https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7228

Mwiathi v Mugendi (Civil Appeal E008 of 2025) [2026] KEHC 7228 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7228 (KLR) Republic of Kenya In the High Court at Chuka Civil Appeal E008 of 2025 RL Korir, J May 26, 2026 Between Dennis Mwenda Mwiathi Appellant and Salama Muthoni Mugendi Respondent Judgment 1.This Appeal arises from the judgment and decree of Hon. D.A Ocharo (SPM) in Chuka CMCC No. E066 of 2024 delivered on 27th February 2025. By way of an amended Plaint dated 6th June 2024, the Plaintiff sued the Defendant for general and special damages arising from a road traffic accident where the Plaintiff sustained the following injuries;- fracture of the socket of the right hip joint (acetabulum), fracture of the right patellar, compound (open) fracture of the right fibula, closed head injuries and progressive deafness as a result of bilateral conducive hearing loss and reduced middle ear compliance. 2.The Plaintiff’s case was that on or about 27th October 2023 he was a lawful pillion passenger on motorcycle registration number KMFY 418A when motor vehicle registration number KCS 218H was so carelessly driven and hit him. He blamed the Defendant for the occurrence of the accident. 3.The Defendant despite being served, entered appearance after interlocutory judgment had been entered. It appears he made no attempt to set aside the interlocutory judgment. 4.The matter proceeded for formal proof hearing with the Plaintiff calling three witnesses. Judgment was then entered in favour of the Plaintiff in the following terms: -i.General damages Kshs. 800,000ii.Future medical expenses Kshs. 300,000iii.Special damages Kshs. 64,830iv.Costs and interests. 5.Dissatisfied with the judgment, the Appellant lodged the Appeal on grounds set out in the Memorandum of Appeal dated 16th March 2025 and reproduced verbatim as follows:-i.That the learned trial magistrate erred in law and fact by awarding general damages at Kshs. 800,000 which award was deficient in the circumstances considering the injuries sustained by the Appellant and the evidence on record.ii.That the learned trial magistrate erred in law and in fact by awarding special damages at Kshs. 64,000 and future medical expenses at Kshs. 300,000 which award was deficient in the circumstances considering that the Appellant had strictly pleaded and proved an award of Kshs. 1,146,830.iii.That the learned trial magistrate erred in law and in fact and ended up misdirecting himself in awarding deficient quantum of damages by failing to appreciate and be guided by the prevailing range of comparable awards and failed to appreciate the nature of injuries sustained by the appellant, the medical evidence before the court and hence ended up making a deficient award in view of the medical evidence presented before the court and authorities relied upon.iv.That the learned trial magistrate’s award was so low as to be entirely erroneous.v.That the whole judgment on quantum was against the weight of evidence before the court. 6.The Appellant proposed that the Appeal be allowed and the judgment of the trial court be set aside with costs to the Appellant. 7.This being a first appeal, the Court is under a duty to re-evaluate, re-analyse and reconsider the evidence on record and draw its own independent conclusions while giving due allowance that it did not see or hear the witnesses testify. This duty was restated by the Court of Appeal in the case of Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) thus: -“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of 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 allowances in this respect.” 8.The Appeal was disposed of by way of written submissions as per the directions of the court. The Appellant filed his written submissions dated 27th October 2025. He raised the following issues for determination: -i.Whether the learned trial magistrate erred in law and fact in awarding inordinately low general damages in light of the injuries sustained and evidence on record.ii.Whether the learned trial magistrate erred in awarding deficient special damages and future medical expenses despite sufficient proof.iii.Who should bear the costs of the Appeal. 9.The Respondent did not participate in the Appeal despite service. 10.I have considered the grounds raised in the Memorandum of Appeal and the issues for determination raised by the Appellant and distil the following issues for determination: -i.Whether the general damages awarded were inordinately low.ii.Whether the special damages awarded were inordinately low vis a vis the special damages pleaded and proved.iii.Whether the award for future medical expenses was low. i. Whether the award for general damages was inordinately low. 11.The Appellant submitted that the trial court failed to appreciate the severity and multiplicity of injuries and instead made a blanket award without due regard to comparable precedents. That it is trite that comparable injuries should attract comparable awards to ensure fairness and consistency. In support of his argument, he relied on the case of Okiro & Another v Mandere & Another (Suing as the personal representatives and legal representatives of the estate of Samwel Mandere [2025] KEHC 8622 (KLR) where the court stated the circumstances under which an appellate court can interfere with assessment of damages. 12.He also submitted that courts have awarded substantially higher sums. He cited the case of Pesa v Riambila [2025] KEHC 243 (KLR) where the Respondent suffered the following injuries: - open book fracture of the pelvis, closed fracture of the right femur, open segmental fracture of the right tibia, open fracture of the right tibula injuries and the court awarded Kshs. 1,600,000 as general damages. 13.The Appellant further submitted that in the trial court he relied on the case of Mutisya v Demamoe [2023] KEHC 24470 9KLR) where the Appellant sustained a displaced fracture of the right femur, tear of the extensor tendon on the left hand and degloving injury on the right leg and was awarded Kshs. 1,500,000. That he had also cited the case of Mutai v Mwangi [2024] KEHC 3249 (KLR) where the court on appeal sustained an award of Kshs. 2,800,000 as general damages where the Respondent sustained fractures of the left femur, fracture of the right tibia, blunt injury to the head leading to loss of consciousness for three hours, fracture of right clavicle, blunt injury to the neck leading to severe soft tissue injuries, severe soft tissue injuries of both hands, severe soft tissue injuries of the left thigh. 14.He relied on the case of Jackson Makau Tunga v Star Transport Co. Ltd & Another [1999] eKLR where the Plaintiff had suffered the following injuries:- fracture of the left femur mid-shaft, fracture of the left proximal humerus, fracture of the left clavicle, fracture of the left distal ulna with laceration of the left forearm, injuries to the spine leading to spinal cord injury with loss of sensation leading to paraplegia with urine and stool and the court awarded general damages as follows:- pain and suffering and loss of amenities at Kshs. 1,500,000, loss of earning capacity at Kshs. 86,800, loss of future earning capacity at Kshs. 504,000 totalling to Kshs. 2,090,800. 15.The Appellant proposed an award of Kshs. 5,000,000 as general damages. 16.An appellate court will only interfere with an award of damages where it is demonstrated that the trial court acted on wrong principles, misapprehended the evidence, took into account irrelevant factors, failed to consider relevant factors, or that the award is so inordinately low or high as to represent an entirely erroneous estimate of the damage suffered. These principles have been consistently affirmed in a long line of authorities. 17.Similarly, in Kemfro Africa Ltd t/a “Meru Express Services” v Lubia & Another [1982–88] 1 KAR 727, the Court of Appeal held that interference is justified where the award is “so inordinately low or high that it must be a wholly erroneous estimate of the damage.” In Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55 the court held that assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it tried the case at first instance. In Butt v Khan [1981] KLR 349, the Court of Appeal emphasized that an appellate court must be slow to interfere unless the trial court proceeded on wrong principles. 18.In the present Appeal, the injuries sustained by the Appellant were not minor. The medical evidence on record confirms that he suffered multiple fractures, including a fracture of the acetabulum, fracture of the right patella, and a compound fracture of the right fibula. These were accompanied by closed head injuries and progressive hearing loss. These injuries, taken cumulatively, clearly fall within the category of very serious injuries. 19.The trial court awarded a sum of Kshs. 800,000 as general damages. The question for determination is whether this award was commensurate with the injuries sustained. While the trial court retains discretion in assessing damages, such discretion must be exercised judiciously and in line with comparable awards. 20.From decided cases, courts have tended to award higher sums for injuries involving multiple fractures and long-term complications. In Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, the Court of Appeal reiterated that damages must reflect not only the injuries sustained but also the pain, suffering, and loss of amenities. Likewise, in Board of Trustees, Anglican Church of Kenya Diocese of Marsabit v Abdikadir Mohamed [2017] eKLR, the court enhanced an award where the trial court had failed to adequately consider the gravity of multiple injuries. 21.Further, in Mwanzia v Ngalali Mutua & Kenya Bus Services Ltd Msa [2007] eKLR Ringera J (as he then was) held that damages should not be so low as to trivialize serious injuries. The court emphasized that the award must be commensurate with the suffering endured and the long-term impact on the claimant’s life. 22.Applying the foregoing principles to the present case, it is evident that the learned trial magistrate did not sufficiently take into account the multiplicity and severity of the injuries. The combination of a pelvic fracture (acetabulum), patella fracture, and compound fracture of the fibula is indicative of high-impact trauma. Additionally, the presence of head injury and progressive hearing loss introduces a permanent or long-term disability component, which ought to have been given considerable weight. 23.The award of Kshs. 800,000, in the circumstances, appears inordinately low when compared to awards in cases involving similar or even less severe injuries. It does not adequately compensate the Appellant for the pain, suffering, and loss of amenities occasioned by the injuries sustained. It is my finding that the trial court failed to properly align its assessment with prevailing judicial trends and comparable awards, thereby arriving at an erroneous estimate. 24.In the premises, I find that this is a proper case for this Court to interfere with the award of general damages. Taking into account the nature of the injuries, the medical evidence, comparable awards, and inflationary trends, an award of Kshs. 1,500,000 would, in my view, constitute fair and reasonable compensation under this head. ii. Whether the award for special damages was inordinately low 25.The Appellant rightly submitted that damages must not only be pleaded but strictly proved. The Appellant submitted that the total amount of special damages he pleaded and proved was Kshs. 78,830 and ought to have been awarded the same. 26.The Appellant faulted the trial court for failing to award the full sum pleaded and proved. It was his submission that he had specifically pleaded special damages amounting to Kshs. 78,830 and had tendered sufficient documentary evidence in support thereof, yet the trial court awarded a lesser figure without adequate justification. 27.The legal position on special damages is not in doubt. It is trite that special damages must be specifically pleaded and strictly proved. This principle has been affirmed in numerous authorities. In Hahn v Singh [1985] KLR 716, the Court of Appeal emphasized that special damages represent actual loss and must be strictly proved through credible evidence. Likewise, in Ouma v Nairobi City Council [1976] KLR 297, the court underscored that a plaintiff is only entitled to such special damages as he has specifically pleaded and strictly proved. 28.Further, in Nkuene Dairy Farmers Co-operative Society Ltd v Ngacha Ndeiya [2010] eKLR, the Court reiterated that strict proof does not mean proof beyond any shadow of doubt, but rather proof on a balance of probabilities through production of receipts or other acceptable documentation. The court must be satisfied that the expenses were indeed incurred and are directly attributable to the cause of action. 29.Having re-evaluated the record as required of a first appellate court, I note that the Appellant produced receipts and supporting documents in evidence to substantiate the claim for special damages which amount to Kshs.78,830. The matter having proceeded by way of formal proof, the Respondent did not controvert the Appellant’s evidence. In such circumstances, the evidentiary burden placed upon the Appellant was discharged once he produced credible documentary proof of the expenses incurred. 30.In Kenya Tourist Development Corporation v Sundowner Lodge Limited [2018] eKLR, the Court of Appeal observed that where evidence is unchallenged and credible, a court has no basis for disregarding it. Similarly, in Capital Fish Kenya Limited v Kenya Power & Lighting Company Limited [2016] eKLR, the court held that uncontroverted evidence ought to be accepted unless it is inherently incredible. 31.In the present case, there is nothing on record to suggest that the receipts produced by the Appellant were either inadmissible or unrelated to the injuries sustained. The trial court did not provide reasons for disallowing part of the claim, nor did it make a finding that certain items were not proved. In the absence of such reasoning, the reduction of the award appears unjustified. 32.The duty of a trial court includes not only evaluating evidence but also giving reasons for its findings. In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, it was held that a failure to give reasons amounts to an error of law, as it leaves the appellate court unable to discern the basis upon which the decision was reached. That reasoning is persuasive and applicable in the present context. 33.In view of the foregoing, I am satisfied that the Appellant proved special damages in the sum of Kshs. 78,830 on a balance of probabilities. The trial court therefore erred in failing to award the full amount pleaded and proved when it awarded Kshs. 64,800. 34.Accordingly, I interfere with the award under this head and substitute it with an award of Kshs. 78,830 as special damages. iii. Whether the future medical expenses awarded were inordinately low. 35.The Appellant while relying on the case of Tado v Odaa [2024] KEHC 10633 (KLR) submitted that future medical expenses are awarded as special damages and all a party claiming the same is required to do is to plead the existence of such claim. 36.It was submitted that the Appellant is required to wear a hearing aid to amplify his hearing whose total costs which includes regular maintenance and replacement after 10 years is estimated at Kshs. 468,000. Further, that the Appellant underwent a total replacement of the acetabulum which will require total or partial replacement in the next 5 to 10 years which is estimated at Kshs. 500,000 and the implants from the right tibia and patella estimated at Kshs. 100,000. Thus, the cost of future medical expenses was estimated at Kshs. 1,068,00 as indicated in the medical report. He urged the court to award the same. 37.I have carefully re-evaluated the medical evidence on record. The Appellant’s medical report indicates that he suffered, inter alia, progressive hearing loss necessitating the use of a hearing aid, as well as significant orthopaedic injuries including a fracture of the acetabulum which required surgical intervention. The report further opines that the Appellant will require future procedures, including possible replacement of the acetabulum, removal or replacement of implants, and ongoing auditory support. 38.The medical expert quantified the anticipated costs as follows: Kshs. 468,000 for hearing aids (inclusive of maintenance and periodic replacement), Kshs. 500,000 for future hip replacement, and Kshs. 100,000 for removal of implants, bringing the total to Kshs. 1,068,000. This evidence was neither controverted nor challenged. 39.In Board of Trustees of the National Social Security Fund v Michael Mwalo [2015] eKLR, the court held that where expert medical evidence on future treatment is unchallenged, the court ought to give due weight to it unless there are compelling reasons to depart from it. Likewise, in Butterfly Limited v Patrick Mutua Muli [2018] eKLR, the court awarded future medical expenses based on a doctor’s report that provided a clear and reasoned estimate of future costs. 40.While the Appellant urged this Court to award the full sum of Kshs. 1,068,000, it must be borne in mind that an award for future medical expenses, though guided by expert opinion, remains an exercise of judicial discretion. The court must consider not only the estimates provided but also the element of uncertainty inherent in future projections, including variables such as changes in medical costs and the possibility that not all procedures may ultimately be undertaken. 41.In the present case, the learned trial magistrate awarded Kshs. 300,000 under this head. Although the Appellant contends that this sum is inadequate, the question is whether the trial court acted on wrong principles or misapprehended the evidence. 42.Having reconsidered the material on record, I am satisfied that while there was sufficient evidence to justify an award for future medical expenses, the estimates provided, though uncontroverted, were forward-looking and not all procedures were shown to be immediately necessary or inevitable. The trial court, in exercising caution, made a moderate award. 43.I am mindful of the principle that it should not interfere with the exercise of discretion by a trial court merely because it would have arrived at a different figure. In Butt v Khan [1981] KLR 349, it was held that an appellate court should only interfere where the award is so inordinately low or high as to represent an erroneous estimate. 44.In the circumstances of this case, the award of Kshs. 300,000 was low considering the projected or future medical costs. The trial court appreciated the need for future medical care and made an award, albeit modest, within the bounds of its discretion. In view of the disability suffered and the projected medical treatment to alleviate the disability, I set aside the award of Kshs. 300,000 and substitute therefor an award of Kshs. 500,000/=. 45.In the end, the appeal succeeds. The award of general damages is hereby set aside and substituted with an award of Kshs. 1,600,000, while the award on special damages is varied and substituted with Kshs. 78,830 as pleaded and strictly proved. The award for future medical expenses in the sum of Kshs. 300,000/= is substituted with Kshs. 500,000/=. 46.The total award stands at Kshs. 2,178,830/= and will attract interest at court rates from the date of this judgement until payment in full. 47.The Appellant shall also have costs of the Appeal as well as costs in the suit. Orders accordingly. JUDGEMENT DELIVERED, DATED AND SIGNED AT CHUKA THIS 26TH DAY OF MAY 2026...........................R. LAGAT-KORIRJUDGEJudgement delivered in the presence of Ms Muthee holding brief Mr. Kirimi for the Appellant; for the Respondent. Muriuki (Court Assistant).