Justus Nyasani Nyakundi v Robert Nyaigoti Kiabusa

JUDGMENT HCCA E001 OF 2025 4. At the trial, the respondent testified and produced documentary evidence including treatment notes, the P3 form, medical reports and receipts, including a report dated 11th February 2021 prepared by Dr. Daniel Nyameino, who testified as PW1 and confirmed the multiple fractures and urethral injury sustained as well as the need for further medical intervention. 5. The defence tendered a medical report prepared by Dr. Jenipher Kahuthu dated 27th June 2022, which was produced as a defence exhibit and confirmed healed fractures with implants in situ and multiple urethral strictures. 6. Upon considering the evidence, the trial court delivered judgment on 23rd December 2024, finding the appellant 100% liable and awarding general damages of KES. 2,000,000, future medical expenses of KES. 600,000 and special damages of KES. 195,550. 7. Aggrieved by that judgment on quantum, the appellant filed a Memorandum of Appeal dated 17th January 2025 raising the following grounds: 1) That the learned trial magistrate erred in law and fact in awarding excessive general damages. 2) That the learned trial magistrate erred in awarding future medical expenses without sufficient proof. 3) That the learned trial magistrate failed to consider comparable authorities and applicable principles. 4) That the learned trial magistrate misapprehended the medical evidence on record. Page 2 of 9

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JUDGMENT HCCA E001 OF 2025 8. The appellant’s submissions dated 03rd March 2026 were to the effect that the award of KES. 2,000,000 was inordinately high and not supported by comparable awards. Reliance was placed on Tayab v Kinanu [1983] KLR 114, where it was stated that awards must be reasonable and comparable, and that uniformity is desirable in personal injury claims. Further reliance was placed on Kemfro Africa Ltd t/a “Meru Express Services (1976) & another v Lubia & another [1983] KECA 61 (KLR), which sets out the circumstances under which an appellate court may interfere with an award of damages, namely where the trial court took into account irrelevant factors, failed to consider relevant ones, or arrived at a wholly erroneous estimate. The appellant also relied on Peter Ngugi Mburu v Nakuru Crater Pure Water Bottlers Ltd & Another [2020] eKLR where an award of KES. 1,000,000 was made for serious injuries, and submitted that the award herein ought to be reduced. 9. On future medical expenses, the appellant submitted that the evidence did not justify the award of KES. 600,000, pointing to portions of the medical evidence suggesting that some procedures had already been undertaken and that a lesser amount would suffice. 10. On the cross-appeal, the appellant submitted that loss of amenities, including loss of sexual function, is not a distinct head unless specifically pleaded and strictly proved, and that no such pleading existed in the Plaint. 11. The respondent’s submissions dated 05th February 2026 supported the judgment and opposed the appeal. The respondent relied on Butt v Khan [1981] KLR 349, where it was held that an appellate court should not Page 3 of 9

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JUDGMENT HCCA E001 OF 2025 interfere with an award of damages unless it is shown that the trial court acted on wrong principles or the award is inordinately high or low. 12. The respondent further relied on Kemfro Africa Ltd t/a “Meru Express Services (1976) & another v Lubia & another (supra) and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, where the Court of Appeal emphasized that an appellate court should not substitute its own assessment merely because it would have arrived at a different figure. 13. On future medical expenses, reliance was placed on Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR, where the Court of Appeal held that future medical expenses are recoverable where proved by medical evidence. 14. On the cross-appeal, the respondent relied on Mumias Sugar Company Ltd v Francis Wanalo [2007] eKLR and Pius Ngugi v Kenya Power & Lighting Co. Ltd [2020] eKLR for the proposition that loss of amenities is a distinct head of damage, and further relied on Josphat Nyaga Mwangi v Jackson Mucheru Muiruri [2016] eKLR and Stephen Mutinda Mule v Agnes Nthenya Mutua [2019] eKLR to submit that loss of sexual function is a compensable injury. 15. The respondent also relied on Timsales Ltd v Wilson Libuywa [2008] eKLR for the proposition that uncontroverted medical evidence ought to be accepted, and Hellen Waruguru Waweru v Kiarie Shoe Stores Ltd [2015] eKLR for the principle that failure to assess damages under a pleaded and proved head constitutes an error in law. Page 4 of 9

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JUDGMENT HCCA E001 OF 2025 16. Having considered the pleadings, the evidence, the judgment and the rival submissions, the issues for determination are: 1) Whether the award of general damages was excessive and warrants interference. 2) Whether the award of future medical expenses was justified. 3) Whether the trial court erred in failing to award damages for loss of amenities, particularly loss of sexual function. 17. This being a first appeal, this Court is guided by the principles in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123, that it must reevaluate the evidence and arrive at its own conclusions, while bearing in mind that it did not see or hear the witnesses. 18. This Court has carefully considered the entire record, including the pleadings, the evidence adduced before the trial court, the impugned judgment delivered on 23rd December 2024, the Record of Appeal, the rival submissions by counsel, as well as all the authorities cited by the parties. As a first appellate court, this Court is under a duty to re-evaluate and re-analyse the evidence on record and to draw its own independent conclusions, while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify. 19. The appeal turns primarily on the question of quantum, and in particular whether the award of general damages in the sum of KES. 2,000,000 was excessive in the circumstances. It is trite that the assessment of damages is a matter of judicial discretion, and that an appellate court will only interfere with such discretion where it is shown that the trial court acted on wrong principles, misapprehended the evidence, or arrived at an award that is so Page 5 of 9

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JUDGMENT HCCA E001 OF 2025 inordinately high or low as to represent an entirely erroneous estimate of the loss suffered. 20. Upon a fresh and exhaustive evaluation of the evidence on record, this Court notes that the medical evidence, particularly the report dated 11 th February 2021 together established that the respondent sustained multiple serious injuries, including fractures of the left tibia and fibula, fracture of the right radius and ulna, as well as urethral injury, which resulted in residual complications. The second medical report dated 27th June 2022, while noting some degree of healing, did not controvert the existence of those injuries or the residual effects arising therefrom. 21. These injuries, viewed holistically, cannot be described as minor. They involved both orthopedic and urological trauma and were accompanied by long-term complications that inevitably impact the respondent’s quality of life. The trial court, in assessing damages, was entitled to consider not only the immediate injuries but also their enduring consequences, including pain, suffering, and loss of amenities. 22. There is nothing on record to demonstrate that the trial court took into account irrelevant factors or failed to consider relevant ones. Nor has it been shown that the learned trial magistrate misapprehended the medical evidence or applied incorrect principles. In the premises, this Court is not persuaded that the award of KES. 2,000,000 was so inordinately high as to warrant interference, and the same is accordingly upheld. Page 6 of 9

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JUDGMENT HCCA E001 OF 2025 23. The second issue relates to the award of KES. 600,000 for future medical expenses. The law is that such expenses, though not in the nature of special damages, must nevertheless be specifically pleaded and proved through credible medical evidence demonstrating the necessity for future treatment. 24. In the present case, medical evidence established that the respondent required further medical intervention, especially in relation to the urological complications arising from the injury. The defence report did not negate this need but merely indicated the respondent’s condition at the time of reexamination. 25. Although the appellant argued that some procedures had already been undertaken and that the amount awarded was therefore excessive, the totality of the medical evidence demonstrates that further treatment was still necessary. The trial court, having considered that evidence, exercised its discretion in awarding KES 600,000, and there is no basis upon which this Court can conclude that the award was arbitrary, excessive, or unsupported by the evidence. 26. The final issue arises from the respondent’s cross-appeal, in which it is contended that the trial court erred in failing to make a separate award for loss of amenities, particularly loss of sexual function. It is not in dispute that loss of amenities is a recognized head of damage and that, where properly pleaded and proved, compensation may be awarded under that head. 27. However, it is equally settled that parties are bound by their pleadings, and that a court cannot award damages under a head that has not been specifically Page 7 of 9

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JUDGMENT HCCA E001 OF 2025 pleaded. The purpose of pleadings is to define the issues in controversy and to give the opposing party fair notice of the case it is required to meet. 28. In the present case, the Plaint sought general damages for pain, suffering and loss of amenities, but did not specifically plead loss of sexual function as a distinct and separate head of damage. While evidence was led to suggest that the respondent may have suffered complications affecting his quality of life, including urological difficulties, such evidence, in the absence of a specific pleading, could not found a separate award under that head. 29. In the circumstances, the trial court cannot be faulted for declining to make a distinct award for loss of sexual function. The general damages awarded were sufficient to encompass the respondent’s pain, suffering and loss of amenities arising from the injuries sustained. 30. In the final analysis, this Court is satisfied that the learned trial magistrate properly directed himself on both the law and the evidence, and that the awards made were within the permissible range of judicial discretion. The appellant has not demonstrated any basis for interfering with the award of damages, and the respondent has not established any error in law to justify the cross-appeal. 31. Accordingly, this court makes the following orders: 1) The appeal and the cross-appeal are hereby dismissed. 2) The judgment of the trial court delivered on 23rd December 2024 is hereby upheld. Page 8 of 9

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JUDGMENT HCCA E001 OF 2025 3) As regards costs, although costs ordinarily follow the event pursuant to section 27 of the Civil Procedure Act, both the appeal and the cross-appeal have failed. In the exercise of this Court’s discretion, and in the circumstances of this case, each party shall bear its own costs of the appeal and the cross-appeal. DELIVERED AT NYAMIRA THIS 2026 16th DAY OF April WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant - Ms. Moraa for KRK Advocates LLP For Respondent – Ms. Nyakundi for R.K.Mwenda & Associates Advocates Page 9 of 9

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