Majira v Mutwiri (Civil Appeal E007 of 2024) [2026] KEHC 10289 (KLR) (14 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **CIVIL APPEAL NO. E007 OF 2024** **PHINEAS KIOGORA MAJIRA...................…..……….APPELLANT** **VERSUS** **MARTIN MUTWIRI……………………...…..…………RESPONDENT** ***(Being an appeal from the Judgment of Hon. Lilian Maina (R.M) in Meru Small Claims Court Case No. E235 of 2023 delivered on 2/11/2023)*** **JUDGMENT** 1. This Appeal arises from the Judgment of the Learned Resident Magistrate Hon. L.W Maina Mouti (R.M) delivered on 2.11.2023 in Meru Small Claims Court Case No. E235 of 2023, wherein Judgment was entered in the following terms; 1. **Liability 100%.** 2. **General Damages Kshs. 250,000.** 3. **Future Medical Expenses Kshs. 185,000.** 4. **Special Damages Kshs. 30,225.** 2. Aggrieved by the said Judgment, the Appellant set forth the following grounds in the Memorandum of appeal dated 17th January**,** 2024**;** 1. **That the Learned trial Magistrate erred in law by awarding KShs. 185,000/= in future medical expenses in the absence of strict evidence so as to constitute a miscarriage of justice in the circumstances of the case.** * 1. **The Learned trial Magistrate erred in law in failing to consider the Appellant’s documents that were filed and produced in Court.** * 1. **The Learned trial Magistrate erred in law in failing to consider the submissions made by the Appellant on the issues identified for determination and the legal authorities provided thereof, hence arriving at an erroneous decision.** 2. **The Learned trial Magistrate’s Judgment as a whole is not supported by the evidence tendered in Court by the parties and the relevant legal principles.** **Oral evidence** 1. **CW1 Dr. Kimathi Kioga**, produced the medical report dated 23/1/2023 and the receipt as exhibits. He told the Court that the Respondent sustained deep injuries on the chin, right knee joint, multiple lacerations and upper incisor teeth fractures. He assessed the disability at 25% and proposed future medical expenses of Ksh. 350,000, since the Respondent would require crowning of the tooth at Kshs. 100,000, physiotherapy for the knee due to the reduced range of motion and occupational therapy. It was his opinion that permanent disability does not entail fractures only but also ligament on the knees. 1. **CW2 Martin Mutwiri**, the Respondent herein, adopted his statement dated 25/8/2023 as his evidence in chief and produced the documents filed therewith as exhibits.He told the court that the accident took place on 25/11/2022. He was riding at 40 km/h when the lorry, which was overtaking, hit him. He was injured on his leg as well as the knee and he felt sensitivity on his teeth and arm joints. 2. **CW3 Corporal Salim Hassan** from Kariene Police Station Traffic Department, the investigating officer herein, told the court that the motor vehicle was to blame for the accident, and produced the police abstract as an exhibit. 3. **CW4 James Gitonga**, adopted his witness statement filed on 5/9/2023 as his evidence in chief.He told the court that the lorry was overtaking when it hit the Respondent. 4. **RW1 Dr. Peter Wambugu** told the court that the Respondent sustained enamel fractures, lacerations on the chin and right leg and multiples bruises. On the future medical expenses, he proposed Kshs. 20,000 for the crowning of the chipped tooth, and did not consider any permanent disability since there was no loss of any functions. He did not think the Respondent required any treatment for the chest pains complained of. **Submissions** 1. The Appellant, through the firm of Kiruki & Kayika Advocates, filed submissions dated 26/8/2025. Counsel contended that future medical expenses should be reasonable and comparable to injuries sustained, and cited ***Stephen Mwallyo Mbondo v County Government of Kilifi [2021] eKLR and Mbagu v Haji (Civil Appeal 62 of 2021) [2022] KЕHС 17274 (KLR) (26 October 2022) (Ruling)***. Counsel submitted that the medical report by Dr. Wambugu was conclusive that the Respondent had fully healed, save for the tooth crowning at an estimated cost of Ksh. 20,000, and cited ***Njuguna v Ndiaga (Civil Appeal 50 of 2023) [2025] КЕНС 6642 (KLR) (23 May 2025) (Judgment)***. Counsel faulted the Respondent for miserably failing to provide receipts, treatment plans, follow up treatment notes and clinical proof of the unresolved injuries, and thus the award was unsubstantiated. According to counsel, the award was a miscarriage of justice, as it ignored the Appellant’s uncontroverted medical evidence and rewarded the Respondent for unproven claims. 1. The Respondent, through the firm of Muchomba Law Advocates, filed submissions dated 11/5/2026. Counsel cited ***Menengai Oil Refineries Limited v Bundi (Civil Appeal E039 of 2022) [2024] KEHC 11122 (KLR)***, where the court, faced with 2 conflicting medical reports stated that, ***“By their nature, the Medical Reports are expert evidence and it is trite law that expert evidence is only persuasive and not binding to the courts and if faced*** ***with conflicting reports, as in the present case, the Court considers such Reports alongside other evidence.”*** Counsel humbly submitted that the trial Court was guided by comparable authorities and the nature of the injuries in making the award for future medical expenses. **Analysis and Determination** 1. This being a first appeal, the Court is obligated to reconsider and re-evaluate the evidence adduced in the trial court and draw its own conclusions. 2. In ***Selle & another v Associated Motor Boat Co. Ltd [1968] EA***, the Court held as follows: ***“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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 allowance in this respect.”*** 3. I have considered the appeal herein, the trial Court’s Judgment, which is the subject of this appeal, as well as the submissions by Counsel. 4. From the grounds of appeal, the issue for determination is whether the trial court erred in awarding Kshs. 185,000 for future medical expenses. 5. In ***Kenya Bus Services Ltd v Gituma (2004) 1 EA 91***, held that; ***“While an award of damages to meet the cost of future medication is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereon is to be led and the court is to make an award thereon. In personal injury cases, the only damage that is contemplated by law as arising naturally is the personal injury itself and the consequential pain and suffering. Accordingly, matters pertaining to hospitalization, treatment and management, the need for further medical care, the disabilities, and attendant pecuniary losses (present*** ***and future) are special damages which must be pleaded.”*** 1. Similarly in ***Geoffrey Kamuki & another v RKN (Minor suing through her late father and next friend ZKN [2020] eKLR***, the court *(Mumbua T. Matheka J)* espoused that; ***“To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment among other things. It is not always clear at that time of filing the case what these future costs may be. The prognosis could change for the better or for the worse depending on the circumstances. Is it not for the same reason that defendants will often seek second medical opinions in injury-based claims? Where they believe that the plaintiff has healed from their injuries, they do so to influence the ultimate award of general damages for pain and suffering. This happens even when the case is already before court and it may well be in the middle of the trial. A plaintiff such as this one ought not to be denied the award because she did not*** ***have a figure in mind. It was pleaded, and if the appellant was disputing it, the right place would have been at the trial. Respondent could have done so by bringing evidence to controvert it.”*** 1. The Respondent reiterated that, ***“I do feel sensitivity on my teeth and arm joints. I was injured on my leg as well as the knee. I am healing gently but I don’t have money to go to hospital.”*** 2. In his medical report dated 23/1/2023, CW1 estimated the future medical expenses at Kshs. 350,000, being the cost of a Dentist, Physiotherapy, occupational therapy and medication. 3. When Dr. Wambugu P.M examined the Respondent on 3/10/2023, approximately 11 months after the accident, he opined that the Respondent had since made adequate recovery from the injuries, save for the broken enamel which could be crowned at an estimated cost of Kshs. 20,000, in a medium private dental Centre. 4. The disparity between the 2 medical reports is understandable given the variance in the timing of the respective examinations. A medical examination conducted 2 months after the accident cannot possibly be expected to yield the same findings to the one undertaken 11 months later, as some of Respondent’s injuries would have healed or substantially improved over time. 1. In light of the Respondent’s own admission that he did not attend follow up medical reviews, coupled with the expert opinion in the more recent medical report by Dr. Wambugu, I find that the award of Ksh. 185,000 was excessive. In my considered view, therefore, an award of Ksh. 50,000 would suffice. 2. The trial Court is faulted for failing to consider the Appellant’s submissions and authorities. That fault is misconceived because submissions cannot take the place of pleadings, and their non-consideration cannot in itself be a basis to overturn a trial Court’s decision. 3. In ***Moi v Muriithi & another [2014] KECA 642 (KLR)***, the Court of Appeal espoused that; ***“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”*** 1. For the foregoing reasons, I find that the appeal is merited and it is hereby allowed in the following terms: 1. **The award of Ksh. 185,000 for future medical expenses is hereby set aside and substituted with Ksh. 50,000.** * 1. **The other awards remain unchanged**. 2. **Parties to bear own costs of the Appeal.** **DATED AND DELIVERED AT MERU THIS 14TH DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **14/7/2026** **In the presence of:-** Mr. Kaaria for the Respondent Ms. Oteko for the Appellant. Ms. Oteko:- 1 pray for 30 days stay of execution. Court:- 30 days stay of execution is granted. **S.M. GITHINJI –JUDGE** **14/7/2026**