(Being an appeal from the Judgment and Decree of Hon P. M. Karimi (RM)
delivered at Vihiga in Principal Magistrate’s Court Case No 31 of 2024 on 2nd
October 2024)
Coram: Before Justice R. Nyakundi
M.A Okumu & Co. Advocates
M/s Akwala & Co. Advocates
JUDGMENT
INTRODUCTION
1. In her decision of 2nd October 2024, the Learned Trial Magistrate, Hon P.
M. Karimi, Resident Magistrate, found the Respondent herein to have been
fully liable for the injuries sustained by the Appellant. He entered
Judgment in favour of the Appellant against the Respondent as follows:-
Liability 85:15
General Damages Kshs 800,000/=
Loss of Earnings Kshs 100,000/=
Special Damages Kshs 8,500/=
Kshs 908,500/=
Less 15% contribution Kshs 136,275/=
Total Kshs 772,225/=
Plus costs of the suit and interest at court rates from the date of
judgment for general damages and from date of filing for special
damages until payment in full.
2. Being aggrieved by the said decision, on 2nd November 2024, the Appellant
filed Memorandum of Appeal dated 31st October 2024. He relied on four (4)
grounds of appeal as stipulated in the memorandum of appeal a s follows:
a. The learned trial magistrate erred in law and in fact by disregarding the
Appellant’s submissions on the issue of quantum hence arriving at an
unjust award.
b. The learned magistrate erred in law and in fact when she substantially
deviated from the pleadings, evidence and submissions of the plaintiff
in regard to quantum of damages generally thereby arriving at a grossly
low and inordinate award.
c. The learned magistrate erred in law and in fact by failing to appreciate
the principles informing the award on general damages relating to the
nature of the injuries suffered by the plaintiff and their consequences as
reflected in the Doctor’s medical report thereby awarding a grossly low
figure of Kshs. 800,000.00 which was not commensurate with the
gravity of the said injuries and thus occasioning a miscarriage of justice.
d. The learned magistrate erred in law and in fact when she failed to
consider comparable awards for similar injuries as in the instant suit
thus arriving at grossly low award
3. The background of this appeal arises from the plaint filed on 18th January
2024 in which the plaintiff now appellant sued the defendant/respondent
based on the following facts:
a. On or about the 18/03/2023 the plaintiff, while standing along KisumuKakamega Road at4Nyota area, sustained very serious injuries when the
authorized rider, agent and /or servant of motor cycle registration
number KMGE 247K BOXER so negligently drove, managed and/or
controlled the said motor cycle that he caused it to lose control, veered off
the road and onto the pedestrian lane where the plaintiff was walking
and hit him and other two pedestrians from behind hence causing an
accident.
4. The claim was based on the particulars of negligence in which he suffered
the following particulars of injuries:
a. Left proximal tibial shaft fractures in anterolateral shift
b. Multiple segmental 3 fractures of the left fibula
c. Fracture of the right tibial/fibula
d. Tender swollen anterior neck
e. Bruises on the right hand along the wrist joint
5. The reason whereof he prayed or judgment to be entered against the
defendant for:
a. General damages
b. Special damages of Kshs 14,000
c. Costs of this suit
d. Loss of earning capacity and/or future earning
e. Interest on 1, 2 and 3 above at 14% interest rates
f. Any other relief that the court deems fit to grant
6. It is from the evidence adduced before the trial court by the plaintiff who
relied on the following documentary evidence:
a. Plaintiff’s ID card
b. Discharge Summary from Vihiga County Referral Hospital
c. Receipts for Kshs 1000.00 from Ritri Company Ltd
d. Receipt for Kshs 8,000.00 from Dr. Neema Mbaruku
e. Medical report
f. X-ray report from Ritri Imaging clinic
g. P3 form
h. Police Abstract
i. Motor vehicle search
j. Demand letter and certificate of postage
k. Receipt for Kshs 5,000.00 for legal fees, to discharge the burden of proof
under Section 107, 108, 109 of the Evidence Act on a balance of
probabilities. It appears from the record that the defendant elected not
to give evidence in answer to the allegations on negligence as claimed
by the plaintiff now appellant. It is in this premise the trial magistrate
delivered her judgment which is the subject matter of this appeal.
7. As at the time of writing this Judgment, the Appellant had not filed his
Written Submissions. The Respondent’s Written Submissions were dated
24th November 2025 and filed on 11th November 2025 (sic).
ANALYSIS
8. It is settled law that the duty of a first appellate court is to evaluate afresh
the evidence adduced before the trial court in order to arrive at its own
independent conclusion but bearing in mind that it neither saw nor heard
the witnesses testify.
9. This was aptly stated in the case of Selle & Another vs Associated Motor
Boat Co Ltd & Others [1968] EA 123 where the court therein held that
the appellate court was not bound by the findings of fact of the trial court
but that in re-considering and re-evaluating the evidence so as to draw its
own conclusions, it always had to bear in mind that it neither saw nor
heard the witnesses and thus make due allowance in that respect.
10. Having looked at the grounds of Appeal and the Respondent’s Written
Submissions, it appeared to this court that the only issue that had been
placed before it for determination was whether or not the quantum that
was awarded was low in the circumstances warranting interference by this
court.
11. The court deemed it prudent to address the issues under the following
distinct heads.
LOSS OF EARNINGS
12. The Respondent submitted that Dr. Neema Mbaruku’s medical report
indicated that the Appellant suffered fractures of both tibia and fibula and
that at the time of writing her medical report on 6th November 2023, he
was in the process of healing.
13. He asserted that Dr. Oketch Protas Were who re-examined the Appellant
on 15th July 2024 concluded that he had by then completely healed with
no resultant incapacitation. He added that in view of that conclusion that
he had fully recovered and considering the absence of any evidence on
earnings, there was no basis or justification for a claim for loss of earning
capacity.
14. He pointed out that the Trial Court held that although the Appellant had
not provided any proof of earning or economic activity, it could be inferred
that the Appellant suffered some degree of incapacitation for some months.
He argued, therefore, that the award of loss of earnings was reasonable in
the circumstances and there was no basis of disturbing the same.
15. Loss of income and/or future earnings must be pleaded and proved as
they are in the nature of special damages, whereas loss of earning capacity
is in the nature of general damages and need not be pleaded though it has
to be proved on a balance of probability as was held in the case of Cecilia
W. Mwangi & Another vs Ruth W. Mwangi [1997] eKLR.
16. That being the case, this court noted from the record and more specifically
the Plaint, that although the Respondent pleaded loss of earning capacity
and/or future earnings, he did lead evidence that he is an inform of worker
in what is generally described as jua kali sector in Kenya. However,
Douglas Kalafa Ombeva vs David Ngama [2013] eKLR, the Court of
Appeal held that:
“Loss of earnings is a special damage claim, and it is trite law that special
damages must be pleaded and proved. Where there is no evidence
regarding special damages, the court will not act in a vacuum or
whimsically”
17. The court acknowledges that the informal sector forms a bigger percentage
of the workforce in Kenya and which include vendors, mechanics, artisan,
electrician etc. The court cannot demand that proof of loss of earnings be
verifiable by way of accountable documents or receipts. Some of the
workers in this sector do not even pay taxes and their daily income may be
subjected to expenditure without any books of account to record the outlet
and inlet of income hand from the business one is involve on a daily,
weekly or monthly basis. It is therefore not possible to proof losses with
mathematical precision save for some reliable estimate of daily or weekly
earnings in which the plaintiff/victim of the accident may present before a
trial court.
18. Appellant sought loss of earnings capacity due to the severity of injuries
sustained during the accident. It is evident from the doctor’s medical report
that he suffered left leg healed scars from surgery, prominent would
medially and right leg similar scars seen. The X-ray on both leg showed
bilateral fractures of the tibia and fibula and comminuted fracture of the
left and bilateral leg fixation with intramedullary nailing done. In this
respect Dr. Neema Mbaruk accessed disability index at 20% and advised
physiotherapy session be carried out at an estimated cost of Kshs 30,000.
During the doctor visit by the appellant there is evidence that 8 months
down the line he was still complaining of pain on both legs and swelling
which was yet to subside. The learned trial magistrate exercised discretion
that post accident disability in terms of loss of income for the based in
appellant who was in the informal sector be assessed at Kshs 100,000. It
is trite law in Kenya that Kenyan’s court distinguished between loss of
future earnings capacity a general damages award compensating for the
risk of diminished employability. Courts use the multiplier and
multiplicand method, basing the assessment on the victim’s age,
remaining working life and prevailing labor market risks. There was no
evidence from the respondent to challenge the facts of the appellant being
an informal worker in the informal sector. The loss of income to be
assessed is to compensate for the loss suffered from the negligence
occasioned by the respondent’s motorcycle in which the appellant suffered
a disability of 20% which reduces chances of him actively involved in the
informal sector wide employment. As for this case using the statutory
minimum wage of informal workers at Vihiga County, the appellant could
be expected to earn between Kshs 7,000-9,000 a month and he was off
employment for over 8 months due to the gravity to the injuries during the
accident.
19. This is a matter of judicial discretion which empowers judges and
magistrates to make decisions based in individual circumstances and
principles of fairness rather that rigid, inflexible rules. this is what the
court reaffirmed in the cases of Mbogo v Shah (1968) supra. Similarly, in
Raytheon Co. v West (US) the court reaffirmed that lower courts are
provided with wide discretion in managing trial and admitting evidence
that court should only intervene upon a clear showing of an abuse of that
discretion. There is no evidence from the facts of this case that the learned
trial magistrate abused her discretion in awarding damages of Kshs
100,000 under this limb of loss of earnings attributed to the injuries
suffered by the appellant. It must be appreciated that judicial discretion is
usually considered a legal phenomenon, related to jurisprudential
questions about the boundaries of rules and the type of reasoning required
from judges and magistrates when making decisions in legal disputes. I
have come to understand in my practice that legal decision making is a
complex phenomenon that cannot be explained only by the mechanistic
application of legal rules. That is why judges and magistrates in their work
are exposed to very critical claims and response two distinct context. First,
it is the worldview and the social conflict framework. In terms of the legal
worldview judges and magistrates acknowledges various limitations on
rules and provision of the statutes as capable of determining a legal case.
For there are certain scenarios and circumstances when the rules and the
provisions of the law may miss the individual case. It is also true to state
that in terms of the social conflict framework judges and magistrates
acknowledge underlying needs and interest which are deeper that the legal
dispute and requires unique processing.
20. It is against this backdrop that the court captures the complexity and
hybrid nature of legal decision making in our courts as illustrated by the
trial court findings that the appellant was entitled to an award of Kshs
100,000 under the loss of earnings or income in that matter during the
time he was incapacitated due to the injuries suffered as opined by the
medical report admitted in evidence under Section 48 of the Evidence Act.
GENERAL DAMAGES
21. On a first appeal basically on assessment of damages only, the Court has
to re-evaluate the evidence, assess it and make its own conclusions
remembering that it has neither seen nor heard the witnesses and hence
due allowance must be made for this. See Selle v Associated Motor Boat
Company Ltd [1968] EA 123 at 126; Williamson Diamonds Ltd v
Brown [1970] EA 1.
22. 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 one, or that;
short of this, the amount is so inordinately low or so inordinately high that
it must be wholly erroneous estimate of the damage. See Kemfro Africa
Limited t/a Meru Express Service, Gathongo Kanini v AM Lubia and
Olive Lubia [1987] KLR 27 [1982-88]1 KAR 727 at 730
23. In assessment of damages, the general method of approach should be that
comparable injuries should as far as possible, be compensated by
comparable awards keeping in the correct level of awards in similar case.
24. The Respondent submitted that the award of Kshs 800,000/= for general
damages was adequate in the circumstances and should not be disturbed.
He placed reliance on the case of Paul Kithinji Kirimi & Another vs
Gatwiri Murithi Meru HCCA No 84 of 2017 where the plaintiff was
awarded Kshs 450,000/= having been revised from Kshs 700,000/= for
suffering a fracture of the right femur and mandible and the mandible was
managed by dental wiring and he required a surgery to remove the
implants.
25. He also relied on the cases of Harun Muyoma Boge vs Dr Daniel Otieno
Agulo Migori HCCA No 7 of 2015 and Simon Kimote vs Agro Solutions
Limited Migori HCCA No 90 of 2016 where the court awarded Kshs
300,000/= and Kshs 350,000/= respectively where the claimants
sustained fracture of the right tibia and fibula.
26. He contended that the claimants in the above authorities suffered injuries
which were graver than the ones sustained by the Appellant herein. He
urged the court to dismiss the Appellant’s appeal with costs.
27. It is well settled in law that an appellate court will not disturb an award
of general damages unless the same was so manifestly high or inordinately
excessive or manifestly or inordinately low that a trial court had proceeded
on the wrong principles or misapprehended the law, a principle that was
dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko
[2004] eKLR.
28. It had to be understood that money could never really compensate a
person who had sustained any injuries. No amount of money could remove
the pain that a person went through no matter how small an injury
appeared to be. It would in fact be difficult to say with certainty that a
particular amount of money would be commensurate with the injuries that
a person had sustained. It was merely an assessment of what a court
would find to be reasonable in the circumstances to assuage a person who
had suffered an injury.
29. However, this assessment was not without limits. A court had to ascertain
to itself the sum of general damages that courts and especially appellate
courts would ordinarily award in respect of a particular injury. A court
therefore had to be guided by precedents.
30. Indeed, in the case of Kigaraari vs Ava (1982-88) 1 KAR 768 as quoted
by this court in the case of Godfrey Wamalwa Wamba & Another vs
Kyalo Wambua[2018]eKLR, it was stated that damages had to be within
the limits set out by decided cases and also within the limits the Kenyan
economy could afford. This was because high awards would lead to higher
insurance premiums which would in turn affect the members of the public.
31. This court also had due regard to the case of Lim vs Camden HA [1980]
AC 174 where it was held that even in assessing compensatory damages,
the law sought to indemnify the victim for the loss suffered and not to
punish the tortfeasor for the injury that he had caused.
32. Similar injuries ought to attract comparable awards. However, in the
quest for consistency, courts also had to recognise that no case was exactly
the same as the other. It had to be noted that cases could not contain exact
injuries. They were merely for comparison purposes. Each case therefore
had to be decided according to its own peculiar circumstances but keeping
in mind that any monies awarded had to be sustainable.
33. Towards this end, an appellate court ought not to interfere with the
discretion of a trial court merely because it could have awarded a lower or
higher sum than that which was awarded by the trial court. It could only
interfere where the award of general damages was so manifestly high or
inordinately excessive or manifestly or inordinately low that a trial court
had proceeded on the wrong principles or misapprehended as was held in
the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra).
34. In his Plaint dated 18th January 2024 and filed on 8th February 2024, the
Appellant pleaded that he sustained left proximal tibia shaft fractures in
anterolateral shift, multiple segmental 3 fractures of the left fibula,
fracture of the right fibula/tibial, tender swollen anterior neck and bruises
on the right hand along the wrist joint.
35. He testified that he was treated at Vihiga County Referral Hospital. She
produced the P3 form, Discharge Summary, Medical Report from Dr
Neema and X-ray ultra sound and radiology report dated 19th January
2024 and 6th November 2023 as exhibits in court. The said Discharge
Summary indicated that the x-ray was done showed that she had
sustained a tibia fibula fracture with ankle dislocation.
36. The Medical Report of Dr Neema Mbaruku dated 6th November 2023 set
out the Appellant’s present complaints as pain in both legs, swelling of the
legs and generalized body pain all for eight (8) months period. At the time
of the medical examination, the Appellant was in fair general condition,
walking with assistance of an aide and using bilateral axillary crutches.
She added that he had stable vital signs. She opined that he had twenty
percent (20%) disability index and needed physiotherapy estimated at
thirty (30) sessions.
37. The Respondent produced a second medical report dated 15th July 2024
by Dr Oketch who opined that the Appellant had healed with no resultant
incapacitation. The Trial Court noted that Dr Neema being an orthopedic
surgeon was better versed with matters with regard to bones as opposed
to Dr Oketch who was a consultant surgeon. It, therefore, relied on her
medical report in awarding the Appellant.
38. Remaining faithful to the doctrine of stare decisis and taking the
inflationary trends into consideration, it was the considered view of this
court that general damages in the sum of Kshs 800,000/= that was
awarded by the Trial Court to have been inordinately low to warrant
interference of this court as the Appellant herein sustained fibula multiple
segmented fractures other than the tibial shaft fracture.
39. It is clear from the record that the learned magistrate placed reliance in
the case of Kimita v Travel Budget Express & Another Civil Appeal E042 of
2022 [2024] KEHC 6435) (KLR) where the learned Judge on appeal upheld
an award of Kshs 800,000 for fractures of right and left tibia and soft tissue
injuries to the left leg, forehead, left arm, chin and zygomatic area which
have healed scars. The facts of this awards can be contras distinguished
with that of the appellant who sustained the following injuries left proximal
tibial shaft fractures in anterolateral shift, multiple segmental 3 fractures
of the left fibula, fracture of the right tibia/fibula, tender swollen anterior
back and bruises on the right hand along the wrist joint. According to Dr.
Neema’s medical report, she observed that the plaintiff had sustained 20%
incapacitation, had metallic implants in situ and had deformities.
40. There is no dispute that the claimant in Kimita Case in which the learned
trial magistrate relied upon to exercise judicial discretion in assessment of
damages had no evidence of permanent disability of 20% incapacitation
and therefore it could not be proper dicta in so far as the appellant degree
of injuries suffered and the permanent negative impact occasion to that
effect. In my view the following authorities are more nearer to the facts of
the appellant circumstances and therefore calling for this court to review
the assessment of general damages for pain and suffering to an upward
range for the Kshs 800,000 is on the lower side of the bracket. Thus:
Hussein Ahmed Abdullahi-vs- Samira Mohamed Abdi [2017|eKLR
the court awarded general damages of Kshs. 2,500,000.00 to the plaintiff
who had sustained a fracture and dislocation of the radius ulna and had
been rendered 20 % incapacitated.
In the case of Linos Shisakha Andakalu -vs- George Kangethe
Mbugua &Another [2019] eKLR, an award on general Damages of Ksh.
3,000,000.00 was made where the plaintiff had as a result of the injuries
sustained become 30% incapacitated. In the instant suit the plaintiff has
20 % permanent incapacitation, will need removal of metallic implants on
both limbs and as at the time of testifying in court, was still on crutches.
In the case of Christine Mwigina Akonya -vs- Samuel Kairu Chege
[2017] eKLR, the court awarded the plaintiff Kenya Shillings Four Million
in general damages for a fracture of the right femur, fracture ribs 3-6,
pain in the right side of the chest and right thigh, and persistent pain in
the right knee.
In the case of Paul Guyo Wagoh -vs- Hussein Abdi Huka & Another
[2019] eKLR the plaintiff suffered bilateral comminuted femoral
fractures. The court reduced the award from Kenya Shillings Two Million
Five Hundred Thousand (Kshs. 2,500,000.00) to Kenya Shillings Two
Million (Kshs. 2,000,000.00) only for general damages since the plaintiff
therein had not suffered any permanent incapacitation.
41. It is well settled position of the law in Kenya that in the cases of permanent
disablement caused by a motor accident, the claimant is entitled to not
just future loss of income, but also future prospects. It has been reiterated
by this court in multiple instances that just compensation must be
interpreted in such a manner as to place the claimant in the same position
as he was before the accident took place. While assessing the
compensation for the appellant by the learned trial magistrate she did not
take into account the functional of disability which will have to be take into
account consideration for award of future loss of income. In the instant
appeal, the doctor had assessed physical disability whole body at 20%
which is never factored anywhere in the judgment of the trial court. The
entry recording the term ‘pain and suffering’ in P. Ramanatha Iyer's
Advanced Law Lexicon reads as under:
“Pain and suffering. The term ‘Pain and suffering’ mean physical
discomfort and distress and include mental and emotional trauma for
which damages can be recovered in an accident claim. This expression
has become almost a term of art, used without making fine distinction
between pain and suffering. Pain and suffering which a person
undergoes cannot be measured in terms of money by any mathematical
calculation. Hence the Court awards a sum which is in the nature of a
conventional award [Mediana, The, [1900] A.C. 113, 116]”
42. This concept always escapes definition by the trial courts when it comes
to assessment of damages and it must be admitted there are challenges on
how to achieve full compensation for both pecuniary and non-pecuniary
damages alike more so on Road Traffic Accident Victims. What is the
formula that is appropriate to be applied to attain the level of full
compensation on assessment of damages is not even crystal clear from the
parameter of placing reliance on award of damages in past cases or
precedents of Superior Courts. In very practical sense invoking judicial
discretion a court has to perform the difficult artificial task of converting
into monetary damages the physical injury and deprivation and pain and
to give judgement of what is to be considered to be a reasonable sum. It
rarely looks beyond the judgment to the spending of the damages. (See the
principles in H West & Son Ltd v Shephard [1964] A.C 326).
43. I am of the considered view upon appreciating and scrutinizing the trial
court record and the judgment which has been appealed against. The
learned trial magistrate in awarding compensation did not look at the case
in totality and the permanent disability which is also severe compounding
the social economic rights of the appellant. In such circumstance to
preserve the essence of justice it becomes the duty fog the trial court at the
very least to restore the claimant and in our case the appellant at best as
far as possible to the position he was in before the occurrence of the
disability and to do so must award compensation in a liberal manner.
44. It is therefore evident from the above discussion that the award of
damages of Kshs 800,000 for pain, suffering, loss of amenities and 20%
disability awarded by the trial court was inordinately low and the same
has to be reviewed upwards to Kshs 2.5 million as fair and proportionate
compensation for the appellant. As a consequence of this the appeal
succeeds to the extent of the following declarations. That:
a. The issue of liability settled at an apportionment at 80:20% in favour of
the appellant
b. That general damages, for pain, suffering, loss of amenities and 20%
permanent disability reviewed and enhanced to 2.5 million in favour of
the appellant
c. That loss of earnings affirmed at Kshs 100,000 in favour of the appellant
d. The special damages allowed at Kshs 8,500. Therefore, the total award
payable to the appellant is Kshs 2,608,500/= together with costs of the
suit and interest at court rates from the date of judgment for general
damages and from date of filing for special damages until payment in
full.
e. Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.
delivered at Vihiga in Principal Magistrate’s Court Case No 31 of 2024 on 2nd
October 2024)
Coram: Before Justice R. Nyakundi
M.A Okumu & Co. Advocates
M/s Akwala & Co. Advocates
JUDGMENT
INTRODUCTION
1. In her decision of 2nd October 2024, the Learned Trial Magistrate, Hon P.
M. Karimi, Resident Magistrate, found the Respondent herein to have been
fully liable for the injuries sustained by the Appellant. He entered
Judgment in favour of the Appellant against the Respondent as follows:-
Liability 85:15
General Damages Kshs 800,000/=
Loss of Earnings Kshs 100,000/=
Special Damages Kshs 8,500/=
Kshs 908,500/=
Less 15% contribution Kshs 136,275/=
Total Kshs 772,225/=
Plus costs of the suit and interest at court rates from the date of
judgment for general damages and from date of filing for special
damages until payment in full.
2. Being aggrieved by the said decision, on 2nd November 2024, the Appellant
filed Memorandum of Appeal dated 31st October 2024. He relied on four (4)
grounds of appeal as stipulated in the memorandum of appeal a s follows:
a. The learned trial magistrate erred in law and in fact by disregarding the
Appellant’s submissions on the issue of quantum hence arriving at an
unjust award.
b. The learned magistrate erred in law and in fact when she substantially
deviated from the pleadings, evidence and submissions of the plaintiff
in regard to quantum of damages generally thereby arriving at a grossly
low and inordinate award.
c. The learned magistrate erred in law and in fact by failing to appreciate
the principles informing the award on general damages relating to the
nature of the injuries suffered by the plaintiff and their consequences as
reflected in the Doctor’s medical report thereby awarding a grossly low
figure of Kshs. 800,000.00 which was not commensurate with the
gravity of the said injuries and thus occasioning a miscarriage of justice.
d. The learned magistrate erred in law and in fact when she failed to
consider comparable awards for similar injuries as in the instant suit
thus arriving at grossly low award
3. The background of this appeal arises from the plaint filed on 18th January
2024 in which the plaintiff now appellant sued the defendant/respondent
based on the following facts:
a. On or about the 18/03/2023 the plaintiff, while standing along KisumuKakamega Road at4Nyota area, sustained very serious injuries when the
authorized rider, agent and /or servant of motor cycle registration
number KMGE 247K BOXER so negligently drove, managed and/or
controlled the said motor cycle that he caused it to lose control, veered off
the road and onto the pedestrian lane where the plaintiff was walking
and hit him and other two pedestrians from behind hence causing an
accident.
4. The claim was based on the particulars of negligence in which he suffered
the following particulars of injuries:
a. Left proximal tibial shaft fractures in anterolateral shift
b. Multiple segmental 3 fractures of the left fibula
c. Fracture of the right tibial/fibula
d. Tender swollen anterior neck
e. Bruises on the right hand along the wrist joint
5. The reason whereof he prayed or judgment to be entered against the
defendant for:
a. General damages
b. Special damages of Kshs 14,000
c. Costs of this suit
d. Loss of earning capacity and/or future earning
e. Interest on 1, 2 and 3 above at 14% interest rates
f. Any other relief that the court deems fit to grant
6. It is from the evidence adduced before the trial court by the plaintiff who
relied on the following documentary evidence:
a. Plaintiff’s ID card
b. Discharge Summary from Vihiga County Referral Hospital
c. Receipts for Kshs 1000.00 from Ritri Company Ltd
d. Receipt for Kshs 8,000.00 from Dr. Neema Mbaruku
e. Medical report
f. X-ray report from Ritri Imaging clinic
g. P3 form
h. Police Abstract
i. Motor vehicle search
j. Demand letter and certificate of postage
k. Receipt for Kshs 5,000.00 for legal fees, to discharge the burden of proof
under Section 107, 108, 109 of the Evidence Act on a balance of
probabilities. It appears from the record that the defendant elected not
to give evidence in answer to the allegations on negligence as claimed
by the plaintiff now appellant. It is in this premise the trial magistrate
delivered her judgment which is the subject matter of this appeal.
7. As at the time of writing this Judgment, the Appellant had not filed his
Written Submissions. The Respondent’s Written Submissions were dated
24th November 2025 and filed on 11th November 2025 (sic).
ANALYSIS
8. It is settled law that the duty of a first appellate court is to evaluate afresh
the evidence adduced before the trial court in order to arrive at its own
independent conclusion but bearing in mind that it neither saw nor heard
the witnesses testify.
9. This was aptly stated in the case of Selle & Another vs Associated Motor
Boat Co Ltd & Others [1968] EA 123 where the court therein held that
the appellate court was not bound by the findings of fact of the trial court
but that in re-considering and re-evaluating the evidence so as to draw its
own conclusions, it always had to bear in mind that it neither saw nor
heard the witnesses and thus make due allowance in that respect.
10. Having looked at the grounds of Appeal and the Respondent’s Written
Submissions, it appeared to this court that the only issue that had been
placed before it for determination was whether or not the quantum that
was awarded was low in the circumstances warranting interference by this
court.
11. The court deemed it prudent to address the issues under the following
distinct heads.
LOSS OF EARNINGS
12. The Respondent submitted that Dr. Neema Mbaruku’s medical report
indicated that the Appellant suffered fractures of both tibia and fibula and
that at the time of writing her medical report on 6th November 2023, he
was in the process of healing.
13. He asserted that Dr. Oketch Protas Were who re-examined the Appellant
on 15th July 2024 concluded that he had by then completely healed with
no resultant incapacitation. He added that in view of that conclusion that
he had fully recovered and considering the absence of any evidence on
earnings, there was no basis or justification for a claim for loss of earning
capacity.
14. He pointed out that the Trial Court held that although the Appellant had
not provided any proof of earning or economic activity, it could be inferred
that the Appellant suffered some degree of incapacitation for some months.
He argued, therefore, that the award of loss of earnings was reasonable in
the circumstances and there was no basis of disturbing the same.
15. Loss of income and/or future earnings must be pleaded and proved as
they are in the nature of special damages, whereas loss of earning capacity
is in the nature of general damages and need not be pleaded though it has
to be proved on a balance of probability as was held in the case of Cecilia
W. Mwangi & Another vs Ruth W. Mwangi [1997] eKLR.
16. That being the case, this court noted from the record and more specifically
the Plaint, that although the Respondent pleaded loss of earning capacity
and/or future earnings, he did lead evidence that he is an inform of worker
in what is generally described as jua kali sector in Kenya. However,
Douglas Kalafa Ombeva vs David Ngama [2013] eKLR, the Court of
Appeal held that:
“Loss of earnings is a special damage claim, and it is trite law that special
damages must be pleaded and proved. Where there is no evidence
regarding special damages, the court will not act in a vacuum or
whimsically”
17. The court acknowledges that the informal sector forms a bigger percentage
of the workforce in Kenya and which include vendors, mechanics, artisan,
electrician etc. The court cannot demand that proof of loss of earnings be
verifiable by way of accountable documents or receipts. Some of the
workers in this sector do not even pay taxes and their daily income may be
subjected to expenditure without any books of account to record the outlet
and inlet of income hand from the business one is involve on a daily,
weekly or monthly basis. It is therefore not possible to proof losses with
mathematical precision save for some reliable estimate of daily or weekly
earnings in which the plaintiff/victim of the accident may present before a
trial court.
18. Appellant sought loss of earnings capacity due to the severity of injuries
sustained during the accident. It is evident from the doctor’s medical report
that he suffered left leg healed scars from surgery, prominent would
medially and right leg similar scars seen. The X-ray on both leg showed
bilateral fractures of the tibia and fibula and comminuted fracture of the
left and bilateral leg fixation with intramedullary nailing done. In this
respect Dr. Neema Mbaruk accessed disability index at 20% and advised
physiotherapy session be carried out at an estimated cost of Kshs 30,000.
During the doctor visit by the appellant there is evidence that 8 months
down the line he was still complaining of pain on both legs and swelling
which was yet to subside. The learned trial magistrate exercised discretion
that post accident disability in terms of loss of income for the based in
appellant who was in the informal sector be assessed at Kshs 100,000. It
is trite law in Kenya that Kenyan’s court distinguished between loss of
future earnings capacity a general damages award compensating for the
risk of diminished employability. Courts use the multiplier and
multiplicand method, basing the assessment on the victim’s age,
remaining working life and prevailing labor market risks. There was no
evidence from the respondent to challenge the facts of the appellant being
an informal worker in the informal sector. The loss of income to be
assessed is to compensate for the loss suffered from the negligence
occasioned by the respondent’s motorcycle in which the appellant suffered
a disability of 20% which reduces chances of him actively involved in the
informal sector wide employment. As for this case using the statutory
minimum wage of informal workers at Vihiga County, the appellant could
be expected to earn between Kshs 7,000-9,000 a month and he was off
employment for over 8 months due to the gravity to the injuries during the
accident.
19. This is a matter of judicial discretion which empowers judges and
magistrates to make decisions based in individual circumstances and
principles of fairness rather that rigid, inflexible rules. this is what the
court reaffirmed in the cases of Mbogo v Shah (1968) supra. Similarly, in
Raytheon Co. v West (US) the court reaffirmed that lower courts are
provided with wide discretion in managing trial and admitting evidence
that court should only intervene upon a clear showing of an abuse of that
discretion. There is no evidence from the facts of this case that the learned
trial magistrate abused her discretion in awarding damages of Kshs
100,000 under this limb of loss of earnings attributed to the injuries
suffered by the appellant. It must be appreciated that judicial discretion is
usually considered a legal phenomenon, related to jurisprudential
questions about the boundaries of rules and the type of reasoning required
from judges and magistrates when making decisions in legal disputes. I
have come to understand in my practice that legal decision making is a
complex phenomenon that cannot be explained only by the mechanistic
application of legal rules. That is why judges and magistrates in their work
are exposed to very critical claims and response two distinct context. First,
it is the worldview and the social conflict framework. In terms of the legal
worldview judges and magistrates acknowledges various limitations on
rules and provision of the statutes as capable of determining a legal case.
For there are certain scenarios and circumstances when the rules and the
provisions of the law may miss the individual case. It is also true to state
that in terms of the social conflict framework judges and magistrates
acknowledge underlying needs and interest which are deeper that the legal
dispute and requires unique processing.
20. It is against this backdrop that the court captures the complexity and
hybrid nature of legal decision making in our courts as illustrated by the
trial court findings that the appellant was entitled to an award of Kshs
100,000 under the loss of earnings or income in that matter during the
time he was incapacitated due to the injuries suffered as opined by the
medical report admitted in evidence under Section 48 of the Evidence Act.
GENERAL DAMAGES
21. On a first appeal basically on assessment of damages only, the Court has
to re-evaluate the evidence, assess it and make its own conclusions
remembering that it has neither seen nor heard the witnesses and hence
due allowance must be made for this. See Selle v Associated Motor Boat
Company Ltd [1968] EA 123 at 126; Williamson Diamonds Ltd v
Brown [1970] EA 1.
22. 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 one, or that;
short of this, the amount is so inordinately low or so inordinately high that
it must be wholly erroneous estimate of the damage. See Kemfro Africa
Limited t/a Meru Express Service, Gathongo Kanini v AM Lubia and
Olive Lubia [1987] KLR 27 [1982-88]1 KAR 727 at 730
23. In assessment of damages, the general method of approach should be that
comparable injuries should as far as possible, be compensated by
comparable awards keeping in the correct level of awards in similar case.
24. The Respondent submitted that the award of Kshs 800,000/= for general
damages was adequate in the circumstances and should not be disturbed.
He placed reliance on the case of Paul Kithinji Kirimi & Another vs
Gatwiri Murithi Meru HCCA No 84 of 2017 where the plaintiff was
awarded Kshs 450,000/= having been revised from Kshs 700,000/= for
suffering a fracture of the right femur and mandible and the mandible was
managed by dental wiring and he required a surgery to remove the
implants.
25. He also relied on the cases of Harun Muyoma Boge vs Dr Daniel Otieno
Agulo Migori HCCA No 7 of 2015 and Simon Kimote vs Agro Solutions
Limited Migori HCCA No 90 of 2016 where the court awarded Kshs
300,000/= and Kshs 350,000/= respectively where the claimants
sustained fracture of the right tibia and fibula.
26. He contended that the claimants in the above authorities suffered injuries
which were graver than the ones sustained by the Appellant herein. He
urged the court to dismiss the Appellant’s appeal with costs.
27. It is well settled in law that an appellate court will not disturb an award
of general damages unless the same was so manifestly high or inordinately
excessive or manifestly or inordinately low that a trial court had proceeded
on the wrong principles or misapprehended the law, a principle that was
dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko
[2004] eKLR.
28. It had to be understood that money could never really compensate a
person who had sustained any injuries. No amount of money could remove
the pain that a person went through no matter how small an injury
appeared to be. It would in fact be difficult to say with certainty that a
particular amount of money would be commensurate with the injuries that
a person had sustained. It was merely an assessment of what a court
would find to be reasonable in the circumstances to assuage a person who
had suffered an injury.
29. However, this assessment was not without limits. A court had to ascertain
to itself the sum of general damages that courts and especially appellate
courts would ordinarily award in respect of a particular injury. A court
therefore had to be guided by precedents.
30. Indeed, in the case of Kigaraari vs Ava (1982-88) 1 KAR 768 as quoted
by this court in the case of Godfrey Wamalwa Wamba & Another vs
Kyalo Wambua[2018]eKLR, it was stated that damages had to be within
the limits set out by decided cases and also within the limits the Kenyan
economy could afford. This was because high awards would lead to higher
insurance premiums which would in turn affect the members of the public.
31. This court also had due regard to the case of Lim vs Camden HA [1980]
AC 174 where it was held that even in assessing compensatory damages,
the law sought to indemnify the victim for the loss suffered and not to
punish the tortfeasor for the injury that he had caused.
32. Similar injuries ought to attract comparable awards. However, in the
quest for consistency, courts also had to recognise that no case was exactly
the same as the other. It had to be noted that cases could not contain exact
injuries. They were merely for comparison purposes. Each case therefore
had to be decided according to its own peculiar circumstances but keeping
in mind that any monies awarded had to be sustainable.
33. Towards this end, an appellate court ought not to interfere with the
discretion of a trial court merely because it could have awarded a lower or
higher sum than that which was awarded by the trial court. It could only
interfere where the award of general damages was so manifestly high or
inordinately excessive or manifestly or inordinately low that a trial court
had proceeded on the wrong principles or misapprehended as was held in
the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra).
34. In his Plaint dated 18th January 2024 and filed on 8th February 2024, the
Appellant pleaded that he sustained left proximal tibia shaft fractures in
anterolateral shift, multiple segmental 3 fractures of the left fibula,
fracture of the right fibula/tibial, tender swollen anterior neck and bruises
on the right hand along the wrist joint.
35. He testified that he was treated at Vihiga County Referral Hospital. She
produced the P3 form, Discharge Summary, Medical Report from Dr
Neema and X-ray ultra sound and radiology report dated 19th January
2024 and 6th November 2023 as exhibits in court. The said Discharge
Summary indicated that the x-ray was done showed that she had
sustained a tibia fibula fracture with ankle dislocation.
36. The Medical Report of Dr Neema Mbaruku dated 6th November 2023 set
out the Appellant’s present complaints as pain in both legs, swelling of the
legs and generalized body pain all for eight (8) months period. At the time
of the medical examination, the Appellant was in fair general condition,
walking with assistance of an aide and using bilateral axillary crutches.
She added that he had stable vital signs. She opined that he had twenty
percent (20%) disability index and needed physiotherapy estimated at
thirty (30) sessions.
37. The Respondent produced a second medical report dated 15th July 2024
by Dr Oketch who opined that the Appellant had healed with no resultant
incapacitation. The Trial Court noted that Dr Neema being an orthopedic
surgeon was better versed with matters with regard to bones as opposed
to Dr Oketch who was a consultant surgeon. It, therefore, relied on her
medical report in awarding the Appellant.
38. Remaining faithful to the doctrine of stare decisis and taking the
inflationary trends into consideration, it was the considered view of this
court that general damages in the sum of Kshs 800,000/= that was
awarded by the Trial Court to have been inordinately low to warrant
interference of this court as the Appellant herein sustained fibula multiple
segmented fractures other than the tibial shaft fracture.
39. It is clear from the record that the learned magistrate placed reliance in
the case of Kimita v Travel Budget Express & Another Civil Appeal E042 of
2022 [2024] KEHC 6435) (KLR) where the learned Judge on appeal upheld
an award of Kshs 800,000 for fractures of right and left tibia and soft tissue
injuries to the left leg, forehead, left arm, chin and zygomatic area which
have healed scars. The facts of this awards can be contras distinguished
with that of the appellant who sustained the following injuries left proximal
tibial shaft fractures in anterolateral shift, multiple segmental 3 fractures
of the left fibula, fracture of the right tibia/fibula, tender swollen anterior
back and bruises on the right hand along the wrist joint. According to Dr.
Neema’s medical report, she observed that the plaintiff had sustained 20%
incapacitation, had metallic implants in situ and had deformities.
40. There is no dispute that the claimant in Kimita Case in which the learned
trial magistrate relied upon to exercise judicial discretion in assessment of
damages had no evidence of permanent disability of 20% incapacitation
and therefore it could not be proper dicta in so far as the appellant degree
of injuries suffered and the permanent negative impact occasion to that
effect. In my view the following authorities are more nearer to the facts of
the appellant circumstances and therefore calling for this court to review
the assessment of general damages for pain and suffering to an upward
range for the Kshs 800,000 is on the lower side of the bracket. Thus:
Hussein Ahmed Abdullahi-vs- Samira Mohamed Abdi [2017|eKLR
the court awarded general damages of Kshs. 2,500,000.00 to the plaintiff
who had sustained a fracture and dislocation of the radius ulna and had
been rendered 20 % incapacitated.
In the case of Linos Shisakha Andakalu -vs- George Kangethe
Mbugua &Another [2019] eKLR, an award on general Damages of Ksh.
3,000,000.00 was made where the plaintiff had as a result of the injuries
sustained become 30% incapacitated. In the instant suit the plaintiff has
20 % permanent incapacitation, will need removal of metallic implants on
both limbs and as at the time of testifying in court, was still on crutches.
In the case of Christine Mwigina Akonya -vs- Samuel Kairu Chege
[2017] eKLR, the court awarded the plaintiff Kenya Shillings Four Million
in general damages for a fracture of the right femur, fracture ribs 3-6,
pain in the right side of the chest and right thigh, and persistent pain in
the right knee.
In the case of Paul Guyo Wagoh -vs- Hussein Abdi Huka & Another
[2019] eKLR the plaintiff suffered bilateral comminuted femoral
fractures. The court reduced the award from Kenya Shillings Two Million
Five Hundred Thousand (Kshs. 2,500,000.00) to Kenya Shillings Two
Million (Kshs. 2,000,000.00) only for general damages since the plaintiff
therein had not suffered any permanent incapacitation.
41. It is well settled position of the law in Kenya that in the cases of permanent
disablement caused by a motor accident, the claimant is entitled to not
just future loss of income, but also future prospects. It has been reiterated
by this court in multiple instances that just compensation must be
interpreted in such a manner as to place the claimant in the same position
as he was before the accident took place. While assessing the
compensation for the appellant by the learned trial magistrate she did not
take into account the functional of disability which will have to be take into
account consideration for award of future loss of income. In the instant
appeal, the doctor had assessed physical disability whole body at 20%
which is never factored anywhere in the judgment of the trial court. The
entry recording the term ‘pain and suffering’ in P. Ramanatha Iyer's
Advanced Law Lexicon reads as under:
“Pain and suffering. The term ‘Pain and suffering’ mean physical
discomfort and distress and include mental and emotional trauma for
which damages can be recovered in an accident claim. This expression
has become almost a term of art, used without making fine distinction
between pain and suffering. Pain and suffering which a person
undergoes cannot be measured in terms of money by any mathematical
calculation. Hence the Court awards a sum which is in the nature of a
conventional award [Mediana, The, [1900] A.C. 113, 116]”
42. This concept always escapes definition by the trial courts when it comes
to assessment of damages and it must be admitted there are challenges on
how to achieve full compensation for both pecuniary and non-pecuniary
damages alike more so on Road Traffic Accident Victims. What is the
formula that is appropriate to be applied to attain the level of full
compensation on assessment of damages is not even crystal clear from the
parameter of placing reliance on award of damages in past cases or
precedents of Superior Courts. In very practical sense invoking judicial
discretion a court has to perform the difficult artificial task of converting
into monetary damages the physical injury and deprivation and pain and
to give judgement of what is to be considered to be a reasonable sum. It
rarely looks beyond the judgment to the spending of the damages. (See the
principles in H West & Son Ltd v Shephard [1964] A.C 326).
43. I am of the considered view upon appreciating and scrutinizing the trial
court record and the judgment which has been appealed against. The
learned trial magistrate in awarding compensation did not look at the case
in totality and the permanent disability which is also severe compounding
the social economic rights of the appellant. In such circumstance to
preserve the essence of justice it becomes the duty fog the trial court at the
very least to restore the claimant and in our case the appellant at best as
far as possible to the position he was in before the occurrence of the
disability and to do so must award compensation in a liberal manner.
44. It is therefore evident from the above discussion that the award of
damages of Kshs 800,000 for pain, suffering, loss of amenities and 20%
disability awarded by the trial court was inordinately low and the same
has to be reviewed upwards to Kshs 2.5 million as fair and proportionate
compensation for the appellant. As a consequence of this the appeal
succeeds to the extent of the following declarations. That:
a. The issue of liability settled at an apportionment at 80:20% in favour of
the appellant
b. That general damages, for pain, suffering, loss of amenities and 20%
permanent disability reviewed and enhanced to 2.5 million in favour of
the appellant
c. That loss of earnings affirmed at Kshs 100,000 in favour of the appellant
d. The special damages allowed at Kshs 8,500. Therefore, the total award
payable to the appellant is Kshs 2,608,500/= together with costs of the
suit and interest at court rates from the date of judgment for general
damages and from date of filing for special damages until payment in
full.
e. Orders accordingly.
DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.