Mukeng’ura Linus Kaleway v Export Consolidation Services Limited

Special damages Kshs. 31,950/= Pain killers Kshs. 72,000/= Physiotherapy Kshs. 40,000/= General damages for pain and suffering Kshs. 1,300,000/= Total Kshs. 1,443,950/= 6. The amount was subject to the agreed liability of 85:15% in favour of the Respondent against the Appellant. 7. Both the Appellant and the Respondent have filed an appeal and cross-appeal against the assessment of damages on the following grounds:i. The Learned Trial Magistrate erred in law and fact in failing to award the whole sum of the special damages as pleaded and strictly proved by the Appellant by evidence thereby made an unfair and unjust award to the Appellant. ii. The Learned Trial Magistrate erred in law and fact in misapprehending the evidence tendered by the Appellant on the special damages thus arrived at an unfair and unjust decision. iii. The Learned Trial Magistrate erred in law and fact in failing to consider of the development of modern electronic financial transactions systems which are widely acceptable forms of payments. iv. The Learned Trial Magistrate erred in law and fact by misconstruing the basic principle of assessing special damages thereby arrived at an unfair and unjust decision. v. That the Learned Trial Magistrate erred in law and in fact and misdirected herself by failing to consider at all the submissions made before her by the Defendant and reached an erroneous conclusion thereby occasioning a miscarriage of justice. vi. That the Learned Trial Magistrate erred in law and in fact by not considering the legal authorities cited by the Defendant on general damages and future medical costs and thereby reaching an erroneous conclusion on the award of general damages and future medical costs. vii. That the Learned Trial Magistrate’s award under the headings of general damages and future medical cost is inordinately high and grossly exaggerated taking into account the cited authorities by the Defendant on similar matters. viii. That the award on general damages and future medical costs fails to recognize the submissions by the Defendant and the binding authorities cited therein and ought to be set aside and/or award adjusted downward. ix. That the Learned Trial Magistrate in assessing quantum of damages considered irrelevant factors and wrong principles and arrived at a wrong decision and excessive award on quantum of damages. 8. The parties filed written submissions both in the appeal by the appellant and the cross-appeal by the respondent which I have duly considered. 9. The appellant submitted thatthe award was excessive. 10. The respondent on his part submitted that his appeal was only on the special damages that was awarded. He submitted that he specifically pleaded on his amended plaint dated 9/5/2023 for the sum https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19633/eng@2025-02-04 2

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of Kshs 935,209 being a sum of Kshs. 2,000/ = the cost of processing the medical report by Dr. Kiema and a sum of Kshs. 933,209/ = being the costs for treatment and drugs. PW1 testified and produced the receipt paid to Dr Kiema and also a bundle of receipts for treatment and drugs. 11. The respondent was treated in two hospitals being Moi County Referral Hospital in Voi and later was transferred to Kenyatta National Hospital. He further produced his M-pesa statement from Safaricom PLC for the month of November 2022 which was when he was involved in an accident. 12. The respondent submitted that from the certified M-Pesa Statement it clearly shows that the Appellant paid a sum of Kshs. 4.750 on 8/11/2022 to Moi County Referral Hospital vide Mpesa ref. number QK861LY3RS, on 9/11/2022 he paid a sum of Kshs. 170,759/= and Kshs. 245,000 respectively vide M-Pesa Reference numbers QK99JYVA17 and QK99JZ2KJ9 respectively to Kenyatta National Hospital (KNH) and on 20/11/2022 he paid a further sum of Kshs. 230,000 vide M-Pesa reference number QK94JYIRWZ and on 21.11.2022 he also paid a sum of Kshs. 260,000 vide M-Pesa refence number QK94JYIRWQ to Kenyatta National Hospital (KNH) the total amount is therefore a sum of Kshs. 910,509/= 13. The respondent argued that the evidence was uncontroverted as the appellant did not avail any evidence to challenge the same neither did it respond to the respondent’s submissions on the issue. It was therefore the respondent’s that contention that he proved the payment of the sum of Kshs. 910,509 through the M-Pesa statements which clearly showed that the sums were made to both hospitals. 14. This being a first appeal, the duty of the first appellate court was as stated in the case of Selle -vsAssociated Motor Boat Co. [1968] EA 123 where the Court held as follows; “ An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally. 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 allowance in this respect. In particular, this 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 demeanor of a witness is inconsistent with the evidence in the case generally.” 15. The issues for determination in this appeal and cross-appeal are as follows:i. Whether the assessment of damages was erroneous. ii. Whether the cross-appeal should be allowed. 16. I have considered both the appeal and cross-appeal. I find that both the Appellant and the Respondent are aggrieved with the assessment of damages. 17. The Respondent’s Doctor (Kiema) summarized the Respondents injuries as follows:i. Bust fracture 12th Thoracic vertebra (t12). ii. Fracture spinous process 1st and 2nd lumbar vertebra L1 & L2. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19633/eng@2025-02-04 3

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iii. Spinal cord compression/injury. iv. Blunt trauma to the left shoulder. v. Bruises and abrasions on the face, left shoulder and left thigh. 18. I find that there is a difference between the Respondent’s Doctor’s report and that of the Appellant. 19. The Respondent’s doctor classified the injuries as grievous harm and assessed permanent incapacity at 40% while the Appellant’s doctor stated the Respondent mainly suffered soft tissue injuries except the fracture of spine involving T12, L1 and L2. 20. However, both doctors confirmed permanent incapacitation with the Appellant’s doctor assessing the same at 30%. 21. I therefore find that the Respondent suffered incapacity and the general damages of Kshs. 1,300,000/ = is reasonable. 22. However, I do not see the basis for assessing the cost of pain killers at Kshs. 72,000/=. Pain killers are prescriptive medicines which are given where necessary. I set aside the said award. 23. The future medical costs in respect of physiotherapy is upheld. 24. On the issue of special damages, the Respondent produced evidence that the total amount paid by Mpesa is Kshs. 915,207. The Respondent also had a receipt of Kshs. 18,000/= from Kenyatta National Hospital. 25. I find that the Respondent proved on a balance of probabilities that the total special damages incurred were Kshs. 935,209/= 26. I set aside the special damages of Kshs. 31,975/= awarded by the trial court and I substitute it with an award of Kshs. 915,207/= 27. The total award is as follows:i. Special damages 915,207/= ii. Future costs for physiotherapy 40,000/= iii. General damages for pain and suffering 1,300,000/= Total 2,255,207/= 28. This amount is subject to the contributory negligence agreed on of 85:15%. The total award is Kshs. 1,916,925.95. 29. Judgment be and is hereby entered in favour of the Respondent against the Appellant in the sum of Kshs. 1,916,925.95 plus costs and interest. 30. Interest for special damages to run from the date the suit was filed and in respect of general damages from the date of the trial court’s judgment. 31. Each party to bear its own costs of this appeal. DATED, SIGNED AND DELIVERED THIS 4TH DAY OF FEBRUARY 2025 IN OPEN COURT AT VOI. ASENATH ONGERI https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19633/eng@2025-02-04 4

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JUDGE In the presence of:Court Assistant: Maina https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19633/eng@2025-02-04 5

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