Modern Coast Coaches Ltd (Wrongly sued as Modern Coast Bus) v Mwanzi [2023] KEHC 25742 (KLR)

Modern Coast Coaches Ltd (Wrongly sued as Modern Coast Bus) v Mwanzi (Civil Appeal E125 of 2022) [2023] KEHC 25742 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25742 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E125 of 2022

DKN Magare, J

November 21, 2023

Between

Modern Coast Coaches Ltd (Wrongly sued as Modern Coast Bus)

Appellant

and

Rama Mwazegele Mwanzi

Respondent

Judgment

1. This is an appeal from the judgment and decree of the Honourable L T Lewa given 28/7/2022 in Kwale SRMCC 2 of 2022.

2. The Appellant filed a 13-paragraph memorandum of Appeal. The same was filed on 28/8/2022. The grounds are repetitive unseemly and prolixious. The same is principally on quantum. The grounds can be summarised as:-a.General damages of 1,500,000/= were excessive.b.Future medical expenses of 707,500 were not pleaded.c.Award of excessive and un-pleaded loss of earning capacity of 600,000/=

3. I admitted the Appeal on 29/3/2023. I directed submissions be filed. I have received the Appellant’s submissions filed on 5/7/2023. None are filed online. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

4. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the law looks in their usual gusto, held by as follows; -“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

5. The Court is to bear in in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them.

6. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows: -“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…”

7. In Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

8. For the appellate court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

Appellant’s submission 9. The appellant submitted that both parties called 2 witnesses and the Report by Dr. Udayan Sheth’s report was produced by consent. The parties agreed on 70:30 liability. They state that the court awarded as herein under: -a.General damage’s 1,500,000b.Future Medical costs 707,800c.Loss of earning capacity 600,000d.Special damages 8,800e.Total 2,816,300f.Less 30% 844,890g.Sum awarded 1,971,410

10. They relied on the principles laid down by the Privy Council in Nance v British Coloumbia Electric Railways Co. Ltd. (1951) AC 601 at page 613 and applied by the of Appeal in the case of on the case of Henry Hidaya Ilanga v Manyema Manyoka (1961) EA 705 and in Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1970) EA 414 as doth: -“The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or jury, the Appellate Court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a Judge sitting alone, then before the Appellate Court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one);or short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages (Flint v Lovell [1935] I KB 354) approved by the House Lords in Davies v Powell Duffryn Associated Collievers Ltd. 1941 AC 601. ”

11. They also rely on Cecilia W. Mwangi& another vRuth W. Mwangi[1997] eKLR where the Court stated as doth; -The approach of Lord Morris to the matter of compensatory damages was supported by Lord Denning MR in Lim Pho Choo v. Camden and Islington Aarea Heath Authority [1979] 1 ALL ER 332 at page 339 and this approach was also adopted by this court in the case of Tayab v. Kinanu [1982-88] 1KAR 90. Lord Denning MR said:“"In considering damages in personal injury claims, it is often said: "the defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration." That is a tedious way of putting the case. The accident, like this one, may have been due to a pardonable error much as my befall any of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay."

12. On high awards they relied on Sammy Kipkorir Kosgei v Edina Musikoye Mulinya & another [2017] eKLR where lady justice T. W. Cherere reported stated a doth: -“Bayusuf Freighters Limited v Patrick Mbatha Kyengo [2014] eKLR which cited with approval the case of Shabani -vs- City Council of Nairobi (1985) KLR 516, where the Court of Appeal expressed itself at page 527 as follows:-““There is no doubt that, some degree of uniformity must be sought in the award of damages and the best guide in this respect is to have regard to recent awards in comparable cases in the local courts.”

13. The truth is that the learned judge did not say so. These were submissions by the appellant’s counsel which the court did not approve at the end of the day. The appeal in that matter was dismissed. It is advisable that parties refer only to genuine decisions of the court and not erroneous postulations by parties.

14. On general damages they state that the court ignored submissions. They relied on the case of Jitan Nagra versus Abdinego Nyandusi Oigo (2018) eKLR. Where the court substituted a sum of 1,000,000/= with 480,000/= for injuries similar to the Respondents was said to have laceration on the occipital area deep cut wound on the back, right knee and lateral limb, bruises at the back extending to the right side of the lumber region, blunt trauma to the chest, compound fracture of the right fibula/Fibula and segmental distal fracture of the right femur.

15. They ask that the court relies on the said authority and award the Respondent a sum of Ksh. 480,000/=. There is no explanation why specifically 480,000/= not 400,000/= or 500,000/=. 480,000/= is an odd number (tautology excused). Courts tend to award to the nearest 50,000/=. It will be odd to find a court awarding, for example 3 Ksh. 97,545 as general damages. I digress.

16. On future medical expenses they state they are inordinately high. Dr. Udayan who is a specialist should guide the court and not Dr. Kiema who is a general practitioner and diabetes specialist. They state that Dr. Kiema did not annex any quotation.

17. They state that he did not have a specialised. They relied on a persuasive decision of Penniah Mboje Mwaniti =vs= Kenya Power and Lighting Co. Ltd (2016) eKLR, where the high Court, Justice J. Kamau stated: -“The court noted that Dr. Ajoni Adede was a Family Physician/ Specialist Venerologist. He was not an Orthopaedic surgeon. He gave an opinion relating to the costs, maintenance and replacement of the said orthopaedic times. If at all he had any expertise on the costing, use and maintenance of gadgets that would have assisted the Plaintiff in her mobility, he ought to have indicated how he came to be knowledgeable in an area that was not of his expertise. He did not do so. He also sought to have provided documents showing the costs of the items from AIC Kijabe Mission Hospital as that is where he based his opinion on.”

18. On loss of earning capacity they ate that a sum 600,000/= is excessive. They say that a were ascertain that he used to earn 12,0000 there is no evidence to that effect.

Analysis 19. The duty of the court as regards general damages is fairly settled. For the first appellate court to interfere with the award it is not enough to show that the award is high or had this court handled the case in the subordinate court, it would have awarded a different figure. General damages are not cast in stone. They are at large. In the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

20. The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court.

21. The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appealed held as follows as paragraph 8. “In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of ……is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”

22. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

23. The Court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. 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.

24. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

25. So my duty as the appellate court is threefold regarding quantum of damages:-a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneously assessment of damages.c.The award is simply not justified from evidence.

26. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.

27. The question of expert evidence, has been a nagging question. I do not and cannot take the evidence of a specialist as the Gospel truth and that of the genuine practitioner as untruth. The expert evidence is among other hodgepodge of evidence to be considered. The evidence is to be considered in their totality. It is not an either or scenario but a continuum of realities. Dr. Kiema defended his report and showed his expertise. The report is generally consistent with the other evidence on record. He relied on gazetted rates. There was no evidence on what Dr Udayan used as metrics for arriving at 15 %.

28. The question of how the good doctor came to know is in the field of epistemology, that is the study of knowledge. This is a field concerned with tasks that are in two categories, that is the nature of knowledge and extent of human knowledge. It is to be answered by the questions on what it means someone knows, or fails to know, a thing or a concept on one hand and how much do we, or can we, know? Is that by virtue of not being a specialists in something you cannot know or do our senses shut down knowledge that is knowable. To ask a philosophical questions are there things, knowledge or concepts that are unknowable though reason, senses or other sources. Can knowledge be acquired by a non-specialist that is supposed to be available to specialists only. Is it possible for a layman to know how much the advocates charge as fees for certain kind of work. Does specialisation make one a repository of knowledge and those not specialised have dearth of knowledge. Without answering the epistemological musings, it is not possible to answer the question who between the two doctors was telling the truth in their paper reports.

29. Though I cannot ipso facto state that he was not candid, there is a level of partisanship that professionals must eschew. The injuries described by both doctors are serious. It cannot be true that the respondent suffered 15 % disability. The line that Dr Udayan is a specialist therefore telling the truth is both presumptive and condescending.

30. On my part I have scepticism on the report as it is not in consonance with the rest of the evidence including within the report itself. The court of Appeal had dealt with a similar scenario relating to judges in the celebrated case of Butt v Rent Restriction Tribunal [1979] eKLR where the C.B Madan J A sitting with Miller and Potter JJA stated as doth:“A judge is a judge whether he is newly appointed or an old fogy. The former has the benefit of his latest learning, the latter the advantage of experience. Both are men of honour and scholarly gentlemen. Both are conscientious and judicious individuals and imbued with reason. Both are dependable and do not make wild surmises. Both act upon consecrated principles. Both get a fair share of juristic spills. Both are jealously scrupulous and impartial. Both are 24 carat gold. Both act free from doubt, bias and prejudice. Both carry the conviction of correctness of their decision. Both speak no ill of any litigant. Both are torch bearers for stability of society. Both are strugglers for liberty. Neither should, however, become an advisor instead of an adjudicator. The litigants and their professional advisors are the best judges of their affairs. If there is no other overwhelming hindrance, a stay ought to be granted so that an appeal, if successful, may not be nugatory. A stay which would otherwise another, which in his opinion will be a better remedy, will become available to the applicant at the conclusion of the proceedings.”

31. I got a firm conviction that professional objectivity was lost while concocting the report by the Appellant’s doctor. The line of being a specialised is a tired one and should be discarded. The good doctor must defend his report before the court and face his peers or ship out. Such reports must be accompanied by a conviction of conscious aware that courts can analyse the reports without necessarily believing the same as true.

32. It is such conduct on the part of a witness that Odunga J (as he then was), alluded to in the case of Kioko Peter v Kisakwa Ndolo Kingóku [2019] eKLR while referring to the reasoning of Madan J, (as he then was) in the case of N vs. N [1991] KLR 685. The Learned Judge lamented as follows:“Parties and Counsel ought to give the courts some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 when he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.”

33. Dr. Udayan did not testify to test his report. His competence was not tested on cross examination. The evidence of the Doctor was not tested on cross examination as opposed to Dr. Kiema. I am inclined to rely on the report by Dr. Kiema. It does not however mean that Dr. Udayan’s report cannot be used. It forms part of the evidence and has a moderating effect. I will not accept a report basically on the basis of qualification.

34. The court must be open to handle reports on a case by case basis. Where the Appellant’s report is consistent will be used. This particular one is self-contradicting and eschews the truth. The injuries as described by Dr Udayan do not differ significantly when placed side by side. The trial court’s observation of the Appellant is at variance with the conclusions reached by Dr Udayan. The question is what will be the motivation of finding similar injuries and find difference levels of disability, albeit temporary without elucidating in the final report.

35. The plaintiff suffered segmental fractures of left femur thigh one, with fragment/displaced, fracture left patella bone, component fracture of left tibia/ fibula, bones fracture proximal third and 4th metacarpal left hand, deep cut left hand and left periorbital area bruises and abrasions left shoulder/forearm and permanent disability of 65%.

36. Dr. Udayan confirmed the injuries that formed the injuries that formed opinion that this was 15% disability. This could not possibly be correct from the number and types of fractures suffered. Dr. Kiema’s report as consistent with other evidence on record.

37. The court will treat the expert report as part of the evidence and analyse its soundness. The court of appeal, quoted with approval a high court decision on expert evidence in the case of Stephen Kinini Wang'ondu vs. The Ark Limited [2016] eKLR from which the Judge drew out four tests to be applied by a court when considering admission and acting on expert evidence as more particularly set out in the ruling and which we also find prudent not to rehash and expressed himself thereon, inter alia, as follows: -“In my view its correct to state that a court may find that an expert’s opinion is based on illogical or even irrational reasoning and reject it. A judge may give little weight to an expert’s testimony where he finds the expert’s reasoning speculative or manifestly illogical. Where a court finds that the evidence of an expert witness is so internally contradictory as to be unreliable, the court may reject that evidence and make its decision on the remainder of the evidence. The expert’s process of reasoning must therefore be clearly identified so as to enable a court to choose which of competing hypotheses is the more probable. It is a trite principle of evidence that the opinion of an expert, whatever the field of expertise, is worthless unless founded upon a sub-stratum of facts which are proved, exclusive of the evidence of the expert, to the satisfaction of the court according to the appropriate standard of proof. The importance of proving the facts underlying an opinion is that the absence of such evidence deprives the court “of an important opportunity of testing the validity of process by which the opinion was formed, and substantially reduces the value and cogency of the opinion evidence.” An expert report is therefore only as good as the assumptions on which it is based. An expert gives an opinion based on facts. Because of that, the expert must either prove by admissible means the facts on which the opinion is based, or state explicitly the assumptions as to fact on which the opinion is based.”

38. In Shah and Another vs. Shah and Others [2003] 1 EA 290, Ombija, J. expressed himself on this issue, inter alia, as follows:“One of the special circumstances when witnesses may be called to give evidence of opinion is where the situation involves evidence of expert witness and this is an exception to the general rule that oral evidence must be direct…The expert opinion is however limited to foreign law science or art; including all subjects on which a course of study or experience is necessary to the formation of an opinion and handwriting is one such field…However as a rule of practice, a witness should always be qualified in court before giving his evidence and this is done by asking questions to determine and failure to properly qualify an expert may result in exclusion of his testimony…The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so…If there is a conflict of expert opinion, with experts appearing for both parties, resolution of conflicting evidence or the acceptance of the evidence of one expert in preference to the opinion of the other, is the responsibility of the court…Properly grounded expert evidence of scientific conclusion will be extremely persuasive in assisting the court to reach its own opinion.”

39. I dismiss Dr. Udayan’s report as inconsistent with the entirety of the evidence in the evidence on record including the report by the good doctor himself. Such inconsistencies are worrying to the decision maker. When a report is inconsistent and not in cognisance with other evidence, it is not plausible and no regard will had to that evidence.

40. The question that we must answer is weather the plaintiff proved their case on a balance of probabilities. The standard of proof was discussed by Kimaru, J in William Kabogo Gitau vs. George Thuo & 2 Others [2010] 1 KLR 526 as follows:“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”

41. In Palace Investment Ltd vs. Geoffrey Kariuki Mwenda & Another (2015) eKLR, the judges of Appeal held that:“Denning J. in Miller Vs Minister of Pensions (1947) 2 ALL ER 372 discussing the burden of proof had this to say; -“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say; we think it more probable than not; the burden is discharged, but if the probability are equal it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will loose, because the requisite standard will not have been attained.”

42. There was no comment on the implausibility of Dr. Kiema’s report. It is among the documents that were made available to Dr Udayan. Unless he had a preconceived notion on the injuries, he was under duty to comment on the said report. The duty of the plaintiff was to prove on a balance of probabilities. I am satisfied that the appellant suffered 65% disability or near there. The courts I have stated balance of probability is simply which version of truth the court will believe.

43. This is a 21 year old who suffered partial permanent disability of 65% disability. I am satisfied from the injuries that an award of 1,5000,000 is low but not in inordinately low. It is definitely not high at all. The court was modest in its award. The low award seems to have been based on Dr Uadayan’s report. This was a misdirection that resulted in suppressed awards. However, there is no cross Appeal for enhancement of the damages

44. I am aware that in the English case of Lim Poh Choo v Health Authority (1978)1 ALL ER 332 were echoed by Potter JA in Tayab v Kinany (1983) KLR14, quoting dicta by Lord Morris Borth-y-Gest in West (H) v Shepherd (1964) AC 326, at page 345 as follows:“But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.

45. In the case of Joseph Musee Mua –vs- Julius Mbogo Mugi & 3 Others [2013] eKLR. The Plaintiff sustained fractures of the right tibia and fibula, 2 broken upper jaw teeth and a chest injury. The injury left the Plaintiff with a permanent injury of 5% and the court awarded Kshs. 1,300,000/= general damages for pain, suffering and loss of amenities.

46. In the case of Fred Ogada Azere & another v Ezekiel Kiarie Nganga [2019] eKLR, Justice Mwongo awarded 1,400,000/ - for less serious injuries. He relied on the case of Cold Car Hire and Tours Limited & 2 others v Elizabeth Wambui Matheri [2015] eKLR, the High Court upheld the lower court award of Kshs 1,400,000/= for Comminuted fracture of the right acetabulum and dislocation of the right hip joint.

47. The award of general damages is proper in the circumstances. I dismiss the Appeal on general damages.

48. In the prayer for future medical expenses is pleaded. The same being general damages deem not fixed to be strictly proved. This was in the report by Dr. kiema There is no question of attaching quotations. This was an expert report which was tested.

49. Though future medical expenses must be pleaded there are in the nature of general damages. There is no evidence to be adduced in terms of receipts. The expert report and common prudence guides the court. The question of how the amount was arrived at was not put to the good doctor. The doctor set out the expected figures and this remained uncontroverted. In the doctrine of stare decisis this court is bound by decisions of the court of Appeal. I will let that court speak for itself. 21. The Court of Appeal in the case of Tracom Limited & Another –vs-Hasssan Mohamed Adan [2009] eKLR stated: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

50. The plaintiff pleaded for future medical expenses. It is irrelevant weather the same was specifically pleaded. The same is in the realm of general damages. They only need to be mentioned without necessarily being particularised.

51. In spite of Dr Udayan looking at the same report, he made no adverse findings on the costing of future medical expenses. When commenting as a second expert, it is incumbent on the expert, to comment not only on the injuries but also the opinion expressed by the first Doctor. This was not done and as such the challenge is baseless.

52. I find no ground merited on future medical expenses. I do not agree with the decision of justice J. Kamau in Peninah Mboje case (supra). The doctors or experts cannot be pre-judged. It is their evidence that is to be judged. Otherwise the courts will start calling for the syllabi to confirm courses they studied. It is unnecessary for the purpose. I shedder to imagine that some insurance company will one day pick the topmost expert in medicine and then have their way. Each expert must be judged not only on their experience but the congruence of their reports with the rest of the evidence

53. It we could trust a Judge or magistrate to decide that this injury is serious or not, nothing can be heard for a doctor, of the expenses described on the record from making a decision of the nature of future medical expenses.

54. Other than an attack on the Doctor, there is no attack on the evidence. I find absolutely no merit in the appeal against future medical expenses.

55. On damages for loss of earning capacity the court awarded Kshs. 600,000/=. The minimum wage is Kshs 13,500. This was increased to Ksh 15,120/- in the preceding period. This is the amount the court could have used. However, the court used a lesser amount ending up with less damages that could have been due. There was no Appeal to that effect. The sum awarded is thus more than reasonable.

56. The Appellant suggested a sum of Kshs. 200,000. There is no basis for the said amount. A party cannot throw figures to court. It is not voodoo economics but the science and article of estimation of damages having due regard to the individuality of each person and exercise of discretion.

57. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

58. The court below properly exercised its discretion properly. In the circumstances the entire appeal is untenable and is consequently dismissed with cost of Kshs. 155,000 to the Respondent.

Determination 59. In the circumstances I make the following order: -a.The entire Appeal is untenable and as such it is dismissed in limine with costs of Ksh. 155,000/= to the Respondent.b.The same be paid within 30 days, in default execution do issue.c.The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 21ST DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Mr. Adede for Gor for AppellantMs Tinga for the RespondentCourt Assistant - Brian