Peter Ndungu Kairu & 1 other v Awm & 1 other

(c) 3. Special damages – kshs.308,999/= Dissatisfied with the award the Appellants proffered the appeal on grounds that: 1. The learned trial Magistrate erred both in law and in fact by awarding the Respondent a net sum of Kshs.630,000/- as general damages for the minors herein AWM and SWM which sum was manifestly excessive outside the confines of reasonableness compared to the cited authorities and not commensurate with the nature of the case and the injuries sustained by the minors. 2. The learned trial Magistrate erred both in law and in fact by awarding the Respondent special damages in the sum of Kshs.308,999/- out which sum Kshs.300,000/- had been paid by insurance schemes being NHIF and Medical Administrators Kenya Ltd and as such, the award of the said special damages amounts to double compensation. 3. The learned trial Magistrate erred both in law and in fact by disregarding the written submissions filed by the Appellants on the need to award only proven special damages and proceeded to pronounce and make awards on special damages already paid by medical insurance. 4. The learned trial Magistrate erred both in law and in fact by failing to thoroughly scrutinize documents adduced in evidence thusly wrongly evaluating the evidence on record and hence coming to the wrong conclusion. 5. The learned trial Magistrate erred in law by failing to give concise statement of the case, a concise statement of evidence adduced by parties, the points of determination, the decisions thereon and reasons of her judgment pronounced on 29th May, 2023. 4. The appeal was disposed through written submissions. It is urged by the Appellants that the damages awarded were manifestly excessive outside the confines of reasonableness compared to authorities cited and not commensurate with the nature of the injuries sustained by the minors. And it was erroneous to award the sum of kshs.308,999/= out of which kshs.300,000/= had been paid by Insurance Schemes which amount to double compensation. 5. That in making the awards the court failed to thoroughly scrutinize documents adduced in evidence thus wrongly evaluating the evidence and reaching wrong conclusion. 6. On the question of Special damages, it is argued that NHIF and Medical Administration Kenya Limited have paid a total of 290,000/- which was part of kshs.308,999/= pleaded which should not have been awarded. In that regard reliance was placed on the case of John Mwangi Munyiri & Another v Paul Wachira Njuguna [2020] eKLR where the court delivered itself thus: “ Whether the respondent was entitled to the special damages of Kshs.111,255/-. In the plaint, the respondent claimed special damages of Kshs.111,455 and further medical expenses of Kshs.12,215/-. I agree with counsel’s submission that the Respondent having admitted that Kshs.107,800/- which he incurred in medical expenses for treatment and admission, were paid by NHIF, just like any monies paid by any insurance, the respondent could not be compensated for it again. Section 43 of NHIF Act provides as follows “Recovery of compensation or damages where a contributor to the Fund is entitled, whether under the Workmen’s Compensation Act (Cap.236) or otherwise, to recover compensation or damages in respect of any injury or illness, he shall not, to the extent to which such compensation or damages are recoverable, be entitled to any benefits in respect of any https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6593/eng@2026-05-04 2

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treatment undergone by him as a result of such injury or illness, and any benefits paid in respect of such treatment, shall to the extent to which such compensation or damages have been recovered, be repaid to the Board: Provided that the payment of any benefits as aforesaid shall not preclude the right of the contributor to recover any compensation or damages.” It follows that if any sums paid by the Fund to the hospital were again paid to the respondent as compensation, then it is recoverable by the Fund. The respondent was therefore not entitled to claim the Kshs.107,800/- which had been paid to the Hospital by NHIF. It would amount to unjust enrichment to claim it.” 7. On General damages, it is urged that the discretion in awarding damages should be exercised judicially and should be fair compensation. Reliance is placed on Paul Kipsang Koech & Another v Titus Osule Osure [2013] eKLR and Joseph Musee Mua v Julius Mbogo Mugi & 3 Others [2013] eKLR. 8. The Appellant proposes an award of Kshs.250,000 as General damages for AW. 9. On the part of the Respondent, the court is called upon to consider the nature of injuries sustained as captured in the P3. That the trial court considered evidence on record in awarding the damages. That the court having acted on correct principles It should not disturb the award to AW which is adequate based on previous decisions. Reliance is placed on Butt v Khan [1975] eKLR where the court held that; “ An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misrepresented the evidence in some material respect, and so arrives at figure which was either inordinately high or low.” 10. Also relied on is Elizaphon Mokaya Bogonko v Fredrick Omondi Ouma [2022] eKLR amongst other authorities. 11. On the award of Special damages, the Respondent does not dispute that the hospital Bill for AW was paid by the medical Insurance but urged that the reasoning by the Appellants that they should be exempted from paying special damages is misleading because the Respondent being a responsible person ensured that the minors have a proper health Insurance cover. That being a personal injury case the doctrine of subrogation does not apply because one cannot be indemnified against personal loss as it would not be loss of property; that the Respondent was paying the premiums for the minors to ensure they would be fully covered; that the Insurance Company paid in due performance of the contractual obligation between it and the Respondent. Then there is no relationship between the Appellant and the Respondent’s Insurance to avoid settling the claim against them thereby avoiding liability. 12. That under the doctrine of Collateral Source rule, damages awarded to the Respondent cannot be diminished because hospital bills were not paid by the Health Insurance Providers. In that respect the case of Leli Chaka Ndoro v Maree Ahmed & Simi Landlub [2017] eKLR was cited where the Appellate court overturned the trial court judgment where such a claim was dismissed, the court stated thus: “ I am persuaded by the decision in Reinan V Pacific Motor Trucking Company (supra). The respondent herein should not be seen to benefit from arrangements between the appellant and 3rd parties. What would have been the case had the appellant not taken the policy. The respondent’s position is that it can pay the hospital bills but the money should be claimed by Resolution Health Insurance Company. That is not logical. I do agree that the respondent’s liability is not dependent on the appellant’s wise decision to take up an accident or medical cover. The respondents are simply liable due to the negligence on their https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6593/eng@2026-05-04 3

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part. The respondents cannot take the place of Resolution Health Insurance Company as they are not parties to the existing arrangement between the appellant and his insurer. It is up to Resolution Health to decide on its arrangement with the appellant. Since subrogation does not apply to personal accident claims, even Resolution Health Company cannot lodge a claim for any refund against the appellant in the event that the respondent settles the special damages. The respondents are 100% liable to the damages and loss suffered by the appellant. The arrangements between the appellant and third parties cannot benefit the respondents. If that were to happen, then any tortfeasor in an accident claim will be sniffing around to find out whether the accident victim was insured. Resolution Health could have paid the bill but that payment was made as a result of the premiums paid by the appellant. The appellant could have as well kept quiet about the payment by his insurer as ordinarily the hospital receipt would have been issued in his name. My finding on this issue is that personal accident claims are not affected by the doctrine of subrogation. The doctrine of subrogation applies to indemnity insurance claims. In cases of indemnity, the insured loss is premeditated and can be computed upto the last cent. In personal accident claims, one cannot compute the extent of the suffered injuries. A lost limb cannot be replaced by an artificial one irrespective of the latter’s costs. If an accident victim can recover payment out of a personal accident policy, that is an added advantage which should not benefit the tortfeasor. With regard to the issue of double payment, I am satisfied that the recovery of the special damages from the respondents would not amount to double payment. Assuming the respondents came to know about the settlement of the bills after they had paid the appellant, could the respondents claim the money from the appellant or his insurer. My answer to this is “No”. This is because the respondents are not party to that arrangement between the appellant and his insurer. The respondents are simply liable to satisfy the amount of damages suffered by the appellant. This does not amount to double compensation.” 13. Also cited are decisions in Anthony Peter Wainaina v Juoba Patrick Oganda & 3 others [2021] eKLR; Salome Mike Akinyi v Aridempta Veronica Ouko & another [2023] eKLR. 14. I have considered grounds of appeal put forth by the Appellants. This being a first Appellate court is duty bound to re-evaluate evidence in the lower court and come up with its own conclusions. In Peter v Sunday Post Limited [1958] EA it was stated that; “ It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses... But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion...” 15. On the appeal the main contention is that this court has to determine whether damages awarded were manifestly excessive. In Kemfro Africa Ltd t/a Meru Express Service & Another v Lubia & Another (No.2) [1987] KLR 30 the court stated that: “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6593/eng@2026-05-04 4

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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 the damage.” 16. In Butt v Khan [1982-1988] KAR – the court stated that; “ An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misrepresented the evidence in some material respect, and so arrives at figure which was either inordinately high or low.” 17. To interfere with the award by the trial court, this court must interrogate whether the damages awarded following the discretion of the court were inordinately high or low. In reaching the decision to award, the trial court was guided by comparative decisions. At trial the Respondent sought to be awarded ksh.1,000,000/- for the injuries sustained, but the court awarded ksh.500,000 in respect of AW, while S.W. was awarded ksh.200,000/- instead of the proposed ksh.400,000/- both awards were subject to contribution. 18. Although the contention of the Appellant was in respect of both awards, the submissions filed seem to focus on the award in respect of AW where they propose an award of kshs.250,000/=. The two (2) authorities cited of Ibrahim Kalama house v Esteel Co. Ltd. Nbi HCC No.475 of 2012. [2016] eKLR the award for inter trochanteric fracture of the left femur, where a physical disability of the plaintiff was assessed at kshs.300,000 was upheld on appeal. 19. Also relied on is the case of Kenyatta University v Isaac Kanumba Nyuthe Nbi HCCA No.193 OF 2012 [2014] eKLR where the plaintiff was awarded ksh.350,000 in 2014 for a fracture on the right femur, soft tissue injuries on the head and bruises on the knee. The plaintiff also sustained 20% permanent incapacity. 20. To reach an adequate award the court must consider the nature of injuries sustained. AW sustained a cut wound on left forehead, fracture and swelling of the right neck of humerous and some injuries on the right shoulder. No future medical expenses having been sought means that the Respondents (minors) fully healed. 21. In Logistics solutions Ltd v Sleave Mavu Mwambela [2021] eKLR the Court upheld an award kshs.450,000 in general damages for a fracture of the right humerous arm bone, a cut on the right eye, a bruise on the head and blunt injury to the right shoulder and chest. 22. Ksh.500,000/= was awarded and upheld by the Court in Philip Mwago v Lilian Njeri Thuo [2019] eKLR for general damages for a Plaintiff/Respondent who sustained a fracture of the left humerous. 23. Notably, time has passed, a decade, since the time the awards cited by the Appellants were made. I would therefore have no reason to disturb the awards made by the trial court in respect of general damages. 24. On the issue of Special damages awarded. The claim was for kshs.308,999/= particularized as: a. Cost of police abstract for A.W. - Kshs. 300/- b. Cost of police abstract for S.W. - Kshs. 300/- c. Fees for medical reports for A.W -Kshs. 2,000/- d. Fess for medical reports for S.W. - Kshs. 2,000/- e. Cost of drugs and treatment -Kshs. 304,399/- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6593/eng@2026-05-04 5

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Total -Kshs. 308,999/25. It is admitted by the Respondents that insurers settled a total sum of Kshs.299,999.50 in respect of the Respondents. The main argument put forth by the Appellant is that compensating the Respondent with the sum that was paid by the Insurers was erroneous. 26. I have considered authorities cited by the Respondents which buttress the argument that even if the insurer settled hospital bills following premiums paid by the insured it should not be for the advantage of the defendant (Appellant) who was negligent. 27. However, I have also considered other authorities. In Aban Wanyama v Simion Juma Nyongesa [2023] KEHC (KLR) the court delivered itself thus; “ Special damages pleaded with the exception of the future medical costs amounted to Kshs 96,500/- and there was no basis for the trial magistrate to award Kshs 102,000/- as special damages. According to the Final Summary Invoices printed on 24/01/2018 by Friends Lugulu Mission Hospital, the total bill was Kshs 139,910/- and the same was settled by NHIF, this bill included Kshs.91,000/- pleaded as special damages.” 28. Medical expenses expended by an insurer on the plaintiff are recoverable for a negligent party is obligated to pay damages to the injured party. The question to be answered is who should make the claim? 29. Section 43 of the NHIF Act, which governs one of the insurers who settled the bill is in respect of recovery of compensation of damages. The proviso to that provision of law provides thus; Where a contributor to the Fund is entitled, whether under the Workmen’s Compensation Act (Cap. 236) or otherwise, to recover compensation or damages in respect of any injury or illness, he shall not, to the extent to which such compensation or damages are recoverable, be entitled to any benefits in respect of any treatment undergone by him as a result of such injury or illness, and any benefits paid in respect of such treatment, shall to the extent to which such compensation or damages have been recovered, be repaid to the Board: Provided that the payment of any benefits as aforesaid shall not preclude the right of the contributor to recover any compensation or damages. 30. Where the insurer settles medical bills as in the instant case, it should be involved so as to recover what has been paid. The Respondent did claim for the money but it has not been demonstrated that the money was to be paid to the NHIF Board. Therefore, it was erroneous for the court to award the sum of kshs.299,999.50/= being part of special damages claimed. 31. There was some other claim of the Police obstruct, fees for medical reports and part of the medical treatment fees amounting to kshs.8,999.50 which I award: Special damages - Kshs.8,999.50 less 10% contribution - Kshs.899.95 Total - Kshs.8099.55 32. The upshot of the above is that the appeal is partially successful to the extent of Special damages. Therefore, judgment for the Respondent will be thus; liability 90:10. AW General damages – Kshs.500,000/= Less 10% contribution - Kshs.50,000/= https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6593/eng@2026-05-04 6

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Total = Kshs. 450,000/= SW General damages Kshs. 200,000/= Less 10% contribution Kshs. 20,000/= Total Kshs.180,000/= Special damages - Kshs.8,999.50 less 10% contribution - Kshs.899.95 Total - Kshs.8099.55 33. The Appellants shall have 10% of the costs on appeal. 34. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4TH DAY OF MAY, 2026. L.N. MUTENDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6593/eng@2026-05-04 7

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