Background:
1. This Appeal emanates from the judgement delivered on 12th July 2024 in Nairobi Civil case No. E4883 of 2022 whereby judgement was entered in favour of the Respondent herein.
2. The Appellant denied liability vide their statement of defence dated 17th October 2022. From the proceedings, the Appellant did not call any witnesses during hearing.
3. The Trial Court entered judgement as follows:
a. Liability 100%
b. General damages Kshs.1,250,000.00
c. Diminished earning capacity of Kshs.500,000.00
d. Special damages Kshs.5,800.00
TOTAL Kshs.1,755,800.00
The Appeal.
4. The Appellants herein aggrieved by the decision preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The learned trial Magistrate misdirected himself and erred in law by holding the Appellant 100% liable against decided case law.
(ii) The learned Magistrate misdirected himself and erred in law and fact by disregarding reliable medical evidence.
(iii) The learned Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive general damages for pain and suffering at Kshs.1,250,000/=
(iv) The learned Magistrate misdirected himself and erred in law and fact by awarding damages for earning diminished capacity at Kshs.500,000 for a person who only sustained a fracture of the left tibia.
(v) The learned Magistrate misdirected himself and erred in law and fact by awarding damages for earning diminished capacity at Kshs.500,000 in respect of un-pleaded and unjustified relief which is so inordinately high and unjustified as to represent an entirely erroneous estimate and against weight of evidence while there was no evidence or basis at all in law or fact in support of such unjustifiable award.
The Submissions:
5. The Appellant filed its written submissions and bundle of authorities dated 31st July 2025 argued that the Respondent failed to discharge his burden of proof on a balance of probabilities. The Appellant further faulted the Trial Court for finding them 100% liable whereas the driver was not charged in any court for a traffic offence as a result of the accident.
6. The Appellant further faults the Trial Court for holding the Appellant 100% liable against yet the Respondent never called sufficient evidence whatsoever to prove negligence against the Appellant at 100%.
7. The Appellant on the award for general damages for pain and suffering, the Appellant faults the trial Court for awarding Kshs.1,250,000 as excessive and unreasonable without any evidence.
8. The Appellant is of the view that the trial court should not have awarded more than Kshs.500,000 at most general damages for pain and suffering, subject to reasonable apportionment and liability.
9. The Appellant takes issue with the award of Kshs.500,000/= for diminished earning capacity for a person who only sustained a fracture on the left tibia (not even tibia and fibula) without a basis since no claim was addressed or proved by the Respondent in the plaint.
10. The Respondent vide her submissions dated 19th September 2025 supporting her position that the Appellant was responsible for the accident causing her sustained injuries.
11. The Respondent submits that she called the police officer who testified in support of her case and confirmed occurrence of the accident and also a medical who testified about her injuries.
12. The Respondent further argues that her case was uncontroverted since the Appellant did not call any witness to the stand. She submits that burden of proof in civil cases is on a balance of probability and that she has proven her case.
13. The Respondent submits that it’s not disputed that she appeared before the Trial Court and testified and it is her submission that an award for Kshs.1,500,000/=was reasonable and sufficient to compensate her for pain and suffering and Kshs.3,000,000/= for compensation for diminishing earning capacity and citied authorities she relies on.
14. The Respondent closes her submission on the grounds that the learned trial magistrate did not err in any law or principle as present an entirely erroneous estimate of compensation to which the respondents were entitled.
Analysis of the issues for determination.
15. From the above analysis, the main issues for determination is whether the Trial Court was justified in issuing the compensation as per the judgment. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof in the following manner: -
107. Burden of proof.
(1) 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.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. Incidence of burden.
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.
109. Proof of particular fact.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
16. It is now this Court’s duty to apply the above standard to the evidence on record so as to ascertain whether the Respondent, then Plaintiff, discharged his burden of proof as required in law.
17. From the proceedings of the Trial Court, the Respondent testified that she worked as a hawker earning Kshs.1,000/= per day and that she was hit by a motor cycle and was treated at Mama Lucy Hospital.
18. The Police officer also testified and informed court that they issued the Respondent with an OB upon cross examination he informed court that he was not investigating officer in the case and that the police abstract said that matter is pending investigations.
19. During the hearing a doctor also testified and informed court that he relied on P3 form and a letter from the police from Mama Lucy Hospital. The Appellants herein did not call any witness during the hearing of the case. The Appellants herein does not dispute the injuries sustained by the Respondent; they are taking issue with the amount of money awarded by the Trial Court.
20. I have considered the relevant authorities and taken into account all the relevant factors. This Court can only interfere with the lower court judgment if it finds that the award was excessive. The Court has to be persuaded that the Lower court in assessing damages took into account relevant factor or left out of account a relevant one.
21. On the ground of liability this court is satisfied that the Trial Court exercised its discretion rightfully. This Court upholds the liability at 100%.
22. As to the damages for diminished earnings, I note that there was no evidence from the Respondent to prove her income, all she said is she is a hawker and that she makes Kshs.1,000/= per day. It’s not further confirmed to what extent was she not able to work, this would have helped the Court evaluate the issue. In her testimony she said she was admitted for one day at Mama Lucy Hospital and discharged. All she did was plead for diminished earning and left it to Court.
23. In Mumias Sugar Co. Ltd v Francis Wanalo [2007] eKLR, the Court of Appeal held that an 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. It observed 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 plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his 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 the future…..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 factor into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”
24. In the instant case, I have already found that the Respondent’s monthly earnings could not be ascertained with precision. This, therefore, means that the only available way for assessing this award is by use of the global award.
25. I have also considered comparable awards made in similar circumstances. In Chepkwony & another v Lomongin aka Samuel Erupe aka L [2023] eKLR, the court awarded Kshs.200,000.00 for a herder who suffered 22% permanent disability.
26. Similarly, the High Court in Felix Munyao Ngeli vs Salim Khalid and Mombasa Maize Millers awarded Kshs.150,000/= as damages for Diminished Earning Capacity to a business man engaged in selling Miraa who had pleaded earning Kshs.1,000/= a day
27. In view of the above this Court will reduce the diminishes earnings from Kshs.500,000/= to 150,000/=.
28. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Apollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
29. Having considered the injuries vis a vis the numerous authorities on the ground of damages for pain and suffering and this court is of the considered view that the Trial Court’s figure of Kshs.1,250,000/= is excessive and is hereby reduced to Kshs.800,000/=.
30. The claim of special damages is upheld as awarded by the Trial Court.
31. Accordingly, the appeal partly succeeds, the judgment of the trial Court is hereby reviewed as follows: -
(a) The apportionment of liability at 100% is upheld.
(b) General Damages for pain, suffering of Kshs.1,250,000/= has been revised to Kshs.800,000/= with interest from the date of this judgement to payment in full.
(c) The award of Kshs. 500,000/= for diminished earnings has been revised to 150,000/= with interest from the date of this judgement to payment in full.
(d) Special Damages of Kshs. 5,800/= is hereby upheld with interest from the date of filing the plaint.
(e) As the appeal has partly succeeded, each party to bear their respective costs of the appeal.
(f) Interest on all monetary awards shall be at court rates.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kinyanjui Learned Counsel for the Appellants.
Khafumi Learned Counsel for the Respondent.
Michael Court Assistant.
1. This Appeal emanates from the judgement delivered on 12th July 2024 in Nairobi Civil case No. E4883 of 2022 whereby judgement was entered in favour of the Respondent herein.
2. The Appellant denied liability vide their statement of defence dated 17th October 2022. From the proceedings, the Appellant did not call any witnesses during hearing.
3. The Trial Court entered judgement as follows:
a. Liability 100%
b. General damages Kshs.1,250,000.00
c. Diminished earning capacity of Kshs.500,000.00
d. Special damages Kshs.5,800.00
TOTAL Kshs.1,755,800.00
The Appeal.
4. The Appellants herein aggrieved by the decision preferred an appeal to this Court, the grounds of appeal are as follows:
(i) The learned trial Magistrate misdirected himself and erred in law by holding the Appellant 100% liable against decided case law.
(ii) The learned Magistrate misdirected himself and erred in law and fact by disregarding reliable medical evidence.
(iii) The learned Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive general damages for pain and suffering at Kshs.1,250,000/=
(iv) The learned Magistrate misdirected himself and erred in law and fact by awarding damages for earning diminished capacity at Kshs.500,000 for a person who only sustained a fracture of the left tibia.
(v) The learned Magistrate misdirected himself and erred in law and fact by awarding damages for earning diminished capacity at Kshs.500,000 in respect of un-pleaded and unjustified relief which is so inordinately high and unjustified as to represent an entirely erroneous estimate and against weight of evidence while there was no evidence or basis at all in law or fact in support of such unjustifiable award.
The Submissions:
5. The Appellant filed its written submissions and bundle of authorities dated 31st July 2025 argued that the Respondent failed to discharge his burden of proof on a balance of probabilities. The Appellant further faulted the Trial Court for finding them 100% liable whereas the driver was not charged in any court for a traffic offence as a result of the accident.
6. The Appellant further faults the Trial Court for holding the Appellant 100% liable against yet the Respondent never called sufficient evidence whatsoever to prove negligence against the Appellant at 100%.
7. The Appellant on the award for general damages for pain and suffering, the Appellant faults the trial Court for awarding Kshs.1,250,000 as excessive and unreasonable without any evidence.
8. The Appellant is of the view that the trial court should not have awarded more than Kshs.500,000 at most general damages for pain and suffering, subject to reasonable apportionment and liability.
9. The Appellant takes issue with the award of Kshs.500,000/= for diminished earning capacity for a person who only sustained a fracture on the left tibia (not even tibia and fibula) without a basis since no claim was addressed or proved by the Respondent in the plaint.
10. The Respondent vide her submissions dated 19th September 2025 supporting her position that the Appellant was responsible for the accident causing her sustained injuries.
11. The Respondent submits that she called the police officer who testified in support of her case and confirmed occurrence of the accident and also a medical who testified about her injuries.
12. The Respondent further argues that her case was uncontroverted since the Appellant did not call any witness to the stand. She submits that burden of proof in civil cases is on a balance of probability and that she has proven her case.
13. The Respondent submits that it’s not disputed that she appeared before the Trial Court and testified and it is her submission that an award for Kshs.1,500,000/=was reasonable and sufficient to compensate her for pain and suffering and Kshs.3,000,000/= for compensation for diminishing earning capacity and citied authorities she relies on.
14. The Respondent closes her submission on the grounds that the learned trial magistrate did not err in any law or principle as present an entirely erroneous estimate of compensation to which the respondents were entitled.
Analysis of the issues for determination.
15. From the above analysis, the main issues for determination is whether the Trial Court was justified in issuing the compensation as per the judgment. Sections 107, 108 and 109 of the Evidence Act deal with the burden of proof in the following manner: -
107. Burden of proof.
(1) 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.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108. Incidence of burden.
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.
109. Proof of particular fact.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
16. It is now this Court’s duty to apply the above standard to the evidence on record so as to ascertain whether the Respondent, then Plaintiff, discharged his burden of proof as required in law.
17. From the proceedings of the Trial Court, the Respondent testified that she worked as a hawker earning Kshs.1,000/= per day and that she was hit by a motor cycle and was treated at Mama Lucy Hospital.
18. The Police officer also testified and informed court that they issued the Respondent with an OB upon cross examination he informed court that he was not investigating officer in the case and that the police abstract said that matter is pending investigations.
19. During the hearing a doctor also testified and informed court that he relied on P3 form and a letter from the police from Mama Lucy Hospital. The Appellants herein did not call any witness during the hearing of the case. The Appellants herein does not dispute the injuries sustained by the Respondent; they are taking issue with the amount of money awarded by the Trial Court.
20. I have considered the relevant authorities and taken into account all the relevant factors. This Court can only interfere with the lower court judgment if it finds that the award was excessive. The Court has to be persuaded that the Lower court in assessing damages took into account relevant factor or left out of account a relevant one.
21. On the ground of liability this court is satisfied that the Trial Court exercised its discretion rightfully. This Court upholds the liability at 100%.
22. As to the damages for diminished earnings, I note that there was no evidence from the Respondent to prove her income, all she said is she is a hawker and that she makes Kshs.1,000/= per day. It’s not further confirmed to what extent was she not able to work, this would have helped the Court evaluate the issue. In her testimony she said she was admitted for one day at Mama Lucy Hospital and discharged. All she did was plead for diminished earning and left it to Court.
23. In Mumias Sugar Co. Ltd v Francis Wanalo [2007] eKLR, the Court of Appeal held that an 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. It observed 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 plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his 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 the future…..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 factor into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”
24. In the instant case, I have already found that the Respondent’s monthly earnings could not be ascertained with precision. This, therefore, means that the only available way for assessing this award is by use of the global award.
25. I have also considered comparable awards made in similar circumstances. In Chepkwony & another v Lomongin aka Samuel Erupe aka L [2023] eKLR, the court awarded Kshs.200,000.00 for a herder who suffered 22% permanent disability.
26. Similarly, the High Court in Felix Munyao Ngeli vs Salim Khalid and Mombasa Maize Millers awarded Kshs.150,000/= as damages for Diminished Earning Capacity to a business man engaged in selling Miraa who had pleaded earning Kshs.1,000/= a day
27. In view of the above this Court will reduce the diminishes earnings from Kshs.500,000/= to 150,000/=.
28. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Apollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
29. Having considered the injuries vis a vis the numerous authorities on the ground of damages for pain and suffering and this court is of the considered view that the Trial Court’s figure of Kshs.1,250,000/= is excessive and is hereby reduced to Kshs.800,000/=.
30. The claim of special damages is upheld as awarded by the Trial Court.
31. Accordingly, the appeal partly succeeds, the judgment of the trial Court is hereby reviewed as follows: -
(a) The apportionment of liability at 100% is upheld.
(b) General Damages for pain, suffering of Kshs.1,250,000/= has been revised to Kshs.800,000/= with interest from the date of this judgement to payment in full.
(c) The award of Kshs. 500,000/= for diminished earnings has been revised to 150,000/= with interest from the date of this judgement to payment in full.
(d) Special Damages of Kshs. 5,800/= is hereby upheld with interest from the date of filing the plaint.
(e) As the appeal has partly succeeded, each party to bear their respective costs of the appeal.
(f) Interest on all monetary awards shall be at court rates.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 19th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Kinyanjui Learned Counsel for the Appellants.
Khafumi Learned Counsel for the Respondent.
Michael Court Assistant.