'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E178 OF 2023
MINNEH WANJIRU NDUNGU…………………..........………………………APPELLANT
VERSUS
ESTHER MUTINDI NYAMAI………….......…………………………...1ST RESPONDENT
PETER KAMAU NDUTA………………........…………………………..2ND RESPONDENT
(Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Mavoko (Hon. B. A. Ojoo, SPM) delivered on the 5th day of July 2023 in the Chief Magistrate’s Court at Mavoko Civil Suit No. E563 of 2021)
JUDGEMENT
Brief facts
1. By an Amended Plaint dated 21/03/2023 the 1st Respondent (then Plaintiff) filed suit against the Appellant (then 2nd Defendant) and the 2nd Respondent (then 1st Defendant) claiming general damages and special damages in the sum of Kshs.579,695 plus costs and interest. The subject matter of the said suit is a road traffic accident which is said to have occurred on 30/09/2019. The 1st Respondent (Plaintiff) blamed the two Defendants for the occurrence of the accident.
2. The Appellant denied the 1st Respondent’s claim and filed a Statement of Defence dated 22/03/22 in which the Appellant denied the 1st Respondent’s claim. The matter went to a full hearing whereof the 1st Respondent (Plaintiff) testified in support of her case while the Appellant and 2nd Respondent (then Defendants in the Lower Court) did not adduce any evidence.
3. By a Judgement delivered on 05/07/23 the said Court found the Defendants therein 100% jointly liable for the accident the subject matter. The court proceeded to make a total award of Kshs.14,883,695 plus costs and interest as against the Defendants in the suit jointly and severally.
4. Being dissatisfied with the said Judgement and Decree, the Appellant filed a Memorandum of Appeal dated 03/08/23 raising 7 grounds of appeal as follows:
a. That the learned Magistrate erred both in law and fact in failing to hold that on a balance of probabilities the 1st Respondent had only proved her claim against the 2nd Respondent.
b. That the learned Magistrate erred in law and fact in failing to hold and find the 2nd Respondent wholly liable for the accident the subject matter of the suit in the Lower Court.
c. That in the alternative the learned Magistrate erred both in law and fact in failing to correctly evaluate the entire evidence given and find that the 2nd Respondent bore a heavier percentage of blame and thus proceed to apportion liability as against the Appellant and 2nd Respondent accordingly and in appropriate percentage ratios.
d. That the learned Magistrate erred in law and fact in making duplicated awards for general damages in favour of the Appellant as against the Respondents on account of loss of future earnings and loss of earning capacity and further failing to discount the award on account of future earnings due to the incidence of lump sum payment and in effect making a gratuitous award.
e. That the learned Magistrate erred in law in failing to determine all issues placed before him for determination and/or arising from the Pleadings and the evidence.
f. That the decision in its entirety is against the evidence adduced before the trial court.
g. That the entire decision is a misapprehension of the law.
Basically, this Appeal is on both issues of liability and quantum.
5. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 30/04/2025 filed by E. M. Wachira & Co. Advocates while the 1st Respondent’s submissions are dated 25/09/2025 filed by Ombachi Moriasi & Co. Advocates. The 2nd Respondent did not file any submissions.
Evidence before trial court
6. The 1st Respondent adopted her written Statement dated 26/07/21 as her evidence in chief. She also relied on and produced the list and bundle of documents on the list dated 26/7/2021 as PExt.1 -14. Her written Statement is in part as follows;
“On the 30th September 2019, I was a lawful fare paying passenger in motor vehicle registration number KBJ 318W Toyota Matatu along Nairobi-Namanga Road. On reaching near Shalom Community Hospital, the motor vehicle I had boarded was being driven at a very high speed and due to over speeding it was hit by another motor vehicle registration number KBY 696R Isuzu from (Rembo Shuttle Sacco) whereby it lost control and landed in a ditch.”
7. In her oral testimony in court, she testified that;
“I was injured in a road traffic accident after the vehicle I was travelling in from Mlolongo to Town collided with another vehicle. I recall the vehicle was moving very fast and I lost consciousness after the collusion. The vehicle was moving at speed and tried to overtake another but it was too late. It collided with another one head on. The motor vehicle belonged to Rembo Sacco. The vehicles collided head-on. I woke up in hospital. The 2 vehicles were moving at speed. The vehicle I was in tried to overtake when it was unsafe to do so while the 2nd vehicle did not slow down or swerve to avoid the vehicle.”
8. On cross examination, she stated that;
“The accident was reported to Police. The same was investigated by Police (referred to Police Abstract – reads in part). It states that motor vehicle KBJ 318W blamed for the accident.”
9. Under Paragraph 7 of the Amended Plaint dated 21/03/23 this is what the 1st Respondent (then Plaintiff) pleaded.
7. “On or about the 30th September 2019 the 2nd Defendant being the driver, servant and/or agent, did recklessly drove (sic) motor vehicle registration number KBY 696R Isuzu Matatu along Nairobi-Namanga Road and due to over speeding he hit motor vehicle registration number KBJ 318W which the Plaintiff had boarded causing it to lose control whereby it landed in a ditch as a result of which the Plaintiff sustained severe bodily injuries, loss and damage.”
10. The 1st Respondent (Plaintiff) further produced in evidence a Police Abstract Report PEXH. No. 1, which at Paragraph 7 states as follows;
“7. Results of investigations or prosecution (if known)….. M/V Reg No. KBJ 318W Blamed.”
11. The 1st Respondent testified that the vehicle she was travelling in was moving at a high speed and it collided with the other one head-on.
12. As pert the medical Report by Dr. Titus Ndeti Nzina dated 10.6.2021, the 1st Respondent is said to have sustained the following injuries;
i. Cervical spine cord injury
ii. Fracture subluxation of 5th cervical spine
iii. Paralysis of the upper spine
iv. Paralysis of the lower limbs
v. Paralysis of the whole body from the level of 5th cervical spine downwards.
13. The doctor opined that the 1st Respondent suffered cervical cord injury and fractured 5th cervical fracture subluxation which caused her quantraparalysis, parenthesis in the body, generalized bed sores, physical and psychological pains and depression. The injuries have interfered with her routine duties and she will never be able to perform any duties forever. She will have to be assisted to feed, bath, dress, visit the toilet among other things. She will require a person to assist her for the rest of her life. She will also require a special toilet. The degree of permanent incapacity was assessed at ninety-five (95%).
14. The 1st Respondent (Plaintiff) at Paragraph 9 of the Amended Plaint pleaded as follows;
9. “The Plaintiff was 26 years of age enjoying good health and a vigorous life working as an assistant manager at Quest Restaurant earning a salary of Kshs. 17,000 per month before she suffered the severe injuries leading to the paralysis of the whole body from the level of 5th cervical spine downwards suffering a permanent disability of 95% hence shall claim for loss of future earning capacity and for nursing aide for the rest of her life at a sum of Kshs.18,000 per month for a term of 44 years up-to age 70 years.”
15. The 1st Respondent further pleaded for special damages as follows:
i. Medical Report Kshs. 5,000.00
ii. Motor Vehicle Search Kshs. 1,100.00
iii. Medical expenses Kshs.427,618.00
iv. Taxi expenses Kshs.107,000.00
v. Future medical expenses .........................
Total Kshs.579,695.00
16. On the whole, the 1st Respondent prayed for judgement against the Defendants for:
i. General damages
ii. Special damages Kshs.579,695.00
iii. Future medical expenses
iv. Costs of the suit
v. Interest on (i), (ii) and (iii) above.
17. The Appellant and the 2nd Respondent did not call any witness to testify or adduce evidence to controvert the 1st Respondent’s evidence. Their Defences remain mere allegations.
18. Upon considering the evidence on record, the learned trial Magistrate stated as follows:
“On the first issue of who should bear liability for the material accident, the evidence adduced by the Plaintiff is trite that an accident did indeed occur involving motor vehicles registration numbers KBY 696R and that the Plaintiff who was a passenger KBJ 318W was injured. It is also clear that the said vehicles were being driven fast at the material time; that they collided and veered off the road and landed in a ditch. It was also not disputed nor controverted that the 1st Defendant was the owner of motor vehicle registration numbers KBJ 318W while motor vehicle registration number KBY 696R was owned by the 2nd Defendant. The 1st Plaintiff produced police abstract dated 02/06/21 issued by police at Athi River Police wherein the accident was reported, scene visited and investigations carried out. In the absence of evidence to counter the Plaintiff’s evidence of how the accident occurred, I am satisfied that she did, on a balance e of probabilities prove that the Defendants were vicariously liable for the acts and omissions of their drivers, servants, agents and or employees who drove in negligent manner and caused the accident.
It is now a well-established principle of law that motor vehicles which are well driven and well managed and or well-maintained do not just get involved in accidents. This principle was espoused in the case of Rahab Micee Murage vs Attorney General & 2 Others [2015] eKLR where it was stated that there must be a cause to an accident and in this case, only the drivers of the two accident motor vehicles could explain that cause. In this case, however, the drivers chose not to give any evidence in court to explain that cause to the satisfaction of the Court. I therefore apportion liability at 100% against them jointly and severally.”
19. On quantum, the learned trial Magistrate made the following awards:
a. General damages Kshs.4,000,000/=
b. Special damages Kshs. 579,695/=
c. Future Medical needs Kshs.4,100,000/=
d. Loss of earning capacity Kshs.1,000,000/=
e. Loss of future earnings Kshs.5,304,100/=
Total Kshs.14,983,795/=
20. The Appellant now invites this Court to overturn the trial court’s decision, reapportion liability against the 2nd Respondent at 90% to 10% for the Appellant and reduce damages, particularly under the head of loss of future earnings.
21. The 1st Respondent is opposed to the Appeal and argues that the trial court properly exercised its discretion and thus the appeal has no merit and ought to be dismissed with costs.
Analysis and determination
22. The duty of this court as a first appellate court is to re-evaluate the evidence and arrive at its own conclusions. In so doing, the court must take into account the fact that it had no opportunity to hear and see witnesses, and therefore must make an allowance for that. (See: Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123).
23. I have gone through and carefully considered the Record of Appeal dated 01/07/2024 and written submissions filed herein. The Appellant did not contest the awards for general damages, special damages, loss earning capacity and future medical expenses.
24. I also note that the grounds of appeal in the memorandum of appeal revolve around three issues which include;
(i) Apportionment of liability between the Appellant and the 2nd Respondent (1st Defendant before the trial court);
(ii) Loss of future earnings
25. I will therefore proceed to determine the appeal based on the two issues above.
(i) apportionment of liability between the Appellant and the 2nd Respondent (1st Defendant before the trial court);
26. In her own evidence before the trial court, the 1st Respondent testified that she was injured in a road traffic accident after the vehicle she was travelling in from Mlolongo to Town collided with another vehicle. She recalled that the vehicle was moving very fast and she lost consciousness after the collusion. The vehicle was moving at speed and tried to overtake another but it was too late. It collided with another one head on. The motor vehicle belonged to Rembo Sacco. The vehicles collided head-on. She woke up in hospital. The 2 vehicles were moving at speed. The vehicle she was in tried to overtake when it was unsafe to do so while the 2nd vehicle did not slow down or swerve to avoid the vehicle. In addition, the 1st Respondent (Plaintiff) further produced in evidence a Police Abstract as PEXH. No. 1, which showed the results of investigations or prosecution (if known) as M/V Reg No. KBJ 318W Blamed.
27. The above evidence is clear that the motor vehicle the 1st Respondent was travelling in which is owned by the 2nd Respondent was over speeding and when it tried to overtake another vehicle it collided head-on with the Appellant’s oncoming vehicle. It is my position that, the 2nd Respondent’s driver did not first confirm whether it was clear and safe to overtake thus causing the accident. The Appellant’s motor vehicle was on its proper lane and even if it was over speeding, the accident could not have occurred if the 2nd Respondent’s vehicle remained on its proper lane too. However, as a prudent driver, the Appellant’s driver ought to have also taken some caution including swerving if it was possible to do so to avoid the collision. This could only have been ascertained if the Appellant gave evidence. It is my considered view that the learned trial Magistrate failed to consider what role each driver played leading to the resultant accident, especially considering the recommendation in the Police Abstract that was produced in evidence by the 1st Respondent. Had she done so, she would have arrived at the conclusion that the 2nd Respondent was substantially to blame.
28. In an accident involving two motor vehicles, as the instant one, it was either that one of the drivers was to blame or that both were. If one was, then that driver was 100% liable but if both were liable, then liability ought to have been apportioned accordingly. The trial court failed to make this apportionment.
29. In the case of Farmers Choice Ltd & Anor -vs- Priscilla Wanjiku Kamau (Nairobi HCCCA No. 964 of 2007) (Unreported) the Court apportioned liability at 50%:50% in a case where an accident occurred when the two motor vehicles were bypassing one another. However, in the instant case it is clearly evident that the 2nd Respondent’s motor vehicle was the offending one having left its correct lane and attempted to overtake when it was not safe to do so. The 2nd Respondent thus ought to bear the heavier burden of liability
30. In the case of Michael Kloss & Anor vs David Seroney & Others Civil Appeal 285 of 2005 S.E.O. Bosire, P.N. Waki and J.G. Nyamu JJAs remarked as follows;
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …
The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
We have carefully examined the evidence on record in relation to liability and it is clear to us that there was a sufficiently high degree of probability, that, but for the acts of omission and commission by the respective drivers of the two vehicles the accident would have been prevented. To that extent, the learned Judge was right in apportioning contributory negligence to each of them. The only issue is whether the apportionment was appropriate in the circumstances of this case.” And so the Court in the case of ABBAY ABUBAKAR HAJI & ANOR –VS- MARAIR FREIGHT AGENCIES LTD AND ANOR [1984] KECA 57 (KLR) resolved such matter as follows;
1. A trial Judge is under a duty when confronted by conflicting evidence in a traffic accident case to reach a decision and conclude that on a balance of probabilities one or other driver was guilty of negligence, or both, are. (emphasis ours)
2. In some cases, there is, in the absence of any explanation, an irresistible inference of negligence on the part of both. (emphasis supplied)
3. It is usually possible, but extremely difficult, to apportion the blame between two drivers guilty of negligence. If not, it is proper to divide the blame equally between them. (emphasis ours)
4. If the evidence as a whole is insufficient to establish the negligence of any driver or it cannot be inferred from the circumstances of the accident the drivers are not equally to blame. Neither is.
31. Based on the foregoing, I will apportion liability at 80% against the 2nd Respondent while the Appellant will bear 20% contribution.
(ii) Loss of future earnings
32. The Appellant is dissatisfied that the court made an award of Kshs.5,304,100/= in damages for loss of future earning. The Appellant contends that the learned Magistrate erred in law and fact in making duplicated awards for general damages in favour of the Appellant as against the Respondents on account of loss of future earnings and loss of earning capacity and further failing to discount the award on account of future earnings due to the incidence of lump sum payment and in effect making a gratuitous award.
33. The distinction between loss of earning capacity and loss of future earnings was brought out in the case of SJ vs Francesco Di Nello & Another [2015] eKLR where the Court of Appeal stated as follows:
“14. Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in FAIRLEY V JOHN THOMSON LTD [1973] 2 LLYOD’S LAW REPORTS 40 at pg. 14 wherein Lord Denning M.R. said as follows:
“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”
34. The issue is whether the Appellant specifically pleaded and proved loss of future earnings. Apparently, the trial court while determining this issue made the following finding:
“I have considered that the Plaintiff was 24 years old at the time of the accident. It is submitted that she would have worked until 60 years. However, given the vagaries of life, I take the multiplier of 26 as appropriate relying on the relevant case law. This would be 17,000 x 26 x 12 =Kshs.5,304,000/=”
35. Contrary to the point of view expressed by the trial court, the Appellant had neither specifically pleaded nor proved loss of future earnings.
36. It is my finding that the award for loss of future earnings was erroneously awarded as the same was neither specifically pleaded nor proved. The same if therefore set aside.
Disposition
37. The appeal herein succeeds to the extent that liability is apportioned at 80% against the 2nd Respondent while the Appellant will bear 20% contribution.
38. The award for loss of future earnings is set aside.
39. The rest of the trial court’s award shall remain intact meaning that the judgement shall be as follows:
a. Liability 80% 2nd Respondent: 20% Appellant
b. General damages Kshs.4,000,000/=
c. Special damages Kshs. 579,695/=
d. Future Medical needs Kshs.4,100,000/=
e. Loss of earning capacity Kshs.1,000,000/=
f. Loss of future earnings NIL
Total Kshs.9,679,695/=
40. The 1st Respondent is also awarded costs of the trial court’s suit plus interest at court rates.
41. The Appellant will have half the costs of this appeal.
42. There shall be a Forty-Five (45) days stay of execution.
43. Orders accordingly.
JUDGMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 8TH DECEMBER 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH DECEMBER 2025.
In the presence of:
'
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E178 OF 2023
MINNEH WANJIRU NDUNGU…………………..........………………………APPELLANT
VERSUS
ESTHER MUTINDI NYAMAI………….......…………………………...1ST RESPONDENT
PETER KAMAU NDUTA………………........…………………………..2ND RESPONDENT
(Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Mavoko (Hon. B. A. Ojoo, SPM) delivered on the 5th day of July 2023 in the Chief Magistrate’s Court at Mavoko Civil Suit No. E563 of 2021)
JUDGEMENT
Brief facts
1. By an Amended Plaint dated 21/03/2023 the 1st Respondent (then Plaintiff) filed suit against the Appellant (then 2nd Defendant) and the 2nd Respondent (then 1st Defendant) claiming general damages and special damages in the sum of Kshs.579,695 plus costs and interest. The subject matter of the said suit is a road traffic accident which is said to have occurred on 30/09/2019. The 1st Respondent (Plaintiff) blamed the two Defendants for the occurrence of the accident.
2. The Appellant denied the 1st Respondent’s claim and filed a Statement of Defence dated 22/03/22 in which the Appellant denied the 1st Respondent’s claim. The matter went to a full hearing whereof the 1st Respondent (Plaintiff) testified in support of her case while the Appellant and 2nd Respondent (then Defendants in the Lower Court) did not adduce any evidence.
3. By a Judgement delivered on 05/07/23 the said Court found the Defendants therein 100% jointly liable for the accident the subject matter. The court proceeded to make a total award of Kshs.14,883,695 plus costs and interest as against the Defendants in the suit jointly and severally.
4. Being dissatisfied with the said Judgement and Decree, the Appellant filed a Memorandum of Appeal dated 03/08/23 raising 7 grounds of appeal as follows:
a. That the learned Magistrate erred both in law and fact in failing to hold that on a balance of probabilities the 1st Respondent had only proved her claim against the 2nd Respondent.
b. That the learned Magistrate erred in law and fact in failing to hold and find the 2nd Respondent wholly liable for the accident the subject matter of the suit in the Lower Court.
c. That in the alternative the learned Magistrate erred both in law and fact in failing to correctly evaluate the entire evidence given and find that the 2nd Respondent bore a heavier percentage of blame and thus proceed to apportion liability as against the Appellant and 2nd Respondent accordingly and in appropriate percentage ratios.
d. That the learned Magistrate erred in law and fact in making duplicated awards for general damages in favour of the Appellant as against the Respondents on account of loss of future earnings and loss of earning capacity and further failing to discount the award on account of future earnings due to the incidence of lump sum payment and in effect making a gratuitous award.
e. That the learned Magistrate erred in law in failing to determine all issues placed before him for determination and/or arising from the Pleadings and the evidence.
f. That the decision in its entirety is against the evidence adduced before the trial court.
g. That the entire decision is a misapprehension of the law.
Basically, this Appeal is on both issues of liability and quantum.
5. The appeal was canvassed through written submissions. The Appellant’s submissions are dated 30/04/2025 filed by E. M. Wachira & Co. Advocates while the 1st Respondent’s submissions are dated 25/09/2025 filed by Ombachi Moriasi & Co. Advocates. The 2nd Respondent did not file any submissions.
Evidence before trial court
6. The 1st Respondent adopted her written Statement dated 26/07/21 as her evidence in chief. She also relied on and produced the list and bundle of documents on the list dated 26/7/2021 as PExt.1 -14. Her written Statement is in part as follows;
“On the 30th September 2019, I was a lawful fare paying passenger in motor vehicle registration number KBJ 318W Toyota Matatu along Nairobi-Namanga Road. On reaching near Shalom Community Hospital, the motor vehicle I had boarded was being driven at a very high speed and due to over speeding it was hit by another motor vehicle registration number KBY 696R Isuzu from (Rembo Shuttle Sacco) whereby it lost control and landed in a ditch.”
7. In her oral testimony in court, she testified that;
“I was injured in a road traffic accident after the vehicle I was travelling in from Mlolongo to Town collided with another vehicle. I recall the vehicle was moving very fast and I lost consciousness after the collusion. The vehicle was moving at speed and tried to overtake another but it was too late. It collided with another one head on. The motor vehicle belonged to Rembo Sacco. The vehicles collided head-on. I woke up in hospital. The 2 vehicles were moving at speed. The vehicle I was in tried to overtake when it was unsafe to do so while the 2nd vehicle did not slow down or swerve to avoid the vehicle.”
8. On cross examination, she stated that;
“The accident was reported to Police. The same was investigated by Police (referred to Police Abstract – reads in part). It states that motor vehicle KBJ 318W blamed for the accident.”
9. Under Paragraph 7 of the Amended Plaint dated 21/03/23 this is what the 1st Respondent (then Plaintiff) pleaded.
7. “On or about the 30th September 2019 the 2nd Defendant being the driver, servant and/or agent, did recklessly drove (sic) motor vehicle registration number KBY 696R Isuzu Matatu along Nairobi-Namanga Road and due to over speeding he hit motor vehicle registration number KBJ 318W which the Plaintiff had boarded causing it to lose control whereby it landed in a ditch as a result of which the Plaintiff sustained severe bodily injuries, loss and damage.”
10. The 1st Respondent (Plaintiff) further produced in evidence a Police Abstract Report PEXH. No. 1, which at Paragraph 7 states as follows;
“7. Results of investigations or prosecution (if known)….. M/V Reg No. KBJ 318W Blamed.”
11. The 1st Respondent testified that the vehicle she was travelling in was moving at a high speed and it collided with the other one head-on.
12. As pert the medical Report by Dr. Titus Ndeti Nzina dated 10.6.2021, the 1st Respondent is said to have sustained the following injuries;
i. Cervical spine cord injury
ii. Fracture subluxation of 5th cervical spine
iii. Paralysis of the upper spine
iv. Paralysis of the lower limbs
v. Paralysis of the whole body from the level of 5th cervical spine downwards.
13. The doctor opined that the 1st Respondent suffered cervical cord injury and fractured 5th cervical fracture subluxation which caused her quantraparalysis, parenthesis in the body, generalized bed sores, physical and psychological pains and depression. The injuries have interfered with her routine duties and she will never be able to perform any duties forever. She will have to be assisted to feed, bath, dress, visit the toilet among other things. She will require a person to assist her for the rest of her life. She will also require a special toilet. The degree of permanent incapacity was assessed at ninety-five (95%).
14. The 1st Respondent (Plaintiff) at Paragraph 9 of the Amended Plaint pleaded as follows;
9. “The Plaintiff was 26 years of age enjoying good health and a vigorous life working as an assistant manager at Quest Restaurant earning a salary of Kshs. 17,000 per month before she suffered the severe injuries leading to the paralysis of the whole body from the level of 5th cervical spine downwards suffering a permanent disability of 95% hence shall claim for loss of future earning capacity and for nursing aide for the rest of her life at a sum of Kshs.18,000 per month for a term of 44 years up-to age 70 years.”
15. The 1st Respondent further pleaded for special damages as follows:
i. Medical Report Kshs. 5,000.00
ii. Motor Vehicle Search Kshs. 1,100.00
iii. Medical expenses Kshs.427,618.00
iv. Taxi expenses Kshs.107,000.00
v. Future medical expenses .........................
Total Kshs.579,695.00
16. On the whole, the 1st Respondent prayed for judgement against the Defendants for:
i. General damages
ii. Special damages Kshs.579,695.00
iii. Future medical expenses
iv. Costs of the suit
v. Interest on (i), (ii) and (iii) above.
17. The Appellant and the 2nd Respondent did not call any witness to testify or adduce evidence to controvert the 1st Respondent’s evidence. Their Defences remain mere allegations.
18. Upon considering the evidence on record, the learned trial Magistrate stated as follows:
“On the first issue of who should bear liability for the material accident, the evidence adduced by the Plaintiff is trite that an accident did indeed occur involving motor vehicles registration numbers KBY 696R and that the Plaintiff who was a passenger KBJ 318W was injured. It is also clear that the said vehicles were being driven fast at the material time; that they collided and veered off the road and landed in a ditch. It was also not disputed nor controverted that the 1st Defendant was the owner of motor vehicle registration numbers KBJ 318W while motor vehicle registration number KBY 696R was owned by the 2nd Defendant. The 1st Plaintiff produced police abstract dated 02/06/21 issued by police at Athi River Police wherein the accident was reported, scene visited and investigations carried out. In the absence of evidence to counter the Plaintiff’s evidence of how the accident occurred, I am satisfied that she did, on a balance e of probabilities prove that the Defendants were vicariously liable for the acts and omissions of their drivers, servants, agents and or employees who drove in negligent manner and caused the accident.
It is now a well-established principle of law that motor vehicles which are well driven and well managed and or well-maintained do not just get involved in accidents. This principle was espoused in the case of Rahab Micee Murage vs Attorney General & 2 Others [2015] eKLR where it was stated that there must be a cause to an accident and in this case, only the drivers of the two accident motor vehicles could explain that cause. In this case, however, the drivers chose not to give any evidence in court to explain that cause to the satisfaction of the Court. I therefore apportion liability at 100% against them jointly and severally.”
19. On quantum, the learned trial Magistrate made the following awards:
a. General damages Kshs.4,000,000/=
b. Special damages Kshs. 579,695/=
c. Future Medical needs Kshs.4,100,000/=
d. Loss of earning capacity Kshs.1,000,000/=
e. Loss of future earnings Kshs.5,304,100/=
Total Kshs.14,983,795/=
20. The Appellant now invites this Court to overturn the trial court’s decision, reapportion liability against the 2nd Respondent at 90% to 10% for the Appellant and reduce damages, particularly under the head of loss of future earnings.
21. The 1st Respondent is opposed to the Appeal and argues that the trial court properly exercised its discretion and thus the appeal has no merit and ought to be dismissed with costs.
Analysis and determination
22. The duty of this court as a first appellate court is to re-evaluate the evidence and arrive at its own conclusions. In so doing, the court must take into account the fact that it had no opportunity to hear and see witnesses, and therefore must make an allowance for that. (See: Selle & Another v Associated Motor Boat Co. Ltd & Another (1968 (E.A. 123).
23. I have gone through and carefully considered the Record of Appeal dated 01/07/2024 and written submissions filed herein. The Appellant did not contest the awards for general damages, special damages, loss earning capacity and future medical expenses.
24. I also note that the grounds of appeal in the memorandum of appeal revolve around three issues which include;
(i) Apportionment of liability between the Appellant and the 2nd Respondent (1st Defendant before the trial court);
(ii) Loss of future earnings
25. I will therefore proceed to determine the appeal based on the two issues above.
(i) apportionment of liability between the Appellant and the 2nd Respondent (1st Defendant before the trial court);
26. In her own evidence before the trial court, the 1st Respondent testified that she was injured in a road traffic accident after the vehicle she was travelling in from Mlolongo to Town collided with another vehicle. She recalled that the vehicle was moving very fast and she lost consciousness after the collusion. The vehicle was moving at speed and tried to overtake another but it was too late. It collided with another one head on. The motor vehicle belonged to Rembo Sacco. The vehicles collided head-on. She woke up in hospital. The 2 vehicles were moving at speed. The vehicle she was in tried to overtake when it was unsafe to do so while the 2nd vehicle did not slow down or swerve to avoid the vehicle. In addition, the 1st Respondent (Plaintiff) further produced in evidence a Police Abstract as PEXH. No. 1, which showed the results of investigations or prosecution (if known) as M/V Reg No. KBJ 318W Blamed.
27. The above evidence is clear that the motor vehicle the 1st Respondent was travelling in which is owned by the 2nd Respondent was over speeding and when it tried to overtake another vehicle it collided head-on with the Appellant’s oncoming vehicle. It is my position that, the 2nd Respondent’s driver did not first confirm whether it was clear and safe to overtake thus causing the accident. The Appellant’s motor vehicle was on its proper lane and even if it was over speeding, the accident could not have occurred if the 2nd Respondent’s vehicle remained on its proper lane too. However, as a prudent driver, the Appellant’s driver ought to have also taken some caution including swerving if it was possible to do so to avoid the collision. This could only have been ascertained if the Appellant gave evidence. It is my considered view that the learned trial Magistrate failed to consider what role each driver played leading to the resultant accident, especially considering the recommendation in the Police Abstract that was produced in evidence by the 1st Respondent. Had she done so, she would have arrived at the conclusion that the 2nd Respondent was substantially to blame.
28. In an accident involving two motor vehicles, as the instant one, it was either that one of the drivers was to blame or that both were. If one was, then that driver was 100% liable but if both were liable, then liability ought to have been apportioned accordingly. The trial court failed to make this apportionment.
29. In the case of Farmers Choice Ltd & Anor -vs- Priscilla Wanjiku Kamau (Nairobi HCCCA No. 964 of 2007) (Unreported) the Court apportioned liability at 50%:50% in a case where an accident occurred when the two motor vehicles were bypassing one another. However, in the instant case it is clearly evident that the 2nd Respondent’s motor vehicle was the offending one having left its correct lane and attempted to overtake when it was not safe to do so. The 2nd Respondent thus ought to bear the heavier burden of liability
30. In the case of Michael Kloss & Anor vs David Seroney & Others Civil Appeal 285 of 2005 S.E.O. Bosire, P.N. Waki and J.G. Nyamu JJAs remarked as follows;
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …
The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
We have carefully examined the evidence on record in relation to liability and it is clear to us that there was a sufficiently high degree of probability, that, but for the acts of omission and commission by the respective drivers of the two vehicles the accident would have been prevented. To that extent, the learned Judge was right in apportioning contributory negligence to each of them. The only issue is whether the apportionment was appropriate in the circumstances of this case.” And so the Court in the case of ABBAY ABUBAKAR HAJI & ANOR –VS- MARAIR FREIGHT AGENCIES LTD AND ANOR [1984] KECA 57 (KLR) resolved such matter as follows;
1. A trial Judge is under a duty when confronted by conflicting evidence in a traffic accident case to reach a decision and conclude that on a balance of probabilities one or other driver was guilty of negligence, or both, are. (emphasis ours)
2. In some cases, there is, in the absence of any explanation, an irresistible inference of negligence on the part of both. (emphasis supplied)
3. It is usually possible, but extremely difficult, to apportion the blame between two drivers guilty of negligence. If not, it is proper to divide the blame equally between them. (emphasis ours)
4. If the evidence as a whole is insufficient to establish the negligence of any driver or it cannot be inferred from the circumstances of the accident the drivers are not equally to blame. Neither is.
31. Based on the foregoing, I will apportion liability at 80% against the 2nd Respondent while the Appellant will bear 20% contribution.
(ii) Loss of future earnings
32. The Appellant is dissatisfied that the court made an award of Kshs.5,304,100/= in damages for loss of future earning. The Appellant contends that the learned Magistrate erred in law and fact in making duplicated awards for general damages in favour of the Appellant as against the Respondents on account of loss of future earnings and loss of earning capacity and further failing to discount the award on account of future earnings due to the incidence of lump sum payment and in effect making a gratuitous award.
33. The distinction between loss of earning capacity and loss of future earnings was brought out in the case of SJ vs Francesco Di Nello & Another [2015] eKLR where the Court of Appeal stated as follows:
“14. Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in FAIRLEY V JOHN THOMSON LTD [1973] 2 LLYOD’S LAW REPORTS 40 at pg. 14 wherein Lord Denning M.R. said as follows:
“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”
34. The issue is whether the Appellant specifically pleaded and proved loss of future earnings. Apparently, the trial court while determining this issue made the following finding:
“I have considered that the Plaintiff was 24 years old at the time of the accident. It is submitted that she would have worked until 60 years. However, given the vagaries of life, I take the multiplier of 26 as appropriate relying on the relevant case law. This would be 17,000 x 26 x 12 =Kshs.5,304,000/=”
35. Contrary to the point of view expressed by the trial court, the Appellant had neither specifically pleaded nor proved loss of future earnings.
36. It is my finding that the award for loss of future earnings was erroneously awarded as the same was neither specifically pleaded nor proved. The same if therefore set aside.
Disposition
37. The appeal herein succeeds to the extent that liability is apportioned at 80% against the 2nd Respondent while the Appellant will bear 20% contribution.
38. The award for loss of future earnings is set aside.
39. The rest of the trial court’s award shall remain intact meaning that the judgement shall be as follows:
a. Liability 80% 2nd Respondent: 20% Appellant
b. General damages Kshs.4,000,000/=
c. Special damages Kshs. 579,695/=
d. Future Medical needs Kshs.4,100,000/=
e. Loss of earning capacity Kshs.1,000,000/=
f. Loss of future earnings NIL
Total Kshs.9,679,695/=
40. The 1st Respondent is also awarded costs of the trial court’s suit plus interest at court rates.
41. The Appellant will have half the costs of this appeal.
42. There shall be a Forty-Five (45) days stay of execution.
43. Orders accordingly.
JUDGMENT WRITTEN, SIGNED & DATED AT MACHAKOS THIS 8TH DECEMBER 2025.
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH DECEMBER 2025.
In the presence of:
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