Eunice Katungwa Kimundi v Mohamed Abdalla Ali & 1 other

expectation of income, costs of and/or incidental to the suit, interest on general damages, special damages and costs at court rates. 4. The Defendants/Respondents entered appearance and filed a Statement of Defence dated 24/04/2017 to the initial Plaint. They did not amend their Statement of Defence after the Plaintiff amended and further amended his Plaint. The Defendants denied each and every allegation made by the Plaintiff in the Plaint and put him to strict proof thereof. The Defendants therefore prayed that the suit be dismissed with costs. 5. The Plaintiff testified as per her witness statement. She called the doctor as her witness and he produced the medical report as an exhibit. She testified that as a result of the accident, she lost her capacity to earn as a tailor where she was earning up to Kshs. 80,000 per month. On cross examination, she could not produce any receipt in support of her claim. 6. The defence did not adduce any evidence as the Defendants did not attend court at the time of the hearing on 27/11/2023. Judgment was entered in favour of the Plaintiff against the Defendants for Kshs. 500,000 as General Damages for pain and suffering, and Kshs. 2,000 being Special Damages. Costs and interest at court rates from the date of filing suit was also awarded. 7. Being dissatisfied with the Judgement, the Appellant filed the Memorandum of Appeal dated 09/07/2024 on grounds that the learned trial magistrate erred in law and fact by awarding General Damages that were inordinately low in the circumstances and failing to award Appellant’s medical treatment costs, future treatment costs and future expectation of income. 8. The Appellant prayed that the appeal be allowed, that the appellate court do set aside the learned trial magistrate judgment on quantum and replace it with its own assessment and/or finding, special damages be awarded as claimed and that the costs of the appeal be borne by the Respondent. 9. The appeal was canvassed by way of written submissions. The Respondents did not participate in these proceedings. The Appellant in his submissions dated 24/04/2025 stated that the general damages that is commensurate to the injuries sustained as stated herein above is Kshs. 2,000,000. He prayed that the appeal be allowed same be awarded as general damages. 10. Further, he submitted that the court erred by failing to award the special damages as pleaded and proved. He prayed that Kshs. 266,018 be awarded. On future earnings, the Appellant prayed for Kshs. 2,520,000 with the monthly earnings being Kshs. 30,000 for 7 years. It was prayed that the appeal be allowed. Analysis 11. 12. Having perused through the pleadings and the submissions filed, the issues for determination are; a. Whether the appeal has merits to warrant this court interfere with the judgment of the lower court on the awards. b. Who bears the costs The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … 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 …” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4345/eng@2026-02-12 2

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Quantum 13. The appeal was on quantum only. The Appellant submitted that the award for General Damages was inordinately low. He proposed an award of Kshs. 2,000,000/=. 14. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Service v. A.M Lubia & Another 1957 KLR 27 as follows: “ The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.” 15. Further, the Court of Appeal in Odinga Jacktone Ouma V Maureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards” 16. The Respondent suffered injuries as stated herein above. The Doctor report showed that the Respondent had 12% permanent disability. The doctor recommended that future medical costs of Kshs. 350,000 for future hip replacement. I note that the same was not pleaded. 17. In Ali Malik Brothers Motor (K) Limited and Another v Emmanuel Oduor Onyango NRB HCCA No. 252 of 2016 [2018] eKLR, the plaintiff sustained a fracture of the pelvic sprain hymen and cuts of the right knee and was awarded Kshs. 700,000/- which was afirmed by the High Court. 18. In Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] eKLR, the Plaintiff sustained pelvic fractures and soft tissue injuries, the High Court reduced the Lower Court’s award of Kshs. 1,700,000 to Kshs. 750,000. 19. All these authorities pose similar and comparable injuries and suggest that the award by the Trial Court of Kshs. 500,000/= was inordinately low in the circumstances. Considering the lapse of time and inflation, an award of Kshs. 800,000/- for the Plaintiff herein is adequate compensation for General Damages. I therefore interfere with the award by the Trial Court to this extent. 20. On Special damages, the trial court stated that that the Appellant only pleaded Kshs. 2,000 and the same was awarded. It appears the trial court relied on the initial Plaint dated 24/08/2016, which was since amended and further amended. The Appellant pleaded Kshs. 266,018 as treatment costs. Receipts have been produced in support of the same. The Defence did not challenge the same as they did not amend their initial Statement of Defence. I find that the trial court erred in failing to award the same. Special damages for cost of treatment are awarded as claimed. 21. On future treatment costs, the Appellant claims Kshs. 350,000. The same was not pleaded nor proved. The claim therefore fails. For future earnings, from the court proceedings, the Appellant was unable to proof the same as he had no supporting documents as at the time of trial. I agree with the trial court and the claim fails. 22. On costs, the same follows the event. The appeal being partially successful, each party to bear its own costs. Determination 29. Following the foregone discourse, the upshot is that the following orders do hereby issue: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4345/eng@2026-02-12 3

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a. b. That the appeal is partially successful and is allowed on the following terms; i. Judgment of General Damages is hereby set aside and substituted with an award of Kshs. 800,000/= as General Damages for pain and suffering. ii. Judgement on Special Damages is set aside and substituted with judgment of Kshs. 266,018 as cost of treatment. iii. Claim for Future Medical Treatment and Future earnings fail. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026 ....................... HON. F. WANGARI JUDGE In the presence of; Ms. Kerubo Advocate h/b for Mr. Bosire Advocate for the Appellant Mr. Morara Advocate the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4345/eng@2026-02-12 4

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