DANCUN MAINA MUYA VS CHRISTINE NANGILA SIMIYU DANCUN MAINA MUYA VS CHRISTINE NANGILA SIMIYU

(Being an appeal from the judgment and decree of Hon. D. N. Musyoka Senior Principal Magistrate in Kikuyu Magistrates Courts Civil Suit No. 19 of 2015 delivered on 9/12/2022)

The respondent herein Christine Nangila Simiyu sued the appellant Duncan Maina Muya in a plaint dated 7/4/2014 for damages for injuries arising out of burns she sustained in a fire incident that occurred at a house owned by the appellant where she was staying.
The respondent’s case is that she was staying at the house with her husband David Simiyu Juma (PW 2), an employee of the appellant. In the afternoon of 25/11/2012 while both were in the house, a fire suddenly broke out from within and engulfed the semi-permanent house made of iron-sheet walls and roofing. The respondent was caught up in the fire and as a result she was injured and has suffered loss and damage. She says the accident arose out of an electrical fault in the wiring of the premises and therefore blamed the accident on the appellant for breach of duty of care towards her as owner and/or occupier of the premises.
In his statement of defence dated 20/2/2015 the appellant denied the claim by the respondent in toto. In the alternative, he blamed the respondent for the accident contending that it was caused by a cooking stove that exploded and hence solely caused by the negligence of the respondent. In the further alternative the appellant averred that the premises were never intended for habitation by the respondent’s husband or his family but as a base for administrative purposes only during daytime. That the same had no electricity connection when it was made available to the respondent’s husband and therefore any electricity connection therein was illegal and by the husband. He further pleaded that if there was any electric fault, it should be blamed on the Kenya Power & Lighting Co. Ltd. He did not however sue KPLC as a third party in the suit.
After hearing the case the learned trial magistrate entered judgment on liability for the respondent against the appellant wholly and awarded Kshs. 2 million/= general damages for pain, suffering and loss of amenities, KShs 1,500,000/= for future medical expenses, KShs 500,000/= for loss of future earning capacity and Kshs.2,000/= special damages. This makes a total of KShs 4,002,000/= and not 3,002,000/= as indicated by the learned trial magistrate in his final decision.
The appellant was aggrieved by the said judgment and appealed to this court on grounds that negligence on the part of the appellant had not been proved and therefore the assessment of liability and quantum was contrary to the evidence adduced and the law applicable; that there was no causal link established between the negligence attributed to the appellant and the injuries sustained by the respondent; the respondent was to blame for the injuries through voluntary assumption of risk by tampering with electrical equipment/meters and/or illegally connecting electricity to the premises in question without knowledge and approval of the appellant and illegal occupation of the premises as residential when it was only a store room and without the appellant’s knowledge or authority; the medical report was admitted without giving the appellant an opportunity to cross-examine the maker; special damages awarded were not proved; general damages awarded of KShs 2m was exorbitant and not supported by evidence.
The appellant therefore prays that this appeal against the judgment of the trial court be allowed in its entirety, and the said judgment and decree be set aside and the appellant be awarded costs of the appeal. Finally, that the court may grant any further orders in the interest of justice.
The appeal was canvassed by way of written submissions which I have duly considered.
This being a first appeal, the duty of the court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1958) E.A page 424.
At the trial the respondent (then plaintiff) Christine Nangila Simiyu testified (PW 1) and called one witness David Simiyu Juma (PW 2).
The appellant Duncan Maina Muya (DW 4) also testified and called two other witnesses Walter Wamae Mathenge, DW 1 and Mary Wanjiru Mwangi, DW 2. There was no DW 3 in the proceedings.
Each of the witnesses, both for the respondent and for the appellant recorded a witness statement which was adopted at the hearing as evidence-in-chief. Each of them also attended court and testified briefly in chief and was cross-examined. One, Innocent Ombui Nyangau recorded a statement for the appellant as a defence witness but never turned out to testify. I have to point out this because the learned trial magistrate appears to have considered him as a witness in the analysis of the evidence.
The facts of the case which are not in dispute are that the appellant owns blocks of flats where he had employed David Simiyu Juma (PW 2), husband of the respondent. The appellant had built a semi-permanent structure on the same premises where the two blocks of flats stand. It is also not disputed that on the material day a fire broke out in the semi-permanent house with David and the respondent inside and as a result the respondent sustained injuries. The semi-permanent house was connected with electricity, even as the appellant contended that such connection was illegal.
What is seriously in contention is what use the semi-permanent house was for and whether or not the electricity connection therein was with the knowledge, permission or authority of the appellant.
Evidence by David, PW 2 for the respondent was that when the appellant employed him, he allocated him the semi-permanent house to live with his family so as to be readily available as the nature of his work required him to. He thus stayed in the house with his wife, the respondent herein. David and the respondent said the house was connected with electricity but it would fail from time to time. He regularly brought this to the attention of the appellant who would promise to have it checked soon but never did anything.
On 25/11/2012 a fire broke out in the house as a result of the electrical fault in the wiring system while both David and his wife, the respondent were inside. As a result, the respondent sustained serious burn injuries. She was initially attended to at Kikukyu PCEA hospital but was transferred the same day to KNH where she was admitted for about two months for treatment.
The appellant’s position is that he had employed David as a day security person stationed at the gate to provide guard services and usher in and out tenants of the flats. He says the semi-permanent structure was his store for cleaning materials and equipment and had no electricity connection to it. It was not meant to be a residence for David and his family and he was shocked to learn that he had illegally converted it to a residential house without his knowledge or consent. He said the respondent was not known to him. He maintains that if there was electricity connection to the house, then it was illegally done by David. He also said he stays away in Kirinyaga and he would visit the premises occasionally.
DW 1, Walter Wamae Mathenge said that he was the one who installed electricity to the appellant’s two blocks of flats which he completed in 2007. No electricity was connected to the semi-permanent house at the time. He said he could not say what had happened between 2007 and 2013 when he did the last electrical inspection of the premises.
DW 2, Mary Wanjira Muriithi was a tenant of the block of flats. She said that the day guard used to report at the premises every morning but later on moved into one of the stores with several other people without the consent of the landlord, the appellant. She said that on the material day, one of the store rooms which the day guard had illegally converted to his house caught fire. She together with worshippers at a nearby church rescued the guard and the respondent. The store was burnt with personal belongings of the respondent. Before the guard was rushed to hospital, DW 1 spoke to him and he confirmed that he was preparing a meal of ugali and suddenly the room caught fire. She then called the landlord, the appellant herein and the night guard and informed them what had happened.
Upon that evidence the learned trial magistrate after considering the provisions of section 3 of the Occupiers Liability Act (Cap. 34) Laws of Kenya found that the respondent was upon the premises as a visitor of her husband David Simiyu, PW 2 who was an employee of the appellant. For that reason, the appellant had a statutory obligation to take such reasonable care as in all circumstances would ensure that the respondent was safe in the premises that her husband was staying.
The learned trial magistrate also observed that on the occasions the appellant visited the premises he must have been aware that David Simiyu stayed in the house and that electricity was connected therein. He never ejected him from the house or had the electricity disconnected. The learned trial magistrate therefore found that David Simiyu and therefore by extension, his wife, the respondent herein could not have been staying in that house without the permission of the appellant.
The learned trial magistrate went ahead to find that while staying in the house with the permission of the respondent, David raised the issue of the electrical faults with the appellant but the appellant he did not address it. He therefore found the appellant in breach of his duty of care towards the respondent and consequently liable for the fire incident and for the injuries sustained by the appellant.
This appeal was canvassed by way of written submissions filed by learned counsels for both parties.
I have considered the grounds of appeal, the record of appeal, the evidence adduced before the trial court and the submissions by counsels for the parties. The issues for determination are on liability and quantum of damages.
Learned counsel for the appellant submits that in order to prove the case against the appellant, the respondent was required to prove negligence in the following four elements as enunciated by the High Court in the case of Christine Kalama v Jane Wanja Njeru & another [2021] eKLR which can be para-phrased as follows:
First the existence of a duty of care.
Second, breach of the duty.
Third, a causal link between the breach and the damage/injuries caused attracting recoverable damages at law.
Finally, foreseeability of the particular type of damage/injury caused.
In the said case, the High Court cited the case of Caparo Industries PLC v Dickman {1990} 1 ALL ER 568 where, after setting out the elements of the tort of negligence above and in explaining further the duty of care, it was stated that:

“What emerges is that, in addition to the foreseeability of the damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the Law as one of proximity or neighborhood, and that the situation should be one in which the Court considers it fair, just and reasonable that the Law should influence a duty of a given scope upon the one party for the benefit of the other. As regards the question of proof of a breach of the duty of care, there is equally no question that the onus of proof on a balance of probabilities, that the defendant has been careless falls upon the claimant throughout the case.”

Turning back to the case at hand, nothing much turns on the issue of the nature of work the appellant had employed David to do and whether or not he had made available the house for his use. Even though the appellant insisted in his evidence that David was only employed as a day guard and stationed at the gate, he pleaded in his statement of defence dated 20/2/2015 that David was a caretaker of the flats and he allowed him to use the house to carry out his duties of administration of the flats. His statement which is dated 1/2/2018 and filed on 6/3/2018, some three years after the statement of defence and six years after the fire incident was simply a change of tack in his defence. Unfortunately for him, he did not amend the statement of defence to conform to his change of position on the type of engagement he had with David.
In the case of IEBC & Another vs. Stephen Mutinda Mule & 3 others (2014) eKLR the the Court of Appeal cited with approval the Nigerian case of Adetoun Oladeji (Nig) Ltd vs. Nigeria Breweries Plc S.C. 91/2002, where Judge Pius Aderemi J.S.C. expressed himself as follows;

“….it is now a very trite principle of law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded.”

Citing the above case, the High Court in Mbogo (Suing as the administrator to the Estate of the Late John Gachau Mbugua) v Kenya School of Monetary Studies (Civil Appeal 708 of 2016) [2024] KEHC 468 (KLR) while considering the issue of failure to amend a pleading held that:

“The Appellant herein did not amend his plaint to align it with the evidence that the deceased was employed by the Respondent as a stone mason and neither did he amend the particulars of negligence against the Respondent. It was not permitted for the Appellant to adopt evidence that was not pleaded. Failure to amend was fatal to his case.”

I therefore find that David was both a day guard and a caretaker of the appellant’s premises and that the appellant had made available to him the semi-permanent house for use. The respondent was at the house at the invitation of David, her husband and therefore she was a licencee of the appellant. The appellant, as a landlord, owed a duty of care to the respondent, a licencee on the neighbourhood principle. I find no fault in the finding of the learned trial magistrate to that effect.
The next issue to determine is whether there is evidence that the appellant was careless in the resulting fire that caused injury to the respondent.
In the case of Soma Properties Limited v H A Y M [2015] eKLR cited by both learned counsels in their submissions, the Court of Appeal in explaining the extent of the duty of care under section 3 of the Occupier’s Liability Act said that:

“This provision, imposes a duty of care on an occupier and proceeds to define the standard of care necessary to fulfil that duty. The words “reasonable” and “reasonably” used in the above extract emphasize the standard of care expected of an occupier. It is a standard measured against the care to be exercised by a reasonably prudent person in all the circumstances including the practices and usages prevailing in the community and the common understanding of what is practicable and what is to be expected. The standard of reasonableness is not one of perfection. Thus, an occupier will escape liability if it is established that in the circumstances of the case, there were reasonable systems in place to secure the premises against foreseeable risk and danger.”

I have found hereinabove that the appellant provided the respondent’s husband with the house to use. He denies vehemently that he allowed him to use it as a residence. The evidence of David is that the appellant allowed him to use the house as a residence. The appellant’s own witness, DW 2 said that David moved into the house and converted it to his residence. I am inclined to believe the evidence of David that as a caretaker of the premises, the appellant allowed him not only to use the premises as a caretaker and reside therein but also had the electricity connected there. As a caretaker, he was expected to be available all the time to attend to any issue arising on the premises including any emergencies. It is only natural that he would be allowed to stay on the premises to carry out his responsibilities. I equally find as did the learned trial magistrate that it is implausible that having allowed him to occupy the house as caretaker he was expected to stay there without electric power connection. I am therefore inclined to find as I do that the appellant was not only well aware of the power connection to the house but that he facilitated the same.
It is again inconceivable that the appellant would countenance the connection of power to the house without his permission yet as the owner, he was the one paying the bills. I find that he was not only aware but facilitated the same. The evidence of DW 1 that when they left the site on a date that is not indicated, there was no power connection to the house is of no much help because the connection could have been done subsequent to their leaving the site.
The appellant’s defence was that the fire was started by a stove while the respondent or her husband were making a meal. He said that he was told so by DW 2. DW 2 said she was told the same by the respondent’s husband. How verifiable is that evidence?
DW 2 said in her evidence that the respondent’s husband occupied the house illegally and without permission of the appellant. It is not clear when she came to learn that the respondent’s husband had moved into the house without the consent of the appellant. When she states that PW 2 had “illegally” converted the house to his, it is such a strong assertion that leaves one with the impression that she was holding the appellant’s brief. She seems to have been intent on casting blame upon the respondent and her husband. But, again, that issue has been resolved by the finding that the occupation was in fact not illegal but with the permission of the appellant. I therefore find that the evidence of DW 2 on that issue cannot be relied upon an independent witness of fact.
Her evidence is in fact discounted by the evidence of the case summary from KNH dated 19/3/2013 where it is indicated that the respondent reported to have sustained burns initiated by electric fault then explosion of stove. This is what the respondent or her husband reported immediately at Kikuyu hospital shortly after the accident before she was referred to KNH the same day. I find it difficult to believe that they would have had the mind to change the story so quickly along the way to hospital. I am satisfied that find that the electrical fault was the direct or proximate cause of the fire. Proximate cause being as per the Black`s Law Dictionary, 7^th Edition;

“A cause that is legally sufficient to result in liability. A cause that directly produces an event without which the event would not have occurred.”

Learned counsel for the appellant also submits that there is no evidence either by PW 1 or PW 2 that the fire was started by an electrical fault. That submission must arise from a consideration of that evidence in a discriminate manner. The respondent’s pleadings are explicit that the fire started as a result of an electrical fault. The two eye witnesses reiterate the same both in their respective written statements and testimonies in court.
I find that the fire was started by an electrical fault in the house. The appellant argued that there was no report of electrical inspection to show that electrical fault was the cause of the fire. That is misguided because the eye witnesses who were present, PW 1 and PW 2 said it was started by an electrical fault. If the appellant wished to challenge that evidence he should have been the one to get evidence to discount that offered by the respondent and her witness.
Learned counsel for the appellant submits that there is no evidence that the appellant would have been expected to reasonably foresee the danger of the fire breaking out. That cannot be true with the clear evidence of PW 1 and PW 2 that the electrical fault was apparent and PW 2 kept reminding the appellant of the same but he took no action to rectify it.
I am satisfied that there was apparent danger of which the appellant should have been reasonably expected to be aware. I therefore find that that the appellant breached his statutory and common law duty of care to the respondent because there is evidence to support the fact the electrical wiring system of the house in which the respondent was staying and which had been provided by the appellant to her husband was faulty. Moreover, there was evidence that the appellant had knowledge of the fault to the electrical system prior to the incident as he was constantly informed by the respondent’s husband but failed to take any steps to rectify it.
Learned counsel for the appellant has attempted to raise in his submissions a defence provided for under section 3(4)(b) of the OLA that he acted reasonably in entrusting the work to an independent contractor. That defence cannot avail to the appellant for two reasons. First, because it was not pleaded in the defence and secondly, the appellant’s defence is clear that he was not responsible for electricity connection to the house.
Doubtless, by continuing to stay in the house and more particularly using the electricity supplied therein when there was inherent danger in doing so the respondent exposed herself to danger. She bears a duty of care to self and should not expose herself to danger. Both the respondent and her husband said that the faulty electrical connection of the cables were visible to the naked eye. Not once but several times the danger would rear its dangerous head when power went off and on returning, the cables would emit sparks. That was a clear sign that it was dangerous to continue using the power in that state. There is no indication that for the appellant’s benefit, the power connection had to continue being used in that state without being rectified. The respondent was taking too huge a risk by continuing to use the power in the house while it was so faulty. She bears contributory negligence.
In sum, I find that the evidence by the respondent and her witness was cogent and that the appellant was negligent and failed in his statutory duty of care as an occupier of premises towards the respondent, by exposing her to danger of faulty electrical connections in the house in which she was staying with her husband with the knowledge and authority of the appellant.
Consequently, I find no fault in the decision of the learned trial magistrate that the respondent established that the appellant owed her a duty of care and he was in breach of the same thereby leading her to get injured while upon his premises. Save that the appellant cannot take full responsibility but has to share with the respondent.
On account of the foregoing, I need to apportion liability to both parties on account of contributory negligence of the respondent. In the case of Rabbi Kiogora Angaine v Jane Karimi Duati [2020] eKLR, the High Court considering the issue of apportioning liability observed that contributory negligence is not based on any definite mathematical formula or precision. It is purely dictated by the circumstances of each case.
In the circumstances of this case I find that the appellant bears the greater blameworthiness because first he bore the duty of care to the respondent and all licencees and invitees upon his premises. Secondly, he was severally alerted of the fault but took no steps to rectify it. Accordingly, I set aside the apportionment of liability by the trial court and apportion liability in the ratio of 85:15 between the appellant and respondent.
On the issue of damages, the appellant’s contention is that the court relied on a medical report that was not tested in cross-examination because it was produced without the maker thereof attending court. I do not find that complaint to be valid for two reasons. First is that the medical report was produced by consent of the parties. Learned counsel for the appellant was present in court on 19/11/2019 when the report was produced. It was after that production that the respondent’s counsel closed her case and the defence offered its evidence.
Secondly, the failure by the doctor who prepared the report to testify is not in itself fatal to the respondent’s case. There is no dispute that indeed the accident occurred and the respondent was injured as a result. The respondent gave evidence of the injuries she sustained and this was supported by PW 2. She also gave evidence of the extent of the injuries. She testified of how long she was admitted in hospital and the treatment she received. She also attended court and the learned magistrate was able to see her and assess the extent of the injuries sustained. Therefore, even if the medical report had not been produced as evidence, the court would still have been able to assess the extent of the respondent’s injuries and the damages to award.
Assessment of general damages of KShs 2,000,000/= for pain suffering and loss of amenities by the trial court is contested. Learned counsel for the appellant submits that the same should be reduced to KShs 450,000/=. He has cited the following cases:
Civicon Limited v Richard Njomo Omwancha & 2 Others [2019] eKLR where the 2^nd Respondent Gladys Nyakerario Omwancha suffered a deep cut wound on the left ear lobe, a tender left lateral chest wall, swollen and tender left arm, bruises on the left hand, swollen and tender left elbow, bruises on the left elbow, cut wound on the left foreleg, fracture of the left tibia and fibula and dislocation on the left hip joint. The High Court on appeal in 2019 revised the lower court award of KShs 1,000,000/= to KShs.450,000 general damages for pain, suffering and loss of amenities.

The 3^rd respondent Rebeccah Nyaboke Machogu sustained a single fracture of the right tibia and fibula and fractures of the upper teeth. Although Dr Morebu assessed permanent disability at 30 per cent, Dr Kumenda who examined the respondent, three months’ letter noted that the scars had healed and that she was walking with the support of a cane.

The High Court on appeal in 2019 revised the lower court award of KShs 1,300,000/= to KShs 500,000/= in general damages for pain, suffering and loss of amenities.

The second case cited of Securicor Security Services Kenya Ltd v Mf & another [2016] eKLR it is not clear what type of injuries the respondent had sustained for which the High Court sustained the award of KShs 600,000/= made by the trial court. It is therefore not a usual guide in the present case.
The respondent’s counsel defended the award of Ksh.2,000,000/= in general damages. He cites the following decisions:
1. Makau Kiswili v Athi-River Mining Ltd. [2009] eKLR the Plaintiff suffered 60 per cent burns and was 20 per cent limited in his general movements and was awarded KShs 1, 500,000/= general damages for pain, suffering and loss of amenities by the High Court.
2. J S (Suing as Father and Next Friend of K S) v Kenya Power & Lighting Company Ltd [2015] eKLR the minor was awarded Kshs. 1,600,000/= general damages for pain, suffering and loss of amenities including future medical care. The minor had sustained the following injuries: (i) lost a lot of blood and had been transfused; (ii) Suffered lots of pain; (iii) Suffered loss of 20 per cent of his body skin; (iv) Electric shock the appellant sustained had affected his behaviour, and he was very irritable and would sometimes talk to himself; (v) The appellant was still undergoing counselling; (vi) ugly scars on the body; (vii) Had impaired movement of the right elbow joint which required further physiotherapy; (viii) He suffered a total of 8 per cent partial incapacity.
3. Isaac Njuguna V Farmland Aviation Ltd, [2018] eKLR in which the court awarded Kshs.4,000,000 as general damages to a plaintiff who had suffered several injuries including total blindness to the left eye.
The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:

“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 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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”

Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself as follows:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

I am accordingly guided by these decisions.
According to the medical report of Dr. Theophilus Wangata the respondent was only 19 years at the time of examination. The injuries she sustained were:
1. 40 per cent deep burns involving the upper limbs, face and both feet.
2. 10 per cent inhalation burns

Examination findings were as follows:

weakness of the left upper limb with reduced muscle power (power grade 2). There is a contracture at the left elbow with stiffness. Extension is not possible beyond 120 degrees.
she has a large circumferential scar on the right upper limb from the arm down to the hand. The entire length of the scar is 55 cm.
there is a large circumferential scar at the left upper limb from the arm down to the hand. The entire length of the scar is 60 cm.
there is an 11 by 6 cm scar on the forehead.
there is an 17 by 8 cm scar on the dorsum of the right foot.
there is an 13 by 3 cm scar on the dorsum of the left foot.
there is an 24 by 25 cm scar on the right thigh at the site of removal of skin graft.
there is an 35 by 30 cm scar on the left thigh at the site of removal of skin graft.

The doctor’s opinion that the respondent suffered 40 per cent deep burns and inhalational burns in the fire incident. As a result of the injuries she also lost her pregnancy as she had a miscarriage while undergoing treatment. This caused a lot of physical, psychological pain, blood loss and suffering. The respondent suffered grievous harm.

She was hospitalized on two different occasions for more than two months. She remains with scars that are of cosmetic significance. (Future surgery (plastic and reconstructive and release of contracture at the left hand) together with follow-up treatment would need to be undertaken at a cost of KShs 200,000/=.

He assessed the extent of permanent and functional incapacity at 65 per cent.

This implies that the respondent sustained very serious injuries causing her disfigurement at an early age of her youth. She lost a foetus as a result of the accident. The injuries suffered by the respondent and the effects thereof are corroborated by the evidence of PW 2 who knew her well prior to the accident as a healthy lady leading a normal life. She is now physically disabled with unsightly scars on her body. The trial court was able to see and assess her condition when she appeared and testified.
The law regarding awards on quantum of general damages is as was explained in the case of Nyambura Kigarari vs. Agrippina Mary Aya (1982-1988) 1 KAR that general damages should be awarded within reasonable bounds and compensation must be fair in line with recent authorities of comparable injuries. See also the case of Rahima Tayah & another vs. Anna Mary Kinaru (1987-88) 1 KAR 90 which buttresses this position.
In assessing damages, the general approach should be that comparable injuries should as far as possible be compensated by comparable award but recalling that no two cases are exactly alike as the Court of Appeal observed in the case of Stanley Maore –vs- Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002 [2004] eKLR that:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

The cases cited by earned counsel for the appellant did not involve as seriously comparable injuries as those sustained by the respondent herein. The decisions cited by learned counsel for the respondent involve fairly comparable injuries.
In the case of James Joseph Rughendo v Kenya Power And Lighting Co. Ltd. [2011] eKLR the plaintiff sustained:
- 1. Damage to the radial, ulnar and median nerves;
  2. 3^rd degree electrical burns involving the palms and both legs. Total burn area being 40 per cent;
  3. Below the knee amputation of the right leg;
  4. Amputation of the left big toe and part of the second toe

In general, he sustained total permanent incapacity of 70 per cent. The High Court in 2004 awarded him KShs 3,000,000/= general damages for pain, suffering and loss of amenities.

I am persuaded to follow the above authority and I am satisfied that the award of KShs 2,000,000/= general damages for pain, suffering and loss of amenities made by the learned trial magistrate was reasonable in the circumstances and the same will not be disturbed.
The Plaintiff has also specified the costs on future medical attention at KShs 200,000/= but the learned trial magistrate awarded KShs 1,500,000/= without any justification. I agree with learned counsel for the appellant that in failing to indicate how he arrived at the award of KShs 1,500,000/= the trial court fell in error. I find that this award is for disturbing and the same is reduced to KShs 200,000/= which is supported by the doctor’s evidence.
The respondent also prayed for loss of earnings, future earnings and earning capacity. The case of Mumias Sugar Company Ltd. -vs-Francis Wanalo [2007] eKLR summarizes the principles for award of damages concerning the said claim as propounded by the Court of Appeal in the case of Butler v Butler (1984) KLR, 225 were stated as follows:

“From the above analysiz of the English case law and the decision of this Court in Butler v Butler, the following principles, among others emerge. The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the Plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

I also rely on the observation of Lord Denning MR in Failey vs John Thompson Ltd. [1973] 2 Lloyd’s Rep 40 at page 41:

“it is important to realize that there is a difference between an award for loss of earning as distinct from compensation for loss of future earning capacity. Compensation for loss of future earnings are awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

In this case, the respondent did not adduce any evidence of what her earnings were or possibly would have been and so the learned magistrate did not make any award for loss of earnings or future earnings and correctly so. He however awarded loss future earning capacity KShs 500,000/=. The same ought to have been assessed together with the general damages. I will therefore increase the general damages by that margin to make it KShs 2,500,000/=.
For clarity the special damages shall remain as awarded KShs 2,000/=.
The total award to the respondent is therefore KShs 2,702,000/=. Applying the ratio of 85:15 apportionment of liability in favour of the respondent, the same is reduced to KShs 2,296,700/=.
Consequently, the decision of the trial court is varied to the extent hereinabove explained.
Considering the extent to which the appellant has succeeded in the appeal and the long period this matter has remained in the court system, I order that each party shall bear their costs of the appeal.

Delivered, dated and signed at Kiambu on the Virtual Platform, Teams this 16^th day of July 2024.

In the presence of:

Khatete h/b for Kanjama (SC) for Appellant.

Kisiangani h/b for Waiganjo for the Respondent.

Etropia Court Assistant.

30 days Right of Appeal granted.