Mwimah v James (Civil Appeal E773 of 2024) [2026] KEHC 7123 (KLR) (Civ) (22 May 2026) (Judgment)

Mwimah v James (Civil Appeal E773 of 2024) [2026] KEHC 7123 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7123 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E773 of 2024 AN Ongeri, J May 22, 2026 Between Emmanuel Magero Mwimah Appellant and Divinah Rosa James Respondent (Being a partial Appeal from the Judgment of the learned Principal Magistrate Hon. Wangare Mbulika delivered on 28th March, 2024 in Nairobi CMCC No. E3138 of 2022) Judgment 1.The Respondent in this Appeal Divinah Rosa James was the Plaintiff in Milimani CMCC No. E3138 of 2022 where she sued the Appellant Emmanuel Magero Mwimah seeking General damages for pain and suffering, Special damages of Ksh. 20,500/= and damages for diminished earning capacity for injuries she sustained on 24/8/2019 when she was hit by motor vehicle Registration No. KBH 534L belonging to the Appellant at Kobil AA road near Bhakita. 2.The Appellant filed a Defence denying the Respondent’s claim. 3.The Respondent’s evidence was that she was walking off the road when she was hit by a motor vehicle from behind. 4.Her leg got stuck under the wheels of the motor vehicle. Good Samaritans lifted the vehicle and she was taken to hospital. 5.The Appellant also gave evidence and said he was driving along the road when a motor cycle suddenly entered the road from a feeder road and he swerved and hit a pedestrian and a motor vehicle. 6.The Respondent sustained the following injuries: _i.Compound (open) dislocation of the left ankle joint.ii.Compound (open) dislocation of left lower tibia/fabula joint.iii.Compound fracture of the lower tibia/fibula joint.iv.Extensive wound of the left forefoot.v.Permanent disability (10%). 7.The trial Court apportioned liability at 90:10% in favour of the Respondent against the Appellant. 8.The trial Court assessed damages as follows:-i.Liability 10:90 in favour of the Respondent.ii.General damages for pain and suffering – Ksh. 800,000/=.iii.Damage for diminished earning capacity Ksh. 1,000,000/=.iv.Special damages - Ksh. 20,500/=.Total Ksh. 1,820,500/=. 9.The award is subject to the apportionment at 10:90% in favour of the Respondent. 10.The Appellant has appealed against the Judgment on the following grounds:-i.That the learned trial Magistrate erred and misdirected herself in fact and in law by failing to properly evaluate the evidence on record with respect to the claim for loss of earning capacity thereby reaching an erroneous decision.ii.That the learned trial Magistrate erred and misdirected herself in fact and in law by making an award for loss of earning capacity when the Respondent had failed to demonstrate by way of evidence the effect her injuries would have on her earnings in the future.iii.That the earned trial Magistrate erred and misdirected herself in fact and in law by making an award of Ksh. 1,000,000/= for loss of earning capacity which award was excessive in the circumstances. 11.The parties filed written submissions as follows; The appellant submitted that the appeal herein is on the damages for diminished earning capacity. 12.The appellant argued that in assessing damages, courts are guided by the principle that compensation must reflect the extent to which the claimant’s ability to earn income has been impaired as a result of the injuries suffered. 13.In Nyatogo v Mini Bakeries Limited (Civil Appeal E38 of 2021) [2023] KEHC 1593 (KLR) (10 March 2023) (Judgment), the court stated as follows in this regard:“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.However, it is the responsibility of the respondent to demonstrate, by way of evidence, the effect that injury would have on his earnings in the future in order to get an award under that head.Such a claim should then be evaluated by the court based on the nature of the injury vis-vis the type of work done by the person, his age, how long the injuries might last, the degree of incapacity and such other factors. In short, court must show how it has arrived at that amount, it not just by coming up with a random figure.” 14.To succeed in her claim for damages for diminished earning capacity, the Respondent was required to lead cogent evidence demonstrating the nature and extent of her injuries, their impact on her ability to perform work-related tasks, and the resulting reduction in future income potential which she failed to do so. 15.The respondent relied on the medical report and her oral testimony during trial to the effect that she was terminated as a casual labourer. 16.The appellant submitted that the evidence adduced by the respondent before the trial court was insufficient and lacked the requisite probative value to justify the award of damaged for diminished earning capacity. 17.The medical report did not indicate that her condition was unlikely to improve. It did not indicate that she would be incapacitated form engaging in gainful employment as a result of the injuries sustained. 18.On the contrary it stated that the respondent had healed as per expectation albeit with some demonstrable disability in the left ankle joint which was assessed at 10%. The medical expert did not opine that the respondent’s ability to work in the future had been compromised and in the absence of such finding the claim for diminished earning capacity was not properly substantiated. 19.The Respondent’s assertion that she was employed as a casual labourer at the Export Processing Zone (EPZ), earning a monthly salary of Kes. 20,000.00, and that her employment was terminated as a result of the injuries sustained, was not supported by any documentary evidence and she admitted the same during cross-examination. 20.The appellant further argued that the Respondent’s hospital admission following the accident, while relevant to the assessment of pain and suffering or special damages, was not a material consideration in determining an award for diminished earning capacity. The mere fact of hospitalization does not, in itself, establish a reduction in future earning potential, and the trial court erred in relying on this factor without linking it to any demonstrable impairment of the Respondent’s ability to engage in gainful employment. 21.The respondent alternatively submitted that she testified and informed the court that she worked as a helper in the EPZ. 22.She informed the court that her work entailed standing for long hours. She also indicated in her statements which was adopted as her evidence in chief that she used to earn Kshs 20,000 per month which was paid via Mpesa. 23.The medical report by Dr. Wokabi stated that the respondent walked with crutches for many months and that she cannot walk or stand for long hours. The respondent was subjected to a Second Medical Examination by Dr. David M. Kamau which confirmed the injuries sustained by the Respondent. 24.The respondent indicated that this being the case and based on the work she used to do at EPZ she could no longer go to work. It was a fact that she could not stand for long hours which was a requirement as a helper working at EPZ which clearly made her unattractive in that job market. 25.In support the respondent cited Civil Appeal No 91 of 2017, John Kuria Mbure Vs Magari Hire Purchase Ltd & 2 others where Justice Wendo quoted the case of Mumias Sugar Company Limited -Vs- Francis Wanalo in defining what is required in proving damages for loss of earnings thus;“The award for loss of earning capacity can be made both when the Plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when Plaintiff is employed is to compensate the Plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the Plaintiff is not employed at the date of trial, is to compensate the Plaintiff for risk that he will not get employment or suitable employment in future. Loss of earning capacity Can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages the award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the Plaintiff has suffered as a result of disability." 26.The issues for determination in this appeal are as follows;i.Whether the trial court erred in awarding damages for diminished earning capacity despite the Respondent's failure to produce documentary proof of her employment and earnings.ii.Whether the Kshs. 1,000,000 award for diminished earning capacity was excessive in the circumstances of this case. 27.Having carefully considered the Record of Appeal, the respective submissions of the parties, and the relevant legal principles, this Court finds that the Appellant’s appeal lacks merit and is hereby dismissed for the reasons set out below. 28.The principles guiding an appellate court when interfering with an award of damages by a trial court are well settled. 29.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, or it is shown that the trial court proceeded on wrong principles or misapprehended the evidence in some material respect. 30.In the instant case, the Appellant specifically challenges the award for diminished earning capacity, arguing that the Respondent failed to provide documentary proof of her employment at the Export Processing Zone (EPZ) and her monthly salary of Kshs. 20,000. 31.While it is true that the Respondent did not produce pay-slips or bank statements to prove her earnings, it is now a steadfast principle of Kenyan law that documentary evidence is not the exclusive mode of proving a person’s profession or income. 32.The Court of Appeal in Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR firmly rejected the contention that only documentary evidence can prove these things, noting that such a stance would do great injustice to many Kenyans who are illiterate, keep no records, and yet earn their livelihood in various ways. 33.The Respondent provided uncontroverted oral testimony that she worked as a helper at the EPZ, a role that required her to stand for long hours, and that she earned Kshs. 20,000 per month via M-Pesa. 34.This testimony, which the trial court was entitled to believe, was sufficient proof on a balance of probabilities. 35.More critically, the claim for diminished earning capacity is distinct from a claim for actual loss of future earnings. 36.Compensation for loss of future earnings is awarded for a real assessable loss proved by evidence, whereas compensation for diminution in earning capacity is awarded as part of general damages. 37.The latter focuses on the claimant's potential earning power and the risk that their disability has exposed them to in the labour market. 38.Therefore, the absence of a pay-slip does not automatically defeat a claim for diminished earning capacity, as the court is entitled to assess a global sum based on the nature of the injury and its impact on the claimant's future work prospects. 39.The evidence on record, particularly the medical report by Dr. Wokabi which was adopted by the trial court, confirms that the Respondent suffered a permanent disability assessed at 10%. 40.The report further noted that the Respondent walked with crutches for many months and cannot walk or stand for long hours. 41.The Respondent testified that her job as a helper at the EPZ required her to stand for extended periods, and due to her injuries, she could no longer perform that role and was terminated. 42.The loss of this specific job, combined with a permanent disability that hinders her ability to stand for long hours, directly diminishes her attractiveness in the general labour market. 43.The mere fact that she has a 10% disability does not mean her earning capacity is intact; rather, it means her ability to secure and retain employment, particularly in roles requiring physical stamina, has been compromised. 44.The trial court’s award of Kshs. 1,000,000 for diminished earning capacity is neither inordinately high nor based on a wrong principle. 45.The fact that this court in that case reduced the net award to Kshs. 900,000 due to contributory negligence further demonstrates that Kshs. 1,000,000 is within the acceptable range for such claims. Consequently, the trial court’s exercise of discretion was judicious, and there is no justification for this court to interfere with the award. 46.The upshot is that the Appellant's appeal fails in its entirety. 47.The judgment of the Honourable Principal Magistrate delivered on 28th March, 2024 is hereby upheld. 48.The Respondent is awarded costs of this appeal. 49.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Miss Pyoko for the AppellantMiss Amboko for the RespondentChrispine – Court Assistant