REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E044 OF 2024
KENYA POWER & LIGHTING COMPANY LIMITED …..…………APPELLANT
VERSUS
VINCENT OLAKA OBADIA………………………………………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E020 of 2022 on 5 th September 2024)
JUDGMENT
INTRODUCTION
1. Notably, the suits emanating from the accident herein were a series of three (3) matters to wit, Vihiga PMCC No E018 of 2022 (Now HCCA E046 of 2024) , Vihiga PMCC No E019 of 2022 (Now HCCA E045 of 2024) and Vihiga PMCC No E020 of 2022 (Now HCCA E044 of 2024) , the present matter herein. By consent, the parties agreed that Vihiga PMCC No E019 of 2022 would be the test suit and that the evidence of the witnesses would apply in other suits.
2. In her decision of 5 th September 2024, the Learned Trial Magistrate, Hon J.A. Agonda , found the Appellant herein to have been wholly liable for the accident that resulted in the injuries that the Respondent herein sustained. The Learned Trial Magistrate entered judgment in favour of the Respondent against the Appellant in the following terms:-
General damages Kshs 2,000,000/=
Prosthetic Kshs 1,000,000/=
Special damages Kshs 10,075/=
Kshs 3,010,075/=
Plus costs of the suit and interest thereon at court rates from the date of judgment until payment in full.
3. Being aggrieved by the said decision, on 18 th September 2024, the Appellant herein filed a Memorandum of Appeal of even date. It relied on seven (7) grounds of appeal. It filed a Supplementary Record of Appeal dated 9 th May 2025 on 10 th May 2025.
4. Its Written Submissions were dated 24 th July 2025 and filed on even date while those of the Respondent were dated 20 th August 2025 and filed on 25 th August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-
a. Whether or not the Learned Trial Magistrate erred in finding the Appellant wholly liable for the accident;
b. Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. COMPETENCY OF THE APPEAL
9. The Respondent raised the issue of competency of the Appeal herein. He cited Rule 79G of the Civil Procedure Rules (sic), and the Appeal Rules 82 (1) and submitted that the Record of Appeal was filed out of the sixty (60) days after filing the Memorandum of Appeal that was filed on 19th September 2024. He asserted that the Record of Appeal was filed on 5th May 2025 without any leave being sought from the court or filing any certificate of delay for filing the Record of Appeal. HE averred that as the Record of appeal ought to have been filed on or before 18 th November 2024, the Appeal herein was incompetent. He thus urged this the court to dismiss the said Appeal.
10. Notably section 79G of the Civil procedure Act does not provide timelines for filing a record of appeal. There was no Appeal Rule 82(1) in the Civil Procedure Act. In the event the Respondents were referring to Rule 82(1) of the Court of Appeal Rules, the same applied to procedure of filing appeals in the Court of Appeal and not in the High Court.
11. This court found and held that the Appeal herein was competent and the Respondent’s assertions on its competency were not merited.
II. LIABILITY
12. Grounds of Appeal No (1), (2), (3) and (4) as they were all related.
13. The Appellant submitted that the Respondent did not prove his case on a balance of probabilities. It faulted the Trial Court for not having found that the Respondent was the author of his own misfortune. It was emphatic that the burden of proof rested with the Respondent herein as provided in Section 109 of the Evidence Act. It referred this court to the case of Miller vs Minister of Pensions [1947] 2 All ER 372 where the said principle was restated.
14. As the issue of liability was dealt with in Vihiga PMCC No E019 of 2024 (HCCA E045 of 2024) which was the lead file, this court did not therefore find it necessary to rehash the submissions and analysis on the said issue. It determined that liability would be apportioned at 80%-20% in favour of the Respondent herein.
III. QUANTUM
15. Grounds of Appeal Nos (5), (6) and (7) were dealt with under this head as they were all related. The court dealt with the same under the separate and distinct heads.
A. GENERAL DAMAGES
16. The Appellant submitted that general damages in the sum of Kshs 2,000,000/= that was awarded by the Trial Court were inordinately excessive given the nature and extent of the injuries the Respondent sustained and his contributory negligence. It cited Power Lighting Company Ltd (sic) & Another vs Zakayo Saitoti Naingola & Another [2008] eKLR where the principles of awarding damages were considered, being that the damages were not to be inordinately too low or too high, that the damages were intended to compensate and not to enrich a party, that past cases were merely guides with each case being determined on its own facts, that inflationary trends should be taken into account . It urged the court to adopt the sum of Kshs 800,000/- that it had proposed in the Trial Court. It cited several cases where the general damages ranged from 250,000/= to Kshs 750,000/= for amputation above the knee and were for the years between 1993 and 2016.
17. On his part, the Respondent argued that the award on general damages was reasonable and fair because he had been declared seventy (70%) per cent disabled. He added that the Appellant did not file a second medical report although they examined him. He also averred that his age was also a major factor that was considered.
18. It cited Bayusuf Freighters Limited vs Patrick Mbatha Kyengo [2014] eKLR where the Court of Appeal awarded Kshs 3,409,040/= for similar injuries sustained and Nicodemus Osoro & another v Jane Gatwiri [2019] eKLR where the appellate court found an award of Kshs 2,000,000/= to have been fair.
19. He maintained that although the finding by the Trial Court on the general damages was reasonable and fair, it ought to be enhanced to Kshs 2,500,000/=.
20. Dr Rodgers Kuyo (hereinafter referred to as “PW1”) examined the Respondent one (1) year after the accident. He stated that the Respondent did not have any fractures. He observed that apart from the amputation, the Respondent had burn wounds which had healed with scars. He assessed the Respondent’s disability at seventy (70%) per cent. He produced two (2) Medical Reports, a Discharge Summary and a prosthesis.
21. The Respondent testified that he sustained injuries to his left leg which was amputated, he had wounds on the stomach, private parts and hands. On being cross-examined, he stated that he used crutches and was informed that a computerised prosthesis would be fixed.
22. While awarding an amount of Kshs 2,000,000/=, the Trial Court made reference to several authorities and held that based on the inflationary trends, nature of injuries and general trends of awards based on such similar injuries, the said amount was reasonable.
23. It was well settled in law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko [ 2004] eKLR .
24. It must be understood that money can never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury.
25. However, this assessment was not without limits. A court had to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court therefore had to be guided by precedents.
26. Indeed, in the case of Kigaraari vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public.
27. This court also had due regard to the case of Lim vs Camden HA [1980] AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
28. Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognise that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
29. Towards this end, an appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended as was held in the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra).
30. Remaining faithful to the doctrine of stare decisis and taking the inflationary trends into consideration, it was the considered view of this court that the award of Kshs.2,000,000/= for general damages that was awarded by the Trial Court was not unreasonable. The authorities the Appellant had cited were old and not comparable to recent cases.
31. In arriving at the said conclusion, this court had due regard to the following cases:-
1. Dolphine Freighters Ltd v Shingoli [2025] KEHC 5216 (KLR)
The appellate court upheld an award of Kshs 2,000,000/= where the victim injuries included a fractured leg, amputation above the knee, and a seventy (70%) per cent permanent disability.
2. Philip Kiprono v Isaya Aura Odeke [2019] KEHC 10170 (KLR)
The appellate court upheld the sum of Kshs 2,500,000/= that was awarded by the trial court where the victim leg was amputated and permanent incapacity was assessed at sixty (60%) to seventy (70%) per cent.
32. This court was not, therefore, persuaded to disturb the award of general damages.
B. PROSTHETIC
33. The Appellant submitted that the award of Kshs1,000,000/= for the prosthetic leg lacked evidential foundation since the Respondent failed to provide evidence. It faulted the Trial Court for holding that it had not proposed any sum for the prosthesis because in its Written Submissions, it had proposed a sum of Kshs 400,000/=. It urged this court to adopt the said sum.
34. The Respondent asked this court to enhance the sum of Kshs1,000,000/= that was awarded for the prosthetic leg to the actual quoted amount which was required for him to acquire an electric prosthetic for above knee prosthesis.
35. Save for submitting that a sum of Kshs 400,000/= was adequate, the Appellant did not also provide any expert documentary evidence to support its assertion . The quotation from Ottobock put the cost of the prostheses to Kshs 4,010,893.98. When he was cross examined, PW 1 put the cost of prosthesis averagely at Kshs 500,000/=.
36. The justification by the Trial Court to award the said sum of Kshs 1,000,000/- for the prosthetic was not clear to this court because it awarded a sum of Kshs 500,000/= for the prostheses to a person who was also injured during the incident. The court, therefore, agreed with the Appellant that the said amount was not supported by any evidence and could not be allowed to stand.
37. Indeed, lack of opposition, if at all, as the Trial Court opined was not a reason to award a sum higher than what an expert had proposed. Even so, the court noted that in its Written Submissions dated 14 th August 2024, the Appellant had indicated that a sum of Kshs 400,000/= was fair for the cost of a normal prosthesis. It was the considered view that a normal prosthesis would be fair as directing the Appellant to pay for a computerised prothesis would amount to excessive quantum under that head.
38. In the premises foregoing, this court came to the firm conclusion that a sum of Kshs 500,000/= was adequate compensation under this head. Hence, the sum of Kshs 1,000,000/= for the prosthetic leg be and is hereby set aside and/or varied.
C. LOSS OF EARNINGS
39. The Appellan t referred this court to the case of Mumias Sugar Limited vs Francis Wanalo [2007] eKLR where it was held that there was no formula for assessing loss of earning capacity but that the court had to be apply the correct principles and take into account the relevant principles. He also set out the holdings in the cases of Eric Onyango Okumu vs SDV Transami (K) Ltd [2007] eKLR and M waura Muriuki vs Suera Flowers Ltd & Another [2014] eKLR but did not extrapolate how the same related to his case.
40. The Respondent did not submit on this issue. This was understandable as the Trial Court did not award damages for loss of earnings. As the Respondent did not cross-appeal, this court did not find any value in analysing his submissions under this head.
D. SPECIAL DAMAGES
41. The Appellant submitted that no receipts were produced hence the sum awarded for special damages was not proved. It cited Hahn v Singh [1985] KLR 716 and Nathan Nyambu Maghanga vs Benard M. Wanjala & Another [2012] eKLR where the common thread was that special damages must not only be specifically claimed but also strictly proved. On his part, the Respondent argued that he proved the special damages and hence, the trial court was correct in its finding.
42. The Respondent produced a receipt from Vihiga County Referral Hospital for a sum of Kshs 10,075/= and a receipt for the Medical Report in the sum of Kshs 3,000/=. The Trial court awarded him Kshs 10,075/= but omitted Kshs 3,000/= when awarding him special damages. In the absence of any justification, the Trial Court erred in law and fact in having failed to award the Respondent the sum of Kshs 3,000/=, the receipt having been tendered in evidence by PW 1.
E. INTEREST
43. Although was not a ground of appeal, this court noted that the Trial Court awarded interest on special damages from the date of judgment. It was the considered view of this court that the Respondent had been kept away from the special damages from the inception of the suit. He was thus entitled to interest on special damages from the date of filing suit.
DISPOSITION
44. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 18 th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon J.A. Agonda in Vihiga PMCC No E019 of 2022 Joram Stanley Inyangala vs Kenya Power & Lighting Co Ltd be and is varied and substituted with the order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 2,010,460/= made up as follows:-
General damages Kshs 2,000,000/=
Prosthetic Kshs 500,000/=
Special damages Kshs 13,075/=
Kshs 2,513,075/=
Less 20% contributory negligence Kshs 502,615/=
Kshs 2,010,460/=
Plus costs of the suit and interest thereon at court rates. For the avoidance of doubt, interest on special damages will accrue interest from the date of filing suit until payment in full while damages from the date of judgment of the Trial Court until payment in full.
45. As the Appellant was partly successfully in its appeal, it is hereby directed that each party will bear its own costs of this Appeal.
46. It is so ordered.
DATED and SIGNED at VIHIGA this 27 th day of April 2026
J. KAMAU
JUDGE
HCCA E044 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E044 OF 2024
KENYA POWER & LIGHTING COMPANY LIMITED …..…………APPELLANT
VERSUS
VINCENT OLAKA OBADIA………………………………………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Principal Magistrate’s Court Civil Case No E020 of 2022 on 5 th September 2024)
JUDGMENT
INTRODUCTION
1. Notably, the suits emanating from the accident herein were a series of three (3) matters to wit, Vihiga PMCC No E018 of 2022 (Now HCCA E046 of 2024) , Vihiga PMCC No E019 of 2022 (Now HCCA E045 of 2024) and Vihiga PMCC No E020 of 2022 (Now HCCA E044 of 2024) , the present matter herein. By consent, the parties agreed that Vihiga PMCC No E019 of 2022 would be the test suit and that the evidence of the witnesses would apply in other suits.
2. In her decision of 5 th September 2024, the Learned Trial Magistrate, Hon J.A. Agonda , found the Appellant herein to have been wholly liable for the accident that resulted in the injuries that the Respondent herein sustained. The Learned Trial Magistrate entered judgment in favour of the Respondent against the Appellant in the following terms:-
General damages Kshs 2,000,000/=
Prosthetic Kshs 1,000,000/=
Special damages Kshs 10,075/=
Kshs 3,010,075/=
Plus costs of the suit and interest thereon at court rates from the date of judgment until payment in full.
3. Being aggrieved by the said decision, on 18 th September 2024, the Appellant herein filed a Memorandum of Appeal of even date. It relied on seven (7) grounds of appeal. It filed a Supplementary Record of Appeal dated 9 th May 2025 on 10 th May 2025.
4. Its Written Submissions were dated 24 th July 2025 and filed on even date while those of the Respondent were dated 20 th August 2025 and filed on 25 th August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
7. Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the issues that had been placed before it for determination were as follows:-
a. Whether or not the Learned Trial Magistrate erred in finding the Appellant wholly liable for the accident;
b. Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
8. The court deemed it prudent to address the issues under the following distinct heads.
I. COMPETENCY OF THE APPEAL
9. The Respondent raised the issue of competency of the Appeal herein. He cited Rule 79G of the Civil Procedure Rules (sic), and the Appeal Rules 82 (1) and submitted that the Record of Appeal was filed out of the sixty (60) days after filing the Memorandum of Appeal that was filed on 19th September 2024. He asserted that the Record of Appeal was filed on 5th May 2025 without any leave being sought from the court or filing any certificate of delay for filing the Record of Appeal. HE averred that as the Record of appeal ought to have been filed on or before 18 th November 2024, the Appeal herein was incompetent. He thus urged this the court to dismiss the said Appeal.
10. Notably section 79G of the Civil procedure Act does not provide timelines for filing a record of appeal. There was no Appeal Rule 82(1) in the Civil Procedure Act. In the event the Respondents were referring to Rule 82(1) of the Court of Appeal Rules, the same applied to procedure of filing appeals in the Court of Appeal and not in the High Court.
11. This court found and held that the Appeal herein was competent and the Respondent’s assertions on its competency were not merited.
II. LIABILITY
12. Grounds of Appeal No (1), (2), (3) and (4) as they were all related.
13. The Appellant submitted that the Respondent did not prove his case on a balance of probabilities. It faulted the Trial Court for not having found that the Respondent was the author of his own misfortune. It was emphatic that the burden of proof rested with the Respondent herein as provided in Section 109 of the Evidence Act. It referred this court to the case of Miller vs Minister of Pensions [1947] 2 All ER 372 where the said principle was restated.
14. As the issue of liability was dealt with in Vihiga PMCC No E019 of 2024 (HCCA E045 of 2024) which was the lead file, this court did not therefore find it necessary to rehash the submissions and analysis on the said issue. It determined that liability would be apportioned at 80%-20% in favour of the Respondent herein.
III. QUANTUM
15. Grounds of Appeal Nos (5), (6) and (7) were dealt with under this head as they were all related. The court dealt with the same under the separate and distinct heads.
A. GENERAL DAMAGES
16. The Appellant submitted that general damages in the sum of Kshs 2,000,000/= that was awarded by the Trial Court were inordinately excessive given the nature and extent of the injuries the Respondent sustained and his contributory negligence. It cited Power Lighting Company Ltd (sic) & Another vs Zakayo Saitoti Naingola & Another [2008] eKLR where the principles of awarding damages were considered, being that the damages were not to be inordinately too low or too high, that the damages were intended to compensate and not to enrich a party, that past cases were merely guides with each case being determined on its own facts, that inflationary trends should be taken into account . It urged the court to adopt the sum of Kshs 800,000/- that it had proposed in the Trial Court. It cited several cases where the general damages ranged from 250,000/= to Kshs 750,000/= for amputation above the knee and were for the years between 1993 and 2016.
17. On his part, the Respondent argued that the award on general damages was reasonable and fair because he had been declared seventy (70%) per cent disabled. He added that the Appellant did not file a second medical report although they examined him. He also averred that his age was also a major factor that was considered.
18. It cited Bayusuf Freighters Limited vs Patrick Mbatha Kyengo [2014] eKLR where the Court of Appeal awarded Kshs 3,409,040/= for similar injuries sustained and Nicodemus Osoro & another v Jane Gatwiri [2019] eKLR where the appellate court found an award of Kshs 2,000,000/= to have been fair.
19. He maintained that although the finding by the Trial Court on the general damages was reasonable and fair, it ought to be enhanced to Kshs 2,500,000/=.
20. Dr Rodgers Kuyo (hereinafter referred to as “PW1”) examined the Respondent one (1) year after the accident. He stated that the Respondent did not have any fractures. He observed that apart from the amputation, the Respondent had burn wounds which had healed with scars. He assessed the Respondent’s disability at seventy (70%) per cent. He produced two (2) Medical Reports, a Discharge Summary and a prosthesis.
21. The Respondent testified that he sustained injuries to his left leg which was amputated, he had wounds on the stomach, private parts and hands. On being cross-examined, he stated that he used crutches and was informed that a computerised prosthesis would be fixed.
22. While awarding an amount of Kshs 2,000,000/=, the Trial Court made reference to several authorities and held that based on the inflationary trends, nature of injuries and general trends of awards based on such similar injuries, the said amount was reasonable.
23. It was well settled in law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko [ 2004] eKLR .
24. It must be understood that money can never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury.
25. However, this assessment was not without limits. A court had to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court therefore had to be guided by precedents.
26. Indeed, in the case of Kigaraari vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public.
27. This court also had due regard to the case of Lim vs Camden HA [1980] AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
28. Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognise that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
29. Towards this end, an appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended as was held in the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra).
30. Remaining faithful to the doctrine of stare decisis and taking the inflationary trends into consideration, it was the considered view of this court that the award of Kshs.2,000,000/= for general damages that was awarded by the Trial Court was not unreasonable. The authorities the Appellant had cited were old and not comparable to recent cases.
31. In arriving at the said conclusion, this court had due regard to the following cases:-
1. Dolphine Freighters Ltd v Shingoli [2025] KEHC 5216 (KLR)
The appellate court upheld an award of Kshs 2,000,000/= where the victim injuries included a fractured leg, amputation above the knee, and a seventy (70%) per cent permanent disability.
2. Philip Kiprono v Isaya Aura Odeke [2019] KEHC 10170 (KLR)
The appellate court upheld the sum of Kshs 2,500,000/= that was awarded by the trial court where the victim leg was amputated and permanent incapacity was assessed at sixty (60%) to seventy (70%) per cent.
32. This court was not, therefore, persuaded to disturb the award of general damages.
B. PROSTHETIC
33. The Appellant submitted that the award of Kshs1,000,000/= for the prosthetic leg lacked evidential foundation since the Respondent failed to provide evidence. It faulted the Trial Court for holding that it had not proposed any sum for the prosthesis because in its Written Submissions, it had proposed a sum of Kshs 400,000/=. It urged this court to adopt the said sum.
34. The Respondent asked this court to enhance the sum of Kshs1,000,000/= that was awarded for the prosthetic leg to the actual quoted amount which was required for him to acquire an electric prosthetic for above knee prosthesis.
35. Save for submitting that a sum of Kshs 400,000/= was adequate, the Appellant did not also provide any expert documentary evidence to support its assertion . The quotation from Ottobock put the cost of the prostheses to Kshs 4,010,893.98. When he was cross examined, PW 1 put the cost of prosthesis averagely at Kshs 500,000/=.
36. The justification by the Trial Court to award the said sum of Kshs 1,000,000/- for the prosthetic was not clear to this court because it awarded a sum of Kshs 500,000/= for the prostheses to a person who was also injured during the incident. The court, therefore, agreed with the Appellant that the said amount was not supported by any evidence and could not be allowed to stand.
37. Indeed, lack of opposition, if at all, as the Trial Court opined was not a reason to award a sum higher than what an expert had proposed. Even so, the court noted that in its Written Submissions dated 14 th August 2024, the Appellant had indicated that a sum of Kshs 400,000/= was fair for the cost of a normal prosthesis. It was the considered view that a normal prosthesis would be fair as directing the Appellant to pay for a computerised prothesis would amount to excessive quantum under that head.
38. In the premises foregoing, this court came to the firm conclusion that a sum of Kshs 500,000/= was adequate compensation under this head. Hence, the sum of Kshs 1,000,000/= for the prosthetic leg be and is hereby set aside and/or varied.
C. LOSS OF EARNINGS
39. The Appellan t referred this court to the case of Mumias Sugar Limited vs Francis Wanalo [2007] eKLR where it was held that there was no formula for assessing loss of earning capacity but that the court had to be apply the correct principles and take into account the relevant principles. He also set out the holdings in the cases of Eric Onyango Okumu vs SDV Transami (K) Ltd [2007] eKLR and M waura Muriuki vs Suera Flowers Ltd & Another [2014] eKLR but did not extrapolate how the same related to his case.
40. The Respondent did not submit on this issue. This was understandable as the Trial Court did not award damages for loss of earnings. As the Respondent did not cross-appeal, this court did not find any value in analysing his submissions under this head.
D. SPECIAL DAMAGES
41. The Appellant submitted that no receipts were produced hence the sum awarded for special damages was not proved. It cited Hahn v Singh [1985] KLR 716 and Nathan Nyambu Maghanga vs Benard M. Wanjala & Another [2012] eKLR where the common thread was that special damages must not only be specifically claimed but also strictly proved. On his part, the Respondent argued that he proved the special damages and hence, the trial court was correct in its finding.
42. The Respondent produced a receipt from Vihiga County Referral Hospital for a sum of Kshs 10,075/= and a receipt for the Medical Report in the sum of Kshs 3,000/=. The Trial court awarded him Kshs 10,075/= but omitted Kshs 3,000/= when awarding him special damages. In the absence of any justification, the Trial Court erred in law and fact in having failed to award the Respondent the sum of Kshs 3,000/=, the receipt having been tendered in evidence by PW 1.
E. INTEREST
43. Although was not a ground of appeal, this court noted that the Trial Court awarded interest on special damages from the date of judgment. It was the considered view of this court that the Respondent had been kept away from the special damages from the inception of the suit. He was thus entitled to interest on special damages from the date of filing suit.
DISPOSITION
44. For the foregoing reason, the upshot of this court’s decision was that the Appellant’s Appeal that was lodged on 18 th September 2024 was partially merited and the same be and is hereby allowed in part. The effect of this decision is that the judgment of the Learned Trial Magistrate Hon J.A. Agonda in Vihiga PMCC No E019 of 2022 Joram Stanley Inyangala vs Kenya Power & Lighting Co Ltd be and is varied and substituted with the order that judgment be and is hereby entered in favour of the Respondent herein against the Appellant herein for the sum of Kshs 2,010,460/= made up as follows:-
General damages Kshs 2,000,000/=
Prosthetic Kshs 500,000/=
Special damages Kshs 13,075/=
Kshs 2,513,075/=
Less 20% contributory negligence Kshs 502,615/=
Kshs 2,010,460/=
Plus costs of the suit and interest thereon at court rates. For the avoidance of doubt, interest on special damages will accrue interest from the date of filing suit until payment in full while damages from the date of judgment of the Trial Court until payment in full.
45. As the Appellant was partly successfully in its appeal, it is hereby directed that each party will bear its own costs of this Appeal.
46. It is so ordered.
DATED and SIGNED at VIHIGA this 27 th day of April 2026
J. KAMAU
JUDGE
HCCA E044 OF 20242