REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. E124 OF 2025
WILLIAM OTIENO OMOLLO ………………………………………………APPELLANT
-VERSUS-
JOSEPH ONGELE OKOKO……………...………………………………RESPONDENT
(Being an appeal from the judgment/decree of the Honourable G.C. Serem (Resident Magistrate/Adjudicator) delivered on 20/05/2025 in Kisumu SCCC No. E014 of 2025)
JUDGMENT
Background
1. The Appellant (Claimant in the Lower Court) had filed a suit in the Small Claims Court being Kisumu SCCC No. E014 of 2025 by way of a Statement of Claim dated 3 rd January 2025 amended on 24 th January 2025 seeking the following prayers:
(a) General damages for pain and suffering, loss of amenities and loss of future earning capacity.
(b) Future medical expenses.
(c) Special damages in the sum of Kshs. 13,700.
(d) Costs of the suit.
(e) Interest on (a), (b), (c) and (d) above at court rates.
2. The nature of the claim was compensation for personal injuries from a road accident which occurred on or about 4 th December 2024. The Claimant suffered injuries on the head, chest, back, left ankle, left knee joint and fracture of the ankle joint.
3. After hearing the matter, the trial court entered judgment in favour of the Claimant in the sum of Kshs. 407,050/- plus costs and interest made up as follows:
(a) General damages Kshs. 400,000/=
(b) Special damages Kshs. 7,050/=
The Appeal
4. Before this Court is the Memorandum of Appeal dated 26 th May 2025 by which the Appellant seeks the following orders: -
(a) The trial court’s judgment on quantum be reviewed varied and/or set aside entirely and an award of General Damages be freshly assessed by this Honourable Court.
(b) The Appellant be awarded the future medical expenses as pleaded and proven in the sum of Kshs. 100,000/-.
(c) The costs of this Appeal and in the trial court be paid by the Respondent.
5. The Respondent opposed the Appeal. The matter was canvassed by way of written submissions.
THE SUBMISSIONS
A. The Appellant’s Case
6. In his written submissions dated 11 th May 2026, the Appellant reiterates his evidence is uncontroverted as adduced in the trial court.
7. In support of his case, the Appellant argues that the injuries sustained by the Appellant are grievous and grave and ought to attract fair compensation.
8. The Appellant further urges the Court to award him future medical expenses amounting to Kshs. 100,000/= for ankle joint reconstructive surgery as per the Medical Report of Dr. Mwita.
B. The Respondent’s Case
9. The Respondent’s written submissions are dated 20 th May 2025, and it is their case that the issues for determination are two:
(a) Whether the trial magistrate erred in law and fact in failing to award future medical expenses of Kshs. 100,000/=; and
(b) Whether the trial court awarded general damages which was inordinately low.
ANALYSIS AND DETERMINATION
10. Based on the record, and the parties’ submissions, the two issues for determination are as follows:
(a) Whether the Trial Adjudicator awarded the Appellant general damages which was inordinately low and not commensurate to the injuries sustained by the Claimant; and
(b) Whether the Trial Adjudicator erred in failing to award the Appellant future medical expenses.
a) Whether the Trial Adjudicator awarded the Appellant general damages that was inordinately low
11. As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the court in a first appeal such as this one was stated in Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123 in the following terms:
I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally ( Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270 ).
12. The appropriate standard of review established in these cases can be stated in three complementary principles:
(a) First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
(b) In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
(c) It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.
13. These three principles are well settled in various binding and persuasive authorities. (See Mary Wanjiku Gachigi v Ruth Muthoni Kamau (Civil Appeal No. 172 of 2000 : Tunoi, Bosire and Owuor JJA; Virani T/A Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd (Kisumu High Court CC No. 88 of 2002).
14. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:
“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.”
15. Based on the evidence on record, the trial Magistrate found that the Claimant suffered injury on the head, neck, chest, back left ankle, left knee joint and fracture of the ankle joint. The trial court considered the nature of the injuries, the case law submitted by counsel for both the Claimant and Respondent, the passage of time and the rate of inflation and found Kshs. 400,000/= to be sufficient compensation.
16. What is in issue is the quantum awarded by the trial court. It is settled in law that comparable injuries should attract comparable awards. The Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No 147 of 2002 [2004] eKLR held as follows;
“It has been stated now and again that in assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable award keeping in mind the correct level awards in similar cases.”
17. The Court of Appeal further observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR as follows;
“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.”
18. Evidence was adduced as to the nature and extent of the injuries sustained by the Claimant. Since the occurrence of the injuries is not disputed, the dispute concerns the proper assessment of damages arising from those injuries.
19. In cases where the Claimant suffered soft tissue injuries and a fracture, the court has awarded or reviewed quantum awards as follows:
(a) In Mohammed Younis Quereshi & Another v Chris Maina Mathu [2020] eKLR where the respondent therein, sustained soft tissue injuries and fracture of the tibia and was awarded Kshs 400,000/- as general damages. The Appellant herein suffered soft tissue injuries and fracture of the ankle joint.
(b) In Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR , where the respondent sustained soft tissue injuries, compound fracture of the right tibia/fibula and segmental distal fracture of the femur and the court made an award of Kshs 450,000/- for general damages. These injuries are more severe than the Appellant’s in the instant case.
(c) Indeed, as cited by the Appellant/Claimant in his submissions, the Court in Daniel Oduor Shieuda v Christopher Wambugu [2021] eKLR observed that the courts have been awarding damages ranging between Kshs.450,000 to Kshs.1,300,000/- for fractures of tibia and fibular bones depending on the specific case and other injuries suffered by the same claimant in the accident. The appellant therein was awarded Kshs 800,000/-. These injuries are more severe than those suffered by the Appellant in the instant case.
(d) In the case of Nahson Nyabaro Nyandega v Peter Nyakweba Omboga [2021] eKLR , the Respondent in the appeal sustained fractures of tibia and fibular bones. The court awarded Kshs. 650,000/- considering that it would take a long time to heal. In this case, the healing process was expected to take 15-18 months. In that matter it would take longer for the Appellant’s injuries to heal, unlike in the present matter where the Appellant’s fracture would take 3 months to heal as testified by the Medical Officer that authored the Medical Report (C Exhibit 4).
(e) In Karanja & Another v Mwachala [2024] KEHC 7171 (KLR), the Appellant therein was awarded Kshs 650,000/- for a compound (open) fracture of the left tibia and compound (open) fracture of the left fibula. It is important to note that the Appellant’s disability in the matter was assessed at 10%. The Appellant’s injuries in the instant matter have only been classified as grievous harm, with no disability awarded, neither are they as severe as the Appellant’s in the above case.
20. Having taken into account the current awards and the injuries sustained by the Appellant, the award cannot therefore be said to be so inordinately low as to represent an erroneous estimate of the damage suffered. I need to emphatically state that it is not open for me to substitute my preferred assessment with that of the trial court. There is no sliding scale against which damages are awarded against injuries. It is not an exercise in precision science. It’s a matter of discretion which I will not interfere on a whim. In the result I find no reason to disturb the award on general damages by the trial court. This limb of the appeal is dismissed.
(b) Whether the Trial Adjudicator erred in failing to award the Appellant future medical expenses.
21. The Appellant submitted that future medical expenses in the sum of Kshs. 100,000/- should be awarded to enable him undergo a reconstructive surgery. He relied on the Medical Report of Dr. Mwita and urged the Court to award the same.
22. It is trite law that future medical expenses are awarded under general damages but must be specifically pleaded and proved.
23. The Court of Appeal, in the case of Tracom Limited & Another vs Hassan Mohammed Adan [2009] eKLR held that:
“We readily agree that the claim for future medical expenses is a special claim though within general damages and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs Gituma (2004) 1 EA 91 , this Court stated:
‘And as regards future medication (physiotherapy) the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as raising naturally from infringement of a person’s legal right should be pleaded.’
We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.”
24. Upon perusing the Amended Statement of Claim, it is evident that future medical expenses were specifically pleaded. However, it is well established that it falls within general damages (See Guardian Coach Ltd & another v Kiptoo (Civil Appeal 34 of 2020) [2022] KEHC 12397 (KLR) (26 May 2022) (Judgment).
25. Although future medical expenses were pleaded, the trial court did not expressly determine that claim in its judgment.
26. The Respondent submitted that there is no need for future medical expenses since by the time the Appellant was being seen by the Respondent’s doctor, healing was taking place as it should be.
27. Rule 23(3) of the Small Claims Court Rules allows parties to introduce a report containing an expert opinion without calling the maker under the listed circumstances. The Respondent produced a contrary medical report which was admitted without objection. Consequently, the Court is required to evaluate the competing expert opinions.
28. During the hearing of the case, on cross examination by the Respondent’s Counsel, Dr. Mwita testified that he saw the Appellant personally and he was surprised that the Appellant said that he did not go to Rabuor Sub-County Hospital. He further said that he saw the x-ray film and could not recall the hospital it was from. Further, that he did not attach an x-ray film to his medical report. In the circumstances, it is difficult to ascertain the extent of the Claimant’s injury regarding the need for future medical expenses.
29. Since the Claimant did not oppose the production of the Respondent’s doctor’s Medical Report, or deem it necessary to cross-examine the maker of the document, then the Respondent’s evidence is considered and the Court finds that there is no basis for awarding the Appellant future medical expenses.
30. The Appellant has not demonstrated that the trial court acted on a wrong principle of law, failed to consider relevant evidence, or misapprehended the medical evidence in declining to award future medical expenses. There is therefore no basis upon which this Court may interfere with the exercise of the trial court's discretion.
CONCLUSION
31. Accordingly, I proceed to make the following dispositive orders;
a) THAT the appeal in its entirety is found to be one without merits and is hereby dismissed.
b) THAT costs in this case will follow the event and are hereby awarded to the respondents.
c) It is so ordered.
DATED, SIGNED AND DELIVERED THIS 10 TH DAY OF… JUNE …..AT MAKADARA HIGH COURT THROUGH SAFARICOM TEAMS.
HON. ALEX. K. ITHUKU
JUDGE
8 | Page KISUMU HCCA E124 OF 2025
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. E124 OF 2025
WILLIAM OTIENO OMOLLO ………………………………………………APPELLANT
-VERSUS-
JOSEPH ONGELE OKOKO……………...………………………………RESPONDENT
(Being an appeal from the judgment/decree of the Honourable G.C. Serem (Resident Magistrate/Adjudicator) delivered on 20/05/2025 in Kisumu SCCC No. E014 of 2025)
JUDGMENT
Background
1. The Appellant (Claimant in the Lower Court) had filed a suit in the Small Claims Court being Kisumu SCCC No. E014 of 2025 by way of a Statement of Claim dated 3 rd January 2025 amended on 24 th January 2025 seeking the following prayers:
(a) General damages for pain and suffering, loss of amenities and loss of future earning capacity.
(b) Future medical expenses.
(c) Special damages in the sum of Kshs. 13,700.
(d) Costs of the suit.
(e) Interest on (a), (b), (c) and (d) above at court rates.
2. The nature of the claim was compensation for personal injuries from a road accident which occurred on or about 4 th December 2024. The Claimant suffered injuries on the head, chest, back, left ankle, left knee joint and fracture of the ankle joint.
3. After hearing the matter, the trial court entered judgment in favour of the Claimant in the sum of Kshs. 407,050/- plus costs and interest made up as follows:
(a) General damages Kshs. 400,000/=
(b) Special damages Kshs. 7,050/=
The Appeal
4. Before this Court is the Memorandum of Appeal dated 26 th May 2025 by which the Appellant seeks the following orders: -
(a) The trial court’s judgment on quantum be reviewed varied and/or set aside entirely and an award of General Damages be freshly assessed by this Honourable Court.
(b) The Appellant be awarded the future medical expenses as pleaded and proven in the sum of Kshs. 100,000/-.
(c) The costs of this Appeal and in the trial court be paid by the Respondent.
5. The Respondent opposed the Appeal. The matter was canvassed by way of written submissions.
THE SUBMISSIONS
A. The Appellant’s Case
6. In his written submissions dated 11 th May 2026, the Appellant reiterates his evidence is uncontroverted as adduced in the trial court.
7. In support of his case, the Appellant argues that the injuries sustained by the Appellant are grievous and grave and ought to attract fair compensation.
8. The Appellant further urges the Court to award him future medical expenses amounting to Kshs. 100,000/= for ankle joint reconstructive surgery as per the Medical Report of Dr. Mwita.
B. The Respondent’s Case
9. The Respondent’s written submissions are dated 20 th May 2025, and it is their case that the issues for determination are two:
(a) Whether the trial magistrate erred in law and fact in failing to award future medical expenses of Kshs. 100,000/=; and
(b) Whether the trial court awarded general damages which was inordinately low.
ANALYSIS AND DETERMINATION
10. Based on the record, and the parties’ submissions, the two issues for determination are as follows:
(a) Whether the Trial Adjudicator awarded the Appellant general damages which was inordinately low and not commensurate to the injuries sustained by the Claimant; and
(b) Whether the Trial Adjudicator erred in failing to award the Appellant future medical expenses.
a) Whether the Trial Adjudicator awarded the Appellant general damages that was inordinately low
11. As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the court in a first appeal such as this one was stated in Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123 in the following terms:
I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally ( Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270 ).
12. The appropriate standard of review established in these cases can be stated in three complementary principles:
(a) First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
(b) In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
(c) It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.
13. These three principles are well settled in various binding and persuasive authorities. (See Mary Wanjiku Gachigi v Ruth Muthoni Kamau (Civil Appeal No. 172 of 2000 : Tunoi, Bosire and Owuor JJA; Virani T/A Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd (Kisumu High Court CC No. 88 of 2002).
14. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:
“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.”
15. Based on the evidence on record, the trial Magistrate found that the Claimant suffered injury on the head, neck, chest, back left ankle, left knee joint and fracture of the ankle joint. The trial court considered the nature of the injuries, the case law submitted by counsel for both the Claimant and Respondent, the passage of time and the rate of inflation and found Kshs. 400,000/= to be sufficient compensation.
16. What is in issue is the quantum awarded by the trial court. It is settled in law that comparable injuries should attract comparable awards. The Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No 147 of 2002 [2004] eKLR held as follows;
“It has been stated now and again that in assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable award keeping in mind the correct level awards in similar cases.”
17. The Court of Appeal further observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR as follows;
“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.”
18. Evidence was adduced as to the nature and extent of the injuries sustained by the Claimant. Since the occurrence of the injuries is not disputed, the dispute concerns the proper assessment of damages arising from those injuries.
19. In cases where the Claimant suffered soft tissue injuries and a fracture, the court has awarded or reviewed quantum awards as follows:
(a) In Mohammed Younis Quereshi & Another v Chris Maina Mathu [2020] eKLR where the respondent therein, sustained soft tissue injuries and fracture of the tibia and was awarded Kshs 400,000/- as general damages. The Appellant herein suffered soft tissue injuries and fracture of the ankle joint.
(b) In Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR , where the respondent sustained soft tissue injuries, compound fracture of the right tibia/fibula and segmental distal fracture of the femur and the court made an award of Kshs 450,000/- for general damages. These injuries are more severe than the Appellant’s in the instant case.
(c) Indeed, as cited by the Appellant/Claimant in his submissions, the Court in Daniel Oduor Shieuda v Christopher Wambugu [2021] eKLR observed that the courts have been awarding damages ranging between Kshs.450,000 to Kshs.1,300,000/- for fractures of tibia and fibular bones depending on the specific case and other injuries suffered by the same claimant in the accident. The appellant therein was awarded Kshs 800,000/-. These injuries are more severe than those suffered by the Appellant in the instant case.
(d) In the case of Nahson Nyabaro Nyandega v Peter Nyakweba Omboga [2021] eKLR , the Respondent in the appeal sustained fractures of tibia and fibular bones. The court awarded Kshs. 650,000/- considering that it would take a long time to heal. In this case, the healing process was expected to take 15-18 months. In that matter it would take longer for the Appellant’s injuries to heal, unlike in the present matter where the Appellant’s fracture would take 3 months to heal as testified by the Medical Officer that authored the Medical Report (C Exhibit 4).
(e) In Karanja & Another v Mwachala [2024] KEHC 7171 (KLR), the Appellant therein was awarded Kshs 650,000/- for a compound (open) fracture of the left tibia and compound (open) fracture of the left fibula. It is important to note that the Appellant’s disability in the matter was assessed at 10%. The Appellant’s injuries in the instant matter have only been classified as grievous harm, with no disability awarded, neither are they as severe as the Appellant’s in the above case.
20. Having taken into account the current awards and the injuries sustained by the Appellant, the award cannot therefore be said to be so inordinately low as to represent an erroneous estimate of the damage suffered. I need to emphatically state that it is not open for me to substitute my preferred assessment with that of the trial court. There is no sliding scale against which damages are awarded against injuries. It is not an exercise in precision science. It’s a matter of discretion which I will not interfere on a whim. In the result I find no reason to disturb the award on general damages by the trial court. This limb of the appeal is dismissed.
(b) Whether the Trial Adjudicator erred in failing to award the Appellant future medical expenses.
21. The Appellant submitted that future medical expenses in the sum of Kshs. 100,000/- should be awarded to enable him undergo a reconstructive surgery. He relied on the Medical Report of Dr. Mwita and urged the Court to award the same.
22. It is trite law that future medical expenses are awarded under general damages but must be specifically pleaded and proved.
23. The Court of Appeal, in the case of Tracom Limited & Another vs Hassan Mohammed Adan [2009] eKLR held that:
“We readily agree that the claim for future medical expenses is a special claim though within general damages and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs Gituma (2004) 1 EA 91 , this Court stated:
‘And as regards future medication (physiotherapy) the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as raising naturally from infringement of a person’s legal right should be pleaded.’
We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.”
24. Upon perusing the Amended Statement of Claim, it is evident that future medical expenses were specifically pleaded. However, it is well established that it falls within general damages (See Guardian Coach Ltd & another v Kiptoo (Civil Appeal 34 of 2020) [2022] KEHC 12397 (KLR) (26 May 2022) (Judgment).
25. Although future medical expenses were pleaded, the trial court did not expressly determine that claim in its judgment.
26. The Respondent submitted that there is no need for future medical expenses since by the time the Appellant was being seen by the Respondent’s doctor, healing was taking place as it should be.
27. Rule 23(3) of the Small Claims Court Rules allows parties to introduce a report containing an expert opinion without calling the maker under the listed circumstances. The Respondent produced a contrary medical report which was admitted without objection. Consequently, the Court is required to evaluate the competing expert opinions.
28. During the hearing of the case, on cross examination by the Respondent’s Counsel, Dr. Mwita testified that he saw the Appellant personally and he was surprised that the Appellant said that he did not go to Rabuor Sub-County Hospital. He further said that he saw the x-ray film and could not recall the hospital it was from. Further, that he did not attach an x-ray film to his medical report. In the circumstances, it is difficult to ascertain the extent of the Claimant’s injury regarding the need for future medical expenses.
29. Since the Claimant did not oppose the production of the Respondent’s doctor’s Medical Report, or deem it necessary to cross-examine the maker of the document, then the Respondent’s evidence is considered and the Court finds that there is no basis for awarding the Appellant future medical expenses.
30. The Appellant has not demonstrated that the trial court acted on a wrong principle of law, failed to consider relevant evidence, or misapprehended the medical evidence in declining to award future medical expenses. There is therefore no basis upon which this Court may interfere with the exercise of the trial court's discretion.
CONCLUSION
31. Accordingly, I proceed to make the following dispositive orders;
a) THAT the appeal in its entirety is found to be one without merits and is hereby dismissed.
b) THAT costs in this case will follow the event and are hereby awarded to the respondents.
c) It is so ordered.
DATED, SIGNED AND DELIVERED THIS 10 TH DAY OF… JUNE …..AT MAKADARA HIGH COURT THROUGH SAFARICOM TEAMS.
HON. ALEX. K. ITHUKU
JUDGE
8 | Page KISUMU HCCA E124 OF 2025