https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10838

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT VIHIGA** **CIVIL APPEAL NO. E060 OF 2024** **ALEX MALAVI………………………………………………..…………….APPELLANT** **VERSUS** **SELLAH NANDWA………………………………………………………RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon P. M. Karimi (RM) delivered at Vihiga in Principal Magistrate’s Court Case No 31 of 2024 on* *2nd October 2024)* **Coram: Before Justice R. Nyakundi** **M.A Okumu & Co. Advocates** **M/s Akwala & Co. Advocates** **JUDGMENT** **INTRODUCTION** 1. In her decision of 2nd October 2024, the Learned Trial Magistrate, Hon P. M. Karimi, Resident Magistrate, found the Respondent herein to have been fully liable for the injuries sustained by the Appellant. He entered Judgment in favour of the Appellant against the Respondent as follows:- Liability 85:15 General Damages Kshs 800,000/= Loss of Earnings Kshs 100,000/= Special Damages Kshs 8,500/= Kshs 908,500/= Less 15% contribution Kshs 136,275/= Total Kshs 772,225/= Plus costs of the suit and interest at court rates from the date of judgment for general damages and from date of filing for special damages until payment in full. 1. Being aggrieved by the said decision, on 2nd November 2024, the Appellant filed Memorandum of Appeal dated 31st October 2024. He relied on four (4) grounds of appeal as stipulated in the memorandum of appeal a s follows: 2. *The learned trial magistrate erred in law and in fact by disregarding the Appellant’s submissions on the issue of quantum hence arriving at an unjust award.* 3. *The learned magistrate erred in law and in fact when she substantially deviated from the pleadings, evidence and submissions of the plaintiff in regard to quantum of damages generally thereby arriving at a grossly low and inordinate award.* 4. *The learned magistrate erred in law and in fact by failing to appreciate the principles informing the award on general damages relating to the nature of the injuries suffered by the plaintiff and their consequences as reflected in the Doctor’s medical report thereby awarding a grossly low figure of Kshs. 800,000.00 which was not commensurate with the gravity of the said injuries and thus occasioning a miscarriage of justice.* 5. *The learned magistrate erred in law and in fact when she failed to consider comparable awards for similar injuries as in the instant suit thus arriving at grossly low award* 6. The background of this appeal arises from the plaint filed on 18th January 2024 in which the plaintiff now appellant sued the defendant/respondent based on the following facts: 7. *On or about the 18/03/2023 the plaintiff, while standing along Kisumu-Kakamega Road at4Nyota area, sustained very serious injuries when the authorized rider, agent and /or servant of motor cycle registration number KMGE 247K BOXER so negligently drove, managed and/or controlled the said motor cycle that he caused it to lose control, veered off the road and onto the pedestrian lane where the plaintiff was walking and hit him and other two pedestrians from behind hence causing an accident.* 8. The claim was based on the particulars of negligence in which he suffered the following particulars of injuries: 9. *Left proximal tibial shaft fractures in anterolateral shift* 10. *Multiple segmental 3 fractures of the left fibula* 11. *Fracture of the right tibial/fibula* 12. *Tender swollen anterior neck* 13. *Bruises on the right hand along the wrist joint* 14. The reason whereof he prayed or judgment to be entered against the defendant for: 15. *General damages* 16. *Special damages of Kshs 14,000* 17. *Costs of this suit* 18. *Loss of earning capacity and/or future earning* 19. *Interest on 1, 2 and 3 above at 14% interest rates* 20. *Any other relief that the court deems fit to grant* 21. It is from the evidence adduced before the trial court by the plaintiff who relied on the following documentary evidence: 22. *Plaintiff’s ID card* 23. *Discharge Summary from Vihiga County Referral Hospital* 24. *Receipts for Kshs 1000.00 from Ritri Company Ltd* 25. *Receipt for Kshs 8,000.00 from Dr. Neema Mbaruku* 26. *Medical report* 27. *X-ray report from Ritri Imaging clinic* 28. *P3 form* 29. *Police Abstract* 30. *Motor vehicle search* 31. *Demand letter and certificate of postage* 32. *Receipt for Kshs 5,000.00 for legal fees,* to discharge the burden of proof under Section 107, 108, 109 of the Evidence Act on a balance of probabilities. It appears from the record that the defendant elected not to give evidence in answer to the allegations on negligence as claimed by the plaintiff now appellant. It is in this premise the trial magistrate delivered her judgment which is the subject matter of this appeal. 33. As at the time of writing this Judgment, the Appellant had not filed his Written Submissions. The Respondent’s Written Submissions were dated 24th November 2025 and filed on 11th November 2025 (sic). **ANALYSIS** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 2. This was aptly stated in the case of **Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123** where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 3. Having looked at the grounds of Appeal and the Respondent’s Written Submissions, it appeared to this court that the only issue that had been placed before it for determination was whether or not the quantum that was awarded was low in the circumstances warranting interference by this court. 4. The court deemed it prudent to address the issues under the following distinct heads. **LOSS OF EARNINGS** 1. The Respondent submitted that Dr. Neema Mbaruku’s medical report indicated that the Appellant suffered fractures of both tibia and fibula and that at the time of writing her medical report on 6th November 2023, he was in the process of healing. 2. He asserted that Dr. Oketch Protas Were who re-examined the Appellant on 15th July 2024 concluded that he had by then completely healed with no resultant incapacitation. He added that in view of that conclusion that he had fully recovered and considering the absence of any evidence on earnings, there was no basis or justification for a claim for loss of earning capacity. 3. He pointed out that the Trial Court held that although the Appellant had not provided any proof of earning or economic activity, it could be inferred that the Appellant suffered some degree of incapacitation for some months. He argued, therefore, that the award of loss of earnings was reasonable in the circumstances and there was no basis of disturbing the same. 4. Loss of income and/or future earnings must be pleaded and proved as they are in the nature of special damages, whereas loss of earning capacity is in the nature of general damages and need not be pleaded though it has to be proved on a balance of probability as was held in the case of**Cecilia W. Mwangi & Another vs Ruth W.** **Mwangi [1997] eKLR**. 5. That being the case, this court noted from the record and more specifically the Plaint, that although the Respondent pleaded loss of earning capacity and/or future earnings, he did lead evidence that he is an inform of worker in what is generally described as jua kali sector in Kenya. However, **Douglas Kalafa Ombeva vs David Ngama [2013] eKLR***,* the Court of Appeal held that: *“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically”* 1. The court acknowledges that the informal sector forms a bigger percentage of the workforce in Kenya and which include vendors, mechanics, artisan, electrician etc. The court cannot demand that proof of loss of earnings be verifiable by way of accountable documents or receipts. Some of the workers in this sector do not even pay taxes and their daily income may be subjected to expenditure without any books of account to record the outlet and inlet of income hand from the business one is involve on a daily, weekly or monthly basis. It is therefore not possible to proof losses with mathematical precision save for some reliable estimate of daily or weekly earnings in which the plaintiff/victim of the accident may present before a trial court. 2. Appellant sought loss of earnings capacity due to the severity of injuries sustained during the accident. It is evident from the doctor’s medical report that he suffered left leg healed scars from surgery, prominent would medially and right leg similar scars seen. The X-ray on both leg showed bilateral fractures of the tibia and fibula and comminuted fracture of the left and bilateral leg fixation with intramedullary nailing done. In this respect Dr. Neema Mbaruk accessed disability index at 20% and advised physiotherapy session be carried out at an estimated cost of Kshs 30,000. During the doctor visit by the appellant there is evidence that 8 months down the line he was still complaining of pain on both legs and swelling which was yet to subside. The learned trial magistrate exercised discretion that post accident disability in terms of loss of income for the based in appellant who was in the informal sector be assessed at Kshs 100,000. It is trite law in Kenya that Kenyan’s court distinguished between loss of future earnings capacity a general damages award compensating for the risk of diminished employability. Courts use the multiplier and multiplicand method, basing the assessment on the victim’s age, remaining working life and prevailing labor market risks. There was no evidence from the respondent to challenge the facts of the appellant being an informal worker in the informal sector. The loss of income to be assessed is to compensate for the loss suffered from the negligence occasioned by the respondent’s motorcycle in which the appellant suffered a disability of 20% which reduces chances of him actively involved in the informal sector wide employment. As for this case using the statutory minimum wage of informal workers at Vihiga County, the appellant could be expected to earn between Kshs 7,000-9,000 a month and he was off employment for over 8 months due to the gravity to the injuries during the accident. 3. This is a matter of judicial discretion which empowers judges and magistrates to make decisions based in individual circumstances and principles of fairness rather that rigid, inflexible rules. this is what the court reaffirmed in the cases of **Mbogo v Shah (1968)** supra. Similarly, in **Raytheon Co. v West (US)** the court reaffirmed that lower courts are provided with wide discretion in managing trial and admitting evidence that court should only intervene upon a clear showing of an abuse of that discretion. There is no evidence from the facts of this case that the learned trial magistrate abused her discretion in awarding damages of Kshs 100,000 under this limb of loss of earnings attributed to the injuries suffered by the appellant. It must be appreciated that judicial discretion is usually considered a legal phenomenon, related to jurisprudential questions about the boundaries of rules and the type of reasoning required from judges and magistrates when making decisions in legal disputes. I have come to understand in my practice that legal decision making is a complex phenomenon that cannot be explained only by the mechanistic application of legal rules. That is why judges and magistrates in their work are exposed to very critical claims and response two distinct context. First, it is the worldview and the social conflict framework. In terms of the legal worldview judges and magistrates acknowledges various limitations on rules and provision of the statutes as capable of determining a legal case. For there are certain scenarios and circumstances when the rules and the provisions of the law may miss the individual case. It is also true to state that in terms of the social conflict framework judges and magistrates acknowledge underlying needs and interest which are deeper that the legal dispute and requires unique processing. 4. It is against this backdrop that the court captures the complexity and hybrid nature of legal decision making in our courts as illustrated by the trial court findings that the appellant was entitled to an award of Kshs 100,000 under the loss of earnings or income in that matter during the time he was incapacitated due to the injuries suffered as opined by the medical report admitted in evidence under Section 48 of the Evidence Act. **GENERAL DAMAGES** 1. *On a first appeal basically on assessment of damages only, the Court has to re-evaluate the evidence, assess it and make its own conclusions remembering that it has neither seen nor heard the witnesses and hence due allowance must be made for this. See* ***Selle v Associated Motor Boat Company Ltd [1968] EA 123 at 126; Williamson Diamonds Ltd v Brown [1970] EA 1.*** 2. *The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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 low or so inordinately high that it must be wholly erroneous estimate of the damage. See* ***Kemfro Africa Limited t/a Meru Express Service, Gathongo Kanini v AM Lubia and Olive Lubia [1987] KLR 27 [1982-88]1 KAR 727 at 730*** 3. *In assessment of damages, the general method of approach should be that comparable injuries should as far as possible, be compensated by comparable awards keeping in the correct level of awards in similar case.* 4. The Respondent submitted that the award of Kshs 800,000/= for general damages was adequate in the circumstances and should not be disturbed. He placed reliance on the case of **Paul Kithinji Kirimi & Another vs Gatwiri Murithi Meru HCCA No 84 of 2017** where the plaintiff was awarded Kshs 450,000/= having been revised from Kshs 700,000/= for suffering a fracture of the right femur and mandible and the mandible was managed by dental wiring and he required a surgery to remove the implants. 5. He also relied on the cases of ***Harun Muyoma Boge vs Dr Daniel Otieno Agulo Migori HCCA No 7 of 2015*** *and* ***Simon Kimote vs Agro Solutions Limited Migori HCCA No 90 of 2016*** where the court awarded Kshs 300,000/= and Kshs 350,000/= respectively where the claimants sustained fracture of the right tibia and fibula. 6. He contended that the claimants in the above authorities suffered injuries which were graver than the ones sustained by the Appellant herein. He urged the court to dismiss the Appellant’s appeal with costs. 7. It is well settled in law that an appellate court will not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of ***Margaret T. Nyaga vs Victoria Wambua Kioko [2004] eKLR****.* 8. It had to be understood that money could never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury. 9. However, this assessment was not without limits. A court had to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court therefore had to be guided by precedents. 10. Indeed, in the case of ***Kigaraari vs Ava (1982-88) 1 KAR 768*** *as quoted by this court in the case of* ***Godfrey Wamalwa Wamba & Another vs Kyalo Wambua[2018]eKLR****,*it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public. 11. This court also had due regard to the case of ***Lim vs Camden HA [1980] AC 174*** where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused. 12. Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognise that no case was exactly the same as the other. It had to be noted that cases could not contain exact injuries. They were merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable. 13. Towards this end, an appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended as was held in the case of ***Margaret T. Nyaga vs Victoria Wambua Kioko*** (Supra). 14. In his Plaint dated 18th January 2024 and filed on 8th February 2024, the Appellant pleaded that he sustained left proximal tibia shaft fractures in anterolateral shift, multiple segmental 3 fractures of the left fibula, fracture of the right fibula/tibial, tender swollen anterior neck and bruises on the right hand along the wrist joint. 15. He testified that he was treated at Vihiga County Referral Hospital. She produced the P3 form, Discharge Summary, Medical Report from Dr Neema and X-ray ultra sound and radiology report dated 19th January 2024 and 6th November 2023 as exhibits in court. The said Discharge Summary indicated that the x-ray was done showed that she had sustained a tibia fibula fracture with ankle dislocation. 16. The Medical Report of Dr Neema Mbaruku dated 6th November 2023 set out the Appellant’s present complaints as pain in both legs, swelling of the legs and generalized body pain all for eight (8) months period. At the time of the medical examination, the Appellant was in fair general condition, walking with assistance of an aide and using bilateral axillary crutches. She added that he had stable vital signs. She opined that he had twenty percent (20%) disability index and needed physiotherapy estimated at thirty (30) sessions. 17. The Respondent produced a second medical report dated 15th July 2024 by Dr Oketch who opined that the Appellant had healed with no resultant incapacitation. The Trial Court noted that Dr Neema being an orthopedic surgeon was better versed with matters with regard to bones as opposed to Dr Oketch who was a consultant surgeon. It, therefore, relied on her medical report in awarding the Appellant. 18. Remaining faithful to the doctrine of stare decisis and taking the inflationary trends into consideration, it was the considered view of this court that general damages in the sum of Kshs 800,000/= that was awarded by the Trial Court to have been inordinately low to warrant interference of this court as the Appellant herein sustained fibula multiple segmented fractures other than the tibial shaft fracture. 19. It is clear from the record that the learned magistrate placed reliance in the case of *Kimita v Travel Budget Express & Another Civil Appeal E042 of 2022 [2024] KEHC 6435) (KLR) where the learned Judge on appeal upheld an award of Kshs 800,000 for fractures of right and left tibia and soft tissue injuries to the left leg, forehead, left arm, chin and zygomatic area which have healed scars*. The facts of this awards can be contras distinguished with that of the appellant who sustained the following injuries left proximal tibial shaft fractures in anterolateral shift, multiple segmental 3 fractures of the left fibula, fracture of the right tibia/fibula, tender swollen anterior back and bruises on the right hand along the wrist joint. According to Dr. Neema’s medical report, she observed that the plaintiff had sustained 20% incapacitation, had metallic implants in situ and had deformities. 20. There is no dispute that the claimant in Kimita Case in which the learned trial magistrate relied upon to exercise judicial discretion in assessment of damages had no evidence of permanent disability of 20% incapacitation and therefore it could not be proper dicta in so far as the appellant degree of injuries suffered and the permanent negative impact occasion to that effect. In my view the following authorities are more nearer to the facts of the appellant circumstances and therefore calling for this court to review the assessment of general damages for pain and suffering to an upward range for the Kshs 800,000 is on the lower side of the bracket. Thus: ***Hussein Ahmed Abdullahi-vs- Samira Mohamed Abdi [2017|eKLR*** *the court awarded general damages of Kshs. 2,500,000.00 to the plaintiff who had sustained a fracture and dislocation of the radius ulna and had been rendered 20 % incapacitated.* *In the case of* ***Linos Shisakha Andakalu -vs- George Kangethe Mbugua &Another [2019] eKLR****, an award on general Damages of Ksh. 3,000,000.00 was made where the plaintiff had as a result of the injuries sustained become 30% incapacitated. In the instant suit the plaintiff has 20 % permanent incapacitation, will need removal of metallic implants on both limbs and as at the time of testifying in court, was still on crutches. In the case of* ***Christine Mwigina Akonya -vs- Samuel Kairu Chege [2017] eKLR****, the court awarded the plaintiff Kenya Shillings Four Million in general damages for a fracture of the right femur, fracture ribs 3-6, pain in the right side of the chest and right thigh, and persistent pain in the right knee.* *In the case of* ***Paul Guyo Wagoh -vs- Hussein Abdi Huka & Another [2019] eKLR*** *the plaintiff suffered bilateral comminuted femoral fractures. The court reduced the award from Kenya Shillings Two Million Five Hundred Thousand (Kshs. 2,500,000.00) to Kenya Shillings Two Million (Kshs. 2,000,000.00) only for general damages since the plaintiff therein had not suffered any permanent incapacitation.* 1. It is well settled position of the law in Kenya that in the cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects. It has been reiterated by this court in multiple instances that just compensation must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place. While assessing the compensation for the appellant by the learned trial magistrate she did not take into account the functional of disability which will have to be take into account consideration for award of future loss of income. In the instant appeal, the doctor had assessed physical disability whole body at 20% which is never factored anywhere in the judgment of the trial court. The entry recording the term ‘pain and suffering’ in P. Ramanatha Iyer's Advanced Law Lexicon reads as under: *“Pain and suffering. The term ‘Pain and suffering’ mean physical discomfort and distress and include mental and emotional trauma for which damages can be recovered in an accident claim. This expression has become almost a term of art, used without making fine distinction between pain and suffering. Pain and suffering which a person undergoes cannot be measured in terms of money by any mathematical calculation. Hence the Court awards a sum which is in the nature of a conventional award [Mediana, The, [1900] A.C. 113, 116]”* 1. This concept always escapes definition by the trial courts when it comes to assessment of damages and it must be admitted there are challenges on how to achieve full compensation for both pecuniary and non-pecuniary damages alike more so on Road Traffic Accident Victims. What is the formula that is appropriate to be applied to attain the level of full compensation on assessment of damages is not even crystal clear from the parameter of placing reliance on award of damages in past cases or precedents of Superior Courts. In very practical sense invoking judicial discretion a court has to perform the difficult artificial task of converting into monetary damages the physical injury and deprivation and pain and to give judgement of what is to be considered to be a reasonable sum. It rarely looks beyond the judgment to the spending of the damages. (See the principles in ***H West & Son Ltd v Shephard [1964] A.C 326****).* 2. I am of the considered view upon appreciating and scrutinizing the trial court record and the judgment which has been appealed against. The learned trial magistrate in awarding compensation did not look at the case in totality and the permanent disability which is also severe compounding the social economic rights of the appellant. In such circumstance to preserve the essence of justice it becomes the duty fog the trial court at the very least to restore the claimant and in our case the appellant at best as far as possible to the position he was in before the occurrence of the disability and to do so must award compensation in a liberal manner. 3. It is therefore evident from the above discussion that the award of damages of Kshs 800,000 for pain, suffering, loss of amenities and 20% disability awarded by the trial court was inordinately low and the same has to be reviewed upwards to Kshs 2.5 million as fair and proportionate compensation for the appellant. As a consequence of this the appeal succeeds to the extent of the following declarations. That: 4. *The issue of liability settled at an apportionment at 80:20% in favour of the appellant* 5. *That general damages, for pain, suffering, loss of amenities and 20% permanent disability reviewed and enhanced to 2.5 million in favour of the appellant* 6. *That loss of earnings affirmed at Kshs 100,000 in favour of the appellant* 7. *The special damages allowed at Kshs 8,500. Therefore, the total award payable to the appellant is Kshs 2,608,500/= together with costs of the suit and interest at court rates from the date of judgment for general damages and from date of filing for special damages until payment in full.* 8. *Orders accordingly*. **DATED, SIGNED AND DELIVERED THIS 20TH DAY OF JULY 2026.** **…………………………..………** **R. NYAKUNDI** **JUDGE**