1. In claims arising out of the tort of negligence in running down claims, there can be no liability without a fault. The burden of proving this fault lies upon the party who is alleging it.
Background Facts
2. This is a first appeal arising out of a running down claim. The dispute emanates from a road traffic accident that occurred on 5th February, 2018. The accident took place at the Bonje area along the Mombasa-Nairobi highway. It involved a Nissan Matatu, registration number KBK 153U, driven by the Appellant. The second vehicle was a Mercedes Benz Axor trailer, registration number KCG 511J-ZF 4202, owned by the Respondent.
3. The Appellant sustained severe physical injuries. These included a crush injury to the right leg. The injury necessitated a traumatic amputation below the knee. The Appellant instituted a suit in the subordinate Court seeking general and special damages. He pleaded that the Respondent's driver was negligent. He claimed the trailer veered off its lane and rammed into his matatu.
4. The Respondent filed a defence denying liability. The Respondent pleaded contributory negligence. It averred that the Appellant carelessly drove his matatu into the trailer's lawful lane. The Trial Court heard the evidence. On 25th May, 2023, Hon. Olivia Karonje delivered her judgment. She found that the Appellant failed to prove liability. She held the Appellant 100% liable for the accident and dismissed the suit with costs.
5. Aggrieved by the Trial Court's decision, the Appellant lodged the present appeal. The Memorandum of Appeal is dated 26th June, 2023. The Appellant challenges the entirety of the judgment.
6. The grounds of appeal are reproduced as follows:
1. THAT the Learned Magistrate erred in law and in fact on (sic) relying solely on an investigative report prepared by the Respondent to hold the Appellant 100% liable for the accident thereby arriving at an erroneous decision.
2. THAT the Learned Magistrate erred in law and in fact in holding that the Appellant was 100% liable for the accident for failure to produce sketch maps and/or the Police file despite the Respondent failing to call a Police Officer to testify.
3. THAT the Learned Magistrate erred in law and in fact in holding that the Appellant's motor vehicle registration number KBK 153U moved to the lane of Motor vehicle registration number KCG 511J-ZF 4202 despite the absence of any evidence in support. She thus meted out an injustice.
4. THAT the Learned Magistrate erred in law and in fact in holding that the Appellant was 100% to blame for the accident based solely on the damage to parties' motor vehicles.
5. THAT the Learned Magistrate erred in law and in fact in holding that the Respondent's evidence was sufficient to discharge it from liability, without considering material and crucial evidence from the Appellant thus committing an injustice.
6. THAT the Learned magistrate erred in law and in fact in disregarding the evidence of the Appellant and taking into account extraneous issues hence arriving at a decision that was erroneous and against the evidence that was placed before her.
7. THAT he Learned Magistrate erred in law and in fact by subjecting the Appellant to a burden of proof that is beyond reasonable doubt, a standard too high for civil cases on the basis that the Appellant failed to prove liability.
8. THAT the Learned Magistrate erred in law and in disregarding the Appellant's submissions on thereby arriving into wrong a wrong (sic) decision and Judgment.
9. THAT the Learned Trial Magistrate erred in law and in fact in assessing a manifestly low amount of general damages without regard to the nature of injuries sustained.
10. THAT the Learned Trial Magistrate's decision was arrived at in a perfunctory manner in consideration of the irrelevant factors while leaving out relevant ones in dismissing the Appellant's case.
7. The Appellant seeks the following reliefs as set out in the Memorandum of Appeal:
(a) Allow this Appeal and set aside the Judgement delivered on 25/05/2023.
(b) The costs of this appeal and those of the subordinate Court be awarded to the Appellant.
8. The appeal was canvassed through written submissions. The Appellant submitted that the Trial Court ignored his evidence. He argued that the Respondent's heavy commercial trailer was driven recklessly. He contended that a carefully driven trailer could not overturn upon impact with a lighter matatu.
9. The Appellant relied on the High Court decision in Simon Waweru Mugo v Alice Mwongeli Munyao [2020] KEHC 2734 (KLR). He cited it for the proposition that:
“There are certain things that do not normally occur in the absence of negligence and upon proof of these a court will probably hold that there is a case to answer See Roe v Ministry of Health (1954) AC Pages 66, 87- 88 Morris LJ.
A carefully driven vehicle does not overturn on the road, unless it was over speeding. A carefully driven vehicle does not just ram into another vehicle unless the driver was overspeeding on the road or unless the vehicle’s brakes were faulty.”
10. The Appellant further challenged the Respondent's reliance on police abstracts. He cited Beatrice Nabwile Maelo (Suing as the legal representative of the estate of the late Godfrey Barasa Syangu) v Khetia Drapers Limited [2020] KEHC 2101 (KLR) for the proposition that:
"The mere production of the abstract form whether by consent or through a witness does not respectfully indicate the guilty party. The only evidence of culpability is through a court adjudication...".
11. The Respondent opposed the appeal. The Respondent submitted that the Appellant failed to discharge his evidentiary burden. The Respondent highlighted a critical twist in the factual matrix. Passengers in the Appellant's matatu had sued the Appellant in separate suits (Mariakani SRMCC 349 of 2018, 102 of 2018, and 347 of 2018). In those suits, the passengers blamed the Appellant entirely. Judgments were entered against the Appellant as the author of the accident.
12. The Respondent cited the Court of Appeal decision in CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd) [1978] KECA 9 (KLR) which held:
"Pleadings contain the averments of the facts concerned and until they are proved or disapproved (sic) or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence".
13. The Respondent also relied on Catherine Wambui Njogu v Jacob Mash Shake & another [2019] KEHC 181 (KLR). It quoted the Court which held:
"I reiterate that the burden was on the respondent to establish, not only that an accident occurred that led to the deceased's death, but that the defendant was solely to blame for the accident".
Issues for Determination
14. This Court has reviewed the pleadings, the record of the Trial Court, the grounds of appeal, and the rival submissions filed by Counsel for the parties. This Court frames two issues for determination as follows:
a) Whether the Appellant discharged the burden of proof to establish liability and negligence against the Respondent.
b) Whether the Trial Court correctly assessed the quantum of damages.
Analysis
15. This is a first appeal. The duty of a first Appellate Court is well entrenched in our jurisprudence. The Court must reconsider the evidence on record. It must evaluate it independently. It must draw its own conclusions.
16. This principle was laid down by the predecessor of the Court of Appeal in the locus classicus case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123. The Court stated:
"An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally".
a) Whether the Appellant discharged the burden of proof to establish liability and negligence against the Respondent.
17. The current law on how liability attaches in running down claims is grounded in the tort of negligence. Negligence is a question of fact. It must be proved by the party alleging it. The burden of proof is statutorily domiciled in Section 107 of the Evidence Act (Cap 80, Laws of Kenya).
18. Section 107 mandates that whoever desires any Court to give judgment as to any legal right or liability must prove that the facts asserted exist. The standard of proof is on a balance of probabilities.
19. How is this burden discharged, and does it shift? The legal burden of proof remains constant on the Plaintiff. However, the evidential burden may shift to the Defendant once the Plaintiff establishes a prima facie case.
20. A prima facie case can be established through direct evidence, such as eyewitness testimony, police sketch maps, or the doctrine of res ipsa loquitur. If the Plaintiff fails to present credible evidence, the burden never shifts. The Defendant is not required to prove their innocence.
21. Did the Appellant discharge or shift this burden? The Trial Court answered in the negative. This Court has reviewed the evidence. The accident occurred on a dual carriageway. A physical trench separated the lanes heading to Nairobi from those heading to Mombasa.
22. The Appellant (PW2) testified that he was driving uphill at 30 km/hr. He claimed the Respondent's trailer veered into his lane. Conversely, the Respondent's driver (DW1) testified that the Appellant's matatu crossed the dividing trench. The matatu rammed into the right side of the trailer's fuel tank.
23. The physical evidence severely undermines the Appellant's narrative. The trailer was struck on its right offside fuel tank. The matatu suffered front right damage. If the trailer had veered into the Appellant's lane, a head-on collision or frontal damage to the trailer would be the logical outcome. The point of impact corroborates the Respondent's version.
24. The Appellant's failure to produce a police sketch map severely compromised his case. A sketch map provides an objective illustration of the point of impact. The Appellant only produced a police abstract (PExh-2). PW1, the police officer who produced it, admitted she did not visit the scene. The abstract initially blamed no one. Later, an updated abstract (DExh-2) explicitly blamed the Appellant.
25. As correctly cited by the Appellant in Beatrice Nabwile Maelo, a police abstract is not conclusive proof of culpability. However, it forms part of the evidentiary mosaic. When combined with the lack of a sketch map and the physical damage, the abstract severely weakens the Appellant's case. Furthermore, the Court of Appeal in Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR) cemented that failure to call the investigating officer or produce a sketch plan leaves a gaping hole in a Plaintiff's case.
26. The Respondent sought to introduce a twist to the proceedings. The Appellant's own passengers sued him for this very accident. The Respondent sought that this Court take judicial notice that in Mariakani SRMCC 349 of 2018, the passengers secured a judgment wholly blaming the Appellant. The Appellant was adjudged to be the author of his own misfortune. Hence, he cannot now seek to pass the liability to the Respondent. There was no evidence of this judgment or proceedings tabled before the Trial Court during the hearing. The Trial Court was referred to this evidence during submissions. It made no reference to those Court proceedings in its judgment. This Court would equally ignore attempts to introduce evidence by way of submissions.
27. The Appellant argues that a heavy trailer cannot overturn from a matatu's impact unless it was over speeding. This reasoning is flawed. A lateral strike to a trailer's fuel tank disrupts its centre of gravity. At highway speeds, such an impact easily precipitates a rollover. The Appellant failed to establish a prima facie case. The evidential burden never shifted to the Respondent. The Trial Court was entirely correct. The Court finds that no liability attaches to the Respondent.
b) Whether the Trial Court correctly assessed the quantum of damages.
28. Although the appeal on liability fails, it is standard practice for an Appellate Court to touch on quantum. This ensures a complete record. The Trial Court prudently assessed damages at Kshs. 2,802,000, broken down as follows:
(a) General Damages (Pain & Suffering) Kshs. 2,500,000.00
(b) Future Medical Costs Kshs. 300,000.00
(c) Special Damages Kshs. 2,000.00
TOTAL Kshs. 2,802,000.00
29. The Appellant argues that the general damages award of Kshs. 2,500,000 is manifestly low. The Appellant suffered a crush injury leading to a below-knee amputation of the right leg. Permanent disability was assessed at 30%.
30. The jurisprudence of this Court dictates that an Appellate Court will not interfere with an award of damages unless it is inordinately high or low, or based on wrong principles. In John Kipkemboi & another v Morris Kedolo [2019] KEHC 8736 (KLR) the Court upheld an award of Kshs. 2,500,000 for a similar below-knee amputation. The Trial Court's assessment aligns perfectly with current judicial trends. It is within the range. It is neither perfunctory nor erroneous.
31. The Appellant also faults the Trial Court for failing to award damages for loss of future earning capacity. He claimed a monthly income of Kshs. 21,942. The Trial Court declined the award, noting the Appellant failed to prove his earnings or demonstrate a total inability to secure alternative employment.
32. This Court concurs with the Trial Court. A claim for loss of earning capacity must be proved by cogent evidence. The Court of Appeal in Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR) held that such claims fail without adequate proof of pre-accident income. The Appellant produced no pay slips or bank statements. He did not discharge his burden.
33. The assessment of future medical expenses (Kshs. 300,000 for a prosthesis) and special damages (Kshs. 2,000 for the medical report) was grounded in uncontroverted documentary evidence. This Court is not persuaded that it should impeach the Trial Court’s assessment of quantum.
34. From a comprehensive review of the facts and evidence, this Appellate Court cannot find the Respondent liable in negligence. The Appellant failed to prove his case on a balance of probabilities. He failed to produce crucial evidence, such as a police sketch map. The Trial Magistrate was not persuaded that negligence had been proved. Having reviewed the evidence presented before the Trial Court, this Court reaches a similar conclusion.
35. The Trial Court properly evaluated the evidence. It arrived at a legally sound conclusion. There is no justification to interfere with the Trial Court's findings on either liability or the assessment of quantum.
36. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. They are awarded to the successful Respondent.
Determination
37. In conclusion, the Court finds that the appeal is bereft of merit and makes the following orders:
(a) The Appeal is HEREBY dismissed in its entirety.
(b) The costs of the Appeal are awarded to the Respondent.
38. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Juma holding brief for Miss Otuya for the Appellant.
Miss Wamaitha for the Respondent.
Mr. Mohamed - Court Assistant.
Background Facts
2. This is a first appeal arising out of a running down claim. The dispute emanates from a road traffic accident that occurred on 5th February, 2018. The accident took place at the Bonje area along the Mombasa-Nairobi highway. It involved a Nissan Matatu, registration number KBK 153U, driven by the Appellant. The second vehicle was a Mercedes Benz Axor trailer, registration number KCG 511J-ZF 4202, owned by the Respondent.
3. The Appellant sustained severe physical injuries. These included a crush injury to the right leg. The injury necessitated a traumatic amputation below the knee. The Appellant instituted a suit in the subordinate Court seeking general and special damages. He pleaded that the Respondent's driver was negligent. He claimed the trailer veered off its lane and rammed into his matatu.
4. The Respondent filed a defence denying liability. The Respondent pleaded contributory negligence. It averred that the Appellant carelessly drove his matatu into the trailer's lawful lane. The Trial Court heard the evidence. On 25th May, 2023, Hon. Olivia Karonje delivered her judgment. She found that the Appellant failed to prove liability. She held the Appellant 100% liable for the accident and dismissed the suit with costs.
5. Aggrieved by the Trial Court's decision, the Appellant lodged the present appeal. The Memorandum of Appeal is dated 26th June, 2023. The Appellant challenges the entirety of the judgment.
6. The grounds of appeal are reproduced as follows:
1. THAT the Learned Magistrate erred in law and in fact on (sic) relying solely on an investigative report prepared by the Respondent to hold the Appellant 100% liable for the accident thereby arriving at an erroneous decision.
2. THAT the Learned Magistrate erred in law and in fact in holding that the Appellant was 100% liable for the accident for failure to produce sketch maps and/or the Police file despite the Respondent failing to call a Police Officer to testify.
3. THAT the Learned Magistrate erred in law and in fact in holding that the Appellant's motor vehicle registration number KBK 153U moved to the lane of Motor vehicle registration number KCG 511J-ZF 4202 despite the absence of any evidence in support. She thus meted out an injustice.
4. THAT the Learned Magistrate erred in law and in fact in holding that the Appellant was 100% to blame for the accident based solely on the damage to parties' motor vehicles.
5. THAT the Learned Magistrate erred in law and in fact in holding that the Respondent's evidence was sufficient to discharge it from liability, without considering material and crucial evidence from the Appellant thus committing an injustice.
6. THAT the Learned magistrate erred in law and in fact in disregarding the evidence of the Appellant and taking into account extraneous issues hence arriving at a decision that was erroneous and against the evidence that was placed before her.
7. THAT he Learned Magistrate erred in law and in fact by subjecting the Appellant to a burden of proof that is beyond reasonable doubt, a standard too high for civil cases on the basis that the Appellant failed to prove liability.
8. THAT the Learned Magistrate erred in law and in disregarding the Appellant's submissions on thereby arriving into wrong a wrong (sic) decision and Judgment.
9. THAT the Learned Trial Magistrate erred in law and in fact in assessing a manifestly low amount of general damages without regard to the nature of injuries sustained.
10. THAT the Learned Trial Magistrate's decision was arrived at in a perfunctory manner in consideration of the irrelevant factors while leaving out relevant ones in dismissing the Appellant's case.
7. The Appellant seeks the following reliefs as set out in the Memorandum of Appeal:
(a) Allow this Appeal and set aside the Judgement delivered on 25/05/2023.
(b) The costs of this appeal and those of the subordinate Court be awarded to the Appellant.
8. The appeal was canvassed through written submissions. The Appellant submitted that the Trial Court ignored his evidence. He argued that the Respondent's heavy commercial trailer was driven recklessly. He contended that a carefully driven trailer could not overturn upon impact with a lighter matatu.
9. The Appellant relied on the High Court decision in Simon Waweru Mugo v Alice Mwongeli Munyao [2020] KEHC 2734 (KLR). He cited it for the proposition that:
“There are certain things that do not normally occur in the absence of negligence and upon proof of these a court will probably hold that there is a case to answer See Roe v Ministry of Health (1954) AC Pages 66, 87- 88 Morris LJ.
A carefully driven vehicle does not overturn on the road, unless it was over speeding. A carefully driven vehicle does not just ram into another vehicle unless the driver was overspeeding on the road or unless the vehicle’s brakes were faulty.”
10. The Appellant further challenged the Respondent's reliance on police abstracts. He cited Beatrice Nabwile Maelo (Suing as the legal representative of the estate of the late Godfrey Barasa Syangu) v Khetia Drapers Limited [2020] KEHC 2101 (KLR) for the proposition that:
"The mere production of the abstract form whether by consent or through a witness does not respectfully indicate the guilty party. The only evidence of culpability is through a court adjudication...".
11. The Respondent opposed the appeal. The Respondent submitted that the Appellant failed to discharge his evidentiary burden. The Respondent highlighted a critical twist in the factual matrix. Passengers in the Appellant's matatu had sued the Appellant in separate suits (Mariakani SRMCC 349 of 2018, 102 of 2018, and 347 of 2018). In those suits, the passengers blamed the Appellant entirely. Judgments were entered against the Appellant as the author of the accident.
12. The Respondent cited the Court of Appeal decision in CMC Aviation Ltd v Kenya Airways Ltd (Cruisair Ltd) [1978] KECA 9 (KLR) which held:
"Pleadings contain the averments of the facts concerned and until they are proved or disapproved (sic) or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Proof is the foundation of evidence".
13. The Respondent also relied on Catherine Wambui Njogu v Jacob Mash Shake & another [2019] KEHC 181 (KLR). It quoted the Court which held:
"I reiterate that the burden was on the respondent to establish, not only that an accident occurred that led to the deceased's death, but that the defendant was solely to blame for the accident".
Issues for Determination
14. This Court has reviewed the pleadings, the record of the Trial Court, the grounds of appeal, and the rival submissions filed by Counsel for the parties. This Court frames two issues for determination as follows:
a) Whether the Appellant discharged the burden of proof to establish liability and negligence against the Respondent.
b) Whether the Trial Court correctly assessed the quantum of damages.
Analysis
15. This is a first appeal. The duty of a first Appellate Court is well entrenched in our jurisprudence. The Court must reconsider the evidence on record. It must evaluate it independently. It must draw its own conclusions.
16. This principle was laid down by the predecessor of the Court of Appeal in the locus classicus case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123. The Court stated:
"An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally".
a) Whether the Appellant discharged the burden of proof to establish liability and negligence against the Respondent.
17. The current law on how liability attaches in running down claims is grounded in the tort of negligence. Negligence is a question of fact. It must be proved by the party alleging it. The burden of proof is statutorily domiciled in Section 107 of the Evidence Act (Cap 80, Laws of Kenya).
18. Section 107 mandates that whoever desires any Court to give judgment as to any legal right or liability must prove that the facts asserted exist. The standard of proof is on a balance of probabilities.
19. How is this burden discharged, and does it shift? The legal burden of proof remains constant on the Plaintiff. However, the evidential burden may shift to the Defendant once the Plaintiff establishes a prima facie case.
20. A prima facie case can be established through direct evidence, such as eyewitness testimony, police sketch maps, or the doctrine of res ipsa loquitur. If the Plaintiff fails to present credible evidence, the burden never shifts. The Defendant is not required to prove their innocence.
21. Did the Appellant discharge or shift this burden? The Trial Court answered in the negative. This Court has reviewed the evidence. The accident occurred on a dual carriageway. A physical trench separated the lanes heading to Nairobi from those heading to Mombasa.
22. The Appellant (PW2) testified that he was driving uphill at 30 km/hr. He claimed the Respondent's trailer veered into his lane. Conversely, the Respondent's driver (DW1) testified that the Appellant's matatu crossed the dividing trench. The matatu rammed into the right side of the trailer's fuel tank.
23. The physical evidence severely undermines the Appellant's narrative. The trailer was struck on its right offside fuel tank. The matatu suffered front right damage. If the trailer had veered into the Appellant's lane, a head-on collision or frontal damage to the trailer would be the logical outcome. The point of impact corroborates the Respondent's version.
24. The Appellant's failure to produce a police sketch map severely compromised his case. A sketch map provides an objective illustration of the point of impact. The Appellant only produced a police abstract (PExh-2). PW1, the police officer who produced it, admitted she did not visit the scene. The abstract initially blamed no one. Later, an updated abstract (DExh-2) explicitly blamed the Appellant.
25. As correctly cited by the Appellant in Beatrice Nabwile Maelo, a police abstract is not conclusive proof of culpability. However, it forms part of the evidentiary mosaic. When combined with the lack of a sketch map and the physical damage, the abstract severely weakens the Appellant's case. Furthermore, the Court of Appeal in Ndiritu (Suing as Administrator for the Estate of George Ndiritu Kariamburi - Deceased) v Ropkoi & another [2004] KECA 65 (KLR) cemented that failure to call the investigating officer or produce a sketch plan leaves a gaping hole in a Plaintiff's case.
26. The Respondent sought to introduce a twist to the proceedings. The Appellant's own passengers sued him for this very accident. The Respondent sought that this Court take judicial notice that in Mariakani SRMCC 349 of 2018, the passengers secured a judgment wholly blaming the Appellant. The Appellant was adjudged to be the author of his own misfortune. Hence, he cannot now seek to pass the liability to the Respondent. There was no evidence of this judgment or proceedings tabled before the Trial Court during the hearing. The Trial Court was referred to this evidence during submissions. It made no reference to those Court proceedings in its judgment. This Court would equally ignore attempts to introduce evidence by way of submissions.
27. The Appellant argues that a heavy trailer cannot overturn from a matatu's impact unless it was over speeding. This reasoning is flawed. A lateral strike to a trailer's fuel tank disrupts its centre of gravity. At highway speeds, such an impact easily precipitates a rollover. The Appellant failed to establish a prima facie case. The evidential burden never shifted to the Respondent. The Trial Court was entirely correct. The Court finds that no liability attaches to the Respondent.
b) Whether the Trial Court correctly assessed the quantum of damages.
28. Although the appeal on liability fails, it is standard practice for an Appellate Court to touch on quantum. This ensures a complete record. The Trial Court prudently assessed damages at Kshs. 2,802,000, broken down as follows:
(a) General Damages (Pain & Suffering) Kshs. 2,500,000.00
(b) Future Medical Costs Kshs. 300,000.00
(c) Special Damages Kshs. 2,000.00
TOTAL Kshs. 2,802,000.00
29. The Appellant argues that the general damages award of Kshs. 2,500,000 is manifestly low. The Appellant suffered a crush injury leading to a below-knee amputation of the right leg. Permanent disability was assessed at 30%.
30. The jurisprudence of this Court dictates that an Appellate Court will not interfere with an award of damages unless it is inordinately high or low, or based on wrong principles. In John Kipkemboi & another v Morris Kedolo [2019] KEHC 8736 (KLR) the Court upheld an award of Kshs. 2,500,000 for a similar below-knee amputation. The Trial Court's assessment aligns perfectly with current judicial trends. It is within the range. It is neither perfunctory nor erroneous.
31. The Appellant also faults the Trial Court for failing to award damages for loss of future earning capacity. He claimed a monthly income of Kshs. 21,942. The Trial Court declined the award, noting the Appellant failed to prove his earnings or demonstrate a total inability to secure alternative employment.
32. This Court concurs with the Trial Court. A claim for loss of earning capacity must be proved by cogent evidence. The Court of Appeal in Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR) held that such claims fail without adequate proof of pre-accident income. The Appellant produced no pay slips or bank statements. He did not discharge his burden.
33. The assessment of future medical expenses (Kshs. 300,000 for a prosthesis) and special damages (Kshs. 2,000 for the medical report) was grounded in uncontroverted documentary evidence. This Court is not persuaded that it should impeach the Trial Court’s assessment of quantum.
34. From a comprehensive review of the facts and evidence, this Appellate Court cannot find the Respondent liable in negligence. The Appellant failed to prove his case on a balance of probabilities. He failed to produce crucial evidence, such as a police sketch map. The Trial Magistrate was not persuaded that negligence had been proved. Having reviewed the evidence presented before the Trial Court, this Court reaches a similar conclusion.
35. The Trial Court properly evaluated the evidence. It arrived at a legally sound conclusion. There is no justification to interfere with the Trial Court's findings on either liability or the assessment of quantum.
36. As to costs, the same ordinarily follow the event and lie at the discretion of this Court. They are awarded to the successful Respondent.
Determination
37. In conclusion, the Court finds that the appeal is bereft of merit and makes the following orders:
(a) The Appeal is HEREBY dismissed in its entirety.
(b) The costs of the Appeal are awarded to the Respondent.
38. It is so ordered.
DATED, SIGNED AND DELIVERED AT MALINDI THIS 17TH DAY OF SEPTEMBER, 2026
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Mr. Juma holding brief for Miss Otuya for the Appellant.
Miss Wamaitha for the Respondent.
Mr. Mohamed - Court Assistant.