https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9523

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **KISII HIGH COURT** **CASE NUMBER: HCCA/E086/2025** **ROSA KEMUNTO ORONDO………………………..……..APPELLANT** **-VERSUS-** **SYDNEY TONY OTIENO MADANJI………….………..RESPONDENT** ***(Being an appeal from the Judgement of Hon. Benard Obae Omwansa, Senior Principal Magistrate delivered on 27th May 2025 in Kisii CMCC No. E585 of 2023)*** **JUDGMENT** **Background of the appeal** 1. This appeal emanates from a suit filed in the Chief Magistrate’s court in Kisii regarding a road accident that occurred on 1st of July 2023 involving a motor vehicle registration number KCJ 457R belonging to the Appellant and a motor cycle registration number KMCC 408G in which the Respondent was a pillion passenger. As a result of the accident, the Respondent allegedly sustained injuries. 2. At the trial court, the parties entered a consent on liability at the ratio of 80:20 in favour of the Respondent as against the Appellant and this was adopted by the court. The trial then proceeded on the issue of quantum only. 3. The Respondent who was the plaintiff relied on one witness; PW1 the Respondent who adopted his statement as evidence in chief and produced supporting documentation as evidence including treatment notes, discharge summary, bundle of receipts, P3 form, Police Abstract, medical report and a medical report. The Appellant who was the Defendant in the suit produced a 2nd medical report and closed his case. 4. The magistrate at the trial court delivered a judgement on 27th of May 2025 apportioning liability at 90:10 in favour of the Respondent, and awarding general damages of Kshs 995,000/= future medical expenses of Kshs. 350,000/= and special damages of Kshs. 151,140/= subject to the contributory ration. 5. Aggrieved with the decision of the trial Magistrate, the Appellant filed this instant appeal on the following summarized grounds: *That the learned trial Magistrate erred in law and fact by entering judgment without relying on the applicable principles in quantum award and arriving at a figure that was inordinately high; failing to appreciate the injuries and misapprehending them and thus arriving at an erroneous award of damages; making an award of Kshs. 350,000/= for future medical expenses without giving any reasons thereby making an arbitrary and inordinately high award; making an award of Kshs. 151,400/= for special damages which were not proved, and disregarding the Appellant authorities and submissions.* 6. The Appellant therefore prayed for the appeal to be allowed and the judgment and decree of the trial court be set aside, varied and or be substituted with a suitable award with cost to the Appellant. 7. The appeal was canvassed by way of written submissions. **Appellants Submissions** 1. The Appellant supported his appeal with written submissions dated 27th of February 2026 confirming liability was settled by consent on a ratio of 80:20 in favour of the Respondent. The Appellant then focused his submissions on quantum, criticizing the judgment for not properly analysing the authorities cited and principles in awarding a quantum that was inordinately high. Citing seven authorities the Appellant proposed an award of Kshs. 500,000/= for general damages. 2. On special damages the Appellant submitted that the same was not proved as it was an invoice that was produced and citing authorities averred that it cannot be used to prove expenses. The Appellant submitted that in that case, then the only amounts that were proved under special damages are Kshs. 13,730/=. **Respondent’s submissions** 1. The Respondent on his side opposed the appeal through written submissions dated 3rd of March 2026. The Respondent also affirmed that liability was settled at 80: 20 in favour of the Respondent. The Respondent relied on two authorities to propose an award of Kshs. 1,800,000/= for general damages. 2. On special damages, the Respondent submitted that the award of Kshs. 151,140/= was proved as the invoice for amount of Kshs 137,410, acted as a receipt and that it was indicated *seen with a signature of 13/7/23* which he avers is a common practice in hospitals upon settling of the invoiced amount. 3. In conclusion, the Respondent averred that the trial court exercised its discretionary powers properly and called for the same award to be upheld and appeal dismissed. **Analysis and Determination** 1. The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (**See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I).** 2. I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. The issue of liability was also settled by consent adopted in court at a ratio of 80:20 in favour of the Respondent hence this court will not disturb that. 3. The main issue arising out of the appeal is on quantum awards which can be deciphered in the following main issues of determination by this court; 4. Whether the learned trial magistrate properly exercised his discretion in assessing and awarding general damages; 5. Whether the Respondent proved the claim for future medical expenses to the required standard and whether the award is justified; and 6. Whether the Respondent strictly proved the pleaded special damages. **Whether the learned trial magistrate properly exercised his discretion in assessing and awarding general damages** 1. The Appellant contends that the learned trial Magistrate misapprehended the nature and extent of the Respondent’s injuries and failed to apply the settled principles governing assessment of awards. The Respondent on the other hand maintains the award was commensurate to the injuries sustained and comparative awards given in such similar cases. 2. From the record, the Respondent testified to have sustained the following injuries: *Compound right tibia fracture, compound right fibula fracture, blood loss, chest contusion, physical pains, bruises on the right hand, psychological pains, lacerations on the right leg and blunt trauma to the pelvic region* 3. The Respondent adduced treatment notes, a discharge summary, a P3 form and medical report by Dr. Morebu Peter Momanyi who examined the respondent on 25th July 2023 which all corroborated the injuries claimed to have been sustained. The Respondent doctor concluded that he will need regular orthopedic follow up, future surgery to remove the metal implants at a cost of Kshs. 350,000/= and assessed permanent disability at 20%. 4. The Appellant adduced a second medical report from Dr. Z Gaya dated 24th January 2024, where the open fractures and soft tissue injuries were confirmed. The Appellant doctor stated that the Respondent has fully recovered and the metal implants can be removed at a cost of Kshs. 150,000/=. He concluded that there was no permanent disability awardable. 5. My role as an appellate court is not to automatically prefer one medical report over the other but rather to analyse the evidence holistically. 6. In the case of **Kimatu Mbuvi t/a/ Kimatu Mbuvi &Bros vs Augustine Munyao Kioko (2006) eKLR**, the court of appeal observed as follows: ***“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”*** 1. From the two medical reports, there is no contention that the Respondent sustained compound /open fractures of both the right tibia and fibula. What was in contention is the assessment on disability and costs of the future medical expenses. 2. I am therefore persuaded that the Respondent proved on a balance of probability that he incurred the injuries as pleaded. 3. Having established that the nature of injuries sustained, this court is guided by the principles in awarding quantum. In the case of **Stanley Maore v. Geoffrey Mwenda (2004) eKLR**, the Court of Appeal emphasized that **“comparable injuries should as far as possible attract comparable awards, while recognizing that no two cases are identical and that regard must be made to the peculiar facts of each case and the prevailing economic conditions.”** 1. The Appellant cited the following authorities: **Munene v. Mbarire (2023) KEHC 18417 (KLR)** where for fractures of the right tibia and fibula the court awarded **Kshs. 450,000/=;** **Mabati Rolling Mills v Mbatha (2023) KEHC 17405 (KLR)** where the Respondent was **awarded Kshs 450,000/-** for fracture of the tibia fibula with other soft tissue injuries; **Pride Kings Security v Ekaalet (2023)** where the Courts awarded Kshs. **450,000/=** for open fracture of the right tibia and fibula; **Wabomba v Wanyama (2024) KEHC 2191 (KLR)** where for fractures of the right tibia and fibula and soft tissue injuries and psychological trauma the courts awarded **Kshs. 500,000/=**; **Miregwa and another v. Mokaya (2024) KEHC 5586** where the courts awarded **Kshs. 450,000/=** for fracture of the left tibia; **Maina v Ngumbi & Another (2024) KEHC 7663 (KLR)** where the courts awarded **Kshs 400,000/=** for bimalleolar fracture of the left leg; and **John Kirabi Wanjiku t/a Modern Coast Bus v. Ohuru (2024) KEHC 8077 (KLR)** where the courts **awarded Kshs. 400,000/=** for fracture of the right tibia/fibula. 2. The Respondent on the other side have cited the following cases: **Mutisya v Demamoe (2023) KEHC 24470 (KLR)** where an award of **Kshs. 1,500,000**/= was given for similar fractures; and **Subati Flowers Ltd. V Walter Wanyonyi** where for similar injuries the Courts awarded **Kshs.1,600,000/=.** 3. This courts notes that whilst it is important to observe the authorities cited by parties, they serve as a guide and not mathematical formulae. Each case must be determined on their own merit and no two cases are the same. The question is not whether the court adopted one party’s authorities in preference to the other but whether the court appreciated the nature of the injuries proved and applied the correct legal principles to arrive at a fair and reasonable award consistent with comparable decisions. 4. The cases cited by the Appellant were quite comprehensive and more or less had similar injuries to the ones sustained by the Respondent. An analysis of the cases cited by the Respondent indicate that the injuries were far serious and with higher disability assessments. 5. To guide this court in the determination of quantum is also the lingering effects of the injuries sustained by the Respondent which according to the Respondent’s doctor include the right lower limb being shorter than the left limb and psychological effects. 6. With the above analysis I am persuaded that the award given by the trial court for general damages was inordinately high as compared to comparative award. Taking into consideration the nature of the compound fractures of both the tibia and fibula as well as the healing process and lingering effects, I find that an award of **Kshs. 600,000/=** is just compensation in these circumstances. **Whether the Respondent proved the claim for future medical expenses to the required standard and whether the award is justified** 1. The Appellant further challenges the award of Kshs. 350,000/= for future medical expenses on the ground that the same are arbitrary and not supported with evidence and reasons. 2. The law is now settled that future medical expenses constitute a distinct head of damages which must be pleaded and proved by credible evidence. A party must demonstrate not only that future treatment is reasonably necessary but also place before the court evidence upon which the court can reasonably estimate the likely costs of such treatment. 3. A perusal of the record indicates that the amount of Kshs. 350,000/= was given by the Respondent’s Dr. Morebu. The Appellant contents that her Doctor who is a specialist surgeon approximated the amount to be Kshs. 150,000/=. 4. There is no contention that the Respondent will require a further surgery to remove the metal implants. What this court has are two figures of how much that procedure will cost. With this in mind and bearing the inflation, I am satisfied that an amount of Kshs. 250,000/= represents a fair and reasonable award for future medical expenses. **Whether the Respondent strictly proved the pleaded special damages** 1. The Appellant has raised the issue that the learned trial Magistrate erred in awarding Kshs. 151,140/= as special damages on the ground that the same was premised on a hospital invoice. Citing authorities that indicate invoices are not proof of payment called on this court to set aside that award. 2. The Respondent argued that the invoice acted sufficiently as a receipt and directed the court to page one of the invoice, that indicated *seen and signed on 13/07/2023*. ‘ 3. It is trite that special damages must not only be specifically pleaded but must be strictly proved. That principle was firmly expounded in the case of **Hahn v Sing (1985) KECA 129 (KLR).** 4. Strict proof, however, does not prescribe a rigid or exclusive mode of proof. Rather, the court must evaluate the entire body of evidence to determine whether, on a balance of probabilities, the claimant has satisfactorily demonstrated that the pleaded expenses were actually incurred. 5. The Court notes that the invoice was adduced at the trial court with no objection from the Appellant. The same evidence was not displaced during cross examination or by contrary evidence. It bears the hospital stamp and indeed on the first page is *signed off on 13.7.2023 as seen*. The court has analyzed this together with the discharge notes which indicates the same date as the date of discharge. 6. I am therefore satisfied that on a balance of probability, the Respondent incurred the expenses indicated in the invoice and hence do not find any basis to interfere with the trial court’s award for special damages. **Disposition** 1. The appeal partly succeeds on quantum, consequently the court makes the following orders; 2. The consent liability entered by the parties apportioned at the ratio of 80:20 in favour of the Respondent is hereby adopted 3. The trial court’s awards are set aside and substituted with the following subject to the contributory apportioning of 80:20; 4. General damages: Kshs. 600,000/= 5. Future Medical Expenses Kshs. 250,000/= 6. Special Damages: Kshs. 151,140/= 7. Each party shall bear their own costs of this appeal It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2026.** **A.M. OKUTOYI** **JUDGE** **In the Presence of:** **Ms. Barasa for the Appellant** **Ms. Oloo for the Respondent** **Ruth Mokeira-Court Assistant**