https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8434

Mungai v Patrick (Civil Appeal E052 of 2024) [2026] KEHC 8434 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8434 (KLR) Republic of Kenya In the High Court at Meru Civil Appeal E052 of 2024 R Oganyo, J June 5, 2026 Between Charles Kiruthu Mungai Appellant and Lenson Koome Patrick Respondent (Being an appeal from the judgement of the court in Meru CMCC No. E019 of 2023 delivered on 22/03/2024) Judgment Introduction 1.This appeal arises out of the judgement of the court in Meru CMCC No. E019 of 2023 delivered on 22/03/2024 in which the trial magistrate awarded the Respondent Lenson Koome Patrick Kshs. 1,800,000 general damages and Kshs. 300,000 for future medical expenses. The record of appeal shows that the trial court did not address itself on the issue of liability because parties entered a consent on liability at 80% against the Appellant and 20% being the Respondent’s contribution and thereafter the parties agreed on the bundles produced by consent before the court and proceeded to submit on the question of the quantum of damages to be awarded to the respondent. 2.The Respondent was the Plaintiff in the suit and he had sued the Appellant, defendant in that matter, following a road accident that occurred on 21/09/2022 along Meru-Nanyuki-road involving the Appellant’s motor vehicle registration number KBT 067A and a mountain bike which the Respondent was riding. 3.Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 11/04/2024 with the following listed grounds;a.That the learned trial magistrate erred in law and fact by failing to take into consideration the fact that the Respondent had made adequate recovery from the injuries and thereby make an award for general damages that is moderate and not excessive.b.That the learned trial Magistrate erred in law and fact by awarding general damages in the sum of Kshs.1.8 Million which award is inordinately excessive considering the evidence that was presented before the trial court and particularly the Second Medical Report produced as DExh1.c.That the learned trial Magistrate erred in law by awarding damages for future medical expenses in the sum of Kshs.300,000/- which amount was not pleaded and proved.d.That the quantum awarded by the trial court is against the law and weight of evidence on record. 4.The Appellant asked the court to set aside the award of the trial court and order the respondent to beat the costs of the appeal. 5.The appeal was canvased by way of written submissions. Appellant’s submissions 6.The Appellant in his written submissions dated 24th March, 2026, argued that the trial court's judgment delivered on 22nd March, 2024, awarding the Respondent Kshs. 1,800,000 under general damages and Kshs. 300,000 under future medical expenses was erroneous and inordinately excessive. He contends that the trial court completely disregarded vital medical evidence regarding the Respondent's adequate recovery and erroneously awarded special damages that were neither properly pleaded nor proved. 7.On whether the award on general damages was excessive, the Appellant submitted that the trial court erred in law by failing to reference or consider the medical report by Dr. Wambugu P. M. (produced as DEX-01), which assessed the Respondent's permanent incapacitation at a mere 2%. He argued that the award of Kshs. 1,800,000 is not commensurate to comparable judicial awards for similar injuries and should be scaled down to Kshs. 800,000. To buttress his position, he relied on several decisions including, Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR; Mwavita Jonathan vs Silivia Onunga (2017) eKLR; Nyatogo v Mini Bakeries Limited (Civil Appeal E38 of 2021) [2023] KEHC 1593 (KLR); Joseph Nyaboke Nyanchari v Stanley Nyabuto Mose [2021] eKLR; SBI International Holdings (AG) Kenya v William Ambuga Ongeri [2018] eKLR; and Joseph Njuguna Gachie v Jacinta Kavuu Kyengo [2019] eKLR. 8.On whether the claim on future medical expenses was properly pleaded and proved, he submitted that it is trite law that future medical expenses constitute a claim for special damages, which must be specifically pleaded and strictly proved. He argued that because the Respondent failed to specifically plead this claim in his plaint, the trial court had no legal or factual basis to award the Kshs. 300,000. To buttress his position, he relied on Mbaka Nguru & Another -v- James George Rakwar, Court of Appeal Civil Appeal No. 133 of 1998 as well as Tracom Limited & v. Hasssan Mohamed Adan [2009] eKLR. Respondent’s Submissions 9.The Respondent in his written submissions dated 18th May 2026, argued that the trial court's judgment delivered on 22nd March 2024, awarding the Respondent Kshs. 1,800,000 under general damages and Kshs. 300,000 under future medical expenses was legally justified. whether the award on general damages was excessive, the Respondent submitted that the trial court did not disregard the medical evidence, but rather fully considered the injuries and noted that the medical reports of Dr. Kimathi Kioga and Dr. Wambugu were similar, save for the degree of permanent incapacitation. He argued that the trial magistrate properly applied the principles of assessment by searching for comparable rather than identical injuries, and correctly found that the authorities cited by the Appellant featured fewer and less severe injuries. To buttress his position, he relied on several decisions including Radheshyam Transport Limited & Another v Nganga [2026] eKLR and James Gathirwa Ngungi v Multiple Hauliers (EA) Ltd & Another [2015] eKLR. 10.On whether the claim on future medical expenses was properly pleaded and proved, he submitted that future medical expenses do not require exact specificity due to fluctuating medical variables, and a plaintiff only needs to plead an approximate sum. He argued that the claim was explicitly pleaded in paragraph 4 of his plaint dated 30th January 2023 at an estimated cost of Kshs. 300,000, and strictly proved through Dr. Kimathi Kioga’s medical report dated 4th January 2023, which remained unchallenged as Dr. Wambugu's report was silent on future medical care. Analysis and determination 11.This is the first appeal. My duty as the 1st appellate court is to re-evaluate and re- examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 12.The grounds under which an appellate court may disturb an award of damages by a lower court were stated in the case of Kemfro Africa Limited t/a Meru Express Services –Vs- A. M. Lubia, C.A. 21 of 1984 (1882 – 1988) I KAR 727 where the Court of Appeal held that;“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either 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.’ 13.Having considered the grounds of appeal herein as well as the submissions filed by the Appellant, the only issues that present themselves for this court’s determination are:a.Whether the award of Kshs. 1,800,000 as general damages was inordinately highb.Whether the award of Kshs. 300,000 for future medical expenses was proper Whether the award of Kshs. 1,800,000 as general damages was inordinately high 14.It is trite law that an appellate court can only interfere with the trial court’s assessment of damages where it is satisfied that the court took into account an irrelevant factor or left out a relevant factor or the award was either inordinately high or low as to amount to an erroneous estimate of the damage or that the assessment was not based on evidence. 15.It is not in dispute that the Respondent sustained serious injuries following a road traffic accident that occurred on 21/09/2022 along Meru-Nanyuki-road. 16.In the medical report by Dr. Kimathi Kioga, filed by the Respondent, the doctor notes that the injuries sustained by the Respondent were head injury; pelvic fracture; left fibula fracture; multiple cuts; lacerations degloving injuries on the scalp, forehead, both arms and forearm and diestrum of both hands; right shoulder degloving injury extending to right scapula region; right circumferential deep cut on distal arm; blunt chest and abdominal trauma. He assessed the degree of physical disability at 20%. 17.In the second medical report filed by the Appellant and prepared by Dr. Wambugu P.M confirmed the injuries sustained by the Respondent and assessed the degree of permanent incapacitation at 2%. 18.In the case of Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730, the Court of Appeal set out the principles which should guide a court in awarding damages as follows;“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience…” 19.In its submissions before the trial court, the Appellant had proposed an award of Kshs. 500,000 as general damages for pain, suffering and loss of amenities while the Respondent sought for Kshs. 2,000,000. In its judgement, the trial court in awarding damages relied on the case of James Gatirwa Ngungi v Multiple Hauliers (EA) Ltd and Anor [2015] Eklr. 20.I have perused the trial court records and more so the medical reports produced therein. In assessing the general damages for pain, suffering and loss of amenities the Learned Magistrate correctly laid down the factors taken into consideration when awarding the Respondent Kshs. 1,800,000. I see no justification to disturb this award. Whether the award of Kshs. 300,000 for future medical expenses was proper 21.In its written submissions the Appellant argued that the award for future medical expenses was not specifically pleaded and proved by the Respondent and thus the trial court had no basis of awarding it. 22.In paragraph 5 of the plaint, the Respondent averred that he suffered serious injuries for which the appellant was held liable. One of the prayers in the plaint is for general damages for pain, suffering and loss of amenities. The issue for our consideration is whether the pleadings as stated above in the plaint include a claim for future medical expenses. 23.In Mbaka Nguru & Another - v- James George Rakwar, Court of Appeal Civil Appeal No. 133 of 1998, it was stated that claims for future medical expenses must be pleaded and proved as a special damage claim. 24.I note that at paragraph 4 of the Plaint, the Respondent stated that due to the seriousness of the injuries sustained, he would require further medical treatment and management at the cost of Kshs. 300,000, and the trial court awarded the same. 25.I have perused the trial court’s record and I note that the trial magistrate in awarding Kshs. 300,000 for future medical expenses considered the medical report by Dr. Kimani Kioga who observed that the Respondent would need aggressive physiotherapy. I also note that the Appellant did not object to this. I also see no justification of disturbing this award. Disposition 26.Based on the reasons given, the arguments by the Appellant do not stand.The upshot is that the appeal is unmerited and is accordingly dismissed with costs to the Respondent.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND VIRTUALLY DELIVERED VIA TEAMS AT NAIROBI ON THIS 5TH DAY OF JUNE, 2026.HON. ROSELINE A. OGANYO, MRS.JUDGE.In the presence of; -Court Assistant…SanaCounsel for Appellant…Miss MugweCounsel for Respondent…Miss Gacheri h/b for Mr. Kaberia