[1] This is an appeal from the Judgment and Decree of the lower court dated 2 nd May 2023 in Ndhiwa Magistrate’s Civil Suit No. E051 of 2022: Collins Ochieng Orwa v Sukari Industries Limited . The respondent had sued the appellant in that suit claiming general and special damages, interest and costs as compensation for bodily injuries sustained in a road traffic accident that occurred on the 7 th November 2022 along Rodi Kopany-Ndhiwa Road at Kobodo Center. The respondent alleged that the accident was attributable to the negligence of the appellant’s driver and supplied the particulars thereof at paragraph 5 of the Plaint dated 29 th November 2022. He likewise supplied the particulars of his injuries at paragraph 6 of the Plaint.
[2] The appellant denied the claim in its entirety, including the allegations of negligence, vide its Statement of Defence dated 16 th December 2022. It denied that an accident occurred as alleged involving its Motor Vehicle Registration No. KCU 886H Toyota Land Cruiser. To the contrary, the appellant averred that the alleged accident was solely due to the negligence of the minor. The appellant also denied the particulars of injuries supplied by the respondent and put him to strict proof thereof. It had asked for the dismissal of the respondent’s suit with costs.
[3] The lower court record shows that the parties agreed to have liability apportioned between them at 90:10 in favour of the respondent vide a Consent Order dated 15 th March 2023. Thus, the lower court’s task was limited to assessment of quantum.
[4] Upon reviewing the evidence presented before it and the submissions relied on by the parties, the lower court awarded the respondent an amount of Kshs. 1,980,000/= computed as follows:
[a] General damages for pain and suffering Kshs. 1,500,000/=
[b] Damages for diminution of earning capacity Kshs. 700,000/=
Less 10% contribution Kshs. 1,980,000/=
[5] Being aggrieved by the judgment and decree of the learned magistrate dated and delivered on the 2 nd May, 2023, the appellant filed the instant appeal contending that:
[a] The learned magistrate grossly misdirected himself in treating the evidence and the submissions on liability before him superficially and consequently came to a wrong conclusion on the same.
[b] The learned magistrate misdirected himself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the appellant.
[c] The learned magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the appellant.
[d] The learned magistrate proceeded on the wrong principles when assessing the damages to be awarded to the respondent and failed to apply precedents and the applicable law.
[e] The learned magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate of damages vis-à-vis the respondent’s claim.
[f] The learned magistrate failed to apply his mind judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.
[6] Accordingly, the appellant prayed that the appeal be allowed with costs and that the judgment of the lower court be set aside with costs.
[7] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 30 th September 2025. Accordingly, the appellant relied on its submissions dated 6 th March 2026. Its counsel reiterated the duty of the Court as the first appellate court. It relied on David Kahuruka Gitau & another v Nancy Ann Wathithi Gitau & another , High Court Civil Appeal No. 43 of 2013. The appellant also relied on the submissions and authorities filed before the subordinate court and confirmed that the appeal is limited to quantum.
[8] The appellant conceded that the minor’s injuries were supported by the Medical Report prepared by Dr. Ochola dated 14 th March 2023. It urged the Court to note that the doctor did not indicate what documents he relied on, if any, to support his findings. The appellant further contended that no evidence was adduced by the respondent to show the extent of the fractures sustained or the 30% disability as alleged in the said Medical Report. It also took the view that the authorities relied on by the respondent were far from comparable to the injuries sustained by the minor. In the premises, it was the submission of the appellant that the learned magistrate erred in making at an award of Kshs. 1,500,000/= as general damages for pain, suffering and loss of amenities.
[9] On its part, the appellant proposed an award of Kshs. 500,000/= and relied on Osman Mohamed & another v Saluro Bundit Mohammed , Civil Appeal No. 30 of 1997 for the principle that damages must be within limits that the Kenyan economy can afford. In addition, the appellant relied on Millicent Atieno Ochuonyo v Katola Richard [2015] eKLR and Mbaka Nguru & another v James George Rakwar [1998] eKLR for the submission that comparable injuries be compensated by comparable awards.
[10] In support of its proposal for an award of Kshs. 500,000/= the appellant relied on the following authorities, among others:
[a] Civicon Limited v Richard Njomo Omwancha & 2 others [2019] eKLR;
[b] Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR;
[c] Teresia Wanjiku Munene v Loise Muthoni Mbarire [2023] eKLR.
[11] On whether the minor was entitled to general damages for diminution of earning capacity and future earnings, the appellant submitted that this aspect of the respondent’s claim was not proved to the requisite standard. It was the argument of the appellant that there was no proof that the respondent underwent any surgery or procedure to manage the fractures or any evidence that she was using crutches for support while walking. Therefore, it posited that the lower court’s award of Kshs. 700,000/= for diminution of future earnings was unwarranted. Its contention was that it was impossible at this stage to predict and/or ascertain the future earnings of the minor whose profession or career path was yet to be established.
[12] The appellant relied on S J v Francessco Di Nello & another [2015] eKLR and Fairley v John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40, among other authorities, for the distinction between loss of earning capacity and loss of future earnings; and that loss of earnings must be specifically pleaded and proved. Accordingly, the appellant urged for the setting aside of the award of diminution of earning capacity on the ground that it was not proved.
[13] The respondent relied on his written submissions dated 25 th January 2026. He proposed the following issues for determination:
[a] Whether the award of Kshs. 1,500,000/= for general damages for pain and suffering was inordinately high in the circumstances.
[b] Whether the award of Kshs. 700,000/= for damages for diminution of earning capacity was inordinately high in the circumstances.
[14] The respondent defended the award of Kshs. 1.500,000/= made by the lower court and submitted that it was in tandem with the injuries suffered by the minor. Counsel restated the injuries as follows:
[a] Bruised left facial region
[b] Fractured two upper incisor
[c] Loss of upper incisor
[d] Compound fracture of left Tibia bone
[e] Compound fracture of left fibula bone
[f] Dislocation of the right ankle
[15] Counsel for the respondent urged the Court to bear in mind the evidence adduced before the lower court by the respondent, particularly the evidence that minor had not fully recovered from the injuries and could not perform any of her daily activities as she used to do before the accident; and that she was walking with the assistance of crutches and with a limping gait as the fractured tibia fibula bones could not support her body weight. Counsel further submitted that the minor also had numerous ugly scars on her body, especially the face.
[16] Accordingly, counsel urged the Court to uphold the award of Kshs. 1,500,000/= made by the lower court. She relied on Damaris Wamucii Kagechu v Joseph Kirui & another [2019] KEHC 1837 (KLR) which she considered comparable to the instant case.
[17] On whether the award of Kshs. 700,000/= for diminution of earning capacity was inordinately high in the circumstances, counsel made reference to the Medical Report filed before the lower court. She urged the Court to note that the minor’s incapacitation was assessed at 30% and that she had not fully healed. Counsel also urged the Court to note that the girl was only 7 years old at the time of the accident and therefore had many years ahead which had been adversely impacted by the injuries sustained in the subject accident. Accordingly, counsel was of the submission that the lower court’s award.
[18] Reliance was placed by the respondent on the case of C M (a minor suing through mother and next friend M N v joseph Mwagangi Maina [2018] e KLR (attached herein) where the court awarded a global sum of Kshs. 900,000/= as damages for loss of earning capacity to a minor who had sustained near similar injuries as our instant case with 40 % disability.
[19] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[20] The only witness who testified before the lower court was the respondent, Collins Ochieng Orwa (PW1) as the defence opted to adduce no evidence. PW1 testified that he is the father and next friend of the minor, Susan Atieno, who got injured in the subject accident. He essentially adopted his witness statement dated 21 st October 2022 in which he stated that on the 7 th November 2022 while going about his normal duties, he received information that his daughter Susan Atieno , then aged 7 years, had been involved in a road traffic accident while walking along Rodi Kopany-Ndhiwa Road near Kobodo Primary School area. He rushed to the scene and found that the girl had been rushed to Ndhiwa Sub-County Hospital. He proceeded to the hospital and on arrival found that the girl had been transferred to Homa Bay County Teaching and Referral Hospital where she was admitted and confined for two days. She was thereafter discharged to continue with medication at home.
[21] It was further the testimony of PW1 that the minor suffered the following injuries:
[a] Bruises left facial region
[b] Lost/fracture of incisor teeth
[c] Compound fracture of left tibia bone
[d] Compound fracture of left fibula bone
[e] Dislocation of the right ankle joint
[22] PW1 further stated that the accident was reported to Ndhiwa Police Station where the minor was issued with a P3 Form. He added that, due to the accident, the minor can no longer perform her normal duties or day to day activities, and therefore he had to employ an assistant for whom he was paying Kshs. 8,000/= per month. The respondent produced his List and Bundle of Documents filed herein dated 29 th November 2022 as exhibits and prayed for general damages as well as the cost of a helper and future medical expenses.
[23] It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[24] Similarly, in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal held that:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages." (Also see Butt v Khan [1981] KLR 349)
[25] At paragraph 5 of her Plaint, the respondent pleaded the following injuries:
[a] Bruised left facial region
[b] Fractured two upper incisor
[c] Loss of upper incisor
[d] Compound fracture of left Tibia bone
[e] Compound fracture of left fibula bone
[f] Dislocation of the right ankle
[26] Among the documents exhibited by the respondent were a Discharge Summary, P3 Form, Medical Report, Police Abstract and treatment notes. They were marked the Plaintiff’s Exhibits 1 to 6 before the lower court. They confirm that the minor suffered the pleaded injuries. In fact, in the P3 Form marked the Plaintiff’s Exhibit 2, Dr. Ochola assessed the degree of the minor’s injuries as “Grievous Harm”.
[27] As has been pointed out herein above, the appellant conceded to the injuries as pleaded by the respondent. It also conceded that the injuries were supported by the Medical Report prepared by Dr. Michael Ochola from Homa Bay County Teaching and Referral Hospital dated 14 th March 2023. Nevertheless, the appellant submitted that there was no proof that the minor’s injuries resulted in 30% disability as alleged or that future medical expenses would be incurred. Upon a re-evaluation of the evidence presented before the lower court, I am satisfied that the minor’s injuries were well proved on a balance of probabilities.
[28] I have considered the nature and extent of the injuries sustained by the minor and paid attention to the authorities relied by the parties. It is noteworthy that, in making his award of Kshs. 1,500,000/= as general damages for pain, suffering and loss of amenities, the learned magistrate placed reliance on the cases of Joseph Musee Mua v Julius Mbogo Mugi & others [2013] eKLR and Boniface Njiru v Tohel Agencies and another. It is clear however that that the injuries sustained by the plaintiffs in those cases were much more serious than those suffered by the minor herein. For instance, in Joseph Musee Mua v Julius Mbogo (supra) the plaintiff was unconscious for two days and was admitted for more than two months. He was treated not only at Kenyatta National Hospital, but also at Kijabe Hospital, Kikuyu Mission Hospital as well as Mariakani Cottage hospital. He had to undergo several operations and procedures and ended up with shortened left leg. The nerves of that leg were also affected. He was awarded Kshs. 1,300,000/= in 2013.
[29] Similarly, in the case of Boniface Njiru v Tohel Agencies (supra) , the plaintiff sustained head injuries with loss of consciousness for about 24 hours, in addition to fractures and loss of teeth. He was hospitalized for treatment for about 2 months. He was awarded Kshs. 1,000,000/= in 2011.
[30] On the other hand, the appellant relied on the following authorities:
[a] Civicon Ltd v Richard Njomo Omwancha & 2 others (supra) in which the respondent suffered a deep cut wound on the left ear lobe, a tender left lateral chest wall,
[b] Daniel Otieno Owino & another v Elizabeth Atieno Owuor (supra) where an award of Kshs. 600,000/= was, on appeal, reduced to Kshs. 400,000/= for compound fractures of tibia and fibula bones of the right leg, deep cut wound and tissue damage on the right leg along with cut wound on the nose.
[c] D G (minor suing through her next friend M O R) v Richard Otieno Onyisi [2021] eKLR in which the plaintiff sustained chest contusion, left tibia fracture andbruises on the left foot and left leg and was awarded Kshs. 350,000/= by the lower court which award was enhanced on appeal to Kshs. 400,000/=.
[d] Herbart Otara Marube v Dankan Ochora [2022] eKLR an award by the lower court of Kshs. 800,000/= was set aside on appeal and substituted with an award of Kshs. 450,000/= for fracture of tibia, right ankle dislocation, chest contusion, left tibia fracture, bruises on the left food and bruises on the right leg.
[e] Teresia Wanjiku Munene v Loise Muthoni Mbarire (supra) wherein the plaintiff sustained bruises on the right side of the face, both elbows, right groin, right knee and fractures of the right tibia and fibula and was awarded Kshs. 450,000/=.
[31] It is manifest therefore that the two decisions relied on by the respondent were not comparable to the injuries in issue herein. As correctly pointed out by the appellant, there was no proof that the minor’s injuries required surgical intervention. Accordingly, I find the authorities relied on by the appellant to be more comparable.
[32] In the premises, taking into account the age of those decisions I consider an award of Kshs. 850,000/= to be adequate in the circumstances. Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held:
“The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account. The awards should not be inordinately low or high.”
[33] The respondent was also awarded Kshs. 700,000/= for diminution of earning capacity. Authorities abound to support the position that loss of earning capacity is a general damage claim to be proved on a balance of probabilities alongside the other components of general damages. Hence, in Butler v Butler [1984] KLR 225 it was held that:
“A plaintiff’s loss of earning capacity occurs where, as a result of his injury , his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury…Compensation for diminution of earning capacity is part of general damages…the question is the present value of the risk that at a future date or time the plaintiff will suffer financial disadvantage in the labour market because of his njuries"...The factors to be taken into account, will vary with the circumstances of each case.
[34] It is true that the lower court was here dealing with a minor of about 7 years of age. No evidence was adduced as to her employment prospects for instance by way of her performance at school or aptitude. Nevertheless, she was still entitled to consideration. In Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, the Court of Appeal proffered the following view as to the justification for such awards:
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 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.”
[35] Similarly, in Shabani v City Council of Nairobi [1983] KLR 516 it was held that damages for loss of future earning capacity is awardable in the case of a child. Hence, the learned magistrate cannot be faulted for assessing damages under this head at Kshs. 700,000/= noting that he sought guidance from the case of C M (a minor suing through the mother and next friend M N v Joseph Mwangangi Maina [2018] eKLR in which an amount of Kshs. 900,000/= was awarded under this head for a 7-year-old minor who had suffered 40% disability as a result of injuries sustained in a road traffic accident.
[36] In the result, the appeal is successful in part. The award of the lower court of Kshs. 1,500,000/= is hereby set aside and substituted with an award of Kshs. 850,000/=. The award of Kshs. 700,000/= under the head of diminution of earning capacity is upheld with the result that the sum due to the respondent is Kshs. 1,395,000/= computed as follows:
[a] For pain, suffering and loss of amenities Kshs. 850,000/=
[b] For diminution of earning capacity Kshs. 700,000/=
Total Kshs.1,550,000/=
Less 10% contribution Kshs. 155,000/=
Net Award Kshs. 1,395,000/=
[37] The appellant is hereby awarded the aforesaid sum together with interest from the date of the lower court’s judgment together with costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28 TH DAY OF MAY 2026
[2] The appellant denied the claim in its entirety, including the allegations of negligence, vide its Statement of Defence dated 16 th December 2022. It denied that an accident occurred as alleged involving its Motor Vehicle Registration No. KCU 886H Toyota Land Cruiser. To the contrary, the appellant averred that the alleged accident was solely due to the negligence of the minor. The appellant also denied the particulars of injuries supplied by the respondent and put him to strict proof thereof. It had asked for the dismissal of the respondent’s suit with costs.
[3] The lower court record shows that the parties agreed to have liability apportioned between them at 90:10 in favour of the respondent vide a Consent Order dated 15 th March 2023. Thus, the lower court’s task was limited to assessment of quantum.
[4] Upon reviewing the evidence presented before it and the submissions relied on by the parties, the lower court awarded the respondent an amount of Kshs. 1,980,000/= computed as follows:
[a] General damages for pain and suffering Kshs. 1,500,000/=
[b] Damages for diminution of earning capacity Kshs. 700,000/=
Less 10% contribution Kshs. 1,980,000/=
[5] Being aggrieved by the judgment and decree of the learned magistrate dated and delivered on the 2 nd May, 2023, the appellant filed the instant appeal contending that:
[a] The learned magistrate grossly misdirected himself in treating the evidence and the submissions on liability before him superficially and consequently came to a wrong conclusion on the same.
[b] The learned magistrate misdirected himself in ignoring the principles applicable and the relevant authorities cited in the written submissions presented and filed by the appellant.
[c] The learned magistrate erred in not sufficiently taking into account all the evidence presented before him in totality and in particular the evidence presented on behalf of the appellant.
[d] The learned magistrate proceeded on the wrong principles when assessing the damages to be awarded to the respondent and failed to apply precedents and the applicable law.
[e] The learned magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate of damages vis-à-vis the respondent’s claim.
[f] The learned magistrate failed to apply his mind judicially and to adequately evaluate the evidence and exhibits tendered and thereby arrived at a decision unsustainable in law.
[6] Accordingly, the appellant prayed that the appeal be allowed with costs and that the judgment of the lower court be set aside with costs.
[7] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 30 th September 2025. Accordingly, the appellant relied on its submissions dated 6 th March 2026. Its counsel reiterated the duty of the Court as the first appellate court. It relied on David Kahuruka Gitau & another v Nancy Ann Wathithi Gitau & another , High Court Civil Appeal No. 43 of 2013. The appellant also relied on the submissions and authorities filed before the subordinate court and confirmed that the appeal is limited to quantum.
[8] The appellant conceded that the minor’s injuries were supported by the Medical Report prepared by Dr. Ochola dated 14 th March 2023. It urged the Court to note that the doctor did not indicate what documents he relied on, if any, to support his findings. The appellant further contended that no evidence was adduced by the respondent to show the extent of the fractures sustained or the 30% disability as alleged in the said Medical Report. It also took the view that the authorities relied on by the respondent were far from comparable to the injuries sustained by the minor. In the premises, it was the submission of the appellant that the learned magistrate erred in making at an award of Kshs. 1,500,000/= as general damages for pain, suffering and loss of amenities.
[9] On its part, the appellant proposed an award of Kshs. 500,000/= and relied on Osman Mohamed & another v Saluro Bundit Mohammed , Civil Appeal No. 30 of 1997 for the principle that damages must be within limits that the Kenyan economy can afford. In addition, the appellant relied on Millicent Atieno Ochuonyo v Katola Richard [2015] eKLR and Mbaka Nguru & another v James George Rakwar [1998] eKLR for the submission that comparable injuries be compensated by comparable awards.
[10] In support of its proposal for an award of Kshs. 500,000/= the appellant relied on the following authorities, among others:
[a] Civicon Limited v Richard Njomo Omwancha & 2 others [2019] eKLR;
[b] Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR;
[c] Teresia Wanjiku Munene v Loise Muthoni Mbarire [2023] eKLR.
[11] On whether the minor was entitled to general damages for diminution of earning capacity and future earnings, the appellant submitted that this aspect of the respondent’s claim was not proved to the requisite standard. It was the argument of the appellant that there was no proof that the respondent underwent any surgery or procedure to manage the fractures or any evidence that she was using crutches for support while walking. Therefore, it posited that the lower court’s award of Kshs. 700,000/= for diminution of future earnings was unwarranted. Its contention was that it was impossible at this stage to predict and/or ascertain the future earnings of the minor whose profession or career path was yet to be established.
[12] The appellant relied on S J v Francessco Di Nello & another [2015] eKLR and Fairley v John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40, among other authorities, for the distinction between loss of earning capacity and loss of future earnings; and that loss of earnings must be specifically pleaded and proved. Accordingly, the appellant urged for the setting aside of the award of diminution of earning capacity on the ground that it was not proved.
[13] The respondent relied on his written submissions dated 25 th January 2026. He proposed the following issues for determination:
[a] Whether the award of Kshs. 1,500,000/= for general damages for pain and suffering was inordinately high in the circumstances.
[b] Whether the award of Kshs. 700,000/= for damages for diminution of earning capacity was inordinately high in the circumstances.
[14] The respondent defended the award of Kshs. 1.500,000/= made by the lower court and submitted that it was in tandem with the injuries suffered by the minor. Counsel restated the injuries as follows:
[a] Bruised left facial region
[b] Fractured two upper incisor
[c] Loss of upper incisor
[d] Compound fracture of left Tibia bone
[e] Compound fracture of left fibula bone
[f] Dislocation of the right ankle
[15] Counsel for the respondent urged the Court to bear in mind the evidence adduced before the lower court by the respondent, particularly the evidence that minor had not fully recovered from the injuries and could not perform any of her daily activities as she used to do before the accident; and that she was walking with the assistance of crutches and with a limping gait as the fractured tibia fibula bones could not support her body weight. Counsel further submitted that the minor also had numerous ugly scars on her body, especially the face.
[16] Accordingly, counsel urged the Court to uphold the award of Kshs. 1,500,000/= made by the lower court. She relied on Damaris Wamucii Kagechu v Joseph Kirui & another [2019] KEHC 1837 (KLR) which she considered comparable to the instant case.
[17] On whether the award of Kshs. 700,000/= for diminution of earning capacity was inordinately high in the circumstances, counsel made reference to the Medical Report filed before the lower court. She urged the Court to note that the minor’s incapacitation was assessed at 30% and that she had not fully healed. Counsel also urged the Court to note that the girl was only 7 years old at the time of the accident and therefore had many years ahead which had been adversely impacted by the injuries sustained in the subject accident. Accordingly, counsel was of the submission that the lower court’s award.
[18] Reliance was placed by the respondent on the case of C M (a minor suing through mother and next friend M N v joseph Mwagangi Maina [2018] e KLR (attached herein) where the court awarded a global sum of Kshs. 900,000/= as damages for loss of earning capacity to a minor who had sustained near similar injuries as our instant case with 40 % disability.
[19] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[20] The only witness who testified before the lower court was the respondent, Collins Ochieng Orwa (PW1) as the defence opted to adduce no evidence. PW1 testified that he is the father and next friend of the minor, Susan Atieno, who got injured in the subject accident. He essentially adopted his witness statement dated 21 st October 2022 in which he stated that on the 7 th November 2022 while going about his normal duties, he received information that his daughter Susan Atieno , then aged 7 years, had been involved in a road traffic accident while walking along Rodi Kopany-Ndhiwa Road near Kobodo Primary School area. He rushed to the scene and found that the girl had been rushed to Ndhiwa Sub-County Hospital. He proceeded to the hospital and on arrival found that the girl had been transferred to Homa Bay County Teaching and Referral Hospital where she was admitted and confined for two days. She was thereafter discharged to continue with medication at home.
[21] It was further the testimony of PW1 that the minor suffered the following injuries:
[a] Bruises left facial region
[b] Lost/fracture of incisor teeth
[c] Compound fracture of left tibia bone
[d] Compound fracture of left fibula bone
[e] Dislocation of the right ankle joint
[22] PW1 further stated that the accident was reported to Ndhiwa Police Station where the minor was issued with a P3 Form. He added that, due to the accident, the minor can no longer perform her normal duties or day to day activities, and therefore he had to employ an assistant for whom he was paying Kshs. 8,000/= per month. The respondent produced his List and Bundle of Documents filed herein dated 29 th November 2022 as exhibits and prayed for general damages as well as the cost of a helper and future medical expenses.
[23] It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[24] Similarly, in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal held that:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages." (Also see Butt v Khan [1981] KLR 349)
[25] At paragraph 5 of her Plaint, the respondent pleaded the following injuries:
[a] Bruised left facial region
[b] Fractured two upper incisor
[c] Loss of upper incisor
[d] Compound fracture of left Tibia bone
[e] Compound fracture of left fibula bone
[f] Dislocation of the right ankle
[26] Among the documents exhibited by the respondent were a Discharge Summary, P3 Form, Medical Report, Police Abstract and treatment notes. They were marked the Plaintiff’s Exhibits 1 to 6 before the lower court. They confirm that the minor suffered the pleaded injuries. In fact, in the P3 Form marked the Plaintiff’s Exhibit 2, Dr. Ochola assessed the degree of the minor’s injuries as “Grievous Harm”.
[27] As has been pointed out herein above, the appellant conceded to the injuries as pleaded by the respondent. It also conceded that the injuries were supported by the Medical Report prepared by Dr. Michael Ochola from Homa Bay County Teaching and Referral Hospital dated 14 th March 2023. Nevertheless, the appellant submitted that there was no proof that the minor’s injuries resulted in 30% disability as alleged or that future medical expenses would be incurred. Upon a re-evaluation of the evidence presented before the lower court, I am satisfied that the minor’s injuries were well proved on a balance of probabilities.
[28] I have considered the nature and extent of the injuries sustained by the minor and paid attention to the authorities relied by the parties. It is noteworthy that, in making his award of Kshs. 1,500,000/= as general damages for pain, suffering and loss of amenities, the learned magistrate placed reliance on the cases of Joseph Musee Mua v Julius Mbogo Mugi & others [2013] eKLR and Boniface Njiru v Tohel Agencies and another. It is clear however that that the injuries sustained by the plaintiffs in those cases were much more serious than those suffered by the minor herein. For instance, in Joseph Musee Mua v Julius Mbogo (supra) the plaintiff was unconscious for two days and was admitted for more than two months. He was treated not only at Kenyatta National Hospital, but also at Kijabe Hospital, Kikuyu Mission Hospital as well as Mariakani Cottage hospital. He had to undergo several operations and procedures and ended up with shortened left leg. The nerves of that leg were also affected. He was awarded Kshs. 1,300,000/= in 2013.
[29] Similarly, in the case of Boniface Njiru v Tohel Agencies (supra) , the plaintiff sustained head injuries with loss of consciousness for about 24 hours, in addition to fractures and loss of teeth. He was hospitalized for treatment for about 2 months. He was awarded Kshs. 1,000,000/= in 2011.
[30] On the other hand, the appellant relied on the following authorities:
[a] Civicon Ltd v Richard Njomo Omwancha & 2 others (supra) in which the respondent suffered a deep cut wound on the left ear lobe, a tender left lateral chest wall,
[b] Daniel Otieno Owino & another v Elizabeth Atieno Owuor (supra) where an award of Kshs. 600,000/= was, on appeal, reduced to Kshs. 400,000/= for compound fractures of tibia and fibula bones of the right leg, deep cut wound and tissue damage on the right leg along with cut wound on the nose.
[c] D G (minor suing through her next friend M O R) v Richard Otieno Onyisi [2021] eKLR in which the plaintiff sustained chest contusion, left tibia fracture andbruises on the left foot and left leg and was awarded Kshs. 350,000/= by the lower court which award was enhanced on appeal to Kshs. 400,000/=.
[d] Herbart Otara Marube v Dankan Ochora [2022] eKLR an award by the lower court of Kshs. 800,000/= was set aside on appeal and substituted with an award of Kshs. 450,000/= for fracture of tibia, right ankle dislocation, chest contusion, left tibia fracture, bruises on the left food and bruises on the right leg.
[e] Teresia Wanjiku Munene v Loise Muthoni Mbarire (supra) wherein the plaintiff sustained bruises on the right side of the face, both elbows, right groin, right knee and fractures of the right tibia and fibula and was awarded Kshs. 450,000/=.
[31] It is manifest therefore that the two decisions relied on by the respondent were not comparable to the injuries in issue herein. As correctly pointed out by the appellant, there was no proof that the minor’s injuries required surgical intervention. Accordingly, I find the authorities relied on by the appellant to be more comparable.
[32] In the premises, taking into account the age of those decisions I consider an award of Kshs. 850,000/= to be adequate in the circumstances. Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held:
“The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account. The awards should not be inordinately low or high.”
[33] The respondent was also awarded Kshs. 700,000/= for diminution of earning capacity. Authorities abound to support the position that loss of earning capacity is a general damage claim to be proved on a balance of probabilities alongside the other components of general damages. Hence, in Butler v Butler [1984] KLR 225 it was held that:
“A plaintiff’s loss of earning capacity occurs where, as a result of his injury , his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury…Compensation for diminution of earning capacity is part of general damages…the question is the present value of the risk that at a future date or time the plaintiff will suffer financial disadvantage in the labour market because of his njuries"...The factors to be taken into account, will vary with the circumstances of each case.
[34] It is true that the lower court was here dealing with a minor of about 7 years of age. No evidence was adduced as to her employment prospects for instance by way of her performance at school or aptitude. Nevertheless, she was still entitled to consideration. In Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, the Court of Appeal proffered the following view as to the justification for such awards:
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 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.”
[35] Similarly, in Shabani v City Council of Nairobi [1983] KLR 516 it was held that damages for loss of future earning capacity is awardable in the case of a child. Hence, the learned magistrate cannot be faulted for assessing damages under this head at Kshs. 700,000/= noting that he sought guidance from the case of C M (a minor suing through the mother and next friend M N v Joseph Mwangangi Maina [2018] eKLR in which an amount of Kshs. 900,000/= was awarded under this head for a 7-year-old minor who had suffered 40% disability as a result of injuries sustained in a road traffic accident.
[36] In the result, the appeal is successful in part. The award of the lower court of Kshs. 1,500,000/= is hereby set aside and substituted with an award of Kshs. 850,000/=. The award of Kshs. 700,000/= under the head of diminution of earning capacity is upheld with the result that the sum due to the respondent is Kshs. 1,395,000/= computed as follows:
[a] For pain, suffering and loss of amenities Kshs. 850,000/=
[b] For diminution of earning capacity Kshs. 700,000/=
Total Kshs.1,550,000/=
Less 10% contribution Kshs. 155,000/=
Net Award Kshs. 1,395,000/=
[37] The appellant is hereby awarded the aforesaid sum together with interest from the date of the lower court’s judgment together with costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28 TH DAY OF MAY 2026