Background
1. The Respondent filed a plaint dated 26th April 2016 claiming damages for injuries he sustained while in the course of his employment at the Appellant's premises. The Respondent alleged that on 22nd September 2015, while performing his duties, he was injured on the right toe by a machine at the Appellant’s premises.
2. The Appellant filed a Statement of Defence dated 03rd August 2017, vehemently denying the allegations and putting the Respondent to strict proof of his claim.
3. The matter proceeded to its logical conclusion, and the learned trial magistrate delivered judgment on 30th July 2024, finding the Appellant 100% liable and awarding:
i. General damages: KES. 200,000
ii. Special damages: KES. 87,350
iii. Costs and interest
4. Dissatisfied with this decision, the Appellant filed the present appeal vide a Memorandum of Appeal dated 30th October 2024 on the following main grounds:
a) The Respondent failed to demonstrate and/or establish to the required standards of law a causal link between the alleged negligence of the Appellant and the occurrence of the alleged accident;
b) The Respondent failed to prove to the required standards of law that the alleged injuries were as a result of the alleged accident;
c) The Respondent failed to wear the assigned protective gear issued by the Appellant;
d) The Respondent authored his own misfortune by acting negligently and carelessly without due regard to his own safety;
e) No compelling evidence was placed before the court in support of the Respondent's case.
f) The award of KES. 200,000 as general damages was excessive and inordinately high considering the nature of the injuries sustained;
g) The trial court failed to consider comparable awards in similar cases;
h) The injuries sustained healed well with no permanent disability anticipated.
Issues for determination
5. Having considered the record of appeal and the Appellant’s submissions dated 07th November 2025 and Respondent’s submissions dated 03rd November 2025, the main issues arising from this appeal are:
1) Whether the trial court was correct in finding the Appellant 100% liable for the injuries sustained by the Respondent;
2) Whether the award of KES. 200,000 as general damages was appropriate or excessive in the circumstances;
3) Whether the award of special damages was properly proved and should be sustained.
Analysis and Determination
6. This court, being the first appellate court, has a duty to evaluate and re-analyze the evidence presented before the trial court and come to its own independent conclusions. As stated in Selle vs Associated Motor Boat Co Ltd [1965] EA 123, the first appellate court must reconsider and evaluate the evidence tendered before the trial court, assess it, and make its own conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
7. Sections 107, 108, 109, and 112 of the Evidence Act establish the fundamental principle that the burden of proof lies upon the party who asserts the existence of facts upon which their case depends. Section 107(1) provides:
"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."
8. Section 108 further provides:
"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
9. In Stackpark Industries vs James Mbithi, Nairobi Civil Appeal No. 152 of 2003, the Court emphasized:
"It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone's negligence. The plaintiff must adduce evidence on a balance of probability."
10. The law in Kenya is well established that there is no liability without fault or negligence. In Muthuku Kiema vs Kenya Cargo Handling Services Ltd (1991) KLR. 464, the Court observed:
"There is no liability without a fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence."
11. This position was also affirmed by the Court of Appeal in Japhet Nkubitu & Another vs Regina Thirindi, Court of Appeal Civil Appeal No. 150 of 1997.
12. In Cleophas Shimanyula v Mohamed Salat [2018] eKLR, the court dismissed a plaintiff's case for failure to prove his case on a balance of probability. This underscores the principle that a plaintiff must adduce sufficient evidence to establish their case to the civil standard of proof, which is on a balance of probabilities.
13. In Joseph Musee vs Julius Mbogo Mugi & 3 Others [2013] eKLR, the Court held:
"Damages for injuries suffered must be within consistent limits. The damages should represent a fair compensation but should not be excessive."
14. When assessing quantum of damages, courts must be guided by awards in comparable cases involving similar injuries. This ensures consistency, fairness, and predictability in the assessment of damages. The principle is that comparable injuries should, as far as possible, be compensated by comparable awards.
15. It is trite law that special damages must be specifically pleaded and strictly proved. Special damages represent actual pecuniary loss and must be supported by documentary evidence such as receipts, invoices, or medical bills and only such amounts as are specifically proved should be awarded.
16. The Appellant contends that the Respondent failed to discharge the burden of proof required to establish liability. Specifically, the Appellant argues that the Respondent failed to demonstrate a causal link between any alleged negligence on the part of the Appellant and the occurrence of the accident; to prove that the injuries sustained were a result of the alleged accident, to wear the assigned protective gear issued by the Appellant and authored his own misfortune by acting negligently and carelessly without due regard to his own safety.
17. I have carefully considered the Appellant's submissions on liability and I note that the Appellant has not provided this court with specific instances of misdirection by the trial court in its evaluation of the evidence or application of legal principles.
18. The Appellant did not tender any evidence at the trial there was therefore no evidence that Respondent was provided with protective gear or was negligent. The appeal on liability fails and the finding of 100% liability by the trial court is upheld.
19. The trial court awarded the Respondent KES. 200,000 as general damages. The Appellant contends that this award is excessive and inordinately high, and proposes that KES. 80,000 would be appropriate.
20. According to the medical evidence, the Respondent sustained only a deep cut wound on the right toe. The medical report does not indicate any permanent disability occasioned to the Respondent. It is therefore reasonable to conclude from the evidence that the injury healed properly with no residual disability.
21. I have considered the injuries and the award made in the persuasive decisions in Rege v LA (Minor suing through her father and next friend GAA), Civil Appeal No. E111 of 2021 [2022] KEHC 16634, Daniel Odhiambo Ngesa vs Daniel Otieno Owino & another [2020] eKLR, Kipkere Limited vs Peterson Ondieki Tai [2016] eKLR, George Mugo & another v AKM [2018] eKLR, Edward Mutevu Maithya & Another v Edwin Nyameya [2022] eKLR, Simon Kimote v Agro Solutions Limited, Machakos Civil Appeal No. 90 of 2016 [2021], Joseph Mutua Nthia v Fredrick Moses M Katuva (2019) eKLR and Isaac Muriungi Mbataru v Silas Kalumani [2017] eKLR.
22. Comparing the injuries sustained by the Respondent in the present case with those in the cited authorities, I find that the trial court's award of KES. 200,000 is inordinately high and represents an entirely erroneous estimate of the damages for the injury sustained.
23. Consistency in awards is essential to ensure fairness and predictability in the assessment of damages and I therefore find that an award of KES.80,000 would be fair, reasonable, and consistent with current trends for comparable injuries.
24. In arriving at this figure, I have taken into account that the injury was localized to a single digit and did not occasion any permanent disability.
25. The trial court awarded special damages of KES. 87,350. As stated in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, which relied on Kenya Bus Services Ltd v Gituma (2004) EA 91
"Special damages must be pleaded and strictly proved by production of relevant receipts."
26. I note that the Appellant has not specifically challenged the quantum of special damages or provided detailed grounds showing that the special damages were not properly proved. Noting that the trial court had the benefit of reviewing the documentary evidence supporting the special damages claim, I see no basis to interfere with the trial court's award of special damages.
Disposition
27. From the foregoing analysis, I make the following orders:
1) The appeal on liability fails.
2) The appeal on quantum succeeds and the trial court's award of KES.200,000 as general damages is hereby set aside and substituted with an award of KES. 80,000
3) The trial court's award of KES. 87,350 as special damages is upheld.
4) Given that the appeal has partially succeeded each party shall bear their own costs of this appeal.
1. The Respondent filed a plaint dated 26th April 2016 claiming damages for injuries he sustained while in the course of his employment at the Appellant's premises. The Respondent alleged that on 22nd September 2015, while performing his duties, he was injured on the right toe by a machine at the Appellant’s premises.
2. The Appellant filed a Statement of Defence dated 03rd August 2017, vehemently denying the allegations and putting the Respondent to strict proof of his claim.
3. The matter proceeded to its logical conclusion, and the learned trial magistrate delivered judgment on 30th July 2024, finding the Appellant 100% liable and awarding:
i. General damages: KES. 200,000
ii. Special damages: KES. 87,350
iii. Costs and interest
4. Dissatisfied with this decision, the Appellant filed the present appeal vide a Memorandum of Appeal dated 30th October 2024 on the following main grounds:
a) The Respondent failed to demonstrate and/or establish to the required standards of law a causal link between the alleged negligence of the Appellant and the occurrence of the alleged accident;
b) The Respondent failed to prove to the required standards of law that the alleged injuries were as a result of the alleged accident;
c) The Respondent failed to wear the assigned protective gear issued by the Appellant;
d) The Respondent authored his own misfortune by acting negligently and carelessly without due regard to his own safety;
e) No compelling evidence was placed before the court in support of the Respondent's case.
f) The award of KES. 200,000 as general damages was excessive and inordinately high considering the nature of the injuries sustained;
g) The trial court failed to consider comparable awards in similar cases;
h) The injuries sustained healed well with no permanent disability anticipated.
Issues for determination
5. Having considered the record of appeal and the Appellant’s submissions dated 07th November 2025 and Respondent’s submissions dated 03rd November 2025, the main issues arising from this appeal are:
1) Whether the trial court was correct in finding the Appellant 100% liable for the injuries sustained by the Respondent;
2) Whether the award of KES. 200,000 as general damages was appropriate or excessive in the circumstances;
3) Whether the award of special damages was properly proved and should be sustained.
Analysis and Determination
6. This court, being the first appellate court, has a duty to evaluate and re-analyze the evidence presented before the trial court and come to its own independent conclusions. As stated in Selle vs Associated Motor Boat Co Ltd [1965] EA 123, the first appellate court must reconsider and evaluate the evidence tendered before the trial court, assess it, and make its own conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify.
7. Sections 107, 108, 109, and 112 of the Evidence Act establish the fundamental principle that the burden of proof lies upon the party who asserts the existence of facts upon which their case depends. Section 107(1) provides:
"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."
8. Section 108 further provides:
"The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."
9. In Stackpark Industries vs James Mbithi, Nairobi Civil Appeal No. 152 of 2003, the Court emphasized:
"It is trite law that the burden of proof of any fact or allegation is on the plaintiff. He must prove a causal link between someone's negligence. The plaintiff must adduce evidence on a balance of probability."
10. The law in Kenya is well established that there is no liability without fault or negligence. In Muthuku Kiema vs Kenya Cargo Handling Services Ltd (1991) KLR. 464, the Court observed:
"There is no liability without a fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence."
11. This position was also affirmed by the Court of Appeal in Japhet Nkubitu & Another vs Regina Thirindi, Court of Appeal Civil Appeal No. 150 of 1997.
12. In Cleophas Shimanyula v Mohamed Salat [2018] eKLR, the court dismissed a plaintiff's case for failure to prove his case on a balance of probability. This underscores the principle that a plaintiff must adduce sufficient evidence to establish their case to the civil standard of proof, which is on a balance of probabilities.
13. In Joseph Musee vs Julius Mbogo Mugi & 3 Others [2013] eKLR, the Court held:
"Damages for injuries suffered must be within consistent limits. The damages should represent a fair compensation but should not be excessive."
14. When assessing quantum of damages, courts must be guided by awards in comparable cases involving similar injuries. This ensures consistency, fairness, and predictability in the assessment of damages. The principle is that comparable injuries should, as far as possible, be compensated by comparable awards.
15. It is trite law that special damages must be specifically pleaded and strictly proved. Special damages represent actual pecuniary loss and must be supported by documentary evidence such as receipts, invoices, or medical bills and only such amounts as are specifically proved should be awarded.
16. The Appellant contends that the Respondent failed to discharge the burden of proof required to establish liability. Specifically, the Appellant argues that the Respondent failed to demonstrate a causal link between any alleged negligence on the part of the Appellant and the occurrence of the accident; to prove that the injuries sustained were a result of the alleged accident, to wear the assigned protective gear issued by the Appellant and authored his own misfortune by acting negligently and carelessly without due regard to his own safety.
17. I have carefully considered the Appellant's submissions on liability and I note that the Appellant has not provided this court with specific instances of misdirection by the trial court in its evaluation of the evidence or application of legal principles.
18. The Appellant did not tender any evidence at the trial there was therefore no evidence that Respondent was provided with protective gear or was negligent. The appeal on liability fails and the finding of 100% liability by the trial court is upheld.
19. The trial court awarded the Respondent KES. 200,000 as general damages. The Appellant contends that this award is excessive and inordinately high, and proposes that KES. 80,000 would be appropriate.
20. According to the medical evidence, the Respondent sustained only a deep cut wound on the right toe. The medical report does not indicate any permanent disability occasioned to the Respondent. It is therefore reasonable to conclude from the evidence that the injury healed properly with no residual disability.
21. I have considered the injuries and the award made in the persuasive decisions in Rege v LA (Minor suing through her father and next friend GAA), Civil Appeal No. E111 of 2021 [2022] KEHC 16634, Daniel Odhiambo Ngesa vs Daniel Otieno Owino & another [2020] eKLR, Kipkere Limited vs Peterson Ondieki Tai [2016] eKLR, George Mugo & another v AKM [2018] eKLR, Edward Mutevu Maithya & Another v Edwin Nyameya [2022] eKLR, Simon Kimote v Agro Solutions Limited, Machakos Civil Appeal No. 90 of 2016 [2021], Joseph Mutua Nthia v Fredrick Moses M Katuva (2019) eKLR and Isaac Muriungi Mbataru v Silas Kalumani [2017] eKLR.
22. Comparing the injuries sustained by the Respondent in the present case with those in the cited authorities, I find that the trial court's award of KES. 200,000 is inordinately high and represents an entirely erroneous estimate of the damages for the injury sustained.
23. Consistency in awards is essential to ensure fairness and predictability in the assessment of damages and I therefore find that an award of KES.80,000 would be fair, reasonable, and consistent with current trends for comparable injuries.
24. In arriving at this figure, I have taken into account that the injury was localized to a single digit and did not occasion any permanent disability.
25. The trial court awarded special damages of KES. 87,350. As stated in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, which relied on Kenya Bus Services Ltd v Gituma (2004) EA 91
"Special damages must be pleaded and strictly proved by production of relevant receipts."
26. I note that the Appellant has not specifically challenged the quantum of special damages or provided detailed grounds showing that the special damages were not properly proved. Noting that the trial court had the benefit of reviewing the documentary evidence supporting the special damages claim, I see no basis to interfere with the trial court's award of special damages.
Disposition
27. From the foregoing analysis, I make the following orders:
1) The appeal on liability fails.
2) The appeal on quantum succeeds and the trial court's award of KES.200,000 as general damages is hereby set aside and substituted with an award of KES. 80,000
3) The trial court's award of KES. 87,350 as special damages is upheld.
4) Given that the appeal has partially succeeded each party shall bear their own costs of this appeal.