Coast Raha Company Limited & 2 others v Bn (minor Suing Through Aem)

3. 2. That the learned trial magistrate erred in law and in fact in failing to take into account that the minor will require a Philips hearing aid at a cost of Kshs. 120,000.00 which will be replaced every 5 years for life. 3. That the learned trial magistrate erred in law and in fact in failing to take into account the expert opinion of Dr. Ajoni Adede. 4. That the learned trial magistrate erred in law and in fact in failing to consider the authorities and submissions filed in behalf of the Respondent. The Cross-Appellant sought to have the cross-appeal allowed and judgment be entered in her favour. The evidence for Cross-Appellant 4. The Cross-Appellant called one witness in the case, Emily ALivista Maleya, PW1 who testified that she was an aunt to the Minor herein, Bridget Ngoizi Maleya. It was the evidence of PW1 that the minor was at the time of the accident aged 11 years. That she sustained a right ear impairment which is now completely blocked. That the doctor who prepared her medical report, Dr. Adede, assessed the degree of impairment at 30% and advised that they get a hearing aid device for the minor whose value at the time was Ksh.120,000/= and which was to be changed after every 5 years. She asked the court to award KSh. 950,000/- for the hearing device. She produced the medical report of Dr. Adede in court as exhibit together with the minor`s treatment notes from Kenyatta National Hospital. 5. No other witness was called in the case. Submissions on the cross-appeal 6. The Cross-Appellant through her counsel filed submissions in respect to the cross-appeal while the Appellants did not file any. 7. Counsel for the Cross-Appellant submitted that the learned trial magistrate erred in law and fact in failing to award costs for future medical expenses yet they led evidence that the minor would require a Philips hearing aid at a cost of Kshs. 120,000/= which would thereafter require to be replaced every 5 years of her entire life. 8. Counsel submitted that the medical report of Dr. Ajoni Adede and the treatment notes from Kenyatta National Hospital confirmed that the minor suffered hearing loss after the accident. Counsel submitted that in view of that fact that the minor was aged 11 years at the time of the accident and she could live to the ripe age of 60 years, the hearing device will require replacement for 12 times at a cost of Ksh.960,000/=. 9. Counsel submitted that the medical documents were produced without any objection from the opposing side. In that respect he cited the case of Kanampiu M’libua v Jacob M’abuanga & 2 others (2006) eKLR where the court held that; “ Granted, medical or expert evidence for that matter ought to be tendered by those well versed in those matters but where a document is produced without the maker thereof being called and the opposing party does not object to its production, I cannot see how it can be challenged on Appeal when no argument arose as to its validity at the time of production.” 10. Counsel urged the court to award the sum of Ksh.960,000/=in future medical costs together with the costs of the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13060/eng@2025-09-18 2

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Analysis and determination 11. This being a first appeal, the duty of the court is to re-analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions though it should bear in mind that the trial court had the advantage of hearing and seeing the witnesses testify and should make due allowance in that respect. The principle was in the case of Selle and Another v Associated Motor Boat Company Limited and another (1968) EA 123 set as follows: “ The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 12. I have considered the evidence adduced before the trial court, the grounds of cross-appeal, the judgment of the learned trial magistrate and the written submissions filed by counsel for the Cross-Appellant. The only issue for determination is whether the learned trial magistrate erred in failing to award costs of future medical expenses. 13. Claims for future medical expenses are special damages claims that must be specifically pleaded and proved, see Ringera, J (as he then was) in Jackson Wanyoike v Kenya Bus Services Ltd & Another Nairobi (Milimani) HCCC NO. 297 of 2002 and the Court of Appeal in Sheikh Omar Dahman T/A Malindi Bus v Denis Jones Kisomo Civil Appeal No. 154 of 1993 as cited in China Wu Yi Limited & another v Irene Leah Musau [2022] KEHC 2549 (KLR). In Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177, it was stated that: “ …..Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.” 14. Though it is trite law that special damages must not only be specifically pleaded but also strictly proved, it is recognized that what amounts to strict proof must depend on the circumstances, the character of the acts producing damage and the circumstances under which those acts were done. In this respect, the Court of Appeal held in Hahn v Singh, Civil Appeal No. 42 of 1983 [185] KLR 716, the Court as follows; “ Special damages must not only be specifically claimed (pleaded) but also strictly proved… for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.” 15. It was therefore upon the Cross-Appellant to plead and strictly proof the claim of future medical costs. 16. The Cross-Appellant in her plaint dated 28th August 2018 pleaded a sum of Ksh.960,000/= for replacement of the hearing aid for 12 times. The trial court noted in its judgment that the contents of the medical report of Dr. Adede were not challenged at the hearing. The court stated that it had https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13060/eng@2025-09-18 3

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considered the injuries sustained by the plaintiff and was satisfied that the plaintiff had proved her case on a balance of probabilities. The court awarded general damages for injuries sustained by the minor. The court did not however give any reason for not awarding damages for future medical costs yet it said that the Cross-Appellant had proved her case. 17. A court of law is duty-bound to consider and give appropriate weight to expert medical evidence when assessing damages for permanent injuries. The failure to do so constitutes a serious misdirection. Furthermore, a court must compensate a plaintiff for all reasonably foreseeable losses arising from an accident. In this case, the need for a hearing aid due to a permanent hearing impairment is a direct and foreseeable consequence of the injuries sustained by the minor. The trial court's disregard of this evidence directly contradicts the established legal principle that a plaintiff should be placed in the position they would have been had the injury not occurred. 18. I have gone through the medical report of Dr. Adede dated 18th August, 2018. The report indicates that at the time when the doctor saw the minor, she complained of hearing loss in her right ear with difficulty in following ordinary conversations and hearing her teacher. That her performance in school had deteriorated. The doctor examined her and noted that he had to shout to converse with her and she had to tilt her head for the left ear to face him so as for her to hear him. He conducted a Weber Hearing Screening Test using a 512 Hz tuning fork and confirmed sensorineural hearing impairment in the right ear. He concluded that she had suffered 30% permanent partial disability due to: right ear hearing impairment (deafness), difficulty in socializing, difficulty in learning, social stigma, discrimination, future limitation in employment opportunity. He also concluded that the hearing impairment was caused by trauma during the accident and he recommended a Philips hearing aid at Kshs. 120,000/which required replacement every 5 years. 19. The medical report of Dr. Adede having been produced without any objection from the Appellants and there having been no other medical report challenging its contents, the findings of the doctor as contained in his report has to stand. The report points out the specific needs of the minor and the estimated cost. It was therefore proved that the claimant would require a hearing aid at the cost of Ksh.120,000/=. The same had to be replaced every 5 years. The Cross-Appellant pleaded for a sum of Ksh.960,000/= which would cater for 8 replacements. I find 8 replacements in the life time of the claimant to be reasonable. The pleaded sum was thereby proved. The trial court erred in failing to award costs for future medical expenses. Consequently, the sum pleaded of Ksh.960,000/= is awarded. 20. The upshot is that the cross-appeal is allowed. I accordingly enter judgment for the Cross-Appellant in the sum of Ksh.960,000/= with interest from the time of delivery of the judgment of the lower court. 21. The Cross-Appellant to have the costs of the cross-appeal. DELIVERED, DATED AND SIGNED AT GARSEN THIS 18TH DAY OF SEPTEMBER 2025. J. N. NJAGI JUDGE In the presence of: Mr. Ndolo Appellants Miss Nyambuto for Respondent/Cross-Appellant Court Assistant -Rahma https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13060/eng@2025-09-18 4

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