https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8928

Akoko v Masudi (Civil Appeal E024 of 2024) [2026] KEHC 8928 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8928 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E024 of 2024 JN Kamau, J June 24, 2026 Between David Owino Akoko Appellant and Lucas Omuya Masudi Respondent (Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No E133 of 2022 on 11th June 2024) Judgment Introduction 1.In her decision of 11th June 2024, the Learned Trial Magistrate, Hon J.A Agonda, Principal Magistrate, entered Judgment in favour of the Respondent against the Appellant in the following terms:-General damages Kshs 900,000/=Future medical costs Kshs 800,000/=Special damages Kshs 48,280/=Kshs 1,748,280/=Less 25% contributory negligence Kshs 437,070/=Kshs 1,311,210/=Plus costs of the suit and interest thereon. 2.Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated and filed on 20th June 2024. He relied on four (4) grounds of appeal. 3.His Written Submissions were dated 15th January 2025 and filed on 16th January 2025 while those of the Respondent were dated 8th March 2025 and filed on 19th March 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety. Legal Analysis 4.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify. 5.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6.Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related, and the issue that had been placed before it for determination was whether or not the quantum that was awarded was reasonable in the circumstances, warranting interference by this court. 7.The court deemed it prudent to address the issues under the following distinct heads. I. General Damages 8.Grounds of Appeal Nos (1) and (4) were dealt with together as they were both related. 9.The Trial Court awarded Kshs 900,000/= as general damages. The Appellant argued that this award was too high, excessive, unmerited and unjustified based on the injuries the Respondent had sustained. He pointed out that according to the Medical Reports, P3 form and treatment notes, the Respondent suffered multiple soft tissue injuries of the upper limbs, head, chest and a fracture of the right tibia and fibula with no permanent incapacitation and the said injuries had fully healed. He suggested an award of Kshs 300,000/= based on the comparable awards for the same injuries. 10.He suggested an award of Kshs 300,000/= at full liability guided by Simon Kimote vs Acro Solutions Ltd (2021) eKLR where an award of Kshs 350,000/= was awarded for right femoral, lower 1/3 tibia plateau fracture, blunt head injury and blunt neck injury. He also relied on the case of Harun Muyoma Boge vs Dr Daniel Otieno Agulo (2015) eKLR where an award of Kshs 300,000/= was awarded for blunt chest injuries, cut wound on the right wrist, deep cut wound on the right foot, fracture on the right tibia and fibula and soft tissue injuries among other cases. 11.On his part, the Respondent placed reliance on the case of Kato vs Mwema (Civil Appeal E237 of 2023) (2023) KEHC 24976 (KLR) amongst other cases where the common thread was that an appellate court would not interfere with an award of the trial court merely because the award was high or because had it handled the case in the first place, it would have awarded a different figure. 12.The Respondent submitted that the Trial Court was rightly guided by the case of David Mutembei vs Maurice Ochieng Odoyo (2019) eKLR where the appellate court awarded a sum of Kshs 800,000/= where the respondent therein sustained a fracture of the right femur and a proximal fracture of the left tibia. He pointed out that while applying the above authority, the Trial Court exemplified the methodology of awarding general damages as outlined in Odinga Jacktone Ouma vs Moureen Achieng Odera (2016) eKLR where the court stated that comparable injuries should attract comparable awards. 13.A perusal of the Plaint dated 3rd June 2022 and filed on 4th July 2022 showed that the Respondent sustained the following injuries:-a.Open fracture right tibia/fibulab.Bruises on the left forearmc.Bruises on the right shoulderd.Bruises on the right cheste.bruises on the left forehead 14.According to the Clinical Officer, Koskey Eric (hereinafter referred as PW 2), the Respondent herein had a scar on the scalp which was stitched and was in the process of healing. He said that there was a scar on the left side of the chest and multiple scars on upper limbs. He stated that the Respondent also had a fracture of fibia filenla(sic) covered with bandage and septic wound around the fracture, which was also covered with bandages. He pointed out that main injury was surgical fracture. When he was cross-examined, he said that he did not treat the Respondent but that he relied in the X-Ray Report and examination of the fracture. 15.The Respondent adopted his Witness Statement dated 4th July 2022 as his evidence in chief. He produced a Medical Report dated 10th June 2022 by Dr James Obondi Otieno which restated the injuries that were set out in the aforesaid Plaint. The said Medical Report also indicated that the Respondent suffered multiple soft tissue injuries of the upper limbs, head and chest and a compound fracture right tibia/fibula which had not healed. He also stated that the injury would require surgical toilets, external fixation and IM nailing at a cost of Kshs 800,000/=. 16.On his part, the Appellant produced a Medical Report dated 28th August 2023 by Dr Oketch Protas Were. The said Medical Report showed the Respondent’s injuries as bruises on the upper limbs and open (compound) fractures of the bones of the right leg. It indicated that the Respondent had healed but with a bony deformity of the right leg which was due to malunited fractures of the tibia and fibula bones with excessive callus and multiple scars. The said doctor concluded that the Respondent had sustained a severe injury on his right leg. 17.It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury. 18.However, this assessment is not without limits. A court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court must therefore be guided by precedents. 19.Indeed, in the case of Kigaraari vs Aya(1982-88) 1 KAR 768, it was stated as follows:-“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.” 20.Taking into account the aspect of inflation, it was the considered view that the sum of Kshs 900,000/= awarded by the Trial Court was fair and reasonable. In arriving at the said figure, this court had due regard to the following cases:-1.In the case of Nahson Nyabaro Nyandega vs Peter Nyakweba Omboga [2021] eKLR, the court awarded a sum of Kshs 650,000/= where the plaintiff therein had suffered a compound fracture of the right tibia bone, cut wound on the right leg, and bruises on the face.2.In Ndwiga & Another vs Mukimba [2022] KEHC 11793 (KLR), the court therein awarded Kshs 500,000/= for fractures of the tibia and fibula, and tenderness and swelling on the left leg.3.In Atunga vs Mogambi [2022] KEHC 9854 (KLR), the court therein awarded Kshs 550,000/= for injuries were fractures of the tibia and fibula bones, dislocation of the right hip joint, multiple lacerations on the lower limb, bruises, with multiple cut wounds on the upper limbs, dislocation of the right shoulder, chest trauma and bruises on the frontal part of the head, and Kshs 550,000/= was awarded4.In Munene vs Mbarire [2023] KEHC 18417 (KLR) the court awarded Kshs 450,000/= for fractures of the right tibia and fibula bones and bruises on the right side of the head, both elbows, right groin and right knee. 21.As was held in the case of Selle vs Associated Motor Boat Company Ltd (Supra), an appellate court ought not to interfere with an award for damages merely because it could have awarded a lower figure. As this court found the said sum of Kshs 900,000/= was fair and reasonable as the Respondent had healed but with a deformity, it left the said sum undisturbed. 22.In the premises foregoing, Grounds of Appeal Nos (1) and (4) were not merited and the same be and are hereby dismissed. II. Future Medical Costs 23.Ground of Appeal No (2) was dealt with under this head. 24.The Appellant submitted that an award of Kshs 800,000/= was high and excessive and without basis considering that the Respondent had healed. He pointed out that the deformity of the Respondent’s leg was as a result of medical negligence, hence the Respondent ought to have sued Vihiga County Referral Hospital for future medical expenses and not transfer liability to him. 25.On his part, the Respondent contended that the award of Kshs 800,000/= for future medical expenses was just and fair compensation since the same was pleaded and proved as was held in Tracom Limited & Another vs Hassan Mohamed Adan (2009) eKLR where the court stated that claim for future medical expenses was a special claim which needed to be pleaded and proved. 26.He argued that the Medical Report indicated that he required surgical toilets, external fixation and IM nailing at a cost of Kshs 800,000/=. He pointed out that the Medical Report the Appellant produced concurred with his, which noted that he walked with a limp with the aid of an armpit crutch due to limb shortening hence, it was misleading for the Appellant to contest the award of future medical expenses. 27.He further submitted that his Medical Report was prepared by an orthopedic surgeon working in a public facility hence, he applied the doctor had vast experience and professional expertise in assessing future medical expenses. He cited the case of Roy Mckenzie vs Cartrack Kenya Limited & Another (2014) eKLR where the court recognised doctor’s specialisation and afforded his opinion more weight. 28.He argued that the Appellant never tendered evidence to prove that the hospital was negligent and he invoked Section 109 and 112 of the Evidence Act and placed reliance on the case of Omondi vs Anzofu (Civil Appeal 04 of 2020) (2024) KEHC 2675 (KLR) among other cases where the court stated that when a party did not give evidence, its statement remained a mere assertion. 29.He pointed out that there was a casual link between the Appellant’s actions/omissions which led to his injuries and subsequent deformity. He also urged the court to note that the Appellant’s Medical Report did not provide an alternative figure to the one that he pleaded. 30.The Medical Report the Respondent tendered in evidence indicated that he would require surgical toilets, external fixation and IM nailing at a cost of Kshs 800,000/=. The Medical Report that was prepared by Dr Oketch Protas Were and produced by the Appellant indicated that the Respondent had healed with a bony deformity of the right leg due to malunited fractures of the tibia and fibula bones with excessive callus. 31.It was evident that the two (2) Medical Reports alluded to the Respondent having healed but with deformity due to the injuries sustained. Notably, the Trial Court awarded a sum of Kshs 800,000/= for future medical expenses on the ground that the same was pleaded and because the Appellant never produced any evidence to the contrary. The Trial Court found that the Appellant’s doctor did not state the estimated future costs. 32.In his Amended Plaint dated 15th September 2022, the Respondent stated that future medical expenses were Kshs 800,000/=. This was put under what he referred to as “Prognosis and professional opinion.” The Plaint was amended to include special damages in the sum of 60,590/=. The Medical Report by Dr James Obondi Otieno was dated 10th June 2022. It was clear that as at the time of filing the Amended Plaint, the Respondent was aware of the cost of future medical expenses. He, however, did not plead the same in the Amended Plaint. 33.Future medical expenses was a special damage claim and had to be pleaded. Putting the sum in the body of the Amended Plaint and not as a relief was not pleading. The prayer ought to have been a relief that was sought in the reliefs. In the absence of such specific pleading, this court came to the firm conclusion that the Trial Court erred when it held that the claim for future medical expenses had been pleaded. 34.Based on that, it was the view of this court that an award of Kshs 800,000/= awarded by the Trial Court was not justified and ought to be set aside. In the premises foregoing, Ground of Appeal No (2) was merited and the same be and is hereby allowed. III. Special Damages 35.Ground of Appeal No (3) was dealt with under this head. 36.It was the Appellant’s contention that special damages had to be strictly proved but the Trial Court awarded the Respondent Kshs 48,280/= which amount was not strictly proved. The Respondent did not submit on this point. 37.Notably, the Trial Court noted that the Respondent had pleaded for a sum of Kshs 60,590/= but that he had only proved a sum of Kshs 48,280/= by tendering a bundle of receipts. 38.This court perused that the receipts that were produced by the Respondent and noted that the same amounted to Kshs 43,200/=. As special damages must be specifically pleaded and specifically proven, this court found that the Trial Court erred in having awarded a higher sum than was proven. The award of special damages, therefore, warranted interference by this court. 39.In the premises foregoing, this court found Ground of Appeal No (3) to have been merited and the same be and is hereby allowed. 40.As an obiter, this court found it prudent to point out that it was good practise for parties challenging the amount of special damages or any monetary claim to indicate the figure had been specifically pleaded and that which had been specifically proven to avoid ambiguity and uncertainty on what figure the appellate court ought to award. In this case, this court’s determination was based on the receipts that were produced noting that some payments were deposits with no evidence of the balances had been paid. IV. Interest 41.Neither of the parties raised any issue regarding the interest. As the duty of an appellate court was to re-evaluate the evidence and come to its independent conclusion, it determined that it could re-look the conclusion that the Trial Court arrived at regarding the interest to be paid herein. 42.Notably, the Trial Court awarded costs of the suit together with interest thereon at court rates from the date of judgment until payment in full. It did not explain why interest was not awarded on special and general damages. This was erroneous. 43.Claimants are generally entitled to interest on special damages from the date of filing suit until payment in full, and interest on general damages from the date of judgment until payment in full. As the Respondent was kept away from monies he incurred as a result of the accident herein from the time he filed suit, special damages will, therefore, accrue interest from the date of filing suit until payment in full. On the other hand, as general damages were awarded on 11th June 2025, interest thereon will accrue from the date of that judgment until payment in full. Disposition 44.For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal, which was dated 20th June 2024, was partly merited. The effect of this decision is that the Judgment that was entered by the Trial Court in Vihiga in PMCC No E133 of 2022 on 11th June 2024 be and is set aside and/or vacated and replaced with an order that judgment be and is hereby entered in favour of the Respondent against the Appellant herein for the sum of Kshs 707,400/= made up as follows:-General damages Kshs 900,000/=Special damages Kshs 43,200/=Kshs 943,200/=Less 25% contributory negligence Kshs 235,800/=Kshs 707,400/=Plus costs of the suit and interest thereon. 45.For the avoidance of doubt, interest on special damages will be from the date of filing suit while the interest on general damages will be from the date of the judgment of the Trial Court until payment in full. 46.As the Appellant partially succeeded in his Appeal, It is hereby directed that each party will bear its own costs of this Appeal. 47.It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 24TH DAY OF JUNE 2026J. KAMAUJUDGE