MUIA NDOLO alias MUIYA NDOLO alias JOSEPH MUIA NDOLO alias muhia ndolo VS COAST RAHA LIMITED

2. It is his case that on the material day, he was travelling as a fare-paying passenger in the Respondent’s motor vehicle KCK 599G when the Respondent’s authorized driver drove the motor vehicle so negligently that it lost control, veered off the road and overturned violently.

3. COAST RAHA LTD the defendant /Respondent filed a statement of defence whereby it denied all the allegations in the plaint putting the plaintiff to strict proof thereof. It averred that if an accident occurred as alleged, the same was solely caused and/or substantially contributed to by the plaintiff’s own negligence.

4. The matter proceeded for hearing and the Respondent was found to be 100% liable. The trial court awarded Kshs 500,000/= as general damages for pain, suffering and loss of amenities and Kshs 4,820/= as special damages.

The Appeal

5. Aggrieved by the decision, the Appellant filed this appeal on7 grounds as follows;

a)  THAT the learned magistrate erred and misdirected herself in law and fact by failing to award general damages for diminished earning capacity or such an award on general damages for pain and suffering as is commensurate to the degree of incapacity.

b) THAT the learned magistrate misdirected herself in law and in fact by failing to appreciate the degree and/or standard of proof for a claim on diminished earning capacity.

c) THAT the learned magistrate erred in law and fact by failing to appreciate the evidence adduced by the Appellant that gave rise to an inference that his capacity to earn had diminished.

d) THAT the learned magistrate erred in law and fact by dismissing the claim for lost property.

e) THAT the learned magistrate misdirected herself in law and fact by failing to consider the totality of the evidence adduced in support of lost property.

f) THAT the learned magistrate misdirected herself in law and fact by failing to appreciate that proof in civil cases is on a balance of probabilities.

g) THAT the learned magistrate erred in law and fact by failing to consider the Appellant’s submissions and authorities.

6. It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record and to draw its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses

7. The Appellant, Muia Ndolo was PW1. He adopted his statement dated 05/07/2019 as his evidence in chief and produced the documents in his list of documents dated 05/07/2019 as P. Ex 1-15.

8. He testified that he lived in Masinga and was a carpenter. He recalled that on 02/02/2019, he was involved in a road traffic accident. That he started his journey on 01/02/2019 but the accident happened at midnight. He produced bus tickets (P. Ex 16) dated 31/01/2019 and said that the one dated 02/02/2019 was for Mombasa to Mpeketoni while the one dated 01/02/2019 was a luggage receipt for Kshs 10,000/=.

9. He testified that he sustained injuries on his arm and head. That he got hit on the leg and head. That the impact injured his left knee and ankles of both legs. That he was still experiencing pain on his left hand and shoulder especially when it gets cold. That his waist was deformed and is on a bent formation.

10. Further, he testified that the owner of the bus refused him to record the luggage he had carried. That he had carried frames and doors and they were all damaged. He referred to receipts marked P. Ex 14. He reported to the police and got an abstract (P. Ex 17).

11. He said that he could not work due to the arm injury and was yet to be fully healed. That as a carpenter, he cannot use his tools well as his left arm cannot fully function. He prayed to be compensated for the injuries sustained, the loss of earning capacity, the loss of his belongings plus costs and interest of the suit.

12. On cross examination, he said that prior to the accident, he was working at Ongata Rongai but was not working at the time of testifying. That he was doing farming to feed his family. That after the accident, he was taken to Makindu hospital but was not admitted. That he reported to the police station and proceeded with his journey immediately due to the clients he had a contract with. That he got injured on his ankle left side and his shoulder got dislocated. That he got injured on his knees and legs. He confirmed that no plaster, k-nail or implant was applied. He said that he still had pain on his hands. He did not have an NHIF card and was not aware if the police charged the driver.

13. The plaintiff’s case was closed at that juncture after which the defence closed their case without calling any witness. Actually, the plaintiff testified on 17/02/2021 and when the matter came up for defence hearing on 27/07/2021, the trial magistrate noted that the defendant had applied for adjournment severally and was unwilling to proceed at all material times of the suit. She declined the application for adjournment and the defendant closed its case.

14. Parties canvassed the appeal by way of written submissions. The Appellant’s Submissions

15. The Appellant submitted that he pleaded about his diminished capacity to earn consequent to the accident and led evidence to support his claim but the entire judgment did not address the issue of diminished earning capacity. He submitted that the failure to address the issue was an error on the part of the Learned Magistrate and also a failure of justice. He contended that for that reason alone, this appeal should be allowed. He relied on   Julius Lekakeny Ole Sunkuli –vs- Gideon Sitelu Konchellah & 2 Others [2018] eKLR where the Court of Appeal stated;

“We do not think that where an issue is pleaded, evidence led, and submissions made thereon and is totally ignored or omitted in the judgment of the court yet, is crucial in the determination of the dispute can be treated as a matter of fact on an appeal as submitted by the respondents. It is a matter of law liable to interrogation by the appellate court.

Looking at the judgment as a whole, the learned judge did not address some of the key issues raised in the petition and canvassed before him through evidence and even in submissions. In English v Emery Reimbold & Strick (2002) 1 WLR 2409, the Court of Appeal (England) stated that;

if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision...the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained...it does require the judge to identify and record those matters which were critical to his decision.

The Court, in that case, went on to rule that failure to make vital findings of fact, will lead to failure of justice.

The judge did not address the complaint regarding the absence of data entries in Form 35B for some polling stations, bribery, non-identification of voters in some polling stations, announcement of results without Forms 35A's and preparation of such forms without data, the 1st respondent’s use of public resources in his campaigns, the findings and discrepancies disclosed by the scrutiny report, the complaint that there were blank, illegible and unsigned declaration forms and failure of the 3rd respondent to publicly and openly announce results from 100 polling stations. Yet all these claims were pleaded and at the hearing of the petition, evidence was led. Indeed, even in their detailed submissions, the issues were canvassed at length. Lastly, some of the issues were framed by the parties for determination by the court. It is not clear why the judge did not address and determine these issues. On the basis of the foregoing, we are satisfied that there is merit in the complaint that the judge failed to address issues raised before him. Accordingly, this ground of appeal must succeed.”

16. Relying on   Selle –vs- Associated Motor Boat Company Limited [1986] E.A.123, it was submitted that this being a first appeal, it is heard by way of re-trial hence this Court is within its right to re-evaluate the evidence and come to its conclusion on whether or not the Appellant is entitled to the award.

17. It was submitted that from the evidence adduced, the injuries sustained by the Appellant were incapacitating and affected him adversely. That the Appellant adduced oral evidence of his inability to do the work of a carpenter which he was doing before the accident. That when the accident occurred, he was going for a carpentry job at Mpeketoni and the confirmation is in the goods which he listed in the police abstract and the receipts. It was submitted that as a carpenter, the Appellant cannot use one hand to do his work.

18. It was submitted that the medical opinion of Dr. Wokabi was that the Appellant was incapacitated and the doctor noted that the disability would affect the Appellant’s work as a carpenter. That the evidence led by the Appellant was not controverted and should be believed. Reliance was placed on the persuasive decisions in Uneek Electrical Company Limited v Joseph Fanuel Alela [2005] KEHC 2701 (KLR) and Jamal Ramadhan Yusuf & Another –vs- Ruth Achieng’ & Another [2010] eKLR.

19. Further reliance was placed on   Magdaline Nzilani Mutende –vs- Kennedy Mutwii [2019] eKLR where the Court stated;

“16. What is clear from the above authorities is that for a party to succeed in this claim, all they need to show is that the capacity to earn has been lessened compared to how it was before the offending act. It does not mean that the capacity to earn must be totally lost. In my understanding, ‘diminished’ means ‘to make small or less’. The trial magistrate’s statement that ‘…the plaintiff did not prove loss of earning capacity...” is a clear indication that she misapprehended the applicable principles.”

20. It was submitted that the claim for diminished earning capacity is within the rubric of general damages and reliance was placed on S J –vs- Francesco Di Nello & Another [2015] eKLR where the Court of Appeal held as follows on the issue:

“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.

21. Further reliance was placed on Mumias Sugar Company Limited –vs- Francis Wanalo [2007] eKLR where the Court of Appeal citing several English decisions held 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 future earning capacity. Compensation for loss of future earnings are awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages. The characteristics of an award for loss of earning capacity and the principles on which it is assessed were considered more comprehensively in Moeliker V Rey rolle & Company Ltd [1977] 1 WLR 132. In that case Browne LJ said at page 140, paragraph B:

“this head of damages generally only arises where the plaintiff is at the time of trial in employment, but there is a risk that he may lose his employment at some time in future, and may then, as a result of his injury, be at a disadvantage in getting another job or an equally well paid job. It is a different head of damages from an actual loss of future earnings which can already be proved at the time of the trial.”

22. Further reliance was placed on Butler –vs- Butler [1984] KLR 225 where the judge rendered himself thus:

“Whilst loss of earning capacity or earning power should be included as an item of general damages, it is not improper to award it under its own heading…once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damages it is of little materiality whether the award is under the composite head of general damages or as an item on its own, as a loss of earning capacity.”

23. Consequently, it was submitted that whereas a claim for diminished earning capacity is under the head of general damages, it is not wrong to make a separate award for it.

24. It was submitted that the justification for the award is to compensate the Appellant for the risk that the disability has exposed him to. That it is settled in law that a person whose capacity to earn is diminished by the negligent act of another is entitled to compensation. Reliance was placed on Mariga –vs- Musila [1984] eKLR where Chesoni Ag. J.A., (as he was then) stated as follows:

“As regards the award of Kshs 500,000 for “lost years” I agree with what my learned brother Hancox JA has said in his judgment. A victim whose earning capacity has been diminished by the defendant’s negligence is entitled to compensation for the “lost years”. This is a matter of not only sound logic but justice. The accident has diminished the respondent’s capacity of earning. It is an economic loss for which the appellant must compensate the respondent. The learned judge quite correctly followed Pickett v British Rail Engineering Ltd [1979] 1 ALL ER 774 as to “lost years”. The principles in that case represent substantial justice and sound logic.

It is a common-sense approach to the issue. If a man through the negligence of another is deprived of the capacity of earning for a period, he is entitled to fair compensation for the lost period occasioned by the wrongdoer”

25. Relying on Mumias Sugar -vs-Francis Wanalo (supra), it was submitted that the general principles applicable to the award were considered as follows;

“The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future.

Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

26. The Appellant also relied on Regina Mwikali Wilson –vs- Stephen M. Gichuhi & Another [2015] eKLR for the submission that account ought to be taken not only of the present loss but also the capacity of the Plaintiff to earn an improved income.

27.  It was submitted that there is no established formula in calculating an award for diminished earning capacity and reliance placed on the case of S J –vs- Francesco (supra) where the court rendered itself thus;

“The assessment of damages for loss of earning capacity is not an easy one as there is no possible mathematical calculation because it is impossible to suggest any formular for determination of the extent to which a plaintiff would be handicapped by his disability if he is thrown on the open labour market.”

28. It was submitted that the general approaches by Courts are either a global sum like in the Francis Wanalo case (supra) or based on the multiplier/multiplicand formula like in Butler –vs- Butler (supra). That however, the court has to consider all relevant factors in order to ascertain the real or approximate financial loss.

29. It was submitted that in this case, a global award of Kshs. 1, 000, 000/= is fair and reasonable. Reliance was placed on Francis Wanalo case (supra) where the court awarded Kshs. 500, 000 to the Respondent who had sustained a 10 – 15% permanent incapacity.

30. It was submitted that if the trial court was not minded to award damages for diminished earning capacity, it ought to have made an award commensurate to the Appellant’s injuries. It was contended that the award of Kshs. 500, 000/= is inordinately low, bearing in mind the injuries and the extent of incapacity.

31. Further reliance was placed on the following cases;

a. Francis Nzivo Munguti & Another –vs- Jotham Wanyonyi Nakasana & Another [2020] eKLR

The Respondent sustained a fracture of the right radius/ulna and soft tissue injuries to the forehead, right leg and right foot. The High Court upheld an award of Kshs. 600, 000/= for general damages for pain, suffering, and loss of amenities on 10/03/2020.

b. Alfred Kioko Muteti -vs- Timothy Miheso & Another [2015] eKLR

The Plaintiff sustained multiple injuries on the head, dislocated right shoulder joint, injuries to the lower back and trunk; injuries to the right iliac crest region.  The High Court assessed an award of Kshs. 800,000/= for general damages for pain, suffering and loss of amenities on the 15/10/2015.

c. Charles Komoso Toton –vs- Reuben Cherutich Chebon & Another [2012] eKLR

The Plaintiff sustained severe head injury, fracture of the right humeral head with dislocation of the right shoulder joint and fracture of the left humerus.  The High Court assessed an award of Kshs. 1, 600, 000/= for general damages for pain, suffering and loss of amenities on the 29/06/2012.

32. It was submitted that in arriving at the award of Kshs. 500, 000/=, the Learned Magistrate relied on the decision in Benard Muinde Kilonzo -vs- Andrea M. Maiko Mogi & another [2021] eKLR in which the Court noted that the Appellant sustained a fracture of the right humerus, for which permanent incapacity was assessed at 18% - 20%. The Appellant contended that the decision is not comparable to his injuries because firstly, a fracture of the humerus is different from the facture of the radius, which he sustained. Secondly, in addition to the fracture of the radius, he also sustained a dislocation of the left shoulder and multiple soft tissue injuries. Thirdly, whereas the decision in the cited case was made on 27/07/2021, it was in relation to a judgment that was made on 03.02.2017 and as such, the operative time was 2017 and not as recent as the Learned Magistrate held.

33. Further, the Appellant submitted that he had cited comparable decisions, which the Learned Magistrate seemingly failed to consider. That, of the three decisions he cited before the Trial Court, Alfred Kioko Muteti -vs- Timothy Miheso & Another (supra), is comparable and an appropriate guide.

34. Consequently, it was submitted that if this Court is minded to affirm the lower court’s decision not to make an award for diminished earning capacity, then it should enhance the award for general damages to Kshs. 1,000, 000/=.

35. With regard to the lost items, it was submitted that the trial magistrate misapprehended the totality of the evidence and arrived at an erroneous decision. That on a balance of probabilities, the Appellant proved that he lost the items and his evidence was not controverted. That if at all the Respondent disputed that the Appellant was carrying the stated items, nothing would have been easier than to produce the passenger and cargo manifest. That needless to say, the Respondent did not avail any evidence to controvert and/or rebut the evidence led by the Appellant.

36. It was submitted that the police abstract was not the only document that the Appellant relied on in evidence but he also had receipts of purchase and bus tickets. That the luggage receipt of Kshs 10,000/= puts beyond doubt that he was carrying the lost items in the suit motor vehicle and the amount paid shows that the luggage must have been a substantial load. That the Learned Magistrate accepted that indeed the Appellant was traveling aboard the suit motor vehicle when the accident occurred and by extension of logic, it is safe to conclude, in view of the luggage receipt, that the Court accepted he was carrying a luggage.

37. Consequently, it was submitted that the Learned Magistrate ought to have weighed the evidence on a balance of probabilities. That in view of the date in the police abstract, the probabilities that were before the Learned Magistrate were; either the items were lost before the accident in question or the date indicated in the abstract was probably an error. It was contended that having regard to the other available evidence, especially the luggage receipt, the likely probability is that the date in the police abstract was an error.

38. It was submitted that by emphasizing on the police abstract only and failing to consider the other evidence, the Learned Magistrate clearly misapprehended the totality of the evidence adduced.

39. It was submitted that the claim for lost items being in the nature of special damages and whereas it is settled that special damages must be strictly pleaded and proved, there is no law requiring proof of special damages solely by documentary evidence. Reliance was placed on HAHN –VS –SINGH [1985] KLR 716 where the Court of Appeal rendered itself thus: -

“Special damages must not only be specifically claimed but also strictly proved.  The degree of certainty and the particularity of proof required depend on the circumstances and the nature of the acts themselves.”

40. It was submitted that the Appellant produced, without objection, the bus tickets for travel and for the luggage, police abstract for the lost items and receipts of purchase for the lost items as evidence of the lost times. Reliance was placed on Nelly Wanjiku Mikhail Vostov –vs- Lydia Kemunto Moriasi [2018] eKLR where the court rendered himself thus:

“10. It was pleaded that there was a damaged telephone, alcatel one- touch, together spectacles valued at Kshs. 27,000 and lost Sony M2 phone and a gold chain both valued at Kshs. 35,000/=.  To prove that loss, the plaintiff produced two police abstracts showing the damaged and lost items valued at one aggregate sum of Kshs. 62,000/=.

11. On cross examination, no serious challenge was mounted against that loss except a confirmation sought whether or not a gold chain was one of the personal effects lost in the accident.  On a balance of probabilities, the loss and damage of the four identified items was not controverted nor was the value thereof.  The contest now being raised in the Appellants submissions is that there was no evidence on the value of the items.

12.  This court follows the learning that receipts is not the only way to prove loss and that the burden of proof expected from the Respondent was on a balance of probabilities.  That a police abstract was produced without objection and no challenge mounted by way of any cross examination was to me sufficient discharge of that burden.  With that evidence and with the trial courts finding that the evidence of damage and loss had not been discredited and that the facts were accepted by court, there was no basis for the court to disallow the pleaded and proved sum and come by a different figure from nowhere.  In that regard, the trial court erred and that portion of the judgment is set aside and in its place is substituted a sum of Kshs. 62,000/= being the pleaded and proved sum.  I set aside that award and, in its place, substitute a sum of Kshs. 62,000.00.”

41. In conclusion, it was submitted that on a re-evaluation of the evidence, the Appellant proved that his capacity to earn was diminished and that he lost items. He thus prays for award damages or enhancement of the general damages as per the submissions.

The Respondent’s Submissions

42. The Respondent submitted that according to the P3, Medical report and treatment notes from Makindu Sub-County Hospital, the Appellant sustained a shoulder dislocation without a fracture hence the award of Kshs 500,000/= was inordinately high. The Respondent suggested that Kshs 250,000/= will be sufficient and adequate compensation.

43. Reliance was placed on Power Lighting Co. Ltd & Anor -vs- Zakayo Saitoti Naingola & Anor (2008) eKLR cited in Jennifer Mathenge -Vs-Patrick Muriuki Maina (2020) eKLR as follows;

“On quantum, the court, in determining whether to interfere with the same or not, has to bear in mind the following principles on assessment of damages;

a) Damages should not be inordinately too high or too low.

b) They are meant to compensate a party for the loss suffered but not to enrich a party and as such, they should be commensurate to the injuries suffered.

c) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.

d) Where past awards are taken into consideration as guides, an element of inflation should be taken into account as well as the purchasing power of the Kenyan shilling, then at the time of the judgment...”

44. The Respondent invited the court to consider the following cases;

a) Mara Tea Factory Ltd -vs- Lilian Bosibori Nyandika (2021) eKLR: PW1 suffered a head injury, dislocation of left shoulder, dislocation of left wrist joint and deep cut wound on head and was awarded Kshs 300,000/=.

b) Damaris Ombati -vs- Moses Mogoko & Anor [2019] eKLR: Kshs 300,000/= general damages was awarded for cut wound on the forehead and cheek, dislocation on the left shoulder, tenderness on the anterior chest wall and fracture on the left tibia.

c) Robert Kithinji Kithaka -vs- AG [2018] eKLR: Kshs 250,000/= was awarded for a fracture on the left leg involving tibia and fibula, fracture of the left collar bone and bruises all over the body.

45. In conclusion, the Respondent relied on section 27 of the Civil Procedure Act for the submission that costs follow the event.

46. Having considered the record, the grounds of appeal, and the rival submissions and the following issues arise for determination;

a) Whether the trial court erred by failing to make an award for diminished earning capacity.

b) Whether the trial court erred by failing to make an award for lost property.

Analysis and determination

Whether the trial court erred by failing to make an award for diminished earning capacity.

47. It is not in dispute that the Appellant was a passenger in the bus which was involved in an accident on the material night. Indeed, the trial court found the defendant to be 100% liable.

48. The Appellant pleaded that as a result of the accident, he sustained incapacitating injuries at the age of 51 years and could no longer engage effectively in any economic venture and his ability to compete effectively in the labor market had been severely curtailed. In his evidence in court, he said that he was a carpenter and could not use his tools well as his left arm cannot fully function.

49. The injuries sustained were pleaded as follows;

a) Soft tissue injuries of the left knee

b) Soft tissue injuries of the left ankle joint

c) Soft tissue injuries to the left hip

d) Left shoulder dislocation

e) Soft tissue injuries to the left wrist

f) Fracture of the left distal radius with malunion

50. The complaints at the time of filing suit (16/07/2019) were indicated to be;

a) Numbness of left upper limb

b) Pain on the left hip

c) Pain on the left ankle joint

d) Pain on the left knee

e) Pain on the left shoulder

f) He cannot move the left shoulder freely

g) Pain on the left wrist joint

h) He cannot support himself with the left hand

i) Permanent incapacity of about 15%

51. The Appellant produced a medical report dated by Dr. W.M Wokabi (P.Ex 11) which particularized the injuries as;

a) Dislocation of the left shoulder,

b) Blunt injury on the left forearm,

c) Blunt soft tissue injuries on the left leg.

52. The complaints as at the date of the medical report were indicated to be;

a) He has pain on the left shoulder,

b) He cannot move the left shoulder freely,

c) He has pain on the left wrist joint. He cannot support himself with the left hand.

53. The medical report went on to state that; ‘Examination revealed that the left shoulder is in place anatomically. However, all the movements of the left shoulder are painful and restricted. X-rays reviewed show complete dislocation of the left shoulder. On the left forearm, there is obvious dinner fork deformity. Extension and flexion movements of the left wrist are restricted.’

54. The doctor’s opinion was that the Appellant would require assisted physiotherapy so as to move the shoulder joint but even with physiotherapy, he would never regain the range of shoulder movements. That at optimum rehabilitation, permanent disability would settle at 15% and as a carpenter, the disability would affect his work.

55. The trial court did not mention the issue of diminished earning capacity at all in its analysis on quantum of damages despite the issue being pleaded, evidence adduced and submissions being made on it. It appears that the issue was totally ignored or inadvertently overlooked. It is a legal requirement that a judgment should be holistic and as guided by the Court of Appeal decision in Julius Lekakeny Ole Sunkuli (supra), that omission was an error on the part of the trial court.

56. As explained by the Court of Appeal in S J –vs- Francesco Di Nello & Another (supra), loss of earning capacity may be defined as diminution in earning capacity and is compensated by an award in general damages, once proved. The appellant herein testified about his inability to fully undertake his carpentry job after the accident and the medical report corroborated that assertion. The Respondent did not produce an alternative medical report to contradict the Appellant’s evidence hence the fact of diminished earning capacity was proved on a balance of probabilities.

57. So, what award should the Appellant get for the diminished earning capacity? Taking guidance from the Court of Appeal decision in Francis Wanalo (supra), the award can be part of general damages for pain, suffering and loss of amenities or as a separate head of damages. Further jurisprudence from our courts shows that the award can be global or based on the multiplier formula. In this case, there was no evidence of a specific multiplicand which the court can use and considering that the Appellant was in the informal sector as a carpenter, the global award approach is more suitable.

58. In Kambura & another -vs- Mbiu (Civil Appeal E017 of 2021) [2023] KEHC 27364 (KLR) (22 December 2023) (Judgment), the Respondent’s incapacity was determined at 15% and an award of Kshs 200,000/= was given for diminished earning capacity.

59. In Blowplast Ltd -vs- Julius Ondari Mose [2018] eKLR the court reduced an award of Kshs. 1,000,000/= as damages for loss of earning capacity to Kshs. 400,000/= where the respondent suffered an amputated distal phalanx, fracture of the right index finger, and loss of dexterity/grip of the right hand; and where disability was fixed at 25%.

60. In John Kibicho Thirima -vs- Emmanuel Parsimei Mkoitiko (2017) eKLR the injuries involved fractures of the pelvis, right hand, leg, ribs and mandibles resulting to 35% incapacity. The plaintiff was awarded Kshs. 600,000/= for diminished earning capacity.

61. From the foregoing Kambura -vs- Mbiu (supra) is comparable to the appellant’s case in terms of the degree of incapacity and the award of Kshs 200,000/= is reasonable.

62. Regarding the award of general damages at Kshs 500,000/=. for pain, suffering and loss of amenities I have considered the analysis of the trial court. The trial court found that the injuries sustained by the Appellant were as pleaded and one of the injuries pleaded was ‘Fracture of the left distal radius malunion’.  In arriving at the award of Kshs 500,000/=, the trial court relied on Benard Muinde Kilonzo -vs- Andrea M. Maiko Mogi & Another (2021) eKLR where the Appellant had sustained fracture of the humerus and other soft tissue injuries with 20% permanent disability.

63. The medical report by Dr. Wokabi dated 03/05/2019 indicates; ‘X-Rays reviewed show old healed fractures of the distal end of the left radius. There is no recent fracture’. The medical report states the date of examination to be 30/04/2019 thus approximately three months after the accident. In my view, this means that the healed fractures were not from the road traffic accident as they were sustained prior and it also explains why Dr. Wokabi did not include a fracture as one of the injuries. Consequently, the injury of fracture is not supported by evidence and the trial court erred by considering it.

64. From the injuries particularized by Dr. Wokabi, the Appellant sustained a dislocation of the left shoulder and other soft tissue injuries. In the case of Thuo & another -vs- Nanzala (Civil Appeal E075 of 2022) [2024] KEHC 2978 (KLR) (21 March 2024) (Judgment), the court) stated;

“Having considered the injury of dislocation and other soft tissue injuries sustained by the respondent, authorities of the parties referred to and in particular by the appellants where the victims suffered similar injury, the age of those authorities and inflation issues, I set aside the sum of Kshs 600,000 awarded as general damages and substitute it with a sum of Kshs 400,000 as general damages. The special damages were proved by receipts although not tabulated in the judgment but I shall not interfere with the same.”

65. In  Mara Tea Factory Limited -vs- Lilian Bosibori Nyandika [2021] eKLR the court set aside the award of Kshs. 400,000 and substituted it with an award of Kshs 300,000 where the plaintiff sustained a head injury, deep cut wound on the head, bruises on the frontal part of the head, tenderness on the chest, dislocation of the left wrist joint, and multiple cut wounds on the upper and lower limbs.

66. Further, in Richard Gituku Gakinya -vs- Anthony Kibirii Waithaka [2021] eKLR the respondent sustained deep cut wounds on the supra-orbital region, right ankle joint dislocation and soft tissue injuries and was awarded Kshs. 400,000. But the High Court set aside the award and substituted it with an award of Kshs. 300,000.

67. Consequently, case law shows that in cases where the most serious injury is a dislocation, the awards range between Kshs 300,000/= to Kshs 400,000/=. Hence the award of Kshs 500,000/= is within the acceptable range despite the misapprehension of the evidence by the trial court.

Whether the trial court erred by failing to make an award for lost property.

68. The Appellant pleaded that he lost items worth Kshs 135,400/= and testified about the loss. In his statement which was adopted as evidence-in-chief, he particularized the items as 8 pieces of embossed flash door worth Kshs. 25,600/=, 11 pieces of door frames worth Kshs. 74,800/=, 4 pieces of foam glue worth Kshs. 6,000/=, 11 pieces of mortise locks worth Kshs.16, 500/=, 17 pairs of Mo-hinges worth Kshs. 3,400/=, 4Kg nail (4”) worth Kshs. 800/=, 100 pieces wall pass worth Kshs. 1, 000/= and a circular saw worth Kshs. 7, 300/=.

69. In dismissing the claim for lost property, the trial magistrate stated as follows;

“The plaintiff pleaded for compensation over his lost items. He tendered into evidence a police abstract of the same. A closer look at the abstract, the same is dated 8/4/2018 indicating that the same was a report prior to the time of the alleged accident which according to the pleading and the abstract was 2/2/2019. Thus I find that there was no proof of loss of property and I shall not make any award under this heading.”

70. As stated elsewhere above, it is not in dispute that the Appellant was a passenger in the Respondent’s bus on the material night when the accident occurred. He produced a luggage receipt dated 01/02/2019 showing that he had paid Kshs 10,000/= for luggage. He also produced a receipt dated 30/01/2019 from Maxon Doors Profiles & Interiors and another receipt dated 23/01/2018 from Shree Ghanshyam Hardware Ltd showing that he had purchased the items particularized in his statement at a cost of Kshs 135,400/=. The receipt from Shree Ghanshyam Hardware was for Kshs 7,300/= for a circular saw and considering the evidence on record that the Appellant was a carpenter, the saw was certainly a tool of trade hence the reason it was purchased earlier than the other items.

71. Further, the luggage receipt describes the goods as doors and the Appellant testified that the owner of the bus declined to have him list the entirety of the items which in my view is a plausible explanation. The Appellant also testified that he was travelling to do a carpentry job for which he had been contracted and I find corroboration from the receipt of Maxon Doors Profiles & Interiors which shows that a lot of those items were purchased one day before the travel date. Now, if the trial court found that the Appellant was actually a passenger in the Respondent’s bus and there is evidence to show that the same bus company charged Kshs 10,000/= for luggage and there is further evidence to show that the Appellant purchased carpentry related items just a day before the trip, the logical conclusion, in light of the standard of proof in civil cases, is that he was travelling with the items and they got lost/damaged after the accident.

72. I have carefully considered the disparity in the dates of the police abstract. Even if the court was to ignore the police abstract the other evidence by the plaintiff which was not controverted was sufficient to establish his claim on the lost items on a balance of probabilities,

73. From the foregoing I find that the appeal has merit on the issue of diminished earning capacity and compensation for lost items.

74. The judgment of the subordinate court be and is hereby set aside and substituted with the following award.

i. General damages…………………. Kshs     500,000/=

ii. Diminished earning capacity……. Kshs     200,000/=

iii. Lost items……………………………. Kshs     135,400/=

iv. Special damages ….……………………Kshs         4,820/=

Total…………………………………. Kshs   840,220/=

The appellant will have the costs and interest below, and half the costs of this appeal  of the appeal.

Dated, signed and delivered via CTS with notice this 11th April 2025

Mumbua T Matheka

Judge

Court Assistant Chrispol