reasoning is not, without more, a failure to analyse.
22. Accordingly, Grounds 1, 2, 3 and 7, insofar as they relate to liability, fail. The finding of the trial court that the Appellant is 100% vicariously liable for the accident is affirmed.
G. Issue (ii): Quantum of General Damages
23. The applicable threshold for appellate interference with an award of general damages is well established, and its foundation lies in the Court of Appeal's decision in Kemfro Africa Limited t/a Meru Express Services (1976) & Another v. A.M. Lubia and Olive Lubia (1982–88) 1 KAR 727, where Kneller JA held:
"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 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."
24. The same threshold, earlier stated in Butt v. Khan (1981) KLR 349, has since been consistently restated, including in Catholic Diocese of Kisumu v. Sophia Achieng Tete [2004] 2 KLR 55, where the Court of Appeal held:
"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 ... or misapprehended the evidence and so arrived at a figure which was either inordinately high or so low as to make it an entirely erroneous estimate."
A like statement appears in Jane Chelagat Bor v. Andrew Otieno Onduu [1988–92] 2 KAR 288, that the scale must go down heavily against the figure attacked before an appellate court interferes, whether on the ground of excess or insufficiency. As to the related principle of comparability relied upon by the Appellant, this Court also draws on William J. Butler v. Maura Kathleen Butler [1984] KLR, in which the Court of Appeal held that in awarding damages a court should have regard to the overall circumstances of the case and the effect of the injuries on the claimant, while striving to maintain a degree of uniformity by reference to recent and comparable local decisions — a restatement, by the Court of Appeal itself, of the same principle the Appellant draws from the older East African authority of Bhogal v. Burbridge, and one this Court has applied in the comparison undertaken below.
25. It is common ground, borne out by the medical reports of Dr. Joseph Sokobe (dated 11/3/2021) and Dr. Walter S. Adero (dated 12/11/2020), that the Respondent sustained: (a) a severe head injury with loss of consciousness, since resolved; (b) blunt injury and bruising to the left hand; (c) dislocation of the left hip; and (d) a fracture of the left acetabulum. Dr. Sokobe assessed permanent disability at 15%, and Dr. Adero at 12%. Both doctors are agreed that the Respondent requires a total hip replacement, a procedure that had not yet been performed at the time of trial, at an estimated cost of Kshs. 400,000/=.
26. The trial magistrate was guided by Cold Car Hire & Tour Limited & 2 Others v. Elizabeth Wambui Mathew [2015] eKLR, in which the respondent, having sustained a comminuted fracture of the right acetabulum and dislocation of the right hip resulting in a total hip replacement already performed, was awarded Kshs. 1,400,000/= in general damages (upheld on appeal), and by Fred Ogada Ozere & Another v. Ezekiel Kiarie Ngaya [2019] eKLR, where a trial award of Kshs. 1,800,000/= for a comminuted fracture of the right acetabulum, posterior dislocation of the right hip and other soft tissue injuries was reduced on appeal to Kshs. 1,400,000/=.
27. The Appellant submits that these authorities are distinguishable because the injuries there were described as "comminuted" fractures of the acetabulum, a more severe fracture pattern, whereas the Respondent's medical reports describe simply a "fracture" of the left acetabulum. This is a legitimate observation and one this Court has weighed carefully. It is correct, per Bhogal v. Burbridge & Another (1975) EA 285, that "some degree of uniformity must be sought in the award of general damages and recent awards in comparable cases in local courts may be looked at," and per Kigaraari v. Aya (1982–88) 1 KAR 768, that damages must remain within the limits set by decided cases and what the economy can bear. Comparable injuries should, as a matter of consistency, attract comparable awards, and a court should be alert to a meaningful difference in the severity of a fracture pattern.
28. That said, this Court is not persuaded that the distinction, on its own, renders the trial court's award so inordinately high as to amount to a wholly erroneous estimate. Three considerations weigh against the Appellant's position. First, unlike the comparators where the hip replacement had already been carried out by the date of assessment, the Respondent here had not yet undergone that surgery; his pain, immobility and loss of amenity were, and at the time of judgment remained, ongoing and open-ended, a factor that in principle offsets, at least in part, the absence of the "comminuted" qualifier. Second, the Cold Car Hire figure of Kshs. 1,400,000/= was fixed in 2015 and the Fred Ogada Ozere appellate figure of Kshs. 1,400,000/= in 2019; the present award was made in April 2023, several years later, and some allowance for the depreciation of the shilling over that period is legitimate and unremarkable. Third, the comparator relied upon by the Appellant, Civicon Limited v. Richard Njomo Omwancha & 2 Others [2019] eKLR (Kshs. 450,000/= general damages), involved a materially different and, on the whole, less severe injury profile — a fracture of the tibia and fibula together with a hip dislocation, rather than an acetabular fracture with hip dislocation and a head injury — and is accordingly of limited comparative value.
29. Weighing the foregoing, this Court finds that the trial court's award of Kshs. 1,800,000/= in general damages, while at the upper end of what might have been awarded, was not shown to proceed from a wrong principle, an irrelevant consideration, or a misapprehension of the evidence such as to make it a wholly erroneous estimate under the Kemfro Africa / Catholic Diocese of Kisumu test. A difference of view as to the precise figure is not, by itself, a sufficient basis for appellate interference. Grounds 4, 5, 6 and 7, insofar as they relate to quantum, accordingly fail, and the award of Kshs. 1,800,000/= as general damages is affirmed.
H. Future Medical Expenses and Special Damages
30. The sum of Kshs. 400,000/= for future medical expenses (the projected cost of a total hip replacement) was specifically pleaded in the Amended Plaint and supported by the uncontroverted opinion of Dr. Sokobe, corroborated by Dr. Adero's recommendation of the same procedure. No contrary medical opinion was called by the Appellant, and this head of damages was therefore properly awarded.
31. The special damages of Kshs. 29,300/= (Kshs. 23,300/= medical expenses and Kshs. 6,000/= for the medical report) were specifically pleaded and strictly proved by way of receipts produced as exhibits, consistently with the requirement that special damages be both pleaded and strictly proved. This award, which was in any event not seriously contested on appeal, is affirmed.
I. Observation on the Reviewed/Supplementary Decree
32. This Court notes, from the record, that the operative paragraph of the original judgment expressly awarded future medical expenses of Kshs. 400,000/= in its body, yet the summary "upshot" computation at the foot of the judgment, and the decree extracted from it, totalled only Kshs. 1,829,300/= (general and special damages alone), omitting that sum. This was self-evidently an arithmetical or clerical slip rather than a deliberate omission, since the future medical expenses had already been found due and payable in the substantive part of the judgment. The trial court subsequently corrected this, upon applicati
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