https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/310

Kimweli v Dreamline Express Limited & another (Civil Case E225 of 2021) [2026] KEMC 310 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEMC 310 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E225 of 2021 YA Shikanda, SPM July 9, 2026 Between Stephen Makau Kimweli Plaintiff and Dreamline Express Limited 1st Defendant Atik Mohamed Ajik 2nd Defendant Judgment The Claim 1.Stephen Makau Kimweli (hereinafter referred to as the plaintiff) filed this suit on 1/10/2021 vide a plaint dated 27/9/2021. He sued Dreamline Express Limited and Atik Mohamed Ajik (hereinafter referred to as the 1st and 2nd defendants respectively) on account of a road traffic accident that allegedly occurred on 6/5/2021 at Mtito Andei town along Nairobi-Mombasa road. The plaintiff averred that on the above stated date, he was a pedestrian along the aforesaid road when motor vehicle registration number KCW 077V was driven so carelessly and negligently that it was caused to knock down the plaintiff and caused him to sustain injuries while off the road. 2.The defendants were sued as the registered and/or beneficial owners of motor vehicle registration number KCW 077V at the material time. The plaintiff pleaded the following particulars of negligence as against the defendants or their driver:a.Over speeding in the circumstances;b.Driving without due care and attention and more so without due regard to other people;c.Allowing himself to drive the said motor vehicle when he knew or ought to have known he was not and fit to do so;d.Knowingly driving on a public road a defective motor vehicle tyrewise, lightwise and brakewise;e.Driving off the road abruptly;f.Overtaking when it was not safe;g.Failing to adhere to the Highway code;h.Being reckless and careless in his driving at a densely populated area. 3.The plaintiff averred that the defendants were vicariously liable for the tortious acts of their driver. That as a result of the accident, the plaintiff sustained severe injuries, pain, loss and damage. The plaintiff further pleaded particulars of injuries and those of special damages. He relied on the doctrine of Res ipsa loquitor, the Traffic Act and the Highway Code then prayed for judgment against the defendants jointly and severally for:1.General damages for pain and suffering;2.Special damages of Ksh. 61,850/=;3.Costs of the suit and interest. The Defence 4.The defence record was initially confusing. However, upon regularizing the same, what is on record is a memorandum of appearance for both defendants filed on 6/6/2023 and a joint statement of defence filed on the same date. The defendants denied being the registered or beneficial owners of motor vehicle registration number KCW 077V, denied that the same was being driven by the defendants’ driver, denied that the plaintiff was a pedestrian at Mtito Andei town on 6/5/2021 and denied the occurrence of the accident as alleged by the plaintiff. The defendants further denied the particulars of negligence pleaded by the plaintiff and averred in the alternative that if the accident occurred, as the plaintiff may prove, then the same was caused solely and/or substantially contributed to by the plaintiff’s own negligence. 5.The defendants pleaded the following particulars of negligence as against the plaintiff:a.Failed to keep to the pedestrian walk;b.Failed to have regard to other road users and in particular motor vehicle registration number KCW 077V;c.Failed to walk with due care and attention;d.Failed to move and avoid the accident;e.Walked carelessly and dangerously on the road. 6.The defendants denied being vicariously liable, denied the applicability of the doctrine of res ipsa loquitor and relied on the doctrine of volenti non fit injuria. The defendants further averred that if the accident occurred, then the same was beyond their control. The defendants denied the particulars of injuries and special damages and prayed for dismissal of the plaintiff’s suit with costs. The Evidence The Plaintiff’s Case 7.Three witnesses were called on behalf of the plaintiff. PW 1 Dr. Esther Nzomo Musyoki testified that she examined the plaintiff and prepared a medical report in respect of the examination. The witness produced her report and payment receipt in evidence. PW 2 Police Constable Nicholas Kamwerengo testified that he was a traffic police officer based at Mtito Andei police station. The witness stated that he was the investigating officer in respect of the accident. That as at the time of his testimony, the matter was still under investigation. He produced the police abstract in evidence. PW 3 was the plaintiff himself. He adopted his statement filed in court as part of his evidence in-chief. The plaintiff stated that on 6/5/2021 he was a pedestrian at Mtito Andei town along Mombasa-Nairobi road. 8.It was the evidence of the plaintiff that he was walking on the pedestrian walkway off the road on the right side as one faces Mombasa general direction. That a bus registration number KCW 077V which was being driven from Nairobi general direction overtook a motor vehicle ahead of it but there was an oncoming lorry from Mombasa general direction. The plaintiff testified that in order to avoid a head on collision, the bus driver veered off the road towards the right facing Mombasa general direction and knocked down the plaintiff. The plaintiff stated that he tried to run but was knocked down as the bus was at a very high speed. The plaintiff was rushed to hospital where he was treated. He produced documents in support of his claim. The Defendants’ Case 9.The defendants did not attend court to testify nor call any witness. However, the medical report by Dr. Jennifer Kahutu was produced in evidence by consent of the parties. Main Issues for Determination 10.In my opinion, the main issues for determination are as follows:i.Whether and accident occurred on 6/5/2021 at Mtito Andei area along Mombasa-Nairobi road, involving motor vehicle registration number KCW 077V and the plaintiff;ii.Whether the defendants were the owners of motor vehicle registration number KCW 077V at the material time;iii.Who was to blame for the accident?iv.Whether the defendants are vicariously liable for the accident;v.Whether the plaintiff sustained injuries and suffered loss as a result of the accident;vi.Whether the plaintiff is entitled to damages and if so, the nature and quantum thereof;vii.Who should bear the costs of this suit? The Plaintiff's Submissions 11.The plaintiff relied on the evidence on record and urged the court to hold the defendants 100% liable for the accident as the plaintiff’s evidence was uncontroverted. 12.On quantum, the plaintiff proposed a sum of Ksh. 800,000/= in general damages and relied on the following authorities: SUBPARA a. Joseph Kimanthi Nzau v Johnson Macharia [2019] eKLR. 13.The plaintiff and appellant in the appeal sustained fracture of the skull, fracture of the left 1st and 2nd ribs, fracture of the right clavicle bone and multiple soft tissue injuries. The trial court awarded Ksh. 450,000/= on 4/11/2015. On appeal, the award was enhanced to Ksh. 800,000/= on 24/6/2019; b. Muindu v Kinyanjui & another [2024] KEHC 3157 (KLR). 14.The plaintiff and appellant in the appeal sustained soft tissue injury on the head, cut on the face and multiple non-displaced fractures of the right occipital bone, right zygomatic arch, right orbital wall, right maxillary jaw, cerebral edema and right maxillary hemosinus as well as tenderness and pain in the right shoulder. There was also loss of consciousness. The trial court dismissed the case. On appeal, an award of Ksh. 750,000/= was made in general damages on 11/3/2024; c. P.N Mashru Limited v Omar Mwakoro Makenge alias Omar Masoud [2018] KEHC 8442 (KLR). 15.The plaintiff and respondent in the appeal sustained fracture of the femur distal third, fracture of the temporal bone with haematoma, head injury to the right frontal parietal bone with brain oedema and left subdural haematoma. The trial court awarded Ksh. 1,200,000/= in general damages on 8/5/2017. On appeal, the award was affirmed on 20/2/2018; d. Kyoga Hauliers (K) & another v Philip Mahiu Nyingi alias Philip Mburu Mahiu [2017] eKLR. 16.The plaintiff and respondent in the appeal sustained comminuted depressed fracture of the skull at the occipital bone, intracerebral haematoma on the right occipital area, deep cut wound on the right occipital region, soft tissue injuries on the right ankle joint and severe soft tissue injuries on the right side of the chest. The trial court awarded Ksh. 1,000,000/= on 11/1/2013. On appeal, the award was affirmed on 19/1/2017. 17.On special damages, the plaintiff urged the court to award Kshs. 61,850/= as pleaded and proved, as well as costs of the suit and interest. The Defendants’ Submissions 18.The defendants submitted that the Police Abstract shows the results of the investigation as PUI, pending under investigation. That the said abstract has no conclusive results from the Investigation and does not indicate whether the driver of the motor vehicle was negligent in any way nor does it blame the motor vehicle KCW 077V for the said accident. The defendants argued that the plaintiff failed to establish to the required standard of proof that motor vehicle number KCW 077V was being driven in a careless manner and that the driver of the said motor vehicle was in any way careless or negligent in his duties. 19.The defendants further argued that the plaintiff’s testimony and that of the police officer was inconsistent as to the point of impact, as the police testified that plaintiff was hit in the middle of the road and not off the road as alleged. The defendants contended that the inconsistency rendered the account of the plaintiff as unreliable. The defendants submitted that from the testimony of the plaintiff on where he was at the time of accident, his description of the manner of driving of the accident motor vehicle is speculative and incapable of proof. The defendants argued that failure to charge the driver of the accident motor vehicle lends credence to the position that the plaintiff’s account is doubtful and that negligence on the part of the driver has not been established. The defendants purported to rely on the allegations in their statement of defence to impute negligence on the plaintiff. They urged the court to dismiss the suit with costs. 20.On quantum, the defendants proposed a sum of Ksh. 600,000/= and relied on the same authority of Joseph Kimanthi Nzau (supra) as the plaintiff. On special damages, the defendants argued that no receipts were produced to support the same. That future medical expenses are in the nature of special damages and the plaintiff had failed to prove the same. The defendants urged the court to dismiss the suit and in the event of a contrary opinion, award damages in the sum of Ksh. 600,000/=. Analysis and Determination 21.I have carefully considered the evidence on record and given due regard to the submissions made by the parties as well as the authorities relied upon. From the evidence of the plaintiff and that of the police officer, and noting that the same was uncontroverted, I have no doubt that an accident occurred on 6/5/2021 at Mtito Andei area along Mombasa-Nairobi Highway, involving motor vehicle registration number KCW 077V and the plaintiff as a pedestrian. The plaintiff produced in evidence a copy of the police abstract which indicates that the 1st defendant was the owner of the accident motor vehicle at the material time. 22.The plaintiff also produced in evidence a copy of records from the Registrar of motor vehicles which shows the 1st defendant as the registered owner of the accident motor vehicle as at 4/8/2021. I am convinced that the 1st defendant was the owner of the accident motor vehicle at the material time. As for the 2nd defendant, there is no evidence to show that he co-owned the motor vehicle. The police abstract shows that he was the driver of the accident motor vehicle at the material time. From the plaint, it would appear that the plaintiff was not sure whether the 2nd defendant was the owner or just a driver of the motor vehicle in issue. The defendants did not attend court to refute the plaintiff’s evidence. I have no difficulty in finding that the 1st defendant was the owner whereas the 2nd defendant was the driver of the accident motor vehicle at the time of accident. Liability 23.There is only one version as to how the accident occurred. It is the duty of the plaintiff to establish or prove negligence on the part of the defendant. It is trite law that it is not enough to adorn the plaint with particulars of negligence. The plaintiff must adduce evidence to prove such particulars of negligence and it is from the evidence that the court can make a finding on liability. The above position appears to be anchored on the provisions of sections 107 and 109 of the Evidence Act which basically provide that the burden of proof lies on the person who alleges the existence of facts upon which he desires the court to give judgment in his favour. In the case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347, the Court of Appeal held thus:“The burden was always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof.” 24.Similarly, in the authority of Charterhouse Bank Ltd (Under Statutory Management) v Kamau [2016] KECA 153 (KLR), the Court of Appeal held:“We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendant’s failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant. Where the defendant has subjected the plaintiff or his witnesses to cross-examination and the evidence adduced by the plaintiff is thereby thoroughly discredited, judgment cannot be entered for the plaintiff merely because the defendant has not testified. The plaintiff must adduce evidence, which in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities, it proves the claim. Without such evidence, the plaintiff is not entitled to judgement merely because the defendant has not testified. The proposition that failure by the defendant to call evidence lessens the burden on the plaintiff to make out his case on a balance of probabilities as propounded in Karugi & Another v. Kabiya & 3Others (supra) is totally different from the proposition advanced by the appellant in this appeal, namely that the failure by the defendant to call evidence invariably entitles the plaintiff to judgement, irrespective of the quality and credibility of the evidence that the plaintiff has presented. In our view the latter proposition has no sound legal basis.” 25.According to the plaintiff’s uncontroverted evidence, he was walking on the pedestrian walkway off the road when the accident motor vehicle which was heading towards the same direction as the plaintiff but on the opposite side of the road, veered to the opposite lane in a bid to overtake another motor vehicle. That there was an oncoming motor vehicle and in order to avoid a head on collision, the driver of the accident motor vehicle veered to the right where the plaintiff was and knocked him down. I agree with the defence that PW 2 gave contradicting testimony when he stated that the plaintiff was crossing the road when the accident occurred. However, PW 2 was not at the scene at the time of accident and it is not clear where he got the information from. I will go by the testimony of the plaintiff. 26.My view is that the plaintiff established a prima facie case of negligence on the part of the 2nd defendant. The plaintiff’s evidence was credible. The defendants did not give a counter narrative as to how the accident occurred. They made a frail attempt to rely on the contents of the statement of defence to impute negligence on the part of the plaintiff. It is trite law that pleadings remain mere allegations unless backed up by evidence. In the authority of Kenya Power & Lighting Company Limited v Pamela Awino Ogunyo [2015] KECA 761 (KLR), the Court of Appeal had this to say:“We note, in any event, that the appellant made various allegations in its statement of defence against the respondents. These included, inter alia, that the appellant was not the supplier of electricity in the stated region where fire damage took place; that the damaged crop was illegally planted in an area reserved for the appellant as a way-leave for its power lines and electric cables and that the respondents had failed to leave adequate space between the crops and electric poles so as to prevent the possibility of the crop being burnt in the event that a fire broke out. A party who asserts or alleges that certain facts exist has a legal burden to prove those claims – Sections 107 – 109 of the Evidence Act which place a legal burden of proof or what may be called evidential burden of proof on the party making the assertion. In Janet Kaphiphe Ouma & Another v Marie Stopes International Kenya (Kisumu) HCCC No. 68 of 2007 Ali-Aroni, J citing Edward Muriga through Stanley Muriga v Nathaniel D. Schulter Civil Appeal No. 23 of 1997 had this to say of the said provisions of the Evidence Act:“In this matter; apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations. Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.” 27.Without adducing evidence of negligence on the part of the plaintiff, the allegations in the defence by the defendants remain mere allegations and cannot amount to evidence. In the circumstances, I have no reason to disregard the uncontroverted evidence of the plaintiff. The evidence proves, on a balance of probabilities that the 2nd defendant was negligent in his manner of driving. He drove without due care and attention and without regard to other road users. The 2nd defendant attempted to overtake without ensuring that it was safe to do so. I find that the evidence of the plaintiff as to how the accident occurred was consistent and was not shaken in cross-examination. 28.In view of the evidence on record, there is a sufficiently high degree of probability, that, but for the acts of omission and commission of the 2nd defendant, the accident would have been prevented. I find that the 2nd defendant was solely culpable as far as the accident is concerned. There is no evidence of negligence on the part of the plaintiff. In my view, there are concrete facts on which a finding would be made that the 2nd defendant was solely negligent. I hold him 100% liable for the accident. 29.Vicarious liability is a form of secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. The owner of a motor vehicle can be held vicariously liable for negligence committed by a person to whom the car has been lent, as if the owner was a principal and the driver his or her agent, if the driver is using the car primarily for the purpose of performing a task for the owner. 30.In the case of Morgan v Launchbury [1972] ALL ER 606, it was held, inter alia, that:“To establish agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or in its instruction and was doing so in the performance of the task or duty thereby delegated to him by the owner.” 31.Similarly, In Kaburu Okelo & Partners v Stella Karimi Kobia & 2 Others [2012] eKLR the Court of Appeal held that:“Vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority.” 32.Where a motor vehicle is driven by a person other than the owner, there is a rebuttable presumption that the driver was acting as an agent of the owner of the motor vehicle. In the case of Kenya Bus Services Ltd v Humphrey [2003] KLR 665; [2003] 2 EA 519, the Court of Appeal cited Kansa v Solanki [1969] EA 318 wherein it was held that:“Where it is proved that a car has caused damage by negligence, then in the absence of evidence to the contrary, a presumption arises that it was driven by a person for whose negligence the owner is responsible ( See Bernard V Sully [1931] 47 TLK 557. This presumption is made stronger or weaker by the surrounding circumstances and it is not necessarily disturbed by the evidence that the car was lent to the driver by the owner as the mere fact of lending does not of itself dispel the possibility that it was still being driven for the joint benefit of the owner and the driver.” 33.There is no evidence to dispute the fact that the 2nd defendant was driving as an agent of or in the course of his employment with the 1st defendant. Consequently, I find the 1st defendant 100% vicariously liable for the accident. Quantum 34.The medical evidence as per the medical report by Dr. Esther Nzomo Musyoki indicates that the plaintiff sustained the following injuries following the accident:i.Moderate head injury;ii.Blunt trauma/soft tissue injuries on the right side of the head and face;iii.Deep cut on the occipital scalp;iv.Right frontotemporal and right parapharyngeal soft tissue swelling and emphysema;v.Bilateral sphenoid, ethmoid and maxillary hemosinus and right hemomastoid and hemotympanicum;vi.Left parietal lobe thin acute subarachnoid haemorrhage consistent with countre coup injury;vii.Fracture of the left clavicle;viii.Fractured ribs on the right side of the chest with soft tissue injuries;ix.Large frictional bruise on the left lower back. 35.The injuries were confirmed by the medical report by Dr. Jenipher Kahuthu, who examined the plaintiff on behalf of the defendants. I find that there is sufficient evidence to prove that the plaintiff sustained injuries as a result of the accident. Given the finding on liability, the plaintiff is thus entitled to damages as against the defendants. It is well established that the assessment of quantum of damages in a claim for general damages is a discretionary exercise and that such discretion must be exercised judicially having regard to the facts of the case within the context of existing legal principles. A case is decided purely on its own peculiar facts, although comparable injuries should receive similar awards. 36.This Court has to bear in mind the principles that guide assessment of damages as espoused in West (HI) and Sons Ltd v Shepherd [1964] AC 326 where Lord Morris said:“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common constant, awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible, comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional”. 37.I am also guided by Lord Denning’s decision in Kim Pho Choo v Camden & Islingtom Area Health Authority, [1979] 1, ALL ER 332 which was adopted in the case of Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR where Wendoh, J stated that:“In assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation, for both the plaintiff and the defendant. …………………..the plaintiff cannot be fully compensated for all the loss suffered but the court should aim at compensating the plaintiff fairly and reasonably but in the process should not punish the defendant.” 38.The Court of Appeal in Southern Engineering Company Ltd v Musingi Mutia [1985] KLR 730 held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that Courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.” 39.The following principles are germane in assessing damages for personal injury claims:i.An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered;ii.The award should be commensurate to the injuries suffered;iii.Awards in decided cases are mere guides and each case should be treated on its own facts and merit;iv.Where awards in decided cases are to be taken into consideration then the issue of or element of inflation has to be taken into consideration;v.Awards should not be inordinately too high or too low. 40.Based on the above principles, I proceed to assess the damages payable as follows. General Damages for Pain, Suffering and Loss of Amenities 41.I have considered the injuries sustained by the plaintiff. The plaintiff suffered injuries which were classified as grievous in the P3 form. They were quite extensive. In a rare occurrence, the parties relied on the same authority. The authority is comparable, alongside that of Muindu (supra). The proposals by both parties are reasonable. Given the nature of the injuries sustained by the plaintiff herein and the age of the awards in the above authorities coupled with the vagaries of inflation, I find that an award of Ksh. 750,000/= in general damages would suffice. I award the same. Special Damages 42.The plaintiff pleaded special damages as follows:a.Search for Motor vehicle………………………….…Ksh. 550/=b.Medical report…………………………………………Ksh. 4,000/=c.Medical expenses………………………….……..…Ksh. 7,040/=d.Future medical expenses………………………Ksh. 50,000/=e.Postage……………………………………………………..Ksh. 260/= 43.It is trite law that special damages must be specifically pleaded and strictly proved. In Nizar Virani t/a Kisumu Beach Resort v Phoenix of East Africa Assurance Co. Ltd the court said: -“It has time and again been held by the Court in Kenya that a claim for each particular type of special damage must be pleaded" 44.In Ouma v Nairobi City Council [1976] KLR 304 after stressing the need for a plaintiff in order to succeed on a claim for specified damages, Chesoni J (as he then was) quoted in support the following passage from Bowen L. J’s Judgment on page 532 and 533 in Ratcliffe v Evans [1832] 2Q.B. 524 an English leading case on pleading and proof of damage:“The character of the acts themselves which produce the damage, and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.” 45.The receipts for the copy of records, medical report and postage fees were produced in evidence. The evidence on record indicates that the medical expenses were paid by what appears to be a medical insurance scheme of which the plaintiff was a member, save for Ksh. 50/=. I do not think that the plaintiff is entitled to reimbursement for such payment. I will address the issue of future medical expenses separately. Consequently, special damages pleaded and proved amount to Ksh. 4,860/=. I award the same. Future Medical Expenses 46.The plaintiff pleaded future medical expenses of Ksh. 50,000/= and according to the medical report by Dr. Esther Nzomo, the amount was for analgesics, physiotherapy and surgical repair of the fractured clavicle. The defendants argued that such awards are in the nature of special damages which ought to be specifically pleaded and strictly proved. In addressing this issue, I will highlight some Court of Appeal authorities on the subject. 1. Simon Taveta v Mercy Mutitu Njeru [2014] eKLR 47.In a judgment delivered on 5/2/2014, the court held as follows on the issue of future medical expenses:“The issue for our consideration is whether the pleadings as stated above in the plaint include a claim for future medical expenses. In the case of Kenya Bus Services Ltd. - v _ Gituma, (2004) EA 91, this Court stated:“And as regards future medication (physiotherapy) the law is also well established that, although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damages and is a fact that must be pleaded, if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal rights should be pleaded'.We observe that the trial judge correctly held that the plaint did not contain a pleading for future earnings or the need for employment of a house help and nurse and that these ought to have been pleaded and proved as special damages............. In Mbaka Nguru & Another - v- James George Rakwar, Court of Appeal Civil Appeal No. 133 of 1998, it was stated that claims for future medical expenses must be pleaded and proved as a special damage claim". 2. Michael Hubert Kloss & another v David Seroney & 5 others [2009] eKLR 48.In a judgment delivered on 9/10/2009, the court observed as follows:“The final complaint raised by Mr. Wasonga was that awards were made for costs of future medical treatment, which were in the nature of special damages, but there was no proof...........Those awards were made on the basis that the medical reports in respect of those respondents specifically made estimates of the required amounts for future treatment. Logically no receipts could be produced for services which were yet to be rendered. However, as stated in McGregor on Damages, 16 Edition at page 1654 in relation to medical expenses:“Both expenses already incurred at the time of the trial and prospective expenses are recoverable and while the rules of procedure require that the expenses already incurred and paid be pleaded as special damage and the prospective expenses as general damage, the division which depends purely on the accident of the time the case comes on for hearing, implies no substantive differences.'We think the cost of future treatment, where pleaded and reasonably estimated, ought to be awarded and in this case, the doctors’ reports were produced with the consent of the parties and without challenge on the reasonableness of their estimates for future medical treatment costs in respect of the three respondents. We reject the complaint made in that regard". 3. Mbaka Nguru & Anor. v James George Rakwar[1998]eKLR. 49.Judgment herein was delivered on 23/12/1998. The court held as follows:“We come now to the claim under the heading “Future Medical Expenses”. There is no such claim made in the body of the plaint. Nor is there any suggestion in the body of the plaint that such a claim would be made. There is no quantification of any sort in the body of the plaint in respect of this claim. In those circumstances simple references in a medical report to costs of future medication do not help the plaintiff. Simply putting in a prayer for such a claim does not help. If properly pleaded and proved the plaintiff would certainly have been entitled to some damages under this head...." 4. Daniel Kosgei Ngelechei v Catholic Diocese Registered Trustees Of Eldoret & another [2016] eKLR. 50.In a judgment delivered on 14/6/2016, the court held that prospective medical expenses that have not crystallized as disbursements may be claimed as general damages but the same cannot be awarded without evidence. 51.From the above authorities, I gather that damages for future medical treatment are awardable but there must be evidence for the need for future medical treatment as well as an estimate of the same. There is divided opinion in the Court of Appeal as to whether such damages are in the nature of general or special damages. As already indicated, the need for future medical treatment was indicated in Dr. Esther Nzomo’s report. The report by Dr. Jenipher Kahuthu indicates that the plaintiff would not require future medical attention as he had normal shoulder joint movement and was not on follow up any more. I have considered the two reports. Dr. Esther Nzomo examined the plaintiff on 27/5/2021. This was after about three weeks from the date of accident. 52.In my view, given that the examination was done barely a month after the accident, such observation makes sense since the plaintiff was still in recovery. On the other hand, Dr. Jenipher Kahuthu examined the plaintiff on 23/1/2024. This is the most recent examination. Her finding was that the plaintiff had normal shoulder joint movement and was no longer on medical follow up. My opinion is that the most recent medical examination would be more appropriate. It is therefore my finding that the plaintiff does not require future medical attention. I will thus dismiss the claim for future medical expenses. Disposition 53.In summary, I hold that the plaintiff has proven his case on a balance of probabilities as against the defendants. Consequently, I make the following awards:1.General damages for pain, suffering and loss of amenities...........Ksh. 750,000/=2.Special damages………………………………………………………………….……..….Ksh. 4,860/=Total………………………………………………………………..…….Ksh. 754,860/= 54.The plaintiff is also awarded interest on the damages as well as costs of the suit. The guiding principles in respect of interest are set out in section 26 of the Civil Procedure Act which provides that:“(1)Where and in so far as a decree is for the payment of money, the court may, in the decree, order interest at such rate as the court deems reasonable to be paid on the principal sum adjudged from the date of the suit to the date of the decree in addition to any interest adjudged on such principal sum for any period before the institution of the suit, with further interest at such rate as the court deems reasonable on the aggregate sum so adjudged from the date of the decree to the date of payment or to such earlier date as the court thinks fit.(2)Where such a decree is silent with respect to the payment of further interest on such aggregate sum as aforesaid from the date of the decree to the date of payment or other earlier date, the court shall be deemed to have ordered interest at 6 per cent per annum.” 55.In the case of Jane Wanjiku Wambui v Anthony Kigamba Hato & 3 others [2018] eKLR, the court stated that:“First, at all times a trial court has wide discretion to award and fix the rate of interests provided that the discretion must be used judiciously. Given this discretion, an appellate Court is, therefore, enjoined to treat the original decision by a trial court with utmost respect and should refrain from interference with it unless it is satisfied that the lower court proceeded upon some erroneous principle or was plainly and obviously wrong. See New Tyres Enterprises Ltd v Kenya Alliance Insurance Company Ltd [1988] KLR 380.Second, Under Section 26(1) of the Civil Procedure Act, the Court has discretion to award and fix the rate of interests to cover two stages namely:a.The period from the date the suit is filed to the date when the Court gives its judgment; andb.The period from the date of the judgment to the date of payment of the sum adjudged due or such earlier date as the court may, in its discretion fix.” 56.Odoki, Ag. JSC, writing for the majority of the Supreme Court in the Ugandan case of Omunyokol Akol Johnson v Attorney General (CIVIL APPEAL NO.6 of 2012, UGSC 4 (8th April 2015) stated in part, as follows:“It is well settled that the award of interest is in the discretion of the court. The determination of the rate of interest is also in the discretion of the court. I think it is also trite law that for special damages the interest is awarded from the date of the loss, and interest on general damages is to be awarded from the date of judgment………Therefore, the trial judge should have awarded the appellant interest on general damages at the court rate from the date of judgment.”(Emphasis supplied) 57.From the foregoing expositions of the law on this point, it is clear that much as the award of interest is discretionary, interest rates on special damages should be with effect from the date of the loss till payment in full while with regard to general damages this should be from the date of judgement as it is only ascertained in the judgement-see Jane Ovuyanzi Raphael (Suing as Legal Representative of Estate of Japheth Amaayi v Salina Transporters [2020] KEHC 618 (KLR). Consequently, interest on general damages shall accrue at court rates from the date of judgment/decree until payment in full and on special damages, from the date of filing suit to the date of judgment/decree. DATED, SIGNED AND DELIVERED VIA CTS THIS 9TH DAY OF JUNE, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.