https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8629

Masingila v Vunza c/o Mapatra Sacco & another (Civil Appeal E001 of 2023) [2026] KEHC 8629 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8629 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E001 of 2023 BM Musyoki, J June 19, 2026 Between Cheldean Mutheu Masingila Appellant and Austine Mutava Vunza c/o Mapatra Sacco 1st Respondent Kim Logistics Ltd 2nd Respondent (Being an appeal from part of judgment and decree in the Chief Magistrate’s Court at Mavoko (Hon. S. Kandie RM) civil suit E112 of 2020 dated 6-02-2023) Judgment 1.The appellant sued the respondents in the subordinate court claiming general damages for pain and suffering and loss of earning capacity and special damages arising as a consequence of an accident that occurred on 29th April 2019 while she was travelling in motor vehicle registration number KAU 450P which collided with the respondent’s motor vehicle registration number KAU 668F. After full hearing, the trial court found the respondents liable and awarded the appellant Kshs 800,000.00 for general damages for pain and suffering and Kshs 108,645.00 in special damages. 2.The appellant was dissatisfied with the award of quantum of general damages and failure to award loss of earning capacity and preferred this appeal raising the following;1.That the learned Magistrate erred in law and fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at a meagre unjustified award.2.That the learned Magistrate erred in law and fact by awarding Kshs 800,000/= as general damages for pain and suffering which amount was inordinately low and non-commensurate to the injuries suffered by the appellant.3.That the learned Magistrate erred in law and fact by failing to issue an award for loss of earning capacity despite evidence and uncontroverted testimony in support of the same.4.That the leaned Magistrate erred in both law and fact by failing to consider the appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure.5.That the learned Magistrate erred in law and fact by failing to take into consideration proven relevant facts. 3.This being a first appeal, this court has a duty to re-evaluate and re-analyse the evidence produced in the trial court and come to its own independent conclusion but keep in mind that it did not take the evidence of the parties neither did it see the demeanour of the witnesses and give due allowance for that. 4.Since this appeal is on quantum only, I will only revisit the part of evidence that touches on the quantum. In deciding how much to award in damages, the court is expected to evaluate the nature and extent of injuries and their effect on the victim. These are ordinarily found in both the testimonies of the parties and the medical documents produced in evidence. In some instance the court should also consider the condition of the victim which it would be able to observe and which is attributable to the accident. 5.The appellant told the trial court that she sustained injuries as per the medical report which resulted to her admission in Machakos Level 5 Hospital, Bishop Kioko Catholic Hospital and Shalom Community Hospital on different days and for different periods. She claimed that her feet were numb and nerves dead and that she experienced pain during cold seasons. The appellant added that, at the time of the accident, she was a university student and that the accident sent her off her studies for two years. She claimed further that she could not apply for jobs in cold places and that she may not get a job that required a lot of walking. 6.The appellant stated in cross-examination that she was still studying and that she had recovered and that the implants in her legs had been removed. She also confirmed that she was able to move around without aid. 7.Doctor Wokabi testified that he examined the appellant on 6-10-2020 and produced a medical report to that effect dated 8-10-2020. He stated in cross-examination that at the time of examination, the injuries were healing and held opinion that at the time he was testifying, the appellant had healed. 8.The respondent called one Doctor Jenipher Kahotho who told the court that the appellant was examined by her colleague known as Ruth. At the time of examination, the appellant was walking with a limp but she had healed with a scar on the thigh and she had normal movement of her left ankle. She added that the appellant’s right small toe and left toes were deformed and stiff and that the implants had been removed. The appellant had a permanent disability of 12 per cent. 9.I have analysed the exhibits especially those speaking to the injuries. The medical report by Dr W.M. Wokabi shows that the appellant sustained a fracture of the left femur, compound (open) fracture of left tibia, compound (open) fracture of the left fibula, degloving injury on the back of the left leg, fracture of four right foot metatarsal bones, blunt injuries to the chest and lacerations on the left upper limb. The fractures were treated by fixing of metal K-nail and surgical toilet of the open compound fracture. The report states further that the appellant underwent skin grafting of the degloving wounds. The doctor did not give details of any future complications safe for stating that the appellant had 12 per cent permanent disability. Dr Ruth’s medical report shows that, in addition to what Dr Wokabi’s report stated, the appellant had stiffness in the ankle and that the left small and left toes were deformed. It added that the appellant was unable to fully squat. 10.There are five discharge summaries which were produced as the appellant’s exhibit 7. The first one shows that the appellant was admitted at Machakos Level 5 Hospital from 30-04-2019 to 16-06-2019. The second indicates that he was admitted at Bishop Kioko Catholic Hospital between 17-01-2020 and 25-01-2020 with diagnosis of malunion of 1st and 2nd left foot metatarsal bones and 2nd, 3rd and 4th metatarsal bones of the left foot and dislocation of the 5th toe of the right foot. The third summary shows that he was again admitted to Bishop Koko Catholic Hospital on 28-07-2020 with complaints of a painful foot and discharged on 5-08-2020. The fourth indicates that he had been admitted at Bishop Kioko Catholic Hospital between 23-10-2019 and 4-11-2019 for treatment of fracture of the left tibia and multiple left foot and small toe dislocation. The fifth and last discharge summary testifies that the appellant was in Shalom Community Hospital between 23-04-2020 and 27-04-2020. 11.It is against the above background that the appellant claims that the damages for pain and suffering were too low as compared to other comparable decided cases and amounted to wrong estimate. It is true as submitted by the appellant that, the trial court did not make reference to the authorities shown in his submissions. This is however explained by the respondent to be as a result of the appellant failing to file the submissions within the timelines given by the lower court. The position as explained by the respondent must be correct because the record shows that on 17-01-2023 when the matter came for confirmation of filing submissions, the appellant’s counsel asked for 14 days to file submissions meaning she had not filed the same and the court proceeded to reserve the case for judgment on 6-02-2023. I therefore agree with the respondent that the appellant has no right to blame the court for failing to consider her submissions as she did not stick to the court’s timelines and she did not give reasons for failing to do so. 12.The above notwithstanding, the court’s judgment shows that it considered and evaluated the nature of injuries the appellants sustained and other decided cases and not necessarily those cited by the defendant. The court actually held that the authorities cited by the respondent were not comparable to the appellant’s case and went on to cite cases he thought were comparable to the appellant’s case. The appellant’s argument that the court simply listed authorities cited by the respondent does not appear a genuine one to me. I have been denied the opportunity to sight the submissions of the respondent in the trial court as they have been omitted in the record of appeal and the lower court file forwarded to me does not seem to have them. What is in the court file are those filed by the 2nd respondent. The judgment shows that the court rejected authorities cited by the defendants in the case as not being comparable to the appellant’s case and went on to cite seven authorities which I presume were from its own research. 13.The appellant has complained that the trial court failed to address the issue of the 12 per cent disability and this asked court to award a sum of Kshs 1,500,000.00 in general damages for pain and suffering. She has not made reference to any authority on general damages for pain and suffering but for the sake of clarity and fairness, I will take note of those she cited in the trial court. In the lower court, the appellant made reference to cases of John Muli Kasike & Another v Samuel Gitau Waweru [2020] KEHC 9041 (KLR) in which the courts awarded Kshs 800,000.00 for injuries in the nature of fractures to the right and left femur with no permanent disability and Hussein Dairy Limited & another v Asha Moteo Athman & 3 others [2021] KEHC 5095 (KLR) where a sum of Kshs 600,000.00 was awarded for contusion of scalp/jaw & chest and a fracture of the lower 1/3 left humerus bone which was operated and fixed with nails and had permanent incapacity of 5 per cent. He also referred to the case of Timothy Peter Maina Mwangi v Virginia Kuria & another [2020] eKLR in which the court awarded Kshs 1,000,000.00 for closed fracture of left tibia and blunt trauma on the left shoulder joint with fracture lateral borders scapula with permanent incapacity at between 8 per cent and 12 per cent. 14.On his part the 1st respondent has submitted that the award by the trial court was commensurate with the injuries suffered by the appellant. He adds that although the injuries were significant, they were not permanent or of life-threatening nature. He has added that the trial court exercised his discretion correctly and there was no relevant factor which was left out or irrelevant factor that was considered to warrant interference with the court’s award. He has cited authorities of Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] KEHC 1408 (KLR), SBI international Holdings (AG) Kenya v William Ambuga Ongeri [2018] KEHC 8193 (KLR) and Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] KEHC 8450 (KLR). 15.In the first authority, the victim was said to have sustained comminuted fracture of the right tibia and fibula as well as degloving injury to the medial aspect of the right leg while in the second, the victim sustained a chronic dislocation of the left hip and a fracture of the femoral head as well as bruises on the right thighs. In these two cases, the victims were awarded Kshs 800,000.00. In the third authority, the respondent was awarded Kshs 700,000.00 for a compound fracture of the right tibia/fibula, cut wound on the scalp, cut wound on the chest and a cut in the lower limp. 16.The position in law is that an appellate court would not interfere with award of damages by the trial court unless it is inordinately too high or low as to amount to an erroneous estimate once compared to other similar cases and the conventional trend of awards. An appellate court will also be within its power to interfere with an award of the trial court if it is demonstrated that the trial court considered a factor which was irrelevant or failed to consider a relevant factor. A relevant factor may range from the nature of injuries, other decided similar cases, the effect of the injuries on the victim or the incidence of inflation. These factors would vary from case to case but the general rule is that the trial court has the discretion to assess the quantum as long as the same is within the acceptable range. 17.In my analysis of the appellant’s submissions, the complaint on general damages for pain and suffering is that the court did not factor in the degree of permanent disability. In the opinion of the appellant, the 12 per cent degree given by the doctors was high enough to attract damages to the tune of Kshs 1,500,000.00 since the authorities she had cited involved plaintiffs who had suffered 5 per cent disability. In my view, the appellant’s approach on what constitutes degree of permanent disability is wrong. She seems to state that the disability was too high that it amounted to her being physically disabled to the extent that she would not be able to live as ordinary as she used to. 18.Assessment of damages is not a scientific exercise where the court would be involved in proportional calculations or scientific assumptions. It cannot be based on the degree of disability in isolation of other underlying and attending conditions and without considering the resultant effects on the victim. There was no evidence of what tasks the appellant was unable to perform as a result of the disability or whether it affected her future prospects. All that the plaintiff stated was that she could not apply for jobs in cold areas or walk for long distances. In my view, the 12 per cent disability without any evidence of significant limitations of impairments of the overall body functions or daily routine cannot be a sole basis of awarding astronomical damages. If indeed the disability was that serious, the expert in the medical field who testified would have led the court to understand the task or daily routines the appellant would never be able to perform and how they would affect her life which was not done. 19.Having said the above, I have looked at the authorities cited by the respondent and in my view, they were slightly less serious as those of the appellant. This is borne by the fact that the appellant was in and out of hospital for one year and three months. She was first admitted on 30-04-2019 at Machakos Level 5 Hospital. She was back in Bishop Kioko Catholic Hospital thrice. She was admitted in Shalom Community Hospital in April 2020. All the discharge summaries attest to the fact that she was being treated for procedures related to the injuries sustained in the accident. The medical report by Dr. Wokabi dated 8-10-2020 shows that she had healed and there was no evidence that she went back to any hospital after visiting Dr. Wokabi and Dr. Ruth. 20.In view of the above, I am convinced that the trial court failed to consider that the appellant had undergone the pain and inconveniences for a period longer than the claimants in the cited authorities. This to me is a relevant factor which justifies interfering with the award on general damages for pain and suffering. However, I am not inclined to accept that the injuries were too severe as to attract the appellant’s proposed sum of Kshs 1,500,000.00. Doing all that I can, I hold that the appellant would be commensurately compensated by an award of Kshs 1,000,000.00 for pain and suffering. 21.On the issue of loss of future earning capacity, the appellant argues that her ability to earn was diminished by the accident. She claims that she had to stay away from college for two years and that the fact that she cannot work in cold areas has reduced her areas of applying for jobs. She claims that she cannot get a job which would require her to walk for long distances. The respondent on his part argues that there was no proof that the earning capacity of the appellant was diminished. 22.I have already held elsewhere above that the fact that the appellant was said to have suffered 12 per cent degree of permanent incapacity did not make her unable to perform specific duties. The appellant did not tell the court the profession or occupation she was pursuing neither did she narrate how the degree of incapacity would affect her preferred career. Assuming that she could not walk for long distances as claimed, she should have demonstrated how her preferred career would require long walking or that she could only work in cold areas. 23.Damages for loss of earning capacity though general in nature cannot be awarded based on speculations and mere statements. There must be cogent evidence to show that the victim would not be able to earn or work due to the injuries. Even where it is demonstrated that the victim’s ability to work was affected, it must be demonstrated that she would not be able to get an alternative job which would fit her in the same earning capacity due to the condition she was put by the accident or acts of the defendant.William J Butler v Maura Kathleen Butler [1984] KECA 34 (KLR) 24.Loss of earning capacity was defined as follows in William J Butler v Maura Kathleen Butler [1985] KECA 34 (KLR);‘That a victim whose earning capacity is diminished through an accident loses is an interest which, if not saleable on the labour market, has an assessable value. It is, therefore, an economic loss of the same class as the “lost years”, for which the wrongdoer should fairly compensate the victim. Once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damages, it is of little materiality whether the award is under the composite heading of general damages or as an item on its own, as loss of earning capacity.’ 25.In Isaac Mworia M’Nabea v David Gikunda [2017] KEHC 1523 (KLR), the court held that;‘As a general rule, where possible, factors to be taken into account in considering damages for earning capacity will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant; his remaining length of working life; his disabilities and previous service, if any. But where these factors are not readily ascertainable, the court may award a global award as part of general damages for loss earning capacity.’ 26.In this case, all that the appellant told the court was that she was 21 years old and had a long way to go in life. This is not enough for the court to award damages for diminished earning capacity. The distraction of the long career journey the appellant claimed was not demonstrated. The doctors opined that she had healed and the appellant said as much in her testimony and in cross-examination admitted that she was able to walk around. Not all careers or occupations would require the worker to walk long distances or even stand. Without evidence of the career the appellant was pursuing and with no demonstration that she could not get alternative jobs or careers that would fit with her conditions, the trial court had no basis to award damages under this head. The appeal is unsuccessful on that ground. 27.The conclusion from the above is that this appeal partially succeeds and I proceed to order that;1.The trial court’s award of Kshs 800,000.00 in general damages for pain and suffering is set aside and in place thereof Kshs 1,000,000.00 is awarded to the appellant.2.The rest of the trial court’s judgment including costs and interest and rate are upheld.3.The appellant shall half costs of this appeal. DATED SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURTJudgment delivered in presence of Miss Mwangi holding brief for Mr. Maingi for the appellant and Miss Isinta holding brie for Mr. Kitindio for the respondent.