1. On 8th day of August 2024 judgment was entered in Milimani Chief Magistrate's Court Civil Case No. E4862 of 2022 against the appellant.
2. The appeal that coming up for judgment emanates from the Memorandum Of Appeal dated 3rd September 2024 wherein the appellant seeks the following orders that:-
1) That the Appeal be allowed.
2) That the Judgment and orders issued on 8th August 2024 be set aside and/or varied as the court may deem fit.
3) The honorable court be pleased to assess the general damages awardable to the appellant.
4) The cost of Appeal and that of the subordinate Court be awarded to the Appellant with interest from the date of filing the lower Court suit.
3. The appeal is predicated on the following grounds: -
l. THAT the Learned Magistrate erred in Law and in fact by awarding the plaintiff/Appellant Kshs. 600,000/= as general damages which is manifestly low and not commensurate with the injuries sustained by the appellant.
2. THAT the Learned Magistrate erred in her judgement by failing to appreciate Appellant's claim on diminished earning capacity consequently failing to make a finding on this head.
3. THAT the Learned Magistrate misdirected herself on the principles applicable and the law thereby awarding a miserably low amount in damages in total disregard of the injuries sustained by the appellant.
4. THAT the Learned Magistrate's decision was unjust against the weight of evidence and the nature of injuries sustained by the Appellant and the same was based on misguided facts and wrong principles of law thereby occasioning miscarriage of justice,
The Appellant’s case;
4. The Appellant had sued the owners and/or the driver of motor cycle registration number KMFN 477T, being Watu Nominees Co. Ltd and Kennedy Ochieng (hereinafter referred to as the Respondents).
5. The Appellant sought for general damages, special damages, compensation for diminished earning capacity and cost of the suit together with interest at courts rate.
6. Upon hearing the parties, The learned trial magistrate delivered a judgment.
7. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides that: 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 This js of course the legal burden of proof.
8. The Appellant testified before the trial magistrate under oath, produced documents as per the plaintiff's list of documents in support of his case.
9. He believed that indeed the trial court’s finding on liability was well guided.
10. The appellant is challenging the finding of the trial court on quantum General Damages.
11. The appellant produced case summary from Kenyatta National Hospital, Hospital Attendance card, duly filled P3 form and Dr. Okere's medical Report in support of his case.
12. According 'to medical report by Dr. Cyprianus Okere the Appellant sustained the following injuries;
a. Left radio ulnar fractures
b. Pelvic Fractures at bilateral superior Pelvic fracture at inferior pubic rami
c. Recurrenct pain on the left leg
d. Pulmonary contusion
e. Recurrent pains on the left forearm
f. Recurrent pains on the pelvis
g. Left forearm is tender on palpation
h. Pelvis is tender on palpation
i. Degree of permanent incapacity is 10%
13. In his written submissions before the trial court, the Appellant had proposed for an award of Kshs. Two Million, Seven Hundred Thousand Kenya Shillings to be sufficient for his compensation.
14. Reliance is placed in the case of Civil Case No. 38 of 2012, Millcent Atieno Ochuonyo Vs Katola Richard, where the Plaintiff was awarded Khs.2,000,000.This authority is almost 14 years old and inflationary trends need to be taken into account.
15. Authority of Hon. R.E. Aburili, dated 3rd day of December, 2014,Peace Kemuma Nyang'era v Michael Thuo and another [2014 Civil Suit 209 of 2013 where Plaintiff was awarded Ksh.2,500,000.
16. This authority is almost seven years old and inflationary trends need to be taken into account.
17. In the case of Florence Hare Mkaha Vs. Pwani Tawakal Mini Coach & Another, Civil appeal No.85 of 2010, the plaintiff was awarded Kshs.2,400,000.
18. This authority is almost 7 years old and inflationary trends need to be taken into account.
19. He submits that the learned trial magistrate award of kshs. 600,000/- was too low.
20. The Appellant submits that before the trial court were relevant and comparable to the injuries sustained by the Appellant.
21. On Compensation for diminished earning capacity as pleaded at Paragraph 07 of the plaint the Appellant herein sustained left radio-ulnar fractures, pelvic fracture of bilateral superior and pelvic fracture inferior pubic realm leaving 11 with a permanent incapacity of 10 percent.
22. Reliance is placed in the case of Ndoro Kaka Kakondo v Salt Manufacturers Limited [20161 eKLR, Civil Appeal 4 of 2014, Hon. Justice James Rika held that; "Damages for loss of future earning capacity and /Or diminished earning capacity, unlike damages for loss of earnings, is a type of remedy based on the Claimant's potential earning power. It focuses on the Claimant's ability to earn income. The remedy is granted based on the difference in potential earning power, not on what the Claimant actually earned in the past. Even if a person is unemployed at the time the injury occurs, he would be entitled to pursue damages for loss of future earning capacity or diminished earning capacity, "
23. The appellant was working as a boda boda operator with an average daily income of 2500/-.
24. After the subject accident he is unable to perform his duties as he used to and as such claims for diminished earning capacity as prayed for in paragraph 7 of the Plaint.
25. In Civil Appeal No. 167 of 2002 Jacob Ayiga Maruia & Another V Simeon Obayo [2005 1 eKLR where the Court of Appeal held as that: "We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents.That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.
26. The plaintiff occupation as pleaded was never disputed.
27. Reliance is placed in Beatrice Murage -Vs- Consumer Transport Ltd & Anor (2014) EKLR where it was determined that, "Ordinarily if one does not prove what the deceased earned, the court would base the earnings on the minimum wages.The upshot will work as follows;
21,942.30/ (Monthly pay) x 12(yearly income) x 27(Lost years) x 10% = Kshs. 5,924,372.4.
28. In the alternative, without prejudice to the foregoing and in event that court find that the monthly earning income was not sufficiently proved, we call upon the court to be guided by the following authorities and take judicial notice that where the monthly income is not ascertainable court should award a global sum which is relevant to the circumstances of each case.
29. In so submitting he invited the trial court to be guided and persuaded by the following determination in the case of Simba Platinum Limited v Nicholas Auma Wandera [2021] eKLR, Civil Appeal 26 of 2020, where Hon. Justice J. KAMAU hold that,
"Having sold so, this court keenly considered tho authorlfies cnod by the parties under this head but had due regard to the case of Al harama Limited vs. Joseph Kariuki Cebron 2017 eKLR where the courf stated:-
"The court would be properly entitled to make a global award because there is a general agreement in decisions rendered by courts that there is no formula for assessing damages for lost or diminished earning capacity provided the judge takes into account relevant factors. "
a. Notably, in the instant case, the Respondent had been rendered less one hand for life. His age at the time of accident and therefore the period he had been consigned to live with reduced hand-activities, his qualification at the time and that he might not effectively fit back into the trade of work he was doing before were relevant factors to be taken into account. The Learned Trial Magistrate correctly observed that the Respondent did not adduce any evidence of the income that he used to earn and thus adopted the global award approach which has no particular formula.
30. Under this head and guided by the authority above, a global sum of kshs.2,000,000 (Two Million Kenya shillings) will be a sufficient compensation in consideration of the pass of time and inflation rates.
The Respondent's case;
31. Reliance is placed in the case of Robert Msioki Kitavi Vs Coastal Bottlers Ltd. [798511 K.A.R. 987 at 895 (17982 -881)7 KAR 891 at P.895).
"The court of Appeal in Kenya, then should as its fore runners did, only disturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or failed to take into account something he ought to have taken into account or the award is so low or so high that it amounts to an erroneous estimate. Singh Vs Singh and Honda (7955)22 EACA 725. 729. Butt V Khan 179771KAR1 read (11982 -798817 KARI.)
32. On the same issue, Hancox J.A. as he was, said this in Ayub Omari Shabani (an infant suing by his friend) and Yusuf Shabani Vs City Council of Nairobi and Daniel Nachela Kahungu [79851 KAR 681 Read [7982-8811 KAR 681.
i. "The test as to when an appellate court may interfere with an award of damages was stated by Law J.A. in Butt Vs Khan (7977) 7 KAR 7 (Read [7982 881 1 KARI ) (a case referred to in another context by the learned judge) as follows: -
ii. "An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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. "
33. The Appellant has appealed on the ground that the award was manifestly low and not commensurate to the injuries sustained by the Appellant herein; -
The Appellant herein produced a medical report dated 14th September 2022 outlining his injuries as;-fracture of the superior and inferior pubic rami and radio ulnar fractures with permanent incapacity assessed at 10%
34. In assessing damages, the general method of approach is comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Simon Taveta v Mercy MutituNjeru CA Civil Appeal No. 26 of 2013 [20141 eKLR thus:
The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.
35. This point has been emphasised by Lord Morris of Borth-y-Gest in West (H) & Son Ltd v Shepherd [1964] AC. 326,345, where he observed that:
But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.
36. The principles were further summarized by the Court of Appeal in Jabane v Olenja [19861 KLR 661 as follows;
The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.
(l) Each case depends on its own facts;
(2) awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
(3) comparable injuries should attract comparable awards.
(4) inflation should be taken into account; and
(5) unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.
37. In Kericho HCCC NO. 56 OF 2004 James Nyaboqa Masoqov Kipkebe Ltd (20071Eklr the court observed inter alia'.....that the award of damages by a court of law is not meant to put the plaintiff in a better position than he would have been had he not been injured. It is meant to compensate him for the injuries that he had sustained'
38. In Nakuru Civil Appeal No. 60 Of 2010 Crown Foods Ltd V Emily Wangui [201 11 Eklr court observed inter alia that an award of damages must be reasonable and be assessed in moderation as an award is not meant to punish the defendant but should be a reasonable compensation for the loss suffered'
39. They submit that an award of Kshs 600,000/=was adequate in compensating the Appellant herein for pain, loss and suffering as guided by following authorities; Andrew Kibet Kitum & another v Alice Njeri Gatundu (20211 KEHC 7424 (KLR) The court upheld an award of kshs 720,000/- where appellant sustained fracture of both inferior and superior pubic rami
40. Daneva Heavy Trucks & Another V ChrispineOtieno (20221 Eklr the respondent sustained fracture of the pelvic and tibia fibula with the court reducing the award to KShs. 800,000/-
41. Barnabas v Ombati (Civil Appeal E43 of 2021) 120221 KEHC 12136 (KLR) (28 July 2022) (Judgment) the court upheld an award of KShs. 800,000/where the victim had sustained fractures of the femur, humerus and pelvis.
42. Third Engineering Bureau China Construction Group Limited v Edwin Kinanqa Atuya (20211 eKLR where the respondent suffered the court reviewed an award of KShs 800,000/- to KShs. 500,000/- for almost similar injuries as general damages for pain, suffering, and loss of amenities.
43. David Mutembei v Maurice Ochieng Odoyo [20191 eKLR, where the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia on appeal the award of Kshs. 1, 600, 000.00 was reduced to Kshs. 800, 000.00
44. James Okongo v Elmat Sagwe Ogega [20211 eKLRcourt reduced the award from kshs to kshs900,000/- for fracture right tibia fibula and right femur
45. They urge the honourable court to uphold the lower court decision.
46. They also challenge the award under diminished earning capacity since the Appellant herein did not lead any evidence as to his income or earnings.
47. Despite him alleging he was a rider and earned KShs 2000/- per day he did not produce even a driving license in support of his allegations.
48. He had the opportunity to furnish a soft copy printed from the national transport and safety authority noting this matter proceeded three 3 years after the alleged accident but he did not.
49. Furthermore, he could have produced the mpesa statement and/or any other records of alleged payments by clients which he did not.
50. Additionally, he could have furnished a witness with whom they are in the said line of business to collaborate his assertions.
51. Reliance is placed the case of Wareham t/a A.F. Wareham & 2 others -Vs- Kenya Post Office Savings Bank (2004) 2 KLR where it was held as follows;-
"The burden of proof is on the plaintiff and the degree of proof is on a balance of probabilities. In discharging the burden of proof, the only evidence to be adduced is evidence of the existence or nonexistence of the facts in issue or facts relevant to the issue. It follows that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. "
52. The Evidence Act Cap 80 Laws of Kenya under section 107 provides that 'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence off acts which he asserts must prove that those facts exist.' Under section 108 of Cap 80 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, the Act further proceeds to state under section 109 that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.
53. Without prejudice to the above, should the court be inclined to make any award under this head, we humbly urge the court to adopt a global figure under this head.
54. The Court of Appeal in Mumias Sugar Company Limited Vs. Francis Wanalo(2007) e KLR (copy enclosed) Laid down the principles for the award for loss of earning capacity. The award may be a token one, modest or substantial depending on the circumstances of each case. Further the court held that 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 while citing with approval, the Court of Appeal (supra) Justice
55. Emukule in HCCC NO. 189 of 2009 Mwaura Muiruri V Suera Flowers Ltd &Another (copy enclosed) awarded Kshs. 150,000/- for loss of earning capacity.
56. Taking into account the holding in Court of Appeal in Mumias Sugar Company Limited (supra) Civil Case No. 189 of 2009(supra) we submit that an award should be a token of Kshs 80 000 as part of the general damages for pain, suffering and loss of amenities.
Analysis and determination;
57. The court finds the following to be the issue for determination.
1) Whether the appeal has merit.
2) Who shall be the costs.
Whether the appeal has merit.
58. The principles which ought to guide a court in awarding damages were set out by the Court of Appeal in Southern Engineering Company Ltd v Musingi Mutia [1985] KLR 730 where it was held that:
"It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question, "
59. In Civil Appeal 132 of 2012, Peter Namu Njeru v Philemone Mwagoti [2016] eKLR, the court held that"In order for an appellate court to interfere with an exercise in discretion by a trial court .in assessing damages, it must be demonstrated that the award was inordinately too high or too low as to present an entirety erroneous estimate of compensation to which the -respondent was entitle or that the court took into account irrelevant factors or failed to take into account relevant factors and that the exercise of discretion was wholly injudicious not expected of a reasonable adjudicator".
60. In determining this issue,the court has looked at the nature of the injuries sustained as pleaded, the medical report and the evidence as tendered during the trial in assessing whether the trial court fell into error in arriving at the general damages.
61. It is this court’s view that the trial court did not depart from the principle that was enunciated by the Court of Appeal in Odinga Jacktone Ouma vs. Moureen Achieng Odera [20161 eKLR where the court stated that "Comparable injuries should attract comparable awards."
62. It is this court’s finding that the trial court exercised its discretion judiciously. I do not find any justification to interfere with the award of general damages and I so hold.
63. On another ground the appellant believes that the Learned Magistrate erred in her judgement by failing to appreciate Appellant's claim on diminished earning capacity consequently failing to make a finding on this head.
64. The appellant argues that the amount awarded was little while The Respondents on their part hold a different view.
65. The appellant had pleaded and prayed for the compensation for lost earning capacity.
66. The respondents argued that despite the Appellant alleging that he was a rider and earned KShs 2000/- per day he did not produce even a driving license in support of his allegations an mpesa statement and/or any other records of alleged payments by clients which he did not or call a witness with whom he is in the said line of business to collaborate his assertions.
67. The court disagrees with the Respondent's arguments. This court has noted from the judgement of the trial court that the trial magistrate did not capture nor make reference to the issue of diminishing earning capacity as pleaded in the plaint and as prayed for. The trial Magistrate did not carry out an analysis nor make a finding or a determination in relation to this prayer.
68. In the circumstances, it is this court’s finding and I so hold that the trial Magistrate fell into error in failing to consider this heading.
69. In determining this issue, this court is guided by the case of Nyatogo v Mini Bakeries Limited (Civil Appeal E38 of 2021) [2023] wherein it was held that, diminished earning capacity refers to decrease in a person's earning ability as a result of the disability suffered. It is different from loss of earnings which looks at what has actually been lost as a result of the accident. Diminished earning capacity need not be specifically pleaded and proved but lost of earnings must be specifically pleaded and proved. Usually, loss of earning capacity is concerned with the effect of the injury on the person 's future earning ability as opposed to the present loss..."
70. The Court of Appeal in Mumias Sugar Company Limited Vs. Francis Wanalo(2007) e KLR (copy enclosed) Laid down the principles for the award for loss of earning capacity. The award may be a token one, modest or substantial depending on the circumstances of each case. Further the court held that 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 while citing with approval, the Court of Appeal (supra) Justice Emukule in HCCC NO. 189 of 2009 Mwaura Muiruri V Suera Flowers Ltd &Another awarded Kshs. 150,000/- for loss of earning capacity
71. Guided by the foregoing authorities, this court proceeds to award a global sum of Kshs. 200,000 for the diminishing earning capacity.
Costs;
72. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLROdunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so.In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
The Respondents shall shoulder costs.
Determination;
The appeal is partially successful.
Order:
i. That the Appeal is partly allowed.
ii. That the Judgment and orders issued on 8th August 2024 are hereby varied in the following terms.
iii. The appellant is awarded Kshs. 600,000/= as general damages.
iv. The appellant is awarded the sum of Kshs.3,550 as special damages.
v. The appellant is hereby awarded the sum of Kshs.200,000 for loss of future earning capacity.
vi. The cost of this Appeal and that of the subordinate Court to the Appellant with interest from the date of filing the lower Court suit.
2. The appeal that coming up for judgment emanates from the Memorandum Of Appeal dated 3rd September 2024 wherein the appellant seeks the following orders that:-
1) That the Appeal be allowed.
2) That the Judgment and orders issued on 8th August 2024 be set aside and/or varied as the court may deem fit.
3) The honorable court be pleased to assess the general damages awardable to the appellant.
4) The cost of Appeal and that of the subordinate Court be awarded to the Appellant with interest from the date of filing the lower Court suit.
3. The appeal is predicated on the following grounds: -
l. THAT the Learned Magistrate erred in Law and in fact by awarding the plaintiff/Appellant Kshs. 600,000/= as general damages which is manifestly low and not commensurate with the injuries sustained by the appellant.
2. THAT the Learned Magistrate erred in her judgement by failing to appreciate Appellant's claim on diminished earning capacity consequently failing to make a finding on this head.
3. THAT the Learned Magistrate misdirected herself on the principles applicable and the law thereby awarding a miserably low amount in damages in total disregard of the injuries sustained by the appellant.
4. THAT the Learned Magistrate's decision was unjust against the weight of evidence and the nature of injuries sustained by the Appellant and the same was based on misguided facts and wrong principles of law thereby occasioning miscarriage of justice,
The Appellant’s case;
4. The Appellant had sued the owners and/or the driver of motor cycle registration number KMFN 477T, being Watu Nominees Co. Ltd and Kennedy Ochieng (hereinafter referred to as the Respondents).
5. The Appellant sought for general damages, special damages, compensation for diminished earning capacity and cost of the suit together with interest at courts rate.
6. Upon hearing the parties, The learned trial magistrate delivered a judgment.
7. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides that: 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 This js of course the legal burden of proof.
8. The Appellant testified before the trial magistrate under oath, produced documents as per the plaintiff's list of documents in support of his case.
9. He believed that indeed the trial court’s finding on liability was well guided.
10. The appellant is challenging the finding of the trial court on quantum General Damages.
11. The appellant produced case summary from Kenyatta National Hospital, Hospital Attendance card, duly filled P3 form and Dr. Okere's medical Report in support of his case.
12. According 'to medical report by Dr. Cyprianus Okere the Appellant sustained the following injuries;
a. Left radio ulnar fractures
b. Pelvic Fractures at bilateral superior Pelvic fracture at inferior pubic rami
c. Recurrenct pain on the left leg
d. Pulmonary contusion
e. Recurrent pains on the left forearm
f. Recurrent pains on the pelvis
g. Left forearm is tender on palpation
h. Pelvis is tender on palpation
i. Degree of permanent incapacity is 10%
13. In his written submissions before the trial court, the Appellant had proposed for an award of Kshs. Two Million, Seven Hundred Thousand Kenya Shillings to be sufficient for his compensation.
14. Reliance is placed in the case of Civil Case No. 38 of 2012, Millcent Atieno Ochuonyo Vs Katola Richard, where the Plaintiff was awarded Khs.2,000,000.This authority is almost 14 years old and inflationary trends need to be taken into account.
15. Authority of Hon. R.E. Aburili, dated 3rd day of December, 2014,Peace Kemuma Nyang'era v Michael Thuo and another [2014 Civil Suit 209 of 2013 where Plaintiff was awarded Ksh.2,500,000.
16. This authority is almost seven years old and inflationary trends need to be taken into account.
17. In the case of Florence Hare Mkaha Vs. Pwani Tawakal Mini Coach & Another, Civil appeal No.85 of 2010, the plaintiff was awarded Kshs.2,400,000.
18. This authority is almost 7 years old and inflationary trends need to be taken into account.
19. He submits that the learned trial magistrate award of kshs. 600,000/- was too low.
20. The Appellant submits that before the trial court were relevant and comparable to the injuries sustained by the Appellant.
21. On Compensation for diminished earning capacity as pleaded at Paragraph 07 of the plaint the Appellant herein sustained left radio-ulnar fractures, pelvic fracture of bilateral superior and pelvic fracture inferior pubic realm leaving 11 with a permanent incapacity of 10 percent.
22. Reliance is placed in the case of Ndoro Kaka Kakondo v Salt Manufacturers Limited [20161 eKLR, Civil Appeal 4 of 2014, Hon. Justice James Rika held that; "Damages for loss of future earning capacity and /Or diminished earning capacity, unlike damages for loss of earnings, is a type of remedy based on the Claimant's potential earning power. It focuses on the Claimant's ability to earn income. The remedy is granted based on the difference in potential earning power, not on what the Claimant actually earned in the past. Even if a person is unemployed at the time the injury occurs, he would be entitled to pursue damages for loss of future earning capacity or diminished earning capacity, "
23. The appellant was working as a boda boda operator with an average daily income of 2500/-.
24. After the subject accident he is unable to perform his duties as he used to and as such claims for diminished earning capacity as prayed for in paragraph 7 of the Plaint.
25. In Civil Appeal No. 167 of 2002 Jacob Ayiga Maruia & Another V Simeon Obayo [2005 1 eKLR where the Court of Appeal held as that: "We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents.That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that is well and good. But we reject any contention that only documentary evidence can prove these things.
26. The plaintiff occupation as pleaded was never disputed.
27. Reliance is placed in Beatrice Murage -Vs- Consumer Transport Ltd & Anor (2014) EKLR where it was determined that, "Ordinarily if one does not prove what the deceased earned, the court would base the earnings on the minimum wages.The upshot will work as follows;
21,942.30/ (Monthly pay) x 12(yearly income) x 27(Lost years) x 10% = Kshs. 5,924,372.4.
28. In the alternative, without prejudice to the foregoing and in event that court find that the monthly earning income was not sufficiently proved, we call upon the court to be guided by the following authorities and take judicial notice that where the monthly income is not ascertainable court should award a global sum which is relevant to the circumstances of each case.
29. In so submitting he invited the trial court to be guided and persuaded by the following determination in the case of Simba Platinum Limited v Nicholas Auma Wandera [2021] eKLR, Civil Appeal 26 of 2020, where Hon. Justice J. KAMAU hold that,
"Having sold so, this court keenly considered tho authorlfies cnod by the parties under this head but had due regard to the case of Al harama Limited vs. Joseph Kariuki Cebron 2017 eKLR where the courf stated:-
"The court would be properly entitled to make a global award because there is a general agreement in decisions rendered by courts that there is no formula for assessing damages for lost or diminished earning capacity provided the judge takes into account relevant factors. "
a. Notably, in the instant case, the Respondent had been rendered less one hand for life. His age at the time of accident and therefore the period he had been consigned to live with reduced hand-activities, his qualification at the time and that he might not effectively fit back into the trade of work he was doing before were relevant factors to be taken into account. The Learned Trial Magistrate correctly observed that the Respondent did not adduce any evidence of the income that he used to earn and thus adopted the global award approach which has no particular formula.
30. Under this head and guided by the authority above, a global sum of kshs.2,000,000 (Two Million Kenya shillings) will be a sufficient compensation in consideration of the pass of time and inflation rates.
The Respondent's case;
31. Reliance is placed in the case of Robert Msioki Kitavi Vs Coastal Bottlers Ltd. [798511 K.A.R. 987 at 895 (17982 -881)7 KAR 891 at P.895).
"The court of Appeal in Kenya, then should as its fore runners did, only disturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or failed to take into account something he ought to have taken into account or the award is so low or so high that it amounts to an erroneous estimate. Singh Vs Singh and Honda (7955)22 EACA 725. 729. Butt V Khan 179771KAR1 read (11982 -798817 KARI.)
32. On the same issue, Hancox J.A. as he was, said this in Ayub Omari Shabani (an infant suing by his friend) and Yusuf Shabani Vs City Council of Nairobi and Daniel Nachela Kahungu [79851 KAR 681 Read [7982-8811 KAR 681.
i. "The test as to when an appellate court may interfere with an award of damages was stated by Law J.A. in Butt Vs Khan (7977) 7 KAR 7 (Read [7982 881 1 KARI ) (a case referred to in another context by the learned judge) as follows: -
ii. "An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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. "
33. The Appellant has appealed on the ground that the award was manifestly low and not commensurate to the injuries sustained by the Appellant herein; -
The Appellant herein produced a medical report dated 14th September 2022 outlining his injuries as;-fracture of the superior and inferior pubic rami and radio ulnar fractures with permanent incapacity assessed at 10%
34. In assessing damages, the general method of approach is comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Simon Taveta v Mercy MutituNjeru CA Civil Appeal No. 26 of 2013 [20141 eKLR thus:
The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.
35. This point has been emphasised by Lord Morris of Borth-y-Gest in West (H) & Son Ltd v Shepherd [1964] AC. 326,345, where he observed that:
But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.
36. The principles were further summarized by the Court of Appeal in Jabane v Olenja [19861 KLR 661 as follows;
The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.
(l) Each case depends on its own facts;
(2) awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
(3) comparable injuries should attract comparable awards.
(4) inflation should be taken into account; and
(5) unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.
37. In Kericho HCCC NO. 56 OF 2004 James Nyaboqa Masoqov Kipkebe Ltd (20071Eklr the court observed inter alia'.....that the award of damages by a court of law is not meant to put the plaintiff in a better position than he would have been had he not been injured. It is meant to compensate him for the injuries that he had sustained'
38. In Nakuru Civil Appeal No. 60 Of 2010 Crown Foods Ltd V Emily Wangui [201 11 Eklr court observed inter alia that an award of damages must be reasonable and be assessed in moderation as an award is not meant to punish the defendant but should be a reasonable compensation for the loss suffered'
39. They submit that an award of Kshs 600,000/=was adequate in compensating the Appellant herein for pain, loss and suffering as guided by following authorities; Andrew Kibet Kitum & another v Alice Njeri Gatundu (20211 KEHC 7424 (KLR) The court upheld an award of kshs 720,000/- where appellant sustained fracture of both inferior and superior pubic rami
40. Daneva Heavy Trucks & Another V ChrispineOtieno (20221 Eklr the respondent sustained fracture of the pelvic and tibia fibula with the court reducing the award to KShs. 800,000/-
41. Barnabas v Ombati (Civil Appeal E43 of 2021) 120221 KEHC 12136 (KLR) (28 July 2022) (Judgment) the court upheld an award of KShs. 800,000/where the victim had sustained fractures of the femur, humerus and pelvis.
42. Third Engineering Bureau China Construction Group Limited v Edwin Kinanqa Atuya (20211 eKLR where the respondent suffered the court reviewed an award of KShs 800,000/- to KShs. 500,000/- for almost similar injuries as general damages for pain, suffering, and loss of amenities.
43. David Mutembei v Maurice Ochieng Odoyo [20191 eKLR, where the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia on appeal the award of Kshs. 1, 600, 000.00 was reduced to Kshs. 800, 000.00
44. James Okongo v Elmat Sagwe Ogega [20211 eKLRcourt reduced the award from kshs to kshs900,000/- for fracture right tibia fibula and right femur
45. They urge the honourable court to uphold the lower court decision.
46. They also challenge the award under diminished earning capacity since the Appellant herein did not lead any evidence as to his income or earnings.
47. Despite him alleging he was a rider and earned KShs 2000/- per day he did not produce even a driving license in support of his allegations.
48. He had the opportunity to furnish a soft copy printed from the national transport and safety authority noting this matter proceeded three 3 years after the alleged accident but he did not.
49. Furthermore, he could have produced the mpesa statement and/or any other records of alleged payments by clients which he did not.
50. Additionally, he could have furnished a witness with whom they are in the said line of business to collaborate his assertions.
51. Reliance is placed the case of Wareham t/a A.F. Wareham & 2 others -Vs- Kenya Post Office Savings Bank (2004) 2 KLR where it was held as follows;-
"The burden of proof is on the plaintiff and the degree of proof is on a balance of probabilities. In discharging the burden of proof, the only evidence to be adduced is evidence of the existence or nonexistence of the facts in issue or facts relevant to the issue. It follows that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail. "
52. The Evidence Act Cap 80 Laws of Kenya under section 107 provides that 'Whoever desires any court to give judgment as to any legal right or liability dependent on the existence off acts which he asserts must prove that those facts exist.' Under section 108 of Cap 80 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, the Act further proceeds to state under section 109 that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence.
53. Without prejudice to the above, should the court be inclined to make any award under this head, we humbly urge the court to adopt a global figure under this head.
54. The Court of Appeal in Mumias Sugar Company Limited Vs. Francis Wanalo(2007) e KLR (copy enclosed) Laid down the principles for the award for loss of earning capacity. The award may be a token one, modest or substantial depending on the circumstances of each case. Further the court held that 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 while citing with approval, the Court of Appeal (supra) Justice
55. Emukule in HCCC NO. 189 of 2009 Mwaura Muiruri V Suera Flowers Ltd &Another (copy enclosed) awarded Kshs. 150,000/- for loss of earning capacity.
56. Taking into account the holding in Court of Appeal in Mumias Sugar Company Limited (supra) Civil Case No. 189 of 2009(supra) we submit that an award should be a token of Kshs 80 000 as part of the general damages for pain, suffering and loss of amenities.
Analysis and determination;
57. The court finds the following to be the issue for determination.
1) Whether the appeal has merit.
2) Who shall be the costs.
Whether the appeal has merit.
58. The principles which ought to guide a court in awarding damages were set out by the Court of Appeal in Southern Engineering Company Ltd v Musingi Mutia [1985] KLR 730 where it was held that:
"It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question, "
59. In Civil Appeal 132 of 2012, Peter Namu Njeru v Philemone Mwagoti [2016] eKLR, the court held that"In order for an appellate court to interfere with an exercise in discretion by a trial court .in assessing damages, it must be demonstrated that the award was inordinately too high or too low as to present an entirety erroneous estimate of compensation to which the -respondent was entitle or that the court took into account irrelevant factors or failed to take into account relevant factors and that the exercise of discretion was wholly injudicious not expected of a reasonable adjudicator".
60. In determining this issue,the court has looked at the nature of the injuries sustained as pleaded, the medical report and the evidence as tendered during the trial in assessing whether the trial court fell into error in arriving at the general damages.
61. It is this court’s view that the trial court did not depart from the principle that was enunciated by the Court of Appeal in Odinga Jacktone Ouma vs. Moureen Achieng Odera [20161 eKLR where the court stated that "Comparable injuries should attract comparable awards."
62. It is this court’s finding that the trial court exercised its discretion judiciously. I do not find any justification to interfere with the award of general damages and I so hold.
63. On another ground the appellant believes that the Learned Magistrate erred in her judgement by failing to appreciate Appellant's claim on diminished earning capacity consequently failing to make a finding on this head.
64. The appellant argues that the amount awarded was little while The Respondents on their part hold a different view.
65. The appellant had pleaded and prayed for the compensation for lost earning capacity.
66. The respondents argued that despite the Appellant alleging that he was a rider and earned KShs 2000/- per day he did not produce even a driving license in support of his allegations an mpesa statement and/or any other records of alleged payments by clients which he did not or call a witness with whom he is in the said line of business to collaborate his assertions.
67. The court disagrees with the Respondent's arguments. This court has noted from the judgement of the trial court that the trial magistrate did not capture nor make reference to the issue of diminishing earning capacity as pleaded in the plaint and as prayed for. The trial Magistrate did not carry out an analysis nor make a finding or a determination in relation to this prayer.
68. In the circumstances, it is this court’s finding and I so hold that the trial Magistrate fell into error in failing to consider this heading.
69. In determining this issue, this court is guided by the case of Nyatogo v Mini Bakeries Limited (Civil Appeal E38 of 2021) [2023] wherein it was held that, diminished earning capacity refers to decrease in a person's earning ability as a result of the disability suffered. It is different from loss of earnings which looks at what has actually been lost as a result of the accident. Diminished earning capacity need not be specifically pleaded and proved but lost of earnings must be specifically pleaded and proved. Usually, loss of earning capacity is concerned with the effect of the injury on the person 's future earning ability as opposed to the present loss..."
70. The Court of Appeal in Mumias Sugar Company Limited Vs. Francis Wanalo(2007) e KLR (copy enclosed) Laid down the principles for the award for loss of earning capacity. The award may be a token one, modest or substantial depending on the circumstances of each case. Further the court held that 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 while citing with approval, the Court of Appeal (supra) Justice Emukule in HCCC NO. 189 of 2009 Mwaura Muiruri V Suera Flowers Ltd &Another awarded Kshs. 150,000/- for loss of earning capacity
71. Guided by the foregoing authorities, this court proceeds to award a global sum of Kshs. 200,000 for the diminishing earning capacity.
Costs;
72. In Joseph Oduor Anode v. Kenya Red Cross Society, Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLROdunga, J. thus observed:
“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so.In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion …” [emphasis supplied].
The Respondents shall shoulder costs.
Determination;
The appeal is partially successful.
Order:
i. That the Appeal is partly allowed.
ii. That the Judgment and orders issued on 8th August 2024 are hereby varied in the following terms.
iii. The appellant is awarded Kshs. 600,000/= as general damages.
iv. The appellant is awarded the sum of Kshs.3,550 as special damages.
v. The appellant is hereby awarded the sum of Kshs.200,000 for loss of future earning capacity.
vi. The cost of this Appeal and that of the subordinate Court to the Appellant with interest from the date of filing the lower Court suit.