[2025] KEHC 7275 (KLR)

Maina v RM (A Minor Suing through her Mother and Next Friend) LWK (Civil Appeal E122 of 2023) [2025] KEHC 7275 (KLR) (21 May 2025) (Judgment)

Neutral citation: [2025] KEHC 7275 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal E122 of 2023

PN Gichohi, J

May 21, 2025

Between

James Wambugu Maina

Appellant

and

RM (A Minor Suing through her Mother and Next Friend) LWK

Respondent

(An Appeal from the Judgement and Decree of Hon. Prisca Nyota delivered on 29th May, 2023 in Nakuru CMCC No. E238 of 2022)

Judgment

1. This appeal arises from a road traffic accident that occurred on 2/1/2022 when the driver of Motor Vehicle Registration No. KBL 233K Mitsubishi Lorry rammed onto several vehicles along Naivasha-Nakuru highway near Sogea area in Gilgil, causing multiple, ripple and or cascade collisions including Motor Vehicle Registration No. KCU 418S Toyota Vits in which the Respondent (Minor) was travelling in.

2. As a result of that accident, the Minor sustained serious bodily injuries to wit; fracture of the pelvis, deep cut wound on the right parietal region of the scalp and soft tissue injuries to the right hip joint.

3. Judgment on liability in test suit being Nakuru CMCC No. 240 of 2022 where was determined at 100% in favour of the Respondent herein and therefore, this Appeal is on general damages only.

4. In the suit the subject of this Appeal, the Respondent herein sued the Appellant and Stanbic Bank Kenya Limited vide a Plaint dated 25th February, 2022, seeking judgment against them for:- -a.General damages for pain, suffering and loss of amenities.b.Costs of future medical examination/treatment.c.Special damages of Kshs. 37,660. d.Costs of the suit.e.Interest on all the above at Court rates.f.Any other remedy that this Honourable Court might deem fit to grant.

5. On 17th June, 2022, the Respondent withdrew the suit against Stanbic Bank Kenya Limited with no Orders as to costs and proceeded with the case against the Appellant only.

6. After hearing both parties, the trial court’s issue for determination was on Quantum as liability had been determined against the Appellant in the test suit stated above. Based on the injuries suffered, the trial court rendered its Judgment on 29th May 2023 in favour of the Respondent as against the Appellant thus:-a.General damages Kshs 810,000. b.Special damages of Kshs 38,510. c.Costs of suit.d.Interest on a, b and c above at 12% per annum.e.On General damages interest will run from the date of judgement till payment in full, while interest on special damages will run from the date of filling of the suit.

7. Aggrieved by this decision, the Appellant filed a Memorandum of Appeal dated 23rd June, 2023, based on the following grounds: -1. That the learned Magistrate was in error of law and fact in finding that the plaintiff/Respondent had suffered a fracture to the pelvic when the Defendant/Appellant Doctor testified and ruled out the possibility of such fracture.

2. That the learned magistrate was in error of law and facts in finding that the plaintiff/Respondent had sustained a pelvic fracture in the absence of a radiological report and or X-ray and more so when there were varying opinion of doctors.

3. That the learned magistrate’s findings of law and fact on quantum went against the weight of evidence.

4. That the learned trial magistrate erred and misdirected herself in fact and law by awarding damages to the Respondent that were manifestly excessive.

5. That the learned trial magistrate erred in law and in fact in assessing damages and failed to apply the principles applicable in award of damages of comparable awards made for analogous injuries.

6. That the learned magistrate erred in failing to consider and critically analyze the submissions made on behalf of the defendants and thus arrived at an unjustifiably high award for the injuries sustained.

7. That the learned magistrate award on damages was so inordinately high.

8. That the learned trial magistrate erred in law and in fact in awarding damages that were neither properly pleaded nor sufficiently proved as by law required.

9. That the learned trial magistrate was in error of law and fact in awarding damages that were not proportionate to the injuries sustained by the Respondent.

10. That the learned trial magistrate was in error of law and fact in failing to find that the pelvic fracture was not proved or sufficiently proved.

11. That the learned magistrate was in error of law and fact in failing to take into account certain considerations material to an estimate of evidence.

12. That the award on general damages for pain suffering and loss of amenities was so inordinately high even for the nature of injuries the court found had been proved.

8. He therefore urged this Court to:-1. Find that the existence of the pelvic fracture was not sufficiently proved and reduce the award on damages.2. Reassess and reduce the award on general and special damages under the heads of damages awarded.3. Order that costs of this Appeal be borne by the Respondent.

Appellant’s Submissions 9. While redefining the duty of an appellate court on an appeal against quantum, the Appellant cited Justice Kuloba’s book 'Measure of Damages for Bodily Injuries’ where it was stated that: -“On appeal, every member of the appellate court is anxious to do all he can to ensure that the damages are adequate for the injury suffered so as far as there can be compensation for an injury and to help the parties and others to arrive at a fair and just figure in all circumstances. An endorsement of extravagant damages in one case becomes a yardstick of the next so that no margin is left for certain losses, for example, total disability."

10. On the issue of exaggerated award, the Appellant cited the decision in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others[1986] eKLR, where the Court of Appeal held that:-“And the judges of both courts should recall that inordinately high awards in such cases will lead to monstrously high premiums for insurance of all sorts and that is to be avoided for the sake of everyone in the country .”

11. Accordingly, he submitted that this Court has powers to interfere with quantum of damages if the amount is inordinately high.

12. Regarding principles to be borne in mind in such re-assessment, the Appellant cited the Court of Appeal decision in Kemfro Africa Kimited T/A Meru Express Services, Gathongo Kanini v A.M Lubia & Olivia Lubia[1985] eKLR where the Court stated:-“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 that 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. On that basis, it was submitted that awards should be within consistent limits and Court award for damages must be made taking into account comparable injuries or similar injuries and awards.

14. From the foregoing, the Appellant took issue with the injury sustained by the Minor. He submitted that according to Dr. Kiamba’s testimony, he did not rely on the X-ray and radiological report dated 3/1/2022 while doing the physical examination hence he had no evidence as to the fracture pelvis bone.

15. The Appellant contended that, on the other hand, Dr. Malik testified that he observed x-ray in undated CD Disk and it showed that no fractures of the right or left superior and inferior pubic rami. He added that though the discharge summary showed that the Minor sustained fracture in the pubic, the X-ray presented in evidence indicated lines which are growth plates of the bones and not fractures.

16. Based on the opinion of Dr. Malik, the Appellant submitted that the Minor sustained soft tissue injuries only and therefore, the Court should rely on the evidence of such expert witness in reaching at its conclusion. In support reliance was placed on the decision in Stephen Kinini Wangoundu v The Ark Limited [2016] eKLR where High Court held that:-“Firstly, expert evidence does not “trump all other evidence”.{{^}} It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision. Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing.{{^}} A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence. Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred. Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.”

17. He therefore submitted that since no evidence was tendered in support of the purported pelvic fracture, the trial court should not have made provision for injuries that were not proved.

18. While arguing that the injuries proved as having been sustained herein were merely soft tissue injuries, he submitted an award of Kshs. 100,000 is sufficient compensation. In support of that sum, the Appellant relied on the following cases:- Edward Mutevu Maithya & Another vs Edwin Nyamweya [2022] eKLR where the Respondent suffered cut wounds on the scalp, bruises on the neck, bruises on the right upper limb and lower left lip and High Court reduced award of Kshs. 550,000 to Kshs. 100,000.

FM(Minor Suing through mother and next Friend MWM) vs JNM & Another [2020] eKLR where High Court gave an awarded Kshs. 100,000 for blunt injuries to the head, neck thorax, abdomen and the limbs.

Losagi Insurance Brokers Limited &Another v Joseph Achesa Chumbali [2022] eKLR, where the High Court awarded Kshs. 95,000 for soft tissue injuries.

Respondent’s Submissions 19. On the duty of this Court, the Respondent cited the case of Susan Munyi v Keshar Shiani [2013] eKLR where the Court of Appeal held:-“As a first appellate court our duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. We are to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at our own independent conclusions. In undertaking this task, however, we always bear in mind that unlike the trial court which had the advantage of hearing and observing the witnesses, we make our conclusions from the evidence as captured in the cold letter of the record. We therefore operate under a decided handicap as there is much to be gleaned from the demeanor and nuanced communication of a live witness that is inevitably unavailable, indeed lost, on the record. For precisely this common sense reason, an appeal court must accord due respect to the factual findings of the trial court and will be circumspect and slow to disturb them. The general rule is that an appellate court will not interfere with a finding of fact made by a trial court unless the court is satisfied that the finding of the trial court is plainly wrong…”

20. Further, she also relied on the case of John Wambua V Mathew Makau Mwololo & Another [2020] eKLR, where High Court cited the case of Peters vs. Sunday Post Limited [1958] EA 424, that buttressed the aforesaid principles, that:“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstances that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion.”

21. On evidence justifying the injuries, the Respondent argued that the evidence of both Dr. Malik and Dr. Kiamba does not bind the Court in making its decision rather that it should be considered alongside other evidence tendered. In support of this, he relied on the case of Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao Kioko, Civil Appeal No. 203 of 2001 [2007] 1. EA 139 and the case of David Musyimi Ndetei t/a Oasis Minerals Water Company & Anther vs Safepak Ltd [2005] EKLR.

22. Based on the foregoing, the Respondent submitted that the Minor indeed suffered fracture of the pelvis bone. He argued that in support of the case, she produced a discharge summary(Exh-3), and Outpatient card (Exh-14) and Radiological report(Exhibit-20) all from PGH Nakuru which confirm the injuries suffered to be a fractured pelvic bone and soft tissue injuries. He submitted that the P3-form also showed that the Minor suffered a fractured pelvis bone.

23. It was submitted that though Dr. Malik indicated that the X-ray given to him did not have any fractured pelvis, but he admitted on cross examination, that a Radiologist is the only expert on matters reading X-ray and the person best placed to interpret the same and therefor, their opinion cannot override the report of a radiologist produced as Exh-20.

24. In addition, the Respondent submitted that during cross examination, Dr. Malik who is a general surgeon admitted that the Minor was treated by Dr. Ondari an Orthopedic surgeon, whose report has more weight than his. In support of this argument, he relied on the case of Simon Mutisya Kavii v Simon Kigutu Mwangi [2013] eKLR, where High Court held:-“In my view, the report of Dr. Sheth carries more weight because he is stated to be an orthopedic consultant. That is, his specialization is in the area of bones, whilst Dr. Adede's line is stated as “M.O.” Which I take to mean Medical Officer. Accordingly, Dr. Sheth's expert evidence that the plaintiff's leg was not shortened is more credible in my view.”

25. He submitted that since Dr. Malik and Dr. Kiamba did not treat the Minor, it follows that the report by the treating doctor is more superior. In support of this, reliance was placed on the case of Joseph Kiptoo Kogo V Eastern Produce (K) Limited [2011] eKLR, where High Court held :-“To prove the said injuries, the appellant relied on the medical report and evidence of Dr. Aluda (PW 1) and to disprove the same, the respondent relied on the medical report by Dr. Lodhia. The learned trial Magistrate was persuaded by the medical report by Dr. Lodhia and found that the appellant had only suffered soft tissue injures. The view of this Court is that since none of the two doctors had the opportunity of examining the appellant no sooner had he been injured, they had to rely on the initial treatment notes and documents to re-examine the appellant and form their own opinions. The treatment notes were therefore the most crucial evidence in establishing the injuries actually suffered by the appellant as a result of the material accident on the material date.”

26. The Respondent disputed the argument by the Appellant that Dr. Kiamba did not view any X-ray while making his report. He argued that Dr. Kiamba informed the court during hearing that he viewed X-ray report and radiology report that informed his opinion that the Minor suffered fracture of the pelvic bone.

27. Regarding objection to production of the Radiological report, it was submitted that the Radiology report was produced by consent of parties without calling the maker and therefore, they are protected documents under Section 64 to 67 of the Evidence Act.

28. On the varying specification of the fracture to the pelvis bone, the Respondent submitted that the description indeed varies on the finer details of the particular fractures but they all boil down to fracture of the pelvic bone and therefore, the award should generally capture award of fracture to the Pelvic bone.

29. In conclusion, the Respondent urged this Court to uphold the findings and award of the trial Court and dismiss the Appeal herein.

Analysis and determination 30. The issue around this appeal revolve around the question as to whether or not the Minor herein suffered fractured pelvis bone or soft tissue injuries only.

31. Before the trial court, Lucy Wanjiku Kambo (PW1) and who is the mother of the Minor, produced all the plaintiff’s documents dated 25/3/2022 and 6/10/22 without any objection from the Appellant. Dr. Wellington Omuyoma (PW2) produced his two medical reports and confirmed that the Radiologist report was produced as Exhibit 20.

32. Having produced all these documents without any objection, the trial court was obliged to rely on the same in arriving at its findings. Indeed, the Court of Appeal in Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR stated:-“…a document marked for identification only becomes part of the evidence on record when formally produced as an exhibit by a witness…Admissibility and proof of a document are to be determined at the time of production of the document as an exhibit.”

33. The Discharge Summary dated 13/1/2022 and issued by Dr. Ian (Medical Officer in Charge) shows the final diagnosis of the Minor herein as Pelvic fracture (Hairline fracture of the bilateral, ala and right pubic ramus.

34. Secondly, the P3 Form filled by Dr. M. Abuto on 17/1/2022, indicates that the Minor sustained pelvis fracture, pubic ramus fracture and soft tissue injuries of the pelvis.

35. Thirdly, the Outpatient Medical Card printed on 3/10/2022 indicates that the Minor suffered soft tissue injuries and pelvic fracture.

36. Lastly, the Radiological Report dated 3/1/2011 and prepared by Dr. Anangwe (Consultant Radiologist) of PGH Nakuru, indicates that he carried out multislice C.T Examination of the hips and Pelvis and found that the Minor suffered bilateral sacral alar hairline fracture and right superiors and inferior public ramii hairline fracture. He concluded that there is bilateral sacral alar and right pubic ramii hairline fractures.

37. In regard to the Medical Reports, Dr. Wellington Kiamba’s medical-legal report of 20/1/2022 and follow up report of 3/10/2022 confirmed the injuries sustained as fracture of the pelvis, deep cut would on the right parietal region of the scalp and soft tissue injuries of the right hip joint.

38. Dr. M.S Malik’s Report dated 19/4/2022 indicates that the Minor suffered soft tissue injuries to the head, right hip joint and pelvis region. He added that the alleged fractures captured in the undated CD presented shows the wings(ala) of both iliac bones have lines which are actually growth lines and not fractures as indicated.

39. From the evidence tendered before the trial court, it is evident that the doctors who attended to the Minor herein, confirmed that the Minor suffered fracture of the pelvis and several soft tissue injuries except for Dr. Malik was of a different view as captured in his Report.

40. It is conformed from the trial court record that Dr. Malik testified that he observed the undated CD presented to him and no fractures were seen. He stated that the lines seen on the pubic bone area were actually growth lines which is presented in children.

41. However, he admitted that Radiologist are the experts in reading X-rays and also confirmed that he was not furnished with the radiology report during the examination of the Minor. Upon perusal of the Radiology report, he confirmed that it shows that the Minor suffered 6 fractures which were not apparent on the CD. He confirmed that the fractures seen in the radiology report are hairline fractures.

42. Faced with that dispute above, the trial court held :-“The soft tissue injuries were not contested, but the fracture was. I have read the submissions of the parties in this regard and the guiding authorities provided. The court should consider not only the medical reports but also all other evidence available in that regard before deciding whether or not to accept the opinions of the doctors. Dr Malik described what was seen in the plaintiff's pelvis as normal growth plates. Dr Kiamba said they were fractures and cited the radiological report as his source of information as well as his conclusion from the viewed xrays. However, both doctors confirmed that only a radiologist was best placed to read and interpret the results of the x-ray. A radiology report by Dr Anangwe was produced in evidence but the maker was not called as a witness to interpret the x-rays which the two witnesses said they could not. Discounting the evidence of the two doctors, is there more evidence with regard to the injuries? in accordance with Apex Security Services Ltd -—vsJoel Atuti Nyaruri (2018) e KLR cited by the defendant, the court is required to consider other evidence. The discharge summary stated that the plaintiff sustained pelvic fracture ‘hairline fractures bilateral ala and right pubic ramus.” Dr Malik stated in his report that the discharge summary mentioned a pelvic fracture but from the x-ray that was presented to him on a CD, the thac bones have ‘lines which are actually growth plates..." A radiological analysis of the x-ray report in the ‘CD’ was not produced by the defendant. Dr Malik did not confirm whether the ‘iliac bones’ he referred to were the same as the ‘hairline fractures bilateral ala and right public ramus’ in the discharge summary. Dr Anangwe's radiological report dated 3/01/2022, the day the plaintiff was admitted in Nakuru P.G H, clearly indicated that the fractures were seen. This must have been the basis for the conclusion in the discharge summary. Dr Malik said he was not shown this radiological report at the time of examining the plaintiff. He did not complete his answer to the question put to him as to what would have happened had he seen the report. Accordingly, Dr Malik’s rejection of the opinion of the treating doctors and the radiological report by Dr Anangwe stands on sinking sand and is unbelievable. I find and hold that the plaintiff suffered pelvic fracture as described in the discharge summary.”

43. From the above reasoning, the trial court fully addressed its mind to the issue and correctly found that Dr. Malik ruled out the fracture because he did not have the benefit of seeing the Radiologist Report before making his conclusion.

44. The Discharge Summary and Outpatient Card captured the correct injuries suffered. Further, Dr. Ondari, who was in charge of treating the Minor, is a specialised Orthopedic doctor, unlike Dr. Malik who is a general surgeon as admitted before the trial court.

45. Further, Dr. Malik testified that the Radiologist Report was not brought to his attention at the time of making his report. He also confirmed that as per the Radiologist Report, the Minor had suffered six (6) fractures.

46. Indeed, both Dr. Kiamba and Dr. Malik confirmed that Radiologists are the experts in interpretation of X-rays. Accordingly, since Dr. Anangwe confirmed that the Minor suffered fracture of the pelvis bone and considering that he is the expert in that field as compared to the other doctors, his opinion carries more weight and therefore the trial court was justified in establishing that the Minor suffered fracture of the pelvis in addition to soft tissue injuries.

47. The issue therefore, is whether the trial court’s award of Kshs. 810,000 was inordinately high. It is trite that comparable injuries should attract comparable awards.

48. In this case, it is noted that the trial court based its decision on the case of Anthony Keriga Mogesi v Florence Nyomenda Tumbo [2015] KEHC 6266 (KLR), where High Court reduced the award of Kshs. 1,500,000 to Kshs. 600,000, for the Respondent who had had suffered open book pelvic fracture, cut wound on the left upper eye lid, facial cut wound, contusion to lower limbs and cut wound on sacroiliac joint.

49. In the case of George Njenga & another v Daniel Wachira Mwangi [2017] KEHC 8195 (KLR), High Court upheld an award of Kshs. 800,000 where the Respondent sustained Pelvic fracture, unstable left knee joint, unstable left ankle joint, soft tissue injuries to the trunk and posterior chest and laceration on the anterolateral aspect of the left leg

50. Further, in Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] KEHC 9029 (KLR), D.S Majanja, J (as he then was) reduced the award from Kshs. 1,700,000 to Kshs. 750,000 for the Respondent who sustained pelvic fractures and soft tissue injuries.

51. In awarding General damages of Kshs. 810,000, the trial court in indicated that it had factored in inflation and circumstances of this case. It is therefore evident that the trial court properly applied the law to the facts before it and was well guided by case law while arriving at its decision on appropriate award. The award is hereby upheld.

52. In the upshot, the appeal is dismissed with costs to the Respondent.

DATED, SIGNED AND DELIVERED AT NAKURU THIS 21ST DAY OF MAY, 2025. PATRICIA GICHOHIJUDGEMs Karanja holding brief Matiri for AppellantMs Kulele holding brief for Mr. Njuguna for RespondentNg’eno , Court Assistant