https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7778

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MERU** **CIVIL APPEAL NO. E192 OF 2024** ANN MWAURA GATHONI………………………..………………..APPELLANT VERSUS DENNIS KIMATHI…………………… ……..………..……………RESPONDENT ***(Being an Appeal from the Judgement of Hon. T.Mwangi (Chief Magistrate) delivered on 16th August,2023 in Meru CMCC No. 86 of 2023)*** **JUDGEMENT** 1. The respondent herein instituted a suit before the Chief Magistrate’s Court by way of the plaint dated 8th May,2023 seeking for judgment against the Appellant in the following manner: 1. General damages for pain, suffering and loss of amenities. 2. Special damages of Ksh.168,738/= 3. Future Medical Expenses of Ksh. 150,000/= 4. Loss of user and loss of earning. 5. Costs of the suit. 6. Interest on (a) (b) and (c) above at court rates. 2. The respondent averred in his plaint that on or about 31st January, 2023, he was riding his Motor Cycle Registration Number KMFE 623S along Kinoru- Mewass Road when the Appellant’s driver or agent so negligently controlled Motor Vehicle Registration Number KCC 988X HINO BUS that it veered off its lane and hit his said Motor Cycle thereby occasioning him severe injuries and also occasioning his Motor Cycle extensive damage as a consequence of which it was declared a write off. 3. The appellant entered appearance on being served with summons and filed her statement of defence on 24th May, 2023 denying the respondent’s claim in toto and in the alternative averred that if any accident occurred which was denied then the same was wholly caused and/or substantially contributed to by the Respondent. 4. The matter proceeded for hearing and judgment was eventually delivered in favour of the respondent against appellant in the following terms: - Liability 100% against the Appellant 1. General damages for pain and suffering Ksh.850,000/= 2. Future Medical expenses Ksh. 150,000/= 3. Special Damages Ksh. 68,738/= 4. Costs of the suit. 5. Interests on orders (1)(2)(3) and (4) to apply at 10%. 6. Being aggrieved by the aforementioned judgment, the appellant lodged the instant appeal through her memorandum of appeal dated 8th October,2024 raising 6 grounds of appeal, reproduced verbatim as follows: - 7. That the Learned trial Magistrate erred in fact and in law by assessing liability at 100% in favour of the Respondent as against the Appellant contrary to the evidence tendered in court. 8. That the Learned trial Magistrate erred in fact and in law by awarding inordinately high general damages of Ksh.850,000/= to the Respondent constituting a miscarriage of justice in the circumstances of the case. 9. That the Learned trial Magistrate misdirected herself by failing to rely on contemporary comparative decisions and authorities in awarding general damages based on comparable injuries sustained by the Respondent. 10. That the Learned trial Magistrate erred in fact and in law by awarding Ksh.68, 738.00 in special damages that were not pleaded nor proved so as to constitute a miscarriage of justice. 11. That the Learned trial Magistrate erred in fact and in law by awarding Ksh.150, 000/= in future medical costs that were not pleaded nor proved constituting a miscarriage of justice. 12. That the Learned trial Magistrate’s judgement was wholly not supported in law by evidence (especially the Appellant’s medical reports) tendered in court and legal principles. 13. The Appellant thus prayed that the Appeal be allowed, Judgement of the trial courts with the decree and consequential orders be set aside, this court do proceed to assess liability and quantum of damages, and award costs of this Appeal and those of the subordinate court to her. 14. Parties took directions to dispose of the Appeal via written submissions. Both sides have filed their respective written submissions. **The Appellant’s Submissions** 1. On liability, the Appellant submitted that the Respondent did not prove his case to the required standard as he did not explain the circumstances which led to the accident, did not call eye witness to testify in support of his case and that the Police officer’s testimony was hearsay and speculative as he was not the investigating officer and the police abstract he produced did not indicate who was to blame for the accident. 2. In light of the above, the Appellant urged this court to apportioned liability equally between her and the Respondent. In buttressing her submissions, the Appellant referred this court to Section 107 of the Evidence Act and the cases of ***Hussein Omar Farah v Lento Agencies [2006] eKLR****;* ***Miller v Minister of Pensions (1947) 2 All ER 372*** cited in the case of ***D.T Dobie & Company (K) Ltd Vs Wanyonyi Wafula Chebukati[2014] eKLR*** & ***Alfred Kioko Muteti v Timothy Miheso & another [2015] eKLR*** . 3. With respect to Special Damages, the Appellant submitted that no receipts were produced to support the claim of Ksh.1200/= for the P3 form and the Police Abstract, on sum awarded for medical report the Appellant submitted that the same was grossly overpriced since the chargeable amount is between Ksh.6000/= to Ksh.12,000/= pursuant to rules 3(1)(2) and (5) and part C of the schedule of the Medical Practitioners and Dentists(Professional fees) Rules,2016, that it was unclear whether the Respondent paid for treatment expenses and postage fee since the receipts adduced were illegible and that the receipt for Motor Vehicle assessor lacked the requisite stamp. 4. The Appellant thus urged this court not to make any award on special damages. 5. Regarding the general damages award for pain and suffering, the Appellant argued that based on the injuries sustained by the Respondent Ksh.450.000/= would suffice under this head. In support of her submissions, the Appellant relied on the following cases: - 6. **Kyoga Hauliers vs. Okoddi [2023] KEHC 27107 (KLR)(Chirchir,J)** where the claimant had sustained multiple cut wounds on the scalp, head injury with loss of consciousness and blunt injury to the chest, and the court awarded Kshs. 150,000.00. 7. **Flashmark (K) Limited vs. Musyoka [2023] KEHC 18281 (KLR) (JN Mulwa, J),** where the claimant sustained mild head injury with loss of consciousness, lacerations on left and right knees and a blunt chest injury, and an award of Kshs. 230,000.00 was made. 8. [**Harun Muyoma boge v Daniel Otieno Agude**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2015/5660) **[2015] eKLR** in which the plaintiff sustained blunt chest injuries, cut wound right wrist, deep cut wound on the right foot, fracture right tibia and fibula and soft tissue injuries, and he was awarded Kshs. 300,000 in general damages. 9. **Manasseh Distributors & Wholesalers Ltd vs. Oburu [2024] KEHC 14091 (KLR) (Mrima, J),** where the plaintiff sustained head injury with loss of consciousness, blunt injury to the neck, deep cut wound on the left parietal scalp, blunt injury to the back, lacerations on the left hip joint area and a blunt injury to the left knee, and was awarded Kshs. 300,000.00. 10. With respect to Future Medical Expenses, the Appellant citing the case of ***Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLR***submitted that future medical expenses are synonymous to special damages. 11. She argued that based on the report by Dr. Waithaka the respondent do not require future medical costs. The Appellant urged this court to rely on the said second medical report for being the most recent prognosis. To buttress her submissions, the Appellant relied on the case of**Butt v Khan [1981] KLR 349** for the proposition that where medical evidence differs, the court should consider the report that reflects the current state of the Plaintiff’s health on grounds that the outdated medical report may not adequately reflect the progression of injuries or recovery. 12. The Appellant ultimately urged this court to award her costs as prayed in line with Section 27 of the Civil Procedure Act for having justified her appeal. **Respondent’s Submissions** 1. The Respondent submitted that his testimony on the circumstances that led to the accident was uncontroverted and the Appellant’s assertion that liability be apportioned was not proposed in the lower court. He therefore urged this court to uphold to trial court’s finding on liability. In support of his submissions, the Respondent relied on the cases of***William Kabogo Gitau V George Thuo & 2 others [2010] eKLR; Re H and Others (Minors) [1996] AC 563, 586; Janet Kaphiphe O & Another ­vs­ Marie Stopes International Kenya – HCCC No. 68 of 2007; Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] eKLR; Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No. 834 of 2002; & Trust Bank Limited v Paramount Universal Bank Limited & 2 others [2009] eKLR.*** 2. On the general damages’ award, the Respondent submitted that the same was not inordinately high in light of the injuries that he sustained. He argued that the court considered the relevant law before awarding it and urged this court to uphold the same. In buttressing his case, the respondent placed reliance on the case of ***Mbithi & another v Kimutai [2025] KEHC 1093 (KLR).*** 3. Regarding special damages, the Respondent submitted that he specifically pleaded and proved the same through production of receipts totaling only to Ksh.68, 738.00 which were unchallenged by the Appellant. 4. On the issue of medical report, the Respondent argued that the prescribed fees for legal reports is between Ksh.6000/= to Ksh.60, 000/= pursuant to rules 3(1) (2) and (5) and part C of the schedule of the Medical Practitioners and Dentists (Professional fees) Rules, 2016. He thus urges this court not to disturb the award on special damages. 5. On the costs of future medical expenses, the Respondent submitted that the amount of Ksh. 150,000/- was suggested by the doctor in his report. He contended that the medical report by the Appellant did not estimate the costs for future medical expenses and as such it was of no probative value. 6. The Respondent thus urged this court to dismiss the Appeal with costs to him. **Analysis and Determination** 1. The court has carefully considered the appeal, the entire record of the trial court, and the parties’ rival submissions. 2. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [see Peters -vs- Sunday Post Limited [1958] E.A 424]. 3. In **Selle and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A 123** it was stated as follows:- ***“….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] 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 that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”*** 1. Likewise in **Gitobu Imyanyara & 2 Others -vs- Attorney General [2016] eKLR**, the court of Appeal stated thus;- ***“An appeal to this court is by way of a 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.”*** 1. With the above principles in mind, I will now determine this Appeal. 2. The issues for determination are; 3. The apportionment of liability; 4. Whether the damages awarded were excessive 5. Whether the award for special damages was correct; 6. Whether the award for future medical expenses was correct. **Liability** 1. It is trite law that he who alleges must prove. In law the burden of proof lies upon the party who asserts the existence of a fact or set of facts. Section 107 of the [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46) Cap 80 Laws of Kenya provides as follows:- ***“Burden of Proof*** ***107(1) whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.*** ***(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”*** 1. In the case of **Evans Nyakwana -vs- Cleophas Bwana Ongaro [2015] eKLR**, it was held that:- ***“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107(1) of the*** [***Evidence Act***](https://new.kenyalaw.org/akn/ke/act/1963/46)***, Chapter 80, Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law of proof of that fact shall lie on any particular person…………….”*** 1. In Civil Cases the law requires that a plaintiff prove their claim on a “balance of probabilities Master of the Rolls Lord Denning, in **Miller -vs- Minister Of Pensions 1947 2 ALL ER** in discussing the burden of proof in Civil cases stated as follows:- ***“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged but if the probability is equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough, so any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties are equally (un) convincing the party bearing the burden of proof will lose; because the requisite standard will not have been attained.”*** 1. The question as to what amounts to a balance of probabilities was also discussed in the case of **William Kabogo Gitau -vs- George Thuo & 2 Others (Supra)**, where Hon. justice Luka Kumaru (as he then was), stated as follows:- ***“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.*** 1. The fact that an accident occurred on 31st January, 2023 along the Kinoru-Mewass Road involving the Motor Cycle Registration Number KMFE 623S and motor vehicle registration number KCC 988X Hino Bus is not in dispute. The Respondent gave evidence to that effect. The police officer (PW1) produced a copy of the police abstract confirming this position. 2. The Respondent’s case was that on the material date he was riding his aforesaid motor vehicle when the Appellant’s motor vehicle veered off its lane and hit his motor cycle. This was corroborated by the evidence of the police officer who visited the scene. 3. The Appellant denied liability and pleaded that the respondent was to partially blame for the accident. However, she did not present any evidence to dispute the Respondent’s account. 1. While no other eye witness was called and the police abstract being inconclusive, it is imperative to note that the Respondent’s account was most credible as it was not controverted by the Appellant. 2. Courts have consistently held that where a party fails to call evidence, its pleadings remain mere allegations and amount to a mere denial (see **Trust Bank Ltd v Paramount Universal Bank Ltd(supra) and Motex Knitwear Ltd v Gopitex Knitwear Mills Ltd(supra)).** 3. In view of the foregoing, I find that the trial court, correctly found the Appellant to be wholly liable for the accident. **Quantum** 1. The Court of Appeal in [**Ephantus Mwangi and Another v Duncan Mwangi Wambugu**](https://new.kenyalaw.org/akn/ke/judgment/keca/1984/13) **(1982) – 88) IKAR 278** stated that: ***“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did***” 1. The Court of Appeal in the case of [**Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia**](https://new.kenyalaw.org/akn/ke/judgment/keca/1985/137) **(1987) KLR 30** held that:- ***“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are 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 damages.”(See also*** [***Butt v Khan***](https://new.kenyalaw.org/akn/ke/judgment/keca/1978/24) ***(1981) KLR 349 and Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414;*** [***Catholic Diocese of Kisumu v Sophia Achieng Tete***](https://new.kenyalaw.org/akn/ke/judgment/keca/2004/154) ***Kisumu Civil Appeal No. 284 of 2001; (2004) eKLR).*** 1. The Appellant herein contests the award of Kshs. 850,000/- in general damages for pain, suffering, and loss of amenities, arguing that it was excessive. 2. The Respondent pleaded that he sustained the following injuries; ***Severe head injury with left parietal occipital epidural and intracerebral hemorrhages with rhinorrhea and ottorrhea and intermittent confusion and loss of train of thoughts post regain of consciousness two days later; Right periorbital swelling and ecchymosis with right conjuctival hemorrhage; abrasions on right brow region, laceration on both lips and an abrasion on the occiput; degloving injury on the palmer aspect of the right hand; & tender and swollen right wrist and right ankle joint.*** 1. Dr. Gitura who examined the Respondent assessed permanent disability at 20% while the Appellant’s doctor assessed the same at 12%. 2. The injuries sustained by claimants in the cases cited by the Appellant were less severe compared to those by the Respondent herein. The respondent also suffered degloving injury. 3. In **Sophia Wanjiru Njuguna v Kyoga Hauliers Kenya Ltd [2020] eKLR**, and **Ruben Mongare Keba v L.P.N (2016) eKLR** the court awarded the appellants between Ksh.700, 000/= to Kshs.1, 200,000/= for degloving injury of the left ankle with tendon tear In **Easy coach ltd v Emily Nyangasi HCCA Kisumu No 20/2015**, for severe soft tissue injuries the respondent was awarded Ksh.1, 000,000/=, which was reduced on appeal to Ksh.700, 000/=. 4. In light of the above, I opine that the amount awarded by the trial court was not manifestly excessive. It was reasonable and commensurate with the nature of injuries sustained by the Respondent. **Special Damages** 1. With respect to special damages the law requires that the same be specifically pleaded and proved. The Appellant availed receipts for an amount of Kshs. 68,738/- and thus I find that the award of the sum of special damages was merited. 2. The appellant contends that some receipts are **illegible** making them unclear whether the respondent actually paid the sums claimed and further alleges that some do not bear the requisite revenue stamps. This argument is misplaced because courts have consistently held that where receipts are produced without objection at trial, the appellant is estopped from challenging their validity at the Appeal stage. 3. The appellant’s assertion that payment of Kshs. 30,000/- as the doctor’s fee for medical report was overpriced is without merit. The Medical Practitioners and Dentist Rule, Legal Notice No. 131, enacted under the [**Medical Practitioners and Dentists Act**](https://new.kenyalaw.org/akn/ke/act/1977/20)prescribes that medical and dental reports can be charged at a minimum of Kshs. 6,000 and a maximum of Kshs. 60,000. A court of law determines disputes based on the evidence adduced by the parties. This receipt in issue was produced by consent. I therefore find that the sum of Kshs. 30,000/- was sufficiently proved to have been paid to the doctor. **Future Medical Expenses** 1. The award for future medical expenses was considered in the case of [**Tracom Limited & another v Hassan Mohamed Adan**](https://new.kenyalaw.org/akn/ke/judgment/keca/2009/48) **[2009] eKLR** where the Court of Appeal pronounced as follows: - ***“… 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 thereon 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 arising naturally from the 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.”*** 1. The appellant contended that the respondent requires no future medical expenses because the second medical report by Dr. Waithaka, being the most recent prognosis, shows that the same is not needed. 2. The mere fact that one medical report does not provide an estimate for future medical expenses does not defeat the claim. What is material is whether there is credible medical evidence demonstrating the need for future treatment. Where one medical expert provides a reasoned estimate and the other does not controvert that need, the court is entitled to rely on the former. 3. Dr. Gituura’s report appears to me to have been more detailed on the nature of the injuries the respondent suffered and, as a result, his report was more certain about the expenses that the respondent was likely to incur as future medical expenses. 4. The Respondent pleaded for future medical expenses and produced medical report which pegged the same at Kshs.150,000/=.It is thus clear that the Respondent established this claim on a balance of probabilities. I thus uphold the trial court’s finding on the same. 5. In view of the foregoing, I find no reason to interfere with the decision of the trial court. The appeal is unsuccessful and the same is dismissed with costs to the Respondent. 6. It is so ordered. **Dated, signed and delivered at Meru this 2nd day of June, 2026.** **H. M. NYAGA** **JUDGE**