https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/145

JM (Mother to MAB - Minor) v Wesu Sub-county Hospital & another (Civil Suit E014 of 2025) [2026] KEMC 145 (KLR) (24 June 2026) (Ruling) Neutral citation: [2026] KEMC 145 (KLR) Republic of Kenya In the Voi Law Courts Civil Suit E014 of 2025 TN Sinkiyian, PM June 24, 2026 Between JM (Mother to MAB - Minor) Plaintiff and Wesu Sub-county Hospital 1st Defendant Ministry of Health County Government of Taita Taveta 2nd Defendant Ruling 1.The only question for determination in this matter is the quantum of damages that the minor is entitled to given that there is an interlocutory judgment entered against the defendants on 15/5/2025 for failing to appear and defend the suit. 2.This court heard this matter on 5/6/2025 and 30/10/2025 formal proof before the magistrate herein was transferred on 12/1/2026 to Mariakani Law Courts. 3.Parties were referred to this court on 30/4/2026 for Judgment to be reserved by this court. The matter was reserved for judgment: 24/6/2026 at 2.30 pm. 4.The summary of evidence as given in plaintiffs submissions is a precise summary of the evidence on record. 5.Upon considering the submissions filed by the plaintiff dated 17th November 2025. Filed through Ronald Kai & Co. Advocates Advocates for the plaintiff, this court has noted the proposals on award on various heads of damages is as follows:General damages:I.Pain and suffering-kshs. 12,000,000.00/-II.Future medical expensesi.-(physio therapy @2,000.00 per day for 18years) = Kshs. 8,640,000.00 as per the doctorSpecial damages:i.For medical report Kshs. 2,000.00 /=ii.For doctor’s expenses Kshs. 7,000.00/-;Pain and suffering to be assessed by the court; loss of earning capacity and costs of the suit and interest. 6.An excerpt from the submissions is as follows (with emphasis supplied by this court)"On quantum it’s on record that as a result of the negligent act caused by the defendant and or his employee, as a result the Plaintiff sustained the following injuries;-a)Amputation on the right upper limbb)Tourniquet blood obstructionc)Injury to the upper right limbd)Development of dry gangrene on the right upper limbThe plaintiff was treated at Wesu Sub–county Hospital where he was admitted for 7days the Moi Voi Hospital and later at the Coast General Hospital where he was admitted for 20 days where above elbow amputation, wound and pain care was done and the nature of injuries he sustained herein was corroborated by the medial report prepared by Dr. Ajoni Adede dated 18th December 2024, treatment notes from Wesu Sub County Hospital, Moi Voi Hospital and Coast General Hospital which were all produced as plaintiffs exhibits.We rely on the judicial authority of Macharia & another v Ndichu (2014) 182 of 2014 (2023) KEHC 1337 (KLR) where the appellate court awarded Kshs. 2,000,000.00 in general damages for amputation of the upper lower limb above the elbow.We further rely on the case of Nthuci v Kenya Power & Lighting Co. Ltd (2024) KEHC 1387 (KLR): the plaintiff had his left upper limb severed above the elbow. The court mentioned an award of Ksh 4,000,000 under general damages for pain and suffering and loss of amenities (for that injury) and further Kshs. 10,000,000.00 for future medical expenses."With the passage of time and changes in economic time since judgment in the aforementioned authorities an award of Kshs. 12,000,000.00/- under general damages head (pain and suffering) and further Kshs. 12,000,000.00 for future medical expenses."We therefore urge this honorable court to use the above judicial authority and our submissions on the same as a guide in assessing the general damages in this suit.General damagesI.Pain and suffering- Kshs. 12,000,000.00/-II.Future medical expensesi.-(physio therapy @2,000.00 per day for 18years) = Kshs. 8,640,000.00 as per the doctorSpecial damagesi.For medical report Kshs. 2,000.00 /=ii.For doctor’s expenses Kshs.7,000.00/-Pain and suffering to be accessed by the courtLoss of earning capacityCosts of the suit and interestYour honour, it is trite law that costs follow the event. The plaintiff herein has proved his case against the defendant and thus is also entitled to the costs of the suit and interest at court rates.Interest on (a) (b) and (c) above at court rates.The court do make any order(s) or grant any relief(s) it deems just and fit to grant in the interest of justice.Further he duly notified the defendant of his intention to file this suit vide a demand notice dated 4th day of September 2024 and received by the hospital on the 12th day of September 2024 plaintiffs exhibit." 7.Finding: Therefore the awards in total claimed by the plaintiff exceeds this court’s pecuniary jurisdiction. The nature of injuries suffered by the minor is of a nature that the minor should be allowed opportunity to claim the highest possible amount as the interest of justice deem just and reasonable. That would be defeated were the current trial magistrate's to determine the question of quantum given a principal magistrates court pecuniary limit is Kshs. 10,000,000/= only. 8.At time of filing the suit Voi Law Courts was a Chief Magistrates station presided over by a Magistrate with limit of Kshs. 20,000,000/= as it is currently. 9.Having considered the Court of Appeal decision in Pelezia Bakari Salim v Somoire Keen & 2 others [2020] KECA 322 (KLR) and the dissenting decision of PO Kiage, Judge of Appeal in the decision delivered 9th day of October, 2020, this court finds it just to return the matter to Voi Law Courts for the Hon. CM Head of Station Hon. P Ooko to give directions on judgment. 10.Judgment deferred. Court Administrator, Voi Law Courts do urgently place the file before the court for directions on 29/6/2026. DATED, DELIVERED ON THIS 24TH DAY OF JUNE, 2026 AT MARIAKANI.T. N. SINKIYIANPRINCIPAL MAGISTRATEIn presence of:For plaintiff ……absent.Ronald Kai & Co. Advocates.Court Assistant: Yussuf Hussein.(Notice had earlier been issued through the Court assistant Yussuf Hussein that due to an intervening MLS Advocates and Mariakani JOs meeting this afternoon, the Court would deal virtually via CTS).