1. The Appellant Benard Cheruiyot Koech, was aggrieved by the decision of
the Senior Principal Magistrate at Kapsabet on quantum of damages made
on 29
th March 2021 in Kapsabet CMCC No. 103 of 2017 and proffered six
[6] grounds of appeal in respect thereof. He therefore prays that the award
of damages made by the trial court be set aside and substituted for an
enhanced award of damages commensurate with the injuries sustained by
himself and the consequential effects.
2. The claim by the Appellant/Plaintiff against the Respondent/ Defendant,
Debroso Construction Company Limited, arose from a road traffic
accident which occurred on the 22
nd December 2016 along the Kapsabet-
Chavakali road at Kamobo involving the Appellant’s Motor Vehicle
Registration KCF 844Q and the Respondent’s Motor Vehicle Registration
No. KCG 730P and which resulted in the Appellant suffering serious bodily
injuries for which he encountered loss and damages inclusive of general
damages, special damages and damages for loss of income and for future
medical expenses.
3. The Respondent in his defence denied the claim in its totality, but at the
hearing of the matter the parties entered into a consent on liability to the
effect that liability be apportioned in the ratio of 75%:25% in favour of the
Plaintiff/Appellant. The consent was adopted as an order of the court.
Accordingly, the only issue which fell for determination by the trial court was
the question of quantum of damages.
4. In that regard, the trial court after consideration of the evidence availed
before itself deemed it fit to award only general damages to the Plaintiff/
Appellant for pain and loss of earning in the total sum of 700,000/- less 25%
contributory negligence i.e. Kshs. 450,000/-.
The award provoked this appeal which is opposed by the Respondent and
was canvassed herein by way of written submissions filed herein by Messrs
Nyamurongi & Company Advocates on behalf of the Appellant and
Messrs Mose, Mose & Mose Advocates on behalf of the Respondent.
5. Being an appeal on quantum of damages, this court must be guided by the
principles set out by the Court of Appeal in the case of Kemfro Africa
Limited t/a Meru Express Services [1976] & Another Vs. Aziri Kamu
Mudika Lubia & Another [1982 – 1988]1 KAR 727.
Where it was stated that: -
“The principles to be observed by an Appellate Court in
deciding whether it is justified in disturbing the quantum of
damages awarded by a trial judge were held by the former
Court of Appeal of Eastern Africa to be that it must be
satisfied that either that the judge, in assessing the
damages took into account an irrelevant factor, or left out of
account a relevant one, or that, short of this, the amount is
so inordinately low or so inordinately high that it must be a
wholly erroneous estimate of the damage.”
6. The same principles were applied in many other cases which arose at
different stages in time including, Butt Vs. Khan [198] KLR 349 and
Kitavi Vs. Coastal Bottlers Limited [1985]KLR 470.
In the former case [Butt] the Court of Appeal held that the Appellate Court
cannot interfere with the decision of trial court unless it is shown that the
judge proceeded on the wrong principle of law and arrived at misconceived
estimates and in the later case [Kitavi] the Court of Appeal held that an
Appellate Court should only disturb an award of damages when the trial
judge has taken into account a factor he ought not to have or failed to take
into account something he ought to have or if the award is so high or so low
that it amounts to an erroneous estimate.
7. In essence, damages in law are not just about monetary compensation, but
also redress and restoration.
Whereas general damages are not quantifiable, hence cannot be monetarily
measured, special damages are monetarily quantifiable.
The Plaintiff/Appellant pleaded in his statement of claim dated 14
th April
2017 that he suffered loss of consciousness for about three [3] hours.
Fracture of the right femur with swelling of the right leg, several cut wounds
on the right upper pre-libial area and multiple soft tissues injuries.
8. Such injuries fell within the realm of general damages together with the claim
for loss of income or earnings either present or future.
The medical reports dated 20
th January 2017 and 13
th December 2020 [P.
Exhibit 4 & D Exhibit 1] compiled by Dr. Raute and Dr. Obondi
respectively more or less confirmed the injuries thereby confirming that the
Plaintiff was entitled to general damages for pain, suffering and loss of
amenities as pleaded in paragraph 6[a][b] and loss of income [earnings] as
pleaded in paragraph 6[e] of the Plaint.
9. It is settled that the Award of damages is a matter within the discretion of the
trial court and cannot be interfered with by an appellate court unless the
discretion was exercised in breach of the applicable principles as set out in
the case of Charles Okiwo Odeyo Vs. Appollo Justus Andabwa &
Another [2017] eKLR, to wit: -
(1)An award of damages is not meant to enrich the victim but to
compensate such victim for the injuries sustained.
(2)The award should be commensurate with the injuries
sustained.
(3)Previous awards in similar injuries sustained are mere guide
but each case be treated on its own facts.
(4)Previous awards be taken into account to maintain stability of
awards but factor such as inflation should be taken into
account.
(5)The awards should not be inordinately low or high.
[See also, John Kipkemboi & Another Vs. Morris Kedolo [2019] e
KLR and Boniface Waiti & Another Vs. Michael Kariuki Kamau
[2007] eKLR]
No amount of money is enough to compensate for bodily injuries but the
court is required to do the best it can on the basis of the parameters
specified hereinabove.
10. In this case, the trial court awarded a sum of Kshs. 700,000/- less 25%
contributory negligence i.e. Kshs. 450,000/- as general damages for pain
and loss of earnings. This was in effect a wholly inclusive or joint award for
both pain and loss of earnings and appears to have been the ignition key for
this appeal.
11. The trial court in arriving at the impugned award apparently relied on
the medical report by Dr. Obondi [D. Exhibit 1] dated 13
th December 2020
more than that of Dr. Raule [P. Exhibit 4] dated 20
th January 2017 is
assessing general damages for pain, suffering and loss of amenities and in
doing so, stated as follows: -
“There is no doubt that Koech [meaning Plaintiff] was
reviewed 4 years after occurrence of accident. The
discharge summary produced as P. Exhibit 2a from
racecourse hospital confirms that Koech was hospitalized
on the 22.12.2016 and discharged on the 27.02.2016 having
suffered a fracture of the right fibular femur 1/3 and ‘k’nail
insertion recommended. He had attended 2 section of
physiotherapy at Londiani Sub County Hospital as at
20.01.2017.”
12. The court stated further that: -
“There is no documentary evidence of loss of
consciousness even though Koech pleaded loss of
consciousness for 3 hours in his plaint filed in court on
13.06.2017. The statement of Koech filed in court on
13.06.2017 is silent on him having suffered loss of
consciousness as result of occurrence of the accident.
Koech testified in court on the 16.09.2019 and stated that he
had healed properly save that he cannot drive a vehicle
unless the K nail inserted on his right leg is removed. As
per Dr. Obondi who reviewed the Plaintiff on 13.12.2020,
there is no evidence of permanent disability suffered by
Plaintiff as opposed to when he was attended to by Dr.
Raule on the 20.1.2017. I find the report of Dr. Obondi to be
more reliable in providing the current status of the Plaintiff
than Dr. Raules.”
13. The trial court therefore concluded that the Plaintiff suffered a fracture
of the right femur with no permanent disability as indicated in the medical
report by Dr. Obondi which was the latest and disclosed the Plaintiff’s
current status as opposed to the report by Dr. Raute compiled during the
healing process. This court would find no reason to disagree with the
finding aforementioned as it was based on solid and reliable medical
evidence which clearly disclosed that the major injury suffered by the Plaintiff
was the fracture of the right femur. The other proven injuries were less
serious comprising of cut wound and multiple soft tissue injuries.
14. It is clear from the impugned judgment of the trial court that the court
took into consideration comparable cases cited by both parties and settled
for the sum of Kshs. 700,000/- less 25% contributory negligence as
adequate and reasonable compensation for pain, suffering and loss of
amenities even though the Plaintiff had proposed a sum of Kshs 2[two]
million and the Defendant a sum of Kshs. 300,000/-.
15. Notably, there was no mention of the claim for loss of income or
earning in the judgment thereby implying that it was omitted despite having
been pleaded by the Plaintiff as such loss rather than loss of earning
capacity. These are district sets of damages as herein alluded to by the
Respondent in its submissions in which it submitted that the Plaintiff/
Appellant pleaded for lost income at the rate of Kshs. 6,492/- yet in the
memorandum of appeal be introduced a totality different claim of loss of
earning capacity.
16. Indeed, ground one [1] of the memorandum of appeal alludes to the
appellant losing his earning capacity as a driver. This was completely
different from what was pleaded in paragraph [6] [e] of the plaint as follows: -
“[e] Particulars of lost income:
At the time of the accident the Plaintiff was a driver
contracted by United Millers Limited earning Kshs. 1,082/-
per day for 6 working day per week. The Plaintiff has been
unable to resume his employment and has and is suffering
loss of income which he claims at the rate of Kshs. 6,492/-
per week with effect from 22.12.2016.”
17. In his evidence By way of his witness statement dated 14tth April 2017,
the Appellant never provided any material in support of the pleading, neither
did he mention about the claim and show how he suffered loss and damage
in that regard. To complicate matters and create more uncertainly as to what
the Plaintiff was claiming between loss of earning and loss of earning
capacity he submitted before the trial court that general damages for loss of
earning capacity can be awarded under the composite head of general
damages or as a separate award. He cited the Court of Appeal decision in
Sosphinaf Company Limited James Gatiku Ndoto Vs. Daniel Ng’ang’a
Kanyi [2006] e KLR to buttress the point.
18. Oblivious of the fact that a party is bound by his pleadings, the Plaintiff
proceeded to claim and pray for damages for loss of earning capacity, yet in
his pleadings he claimed and prayed for loss of income/ earnings.
In the case of SJ Vs. Franscesco Di Nello & Another [2005] e KLR, cited
herein by the Respondent the Court of Appeal held that loss of income of
future earning is compensated for real assessable loss which is proved by
evidence.
19. The factors foregoing clearly show that damages for loss of earning/
income and damages for loss of earning capacity are distinct. Whereas
loss of earnings/ income falls under the category of special damages, loss of
earning capacity falls under general damages [See, Apharana Limited Vs.
John Murigi Wairegi [2018] e KLR]
20. In the American Case of Connolly Vs. Pre-Mixed Concrete
Company [1957] 49 Cal 2d 483, it was held that: -
“Loss of earning power is an element of general damages
which can be inferred from the nature of the injury without
proof of earnings or income either before or after the injury
and damages in this respect are awarded for the loss of
ability thereafter to earn money.”
It would follow that to recover damages for loss of earnings, a claimant must
prove the amount of earnings he will be reasonably certain to lose in the
future as a result of the injury. But, to recover damages for loss of capacity
or ability to earn income as a result of the injury, the claimant would be
required to prove the reasonable value of the loss.
21. In this case, the trial court in its judgment was silent with regard to the
Plaintiffs claim for loss of income/ earnings as pleaded, but this fact in the
opinion of this court was not prejudicial to the Plaintiff because the claim in
any event, was not established and proved by necessary evidence and
could not therefore have been granted as prayed.
22. As regard special damages, the Plaintiff claimed a sum of Kshs.
10,000/- under the head and produced a payment receipt in respect thereof
from Dr. Mauris N. Raute dated 20
th January 2018. This was payment for
the medical examination of the Plaintiff by the good doctor. Not only was the
amount pleaded it was also specifically established and proved.
23. In sum, for all the reasons and factors stated hereinabove this court is
unable to find any breach by the trial court of the principles applicable for
award of damages. It cannot be said that the exercise of direction in this
matter was improper. This court therefore finds that the Plaintiff/Appellant
was deserving of the awards made in his favour by the trial court. They
were reasonable, adequate and fair, neither inordinately low nor inordinately
high.
This appeal is devoid of merit and is hereby dismissed with costs to the
Respondent whose cross-appeal is also dismissed. It is accordingly
ordered.
Dated and delivered this 12
th day of March 2026
HON. J. R. KARANJAH,
JUDGE
the Senior Principal Magistrate at Kapsabet on quantum of damages made
on 29
th March 2021 in Kapsabet CMCC No. 103 of 2017 and proffered six
[6] grounds of appeal in respect thereof. He therefore prays that the award
of damages made by the trial court be set aside and substituted for an
enhanced award of damages commensurate with the injuries sustained by
himself and the consequential effects.
2. The claim by the Appellant/Plaintiff against the Respondent/ Defendant,
Debroso Construction Company Limited, arose from a road traffic
accident which occurred on the 22
nd December 2016 along the Kapsabet-
Chavakali road at Kamobo involving the Appellant’s Motor Vehicle
Registration KCF 844Q and the Respondent’s Motor Vehicle Registration
No. KCG 730P and which resulted in the Appellant suffering serious bodily
injuries for which he encountered loss and damages inclusive of general
damages, special damages and damages for loss of income and for future
medical expenses.
3. The Respondent in his defence denied the claim in its totality, but at the
hearing of the matter the parties entered into a consent on liability to the
effect that liability be apportioned in the ratio of 75%:25% in favour of the
Plaintiff/Appellant. The consent was adopted as an order of the court.
Accordingly, the only issue which fell for determination by the trial court was
the question of quantum of damages.
4. In that regard, the trial court after consideration of the evidence availed
before itself deemed it fit to award only general damages to the Plaintiff/
Appellant for pain and loss of earning in the total sum of 700,000/- less 25%
contributory negligence i.e. Kshs. 450,000/-.
The award provoked this appeal which is opposed by the Respondent and
was canvassed herein by way of written submissions filed herein by Messrs
Nyamurongi & Company Advocates on behalf of the Appellant and
Messrs Mose, Mose & Mose Advocates on behalf of the Respondent.
5. Being an appeal on quantum of damages, this court must be guided by the
principles set out by the Court of Appeal in the case of Kemfro Africa
Limited t/a Meru Express Services [1976] & Another Vs. Aziri Kamu
Mudika Lubia & Another [1982 – 1988]1 KAR 727.
Where it was stated that: -
“The principles to be observed by an Appellate Court in
deciding whether it is justified in disturbing the quantum of
damages awarded by a trial judge were held by the former
Court of Appeal of Eastern Africa to be that it must be
satisfied that either that the judge, in assessing the
damages took into account an irrelevant factor, or left out of
account a relevant one, or that, short of this, the amount is
so inordinately low or so inordinately high that it must be a
wholly erroneous estimate of the damage.”
6. The same principles were applied in many other cases which arose at
different stages in time including, Butt Vs. Khan [198] KLR 349 and
Kitavi Vs. Coastal Bottlers Limited [1985]KLR 470.
In the former case [Butt] the Court of Appeal held that the Appellate Court
cannot interfere with the decision of trial court unless it is shown that the
judge proceeded on the wrong principle of law and arrived at misconceived
estimates and in the later case [Kitavi] the Court of Appeal held that an
Appellate Court should only disturb an award of damages when the trial
judge has taken into account a factor he ought not to have or failed to take
into account something he ought to have or if the award is so high or so low
that it amounts to an erroneous estimate.
7. In essence, damages in law are not just about monetary compensation, but
also redress and restoration.
Whereas general damages are not quantifiable, hence cannot be monetarily
measured, special damages are monetarily quantifiable.
The Plaintiff/Appellant pleaded in his statement of claim dated 14
th April
2017 that he suffered loss of consciousness for about three [3] hours.
Fracture of the right femur with swelling of the right leg, several cut wounds
on the right upper pre-libial area and multiple soft tissues injuries.
8. Such injuries fell within the realm of general damages together with the claim
for loss of income or earnings either present or future.
The medical reports dated 20
th January 2017 and 13
th December 2020 [P.
Exhibit 4 & D Exhibit 1] compiled by Dr. Raute and Dr. Obondi
respectively more or less confirmed the injuries thereby confirming that the
Plaintiff was entitled to general damages for pain, suffering and loss of
amenities as pleaded in paragraph 6[a][b] and loss of income [earnings] as
pleaded in paragraph 6[e] of the Plaint.
9. It is settled that the Award of damages is a matter within the discretion of the
trial court and cannot be interfered with by an appellate court unless the
discretion was exercised in breach of the applicable principles as set out in
the case of Charles Okiwo Odeyo Vs. Appollo Justus Andabwa &
Another [2017] eKLR, to wit: -
(1)An award of damages is not meant to enrich the victim but to
compensate such victim for the injuries sustained.
(2)The award should be commensurate with the injuries
sustained.
(3)Previous awards in similar injuries sustained are mere guide
but each case be treated on its own facts.
(4)Previous awards be taken into account to maintain stability of
awards but factor such as inflation should be taken into
account.
(5)The awards should not be inordinately low or high.
[See also, John Kipkemboi & Another Vs. Morris Kedolo [2019] e
KLR and Boniface Waiti & Another Vs. Michael Kariuki Kamau
[2007] eKLR]
No amount of money is enough to compensate for bodily injuries but the
court is required to do the best it can on the basis of the parameters
specified hereinabove.
10. In this case, the trial court awarded a sum of Kshs. 700,000/- less 25%
contributory negligence i.e. Kshs. 450,000/- as general damages for pain
and loss of earnings. This was in effect a wholly inclusive or joint award for
both pain and loss of earnings and appears to have been the ignition key for
this appeal.
11. The trial court in arriving at the impugned award apparently relied on
the medical report by Dr. Obondi [D. Exhibit 1] dated 13
th December 2020
more than that of Dr. Raule [P. Exhibit 4] dated 20
th January 2017 is
assessing general damages for pain, suffering and loss of amenities and in
doing so, stated as follows: -
“There is no doubt that Koech [meaning Plaintiff] was
reviewed 4 years after occurrence of accident. The
discharge summary produced as P. Exhibit 2a from
racecourse hospital confirms that Koech was hospitalized
on the 22.12.2016 and discharged on the 27.02.2016 having
suffered a fracture of the right fibular femur 1/3 and ‘k’nail
insertion recommended. He had attended 2 section of
physiotherapy at Londiani Sub County Hospital as at
20.01.2017.”
12. The court stated further that: -
“There is no documentary evidence of loss of
consciousness even though Koech pleaded loss of
consciousness for 3 hours in his plaint filed in court on
13.06.2017. The statement of Koech filed in court on
13.06.2017 is silent on him having suffered loss of
consciousness as result of occurrence of the accident.
Koech testified in court on the 16.09.2019 and stated that he
had healed properly save that he cannot drive a vehicle
unless the K nail inserted on his right leg is removed. As
per Dr. Obondi who reviewed the Plaintiff on 13.12.2020,
there is no evidence of permanent disability suffered by
Plaintiff as opposed to when he was attended to by Dr.
Raule on the 20.1.2017. I find the report of Dr. Obondi to be
more reliable in providing the current status of the Plaintiff
than Dr. Raules.”
13. The trial court therefore concluded that the Plaintiff suffered a fracture
of the right femur with no permanent disability as indicated in the medical
report by Dr. Obondi which was the latest and disclosed the Plaintiff’s
current status as opposed to the report by Dr. Raute compiled during the
healing process. This court would find no reason to disagree with the
finding aforementioned as it was based on solid and reliable medical
evidence which clearly disclosed that the major injury suffered by the Plaintiff
was the fracture of the right femur. The other proven injuries were less
serious comprising of cut wound and multiple soft tissue injuries.
14. It is clear from the impugned judgment of the trial court that the court
took into consideration comparable cases cited by both parties and settled
for the sum of Kshs. 700,000/- less 25% contributory negligence as
adequate and reasonable compensation for pain, suffering and loss of
amenities even though the Plaintiff had proposed a sum of Kshs 2[two]
million and the Defendant a sum of Kshs. 300,000/-.
15. Notably, there was no mention of the claim for loss of income or
earning in the judgment thereby implying that it was omitted despite having
been pleaded by the Plaintiff as such loss rather than loss of earning
capacity. These are district sets of damages as herein alluded to by the
Respondent in its submissions in which it submitted that the Plaintiff/
Appellant pleaded for lost income at the rate of Kshs. 6,492/- yet in the
memorandum of appeal be introduced a totality different claim of loss of
earning capacity.
16. Indeed, ground one [1] of the memorandum of appeal alludes to the
appellant losing his earning capacity as a driver. This was completely
different from what was pleaded in paragraph [6] [e] of the plaint as follows: -
“[e] Particulars of lost income:
At the time of the accident the Plaintiff was a driver
contracted by United Millers Limited earning Kshs. 1,082/-
per day for 6 working day per week. The Plaintiff has been
unable to resume his employment and has and is suffering
loss of income which he claims at the rate of Kshs. 6,492/-
per week with effect from 22.12.2016.”
17. In his evidence By way of his witness statement dated 14tth April 2017,
the Appellant never provided any material in support of the pleading, neither
did he mention about the claim and show how he suffered loss and damage
in that regard. To complicate matters and create more uncertainly as to what
the Plaintiff was claiming between loss of earning and loss of earning
capacity he submitted before the trial court that general damages for loss of
earning capacity can be awarded under the composite head of general
damages or as a separate award. He cited the Court of Appeal decision in
Sosphinaf Company Limited James Gatiku Ndoto Vs. Daniel Ng’ang’a
Kanyi [2006] e KLR to buttress the point.
18. Oblivious of the fact that a party is bound by his pleadings, the Plaintiff
proceeded to claim and pray for damages for loss of earning capacity, yet in
his pleadings he claimed and prayed for loss of income/ earnings.
In the case of SJ Vs. Franscesco Di Nello & Another [2005] e KLR, cited
herein by the Respondent the Court of Appeal held that loss of income of
future earning is compensated for real assessable loss which is proved by
evidence.
19. The factors foregoing clearly show that damages for loss of earning/
income and damages for loss of earning capacity are distinct. Whereas
loss of earnings/ income falls under the category of special damages, loss of
earning capacity falls under general damages [See, Apharana Limited Vs.
John Murigi Wairegi [2018] e KLR]
20. In the American Case of Connolly Vs. Pre-Mixed Concrete
Company [1957] 49 Cal 2d 483, it was held that: -
“Loss of earning power is an element of general damages
which can be inferred from the nature of the injury without
proof of earnings or income either before or after the injury
and damages in this respect are awarded for the loss of
ability thereafter to earn money.”
It would follow that to recover damages for loss of earnings, a claimant must
prove the amount of earnings he will be reasonably certain to lose in the
future as a result of the injury. But, to recover damages for loss of capacity
or ability to earn income as a result of the injury, the claimant would be
required to prove the reasonable value of the loss.
21. In this case, the trial court in its judgment was silent with regard to the
Plaintiffs claim for loss of income/ earnings as pleaded, but this fact in the
opinion of this court was not prejudicial to the Plaintiff because the claim in
any event, was not established and proved by necessary evidence and
could not therefore have been granted as prayed.
22. As regard special damages, the Plaintiff claimed a sum of Kshs.
10,000/- under the head and produced a payment receipt in respect thereof
from Dr. Mauris N. Raute dated 20
th January 2018. This was payment for
the medical examination of the Plaintiff by the good doctor. Not only was the
amount pleaded it was also specifically established and proved.
23. In sum, for all the reasons and factors stated hereinabove this court is
unable to find any breach by the trial court of the principles applicable for
award of damages. It cannot be said that the exercise of direction in this
matter was improper. This court therefore finds that the Plaintiff/Appellant
was deserving of the awards made in his favour by the trial court. They
were reasonable, adequate and fair, neither inordinately low nor inordinately
high.
This appeal is devoid of merit and is hereby dismissed with costs to the
Respondent whose cross-appeal is also dismissed. It is accordingly
ordered.
Dated and delivered this 12
th day of March 2026
HON. J. R. KARANJAH,
JUDGE