(Being an Appeal against the judgment and decree of Hon. Ruguru. N in Milimani MCCC No. 5754 of 2022 delivered on the 23 rd May 2025)
JUDGMENT
1. This appeal arises from a suit instituted by Elizabeth Kariko Muthee (the Respondent) against the Appellants before the Magistrates’ Court at Milimani through a plaint dated 7 th November 2022. The Respondent averred that on 13 th May 2022, while standing off Landhies Road, she was knocked down by motor vehicle registration number KCM 950H, owned by the 1 st Appellant and driven by the 2 nd Appellant, thereby sustaining serious bodily injuries. She attributed the accident to the negligence of the 2 nd Appellant, contending that he drove at an excessive speed, violated traffic regulations, operated a defective motor vehicle, and generally failed to exercise due care. As a result of the accident, she sustained, among other injuries, a left distal humerus fracture, a left radius styloid fracture, and a degloving injury to the left axilla. Consequently, she sought general damages, special damages, compensation for diminished earning capacity, costs of the suit, and interest.
2. In response, the Appellants filed a statement of defence dated 7 th February 2023 denying the allegations contained in the plaint and putting the Respondent to strict proof thereof. Without prejudice to that denial, they pleaded that if any accident occurred, the same was substantially caused or contributed to by the Respondent’s own negligence. In particular, they alleged that she jumped over a pedestrian barrier, failed to use a designated footbridge situated nearby, and disregarded oncoming traffic. The 2 nd Appellant further maintained that on the material day he was driving motor vehicle KCM 950H along Landhies Road when a driver of a saloon vehicle informed him that an accident had occurred. Upon proceeding to the scene, he allegedly found the Respondent, who informed him that she had been running away from a motorcycle, fallen onto the road, and thereafter had her hand run over by a motor vehicle. It was therefore his case that he did not knock down the Respondent and that, if any accident occurred, it was solely attributable to her negligence.
3. During the hearing, the Respondent testified and adopted her witness statement dated 7 th November 2022 as her evidence in chief. Upon cross-examination, she stated that her hand had not fully healed. She maintained that she was off the road at the time of the accident and did not see the vehicle that struck her, explaining that there were many people waiting to cross the road. The Respondent also called a police officer, who testified as PW2 and produced the police abstract relating to the accident. The Appellants did not call any witnesses. However, by consent of the parties, the documents contained in their list of documents dated 30 th May 2023 were admitted in evidence.
4. Upon considering the evidence and submissions placed before it, the trial court found the Appellants wholly liable for the accident and entered judgment in favour of the Respondent in the sum of Kshs 2,511,765/= together with costs and interest. The award comprised Kshs 2,000,000/= in general damages, Kshs 500,000/= for diminished earning capacity, and Kshs 11,765/= as special damages.
5. The Appellants were aggrieved and they lodged the present appeal through a memorandum of appeal dated 16 th June 2025 contending that:
(1) The Trial Magistrate acted in error when she failed to properly evaluate evidence on record thus reaching an erroneous decision on the issue of quantum of damages.
(2) The Trial Magistrate acted in error when she failed to properly evaluate the expert evidence on record thus reaching an erroneous decision on the issue of quantum of damages payable to the Respondent and thereby arriving at a manifestly excessive award.
(3) The Trial Magistrate erred in law and fact by basing her decision on extraneous matters and failing to base her decision on the facts, evidence on record and the principles of stare decisis.
6. On the basis of those grounds, the Appellants urge this Court to allow the appeal, set aside the award on quantum, and reassess or vary the same to a reasonable amount. They also seek the costs of the appeal.
7. The appeal was canvassed by way of written submissions.
APPELLANTS’ SUBMISSIONS
8. The Appellants identify two issues for determination, namely: whether the award of general damages was manifestly excessive and who should bear costs of the appeal.
9. On the award of Kshs 2,000,000/= in general damages, the Appellants contend that the same was excessive and that an award of Kshs 500,000/= would have been reasonable. They rely on Jitan Nagra v Abidnego Nyandusi Oigo [2016] eKLR, where the court reduced an award of Kshs 1,000,000/= to Kshs 450,000/= for lacerations on the occipital area, deep cut wounds on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur.
10. They also rely on Mwangi v Siloma & Another (Civil Appeal E102 of 2022) [2023] KEHC 26140 (KLR) , in which the court enhanced an award of Kshs 800,000/= to Kshs 1,200,000/= for a fracture of the distal end of the right tibia and fibula, fracture left lateral malleolus of the left ankle joint, fracture left medial malleolus of the left ankle joint, blunt injury to the lower back leading to soft tissue injuries, blunt injury to the left hand leading to post traumatic radial nerve palsy, fracture proximal end of the left humerus, soft tissue injury of the right leg and soft tissue injuries of the left ankle joint.
11. With respect to the award of Kshs 500,000/= for diminished earning capacity, the Appellants submit that the same was unsupported by the evidence. They point out that even the trial court acknowledged that the Respondent had not demonstrated the manner in which her injuries affected her employment. They further assert that the Respondent did not testify that her earnings had reduced or that her duties had been curtailed as a consequence of the injuries sustained. In support of that argument, the Appellants rely on Jacaranda Bodaboda Operators & another v Nyasero (Civil Appeal 774 of 2022) [2023] KEHC 23806 (KLR) , where the court held:
“The trial court made an award of diminished earning capacity because the Respondent had suffered 10% permanent incapacity. In my view, there was no basis to award diminished earning capacity as the same was not supported by the medical report and the evidence of the doctor who examined the Respondent. The doctor in his evidence said that after recovery the Respondent would be able to resume some work. The doctor was not asked whether the injury had any lifelong effect on the Respondent’s capacity to do construction work. More so, the Respondent was not examined after the recovery period to determine whether his capacity to do construction work was affected by the injury. The award of diminished earning capacity was therefore not supported by evidence. It is therefore my view that the award of Kshs 200,000/= for diminished earning capacity was wrongly awarded and the same is set aside.”
12. Nevertheless, the Appellants submit that should the Court find an award under that head justified, a sum of Kshs 100,000/= would be appropriate. In that regard, they rely on Muiruri v Tezo Quarries Limited & 2 Others (Civil Appeal 129 of 2023) [2024] KEHC 8762 (KLR) , where an award of Kshs 300,000/= was made despite the absence of proof of income.
13. Finally, the Appellants urge the Court to award them the costs of the appeal on the basis that the trial court misapprehended the evidence and consequently made an excessive award.
RESPONDENT’S SUBMISSIONS
14. On her part the Respondent submits that the trial court’s judgment was sound, hence it should be upheld. She put reliance on Geofrey Mwaniki Mwinzi v Ibero (K) Limited & Another (2014) eKLR , where the Plaintiff was awarded Kshs 2,500,000/= for similar injuries. She also relies on Ziporah Nangila v Eldoret Express Limited & 2 Others [2016] eKLR , where the sum of Kshs 2,400,000/= was awarded and Kirinjit Singh Magon v Bonanza Rice Millers Ltd [2009] eKLR , where Kshs 2,000,000/= was awarded.
15. In view of the foregoing, she urges the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
16. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This principle was stated by the Court of Appeal in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reaffirmed in Peters v Sunday Post Ltd [1958] EA 424 .
17. From the memorandum of appeal and the submissions on record, the finding on liability is not challenged. The appeal is directed solely at the quantum of damages awarded by the trial court. The issues that therefore arise for determination are:
(1) Whether the award of Kshs 2,000,000/= in general damages for pain, suffering and loss of amenities was so excessive as to warrant interference by this Court; and
(2) Whether the award of Kshs 500,000/= for diminished earning capacity was justified.
18. The principles upon which an appellate court may interfere with an award of damages are now well settled. In Butt v Khan [1981] KLR 349 , the Court of Appeal held that an appellate court should not disturb an award of damages unless it is shown that the trial court proceeded on wrong principles, misapprehended the evidence, took into account an irrelevant factor, failed to take into account a relevant factor, or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages suffered. The same principle was reiterated in Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No. 2) [1987] KLR 30 .
19. The Respondent sustained a left distal humerus fracture, a left radius styloid fracture, degloving injury to the left axilla, surgical scar on the left arm, degloving scar on the axilla. These injuries were confirmed in the initial treatment records, the P3 and the medical report produced by the Respondent. The second medical report prepared by Dr Wambugu also confirmed a fracture to the distal humerus which is communited. It also awarded her residual disability of 8%. On the basis of those injuries, and the authorities cited the trial court awarded Kshs 2,000,000/= as general damages for pain, suffering and loss of amenities.
20. While there is no dispute that the injuries sustained by the Respondent were serious, an award of damages must remain within the range established by comparable authorities. In Stanley Maore v Geoffrey Mwenda [2004] eKLR , the Court of Appeal emphasized that comparable injuries should, as far as possible, attract comparable awards, though allowance must be made for the circumstances of each case and the effects of inflation.
21. I have considered the authorities cited by the parties alongside the nature of the injuries sustained by the Respondent. In Mwangi v Siloma & Another (Civil Appeal E102 of 2022) [2023] KEHC 26140 (KLR), the injuries were multiple fractures including fractures of the distal tibia and fibula, fractures of the medial and lateral malleolus, a fracture of the proximal humerus and radial nerve palsy. The High Court enhanced the award from Kshs 800,000/= to Kshs 1,200,000/=. Similarly, in Jitan Nagra v Abidnego Nyandusi Oigo [2016] eKLR , the injuries were a compound fracture of the tibia and fibula, a distal femur fracture and multiple soft tissue injuries. The court reduced the award from Kshs 1,000,000/= to Kshs 450,000/=. On the other hand, the authorities relied upon by the Respondent, namely Geofrey Mwaniki Mwinzi v Ibero (K) Limited & Another [2014] eKLR and Ziporah Nangila v Eldoret Express Limited & 2 Others [2016] eKLR , attracted awards of Kshs 2,500,000/= and Kshs 2,400,000/= respectively. She also cited Kirinjit Singh Magon v Bonanza Rice Millers Ltd [2009] eKLR , where Kshs 2,000,000/= was awarded. The Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] eKLR observed that no two cases are precisely the same and that it is inevitable that there will be disparity in awards made by different courts for similar injuries. However, the decisions cited by the Respondent involved injuries that were more extensive, including multiple fractures. For instance, in the Mwaniki Mwinzi case(supra) the injuries included extensive compound fractures on the left tibia and fibula, a fractured left collarbone and extensive soft tissue injuries.
22. Having carefully considered the injuries sustained by the Respondent, the medical evidence on record, the degree of permanent incapacity and the comparable authorities, I am persuaded that the award of Kshs 2,000,000/= was on the higher side and did not sufficiently account for the trend of awards in comparable cases. In my view, the award represents an overestimation of the damages payable and therefore warrants limited interference by this Court. Accordingly, I find that an award of Kshs 1,600,000/= would constitute fair and reasonable compensation for pain, suffering and loss of amenities.
23. Concerning the award of Kshs 500,000/= for diminished earning capacity, it is trite law that while diminished earning capacity may be awarded as part of general damages even where actual loss of earnings is not proved, there must nevertheless be evidence demonstrating that the injuries have adversely affected the claimant's capacity to earn a living. The Respondent testified that she is clinical Officer by profession and used to earn Kshs 63,000/=per month, but due to the injuries she will be unable to fully resume her duties. The Respondent’s medical report placed the degree of incapacity at 20% while the Appellant’s 2 nd Medical report placed the degree of incapacity at 8%. There was no proof that the respondent had lost his employment, however there was evidence that the stiffness of the left elbow may reduce her chances of earning a living. The trial court noted correctly that proof of salary is not a prerequisite for an award under this head, however I believe that figure was on the higher side considering that there was no proof that the respondent had lost his employment. In the circumstances a figure of Kshs 350,000/= would have sufficed. I am guided by Kaluworks Limited v Nicholus Ngome Kombo [2020] eKLR.
24. The award of special damages in the sum of Kshs 11,765/= was neither challenged nor contested and is therefore upheld. Consequently, the appeal partially succeeds and the judgment of the trial court is varied as follows:
(1) General damages for pain, suffering and loss of amenities Kshs 1,600,000/=.
(2) Damages for diminished earnings Kshs 350,000/=
(3) Special damages Kshs 11,765/=.
Total Kshs 1,961,765/=
25. Since the appeal has succeeded only in part, and bearing in mind that the Respondent remains substantially successful in the suit, each party shall bear its own costs of the appeal.
DATED, SIGNED AND DELIVERED ON THE 9 TH JULY 2026 via Teams platform.
D.O.ONYANGO,JUDGE
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JUDGMENT
1. This appeal arises from a suit instituted by Elizabeth Kariko Muthee (the Respondent) against the Appellants before the Magistrates’ Court at Milimani through a plaint dated 7 th November 2022. The Respondent averred that on 13 th May 2022, while standing off Landhies Road, she was knocked down by motor vehicle registration number KCM 950H, owned by the 1 st Appellant and driven by the 2 nd Appellant, thereby sustaining serious bodily injuries. She attributed the accident to the negligence of the 2 nd Appellant, contending that he drove at an excessive speed, violated traffic regulations, operated a defective motor vehicle, and generally failed to exercise due care. As a result of the accident, she sustained, among other injuries, a left distal humerus fracture, a left radius styloid fracture, and a degloving injury to the left axilla. Consequently, she sought general damages, special damages, compensation for diminished earning capacity, costs of the suit, and interest.
2. In response, the Appellants filed a statement of defence dated 7 th February 2023 denying the allegations contained in the plaint and putting the Respondent to strict proof thereof. Without prejudice to that denial, they pleaded that if any accident occurred, the same was substantially caused or contributed to by the Respondent’s own negligence. In particular, they alleged that she jumped over a pedestrian barrier, failed to use a designated footbridge situated nearby, and disregarded oncoming traffic. The 2 nd Appellant further maintained that on the material day he was driving motor vehicle KCM 950H along Landhies Road when a driver of a saloon vehicle informed him that an accident had occurred. Upon proceeding to the scene, he allegedly found the Respondent, who informed him that she had been running away from a motorcycle, fallen onto the road, and thereafter had her hand run over by a motor vehicle. It was therefore his case that he did not knock down the Respondent and that, if any accident occurred, it was solely attributable to her negligence.
3. During the hearing, the Respondent testified and adopted her witness statement dated 7 th November 2022 as her evidence in chief. Upon cross-examination, she stated that her hand had not fully healed. She maintained that she was off the road at the time of the accident and did not see the vehicle that struck her, explaining that there were many people waiting to cross the road. The Respondent also called a police officer, who testified as PW2 and produced the police abstract relating to the accident. The Appellants did not call any witnesses. However, by consent of the parties, the documents contained in their list of documents dated 30 th May 2023 were admitted in evidence.
4. Upon considering the evidence and submissions placed before it, the trial court found the Appellants wholly liable for the accident and entered judgment in favour of the Respondent in the sum of Kshs 2,511,765/= together with costs and interest. The award comprised Kshs 2,000,000/= in general damages, Kshs 500,000/= for diminished earning capacity, and Kshs 11,765/= as special damages.
5. The Appellants were aggrieved and they lodged the present appeal through a memorandum of appeal dated 16 th June 2025 contending that:
(1) The Trial Magistrate acted in error when she failed to properly evaluate evidence on record thus reaching an erroneous decision on the issue of quantum of damages.
(2) The Trial Magistrate acted in error when she failed to properly evaluate the expert evidence on record thus reaching an erroneous decision on the issue of quantum of damages payable to the Respondent and thereby arriving at a manifestly excessive award.
(3) The Trial Magistrate erred in law and fact by basing her decision on extraneous matters and failing to base her decision on the facts, evidence on record and the principles of stare decisis.
6. On the basis of those grounds, the Appellants urge this Court to allow the appeal, set aside the award on quantum, and reassess or vary the same to a reasonable amount. They also seek the costs of the appeal.
7. The appeal was canvassed by way of written submissions.
APPELLANTS’ SUBMISSIONS
8. The Appellants identify two issues for determination, namely: whether the award of general damages was manifestly excessive and who should bear costs of the appeal.
9. On the award of Kshs 2,000,000/= in general damages, the Appellants contend that the same was excessive and that an award of Kshs 500,000/= would have been reasonable. They rely on Jitan Nagra v Abidnego Nyandusi Oigo [2016] eKLR, where the court reduced an award of Kshs 1,000,000/= to Kshs 450,000/= for lacerations on the occipital area, deep cut wounds on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur.
10. They also rely on Mwangi v Siloma & Another (Civil Appeal E102 of 2022) [2023] KEHC 26140 (KLR) , in which the court enhanced an award of Kshs 800,000/= to Kshs 1,200,000/= for a fracture of the distal end of the right tibia and fibula, fracture left lateral malleolus of the left ankle joint, fracture left medial malleolus of the left ankle joint, blunt injury to the lower back leading to soft tissue injuries, blunt injury to the left hand leading to post traumatic radial nerve palsy, fracture proximal end of the left humerus, soft tissue injury of the right leg and soft tissue injuries of the left ankle joint.
11. With respect to the award of Kshs 500,000/= for diminished earning capacity, the Appellants submit that the same was unsupported by the evidence. They point out that even the trial court acknowledged that the Respondent had not demonstrated the manner in which her injuries affected her employment. They further assert that the Respondent did not testify that her earnings had reduced or that her duties had been curtailed as a consequence of the injuries sustained. In support of that argument, the Appellants rely on Jacaranda Bodaboda Operators & another v Nyasero (Civil Appeal 774 of 2022) [2023] KEHC 23806 (KLR) , where the court held:
“The trial court made an award of diminished earning capacity because the Respondent had suffered 10% permanent incapacity. In my view, there was no basis to award diminished earning capacity as the same was not supported by the medical report and the evidence of the doctor who examined the Respondent. The doctor in his evidence said that after recovery the Respondent would be able to resume some work. The doctor was not asked whether the injury had any lifelong effect on the Respondent’s capacity to do construction work. More so, the Respondent was not examined after the recovery period to determine whether his capacity to do construction work was affected by the injury. The award of diminished earning capacity was therefore not supported by evidence. It is therefore my view that the award of Kshs 200,000/= for diminished earning capacity was wrongly awarded and the same is set aside.”
12. Nevertheless, the Appellants submit that should the Court find an award under that head justified, a sum of Kshs 100,000/= would be appropriate. In that regard, they rely on Muiruri v Tezo Quarries Limited & 2 Others (Civil Appeal 129 of 2023) [2024] KEHC 8762 (KLR) , where an award of Kshs 300,000/= was made despite the absence of proof of income.
13. Finally, the Appellants urge the Court to award them the costs of the appeal on the basis that the trial court misapprehended the evidence and consequently made an excessive award.
RESPONDENT’S SUBMISSIONS
14. On her part the Respondent submits that the trial court’s judgment was sound, hence it should be upheld. She put reliance on Geofrey Mwaniki Mwinzi v Ibero (K) Limited & Another (2014) eKLR , where the Plaintiff was awarded Kshs 2,500,000/= for similar injuries. She also relies on Ziporah Nangila v Eldoret Express Limited & 2 Others [2016] eKLR , where the sum of Kshs 2,400,000/= was awarded and Kirinjit Singh Magon v Bonanza Rice Millers Ltd [2009] eKLR , where Kshs 2,000,000/= was awarded.
15. In view of the foregoing, she urges the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
16. This being a first appeal, the duty of this Court is to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This principle was stated by the Court of Appeal in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and reaffirmed in Peters v Sunday Post Ltd [1958] EA 424 .
17. From the memorandum of appeal and the submissions on record, the finding on liability is not challenged. The appeal is directed solely at the quantum of damages awarded by the trial court. The issues that therefore arise for determination are:
(1) Whether the award of Kshs 2,000,000/= in general damages for pain, suffering and loss of amenities was so excessive as to warrant interference by this Court; and
(2) Whether the award of Kshs 500,000/= for diminished earning capacity was justified.
18. The principles upon which an appellate court may interfere with an award of damages are now well settled. In Butt v Khan [1981] KLR 349 , the Court of Appeal held that an appellate court should not disturb an award of damages unless it is shown that the trial court proceeded on wrong principles, misapprehended the evidence, took into account an irrelevant factor, failed to take into account a relevant factor, or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages suffered. The same principle was reiterated in Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No. 2) [1987] KLR 30 .
19. The Respondent sustained a left distal humerus fracture, a left radius styloid fracture, degloving injury to the left axilla, surgical scar on the left arm, degloving scar on the axilla. These injuries were confirmed in the initial treatment records, the P3 and the medical report produced by the Respondent. The second medical report prepared by Dr Wambugu also confirmed a fracture to the distal humerus which is communited. It also awarded her residual disability of 8%. On the basis of those injuries, and the authorities cited the trial court awarded Kshs 2,000,000/= as general damages for pain, suffering and loss of amenities.
20. While there is no dispute that the injuries sustained by the Respondent were serious, an award of damages must remain within the range established by comparable authorities. In Stanley Maore v Geoffrey Mwenda [2004] eKLR , the Court of Appeal emphasized that comparable injuries should, as far as possible, attract comparable awards, though allowance must be made for the circumstances of each case and the effects of inflation.
21. I have considered the authorities cited by the parties alongside the nature of the injuries sustained by the Respondent. In Mwangi v Siloma & Another (Civil Appeal E102 of 2022) [2023] KEHC 26140 (KLR), the injuries were multiple fractures including fractures of the distal tibia and fibula, fractures of the medial and lateral malleolus, a fracture of the proximal humerus and radial nerve palsy. The High Court enhanced the award from Kshs 800,000/= to Kshs 1,200,000/=. Similarly, in Jitan Nagra v Abidnego Nyandusi Oigo [2016] eKLR , the injuries were a compound fracture of the tibia and fibula, a distal femur fracture and multiple soft tissue injuries. The court reduced the award from Kshs 1,000,000/= to Kshs 450,000/=. On the other hand, the authorities relied upon by the Respondent, namely Geofrey Mwaniki Mwinzi v Ibero (K) Limited & Another [2014] eKLR and Ziporah Nangila v Eldoret Express Limited & 2 Others [2016] eKLR , attracted awards of Kshs 2,500,000/= and Kshs 2,400,000/= respectively. She also cited Kirinjit Singh Magon v Bonanza Rice Millers Ltd [2009] eKLR , where Kshs 2,000,000/= was awarded. The Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] eKLR observed that no two cases are precisely the same and that it is inevitable that there will be disparity in awards made by different courts for similar injuries. However, the decisions cited by the Respondent involved injuries that were more extensive, including multiple fractures. For instance, in the Mwaniki Mwinzi case(supra) the injuries included extensive compound fractures on the left tibia and fibula, a fractured left collarbone and extensive soft tissue injuries.
22. Having carefully considered the injuries sustained by the Respondent, the medical evidence on record, the degree of permanent incapacity and the comparable authorities, I am persuaded that the award of Kshs 2,000,000/= was on the higher side and did not sufficiently account for the trend of awards in comparable cases. In my view, the award represents an overestimation of the damages payable and therefore warrants limited interference by this Court. Accordingly, I find that an award of Kshs 1,600,000/= would constitute fair and reasonable compensation for pain, suffering and loss of amenities.
23. Concerning the award of Kshs 500,000/= for diminished earning capacity, it is trite law that while diminished earning capacity may be awarded as part of general damages even where actual loss of earnings is not proved, there must nevertheless be evidence demonstrating that the injuries have adversely affected the claimant's capacity to earn a living. The Respondent testified that she is clinical Officer by profession and used to earn Kshs 63,000/=per month, but due to the injuries she will be unable to fully resume her duties. The Respondent’s medical report placed the degree of incapacity at 20% while the Appellant’s 2 nd Medical report placed the degree of incapacity at 8%. There was no proof that the respondent had lost his employment, however there was evidence that the stiffness of the left elbow may reduce her chances of earning a living. The trial court noted correctly that proof of salary is not a prerequisite for an award under this head, however I believe that figure was on the higher side considering that there was no proof that the respondent had lost his employment. In the circumstances a figure of Kshs 350,000/= would have sufficed. I am guided by Kaluworks Limited v Nicholus Ngome Kombo [2020] eKLR.
24. The award of special damages in the sum of Kshs 11,765/= was neither challenged nor contested and is therefore upheld. Consequently, the appeal partially succeeds and the judgment of the trial court is varied as follows:
(1) General damages for pain, suffering and loss of amenities Kshs 1,600,000/=.
(2) Damages for diminished earnings Kshs 350,000/=
(3) Special damages Kshs 11,765/=.
Total Kshs 1,961,765/=
25. Since the appeal has succeeded only in part, and bearing in mind that the Respondent remains substantially successful in the suit, each party shall bear its own costs of the appeal.
DATED, SIGNED AND DELIVERED ON THE 9 TH JULY 2026 via Teams platform.
D.O.ONYANGO,JUDGE
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