https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8870

Mulei v Kasika (Civil Appeal E009 of 2024) [2026] KEHC 8870 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8870 (KLR) Republic of Kenya In the High Court at Kitui Civil Appeal E009 of 2024 LW Gitari, J June 18, 2026 Between Felistus Mutethya Mulei Appellant and Micheal Peter Kasika Respondent (Being an appeal from the proceedings and Judgment delivered on 23rd January 2024 at the Chief Magistrate’s Court in Kitui, CMCC No E314 of 2022) Judgment 1.This appeal arises from the proceedings and Judgment delivered on 23rd January 2024 at the Chief Magistrate’s Court in Kitui, CMCC No E314 of 2022. The parties entered a consent on liability in the ratio of 25:75% in favour of the respondent. The trial Court accepted the consent as the Judgement on liability. The parties filed submissions on quantum and the Court outlined Judgement as follows:a)General damages - Ksh - 1,700,000/=b)Future Medical Expenses – Ksh 450,000/=c)Diminished Earning Capacity - 1,803,269/=d)Special Damages – 5,550/=e)Less 25%Total 2,969,114/=This award gave rise to this appeal. 2.The appellant who was the defendant in the lower Court pleaded various grounds in her Memorandum of Appeal dated 20th, February which she summarized in her submissions as follows:1.That the Honourable learned trial Magistrate erred in law and fact by arriving at his decision by awarding the Respondent a sum of Kshs 1,700,000/= in General Damages, for pain and suffering based on the wrong principles of law governing the assessment of quantum of damages.2.That the Honourable learned trial Magistrate erred in law and fact by awarding the Respondent a sum of Ksh 1,800,000/= in diminished earning capacity when the Respondent failed to adduce any documentary evidence showing that he is a motorcycle rider with a valid motorcycle driving license.3.That the Honourable learned trial Magistrate erred in fact and in awarding diminished earning capacity as the respondent's medical report by Doctor Nyariki did not indicate that the respondent suffered any level of permanent incapacity as a result of the injuries.4.That the Honourable learned trial Magistrate erred in law and fact by arriving at his decision based on the wrong principles of law governing the burden of proof of assessment of quantum of damages and diminished earning capacity, in that he failed to consider the pertinent issues of law and facts raised by the appellant'sCounsel Submissions.5.That the Honourable learned trial magistrate erred in Law and fact by failing to take into consideration when arriving at the award of future medical costs of Kahs 450,000/= as the respondent's medical report by Doctor Nyariki did not indicate that he would require further medical cost /expense.6.That the Honourable learned Magistrate erred in law and fact by arriving at his decision based on the wrong principles of law governing the burden of proof of negligence and liability, as well as the assessment of quantum of damages, in that he failed to consider the pertinent issues of law and facts raised by the Appellant's Counsel Submissions.7.That the Honourable Learned Magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.8.That the Trial Magistrate erred in law and fact in neglecting to consider the whole of the Appellant's submissions.9.Based on these grounds she prays that the appeal be allowed.10.That this Honourable court be pleased to set aside the Judgment of the subordinate court with regard to the award on general damages at Kshs 1,700,000/-11.That this Honourable court be pleased to set aside the Judgment of the subordinate court with regard to the award on diminished earning capacity at Kshs 1,803,269/-.12.That this Honourable court be pleased to set aside the Judgment of the subordinate court with regard to the award on diminished earning capacity at Kshs 1,803,269113.That this Honourable court be pleased to set aside the Judgment of the subordinate court with regard to the award on future medical costs at Kshs 450,000/=14.Alternatively, to Prayer 2 above, this Honourable court be pleased to review the award on liability and Quantum.15.That this Honourable Court be pleased to assess downwards the award on quantum of damages and future medicals awarded to the Respondent.16.That the costs of this appeal be awarded to the Appellant and the costs in the lower court.17.That such further relief as may appear just to the Honourable Court. Background 3.The plaintiff, who is the respondent in this appeal, brought an action against the defendant (appellant) seeking general damages, future medical expenses, compensation for diminished earning capacity, special damages of 5,550, costs of the suit and interest. The matter emanates from a road accident that occurred on 6th August 2021. 4.The respondent avers that on the said day, he was carefully riding a motorcycle with registration No. KMER 889F along Kitui Zombe Road at Kalandini when motor vehicle registration No. KDC 176N driven by the appellant, lost control and knocked him down. As a result, he sustained various injuries including left lower limb tibia, clavicular deformity, right fracture, left humerus fracture, left lower limb deformity, inability to use both upper limbs, severe headache, generalized chest pain and abdominal pains. The plaintiff relies on the doctrine of res Ipsa loquitur. 5.The defendant entered a defense and denied being the registered owner of motor vehicle KDC 176 N, driving the motor vehicle negligently as described by the plaintiff and the fact that an accident occurred. He further denied the injuries sustained by the plaintiff. He states that if any accident occurred, the plaintiff was also negligent for driving his motorcycle without due care to other motorists. He relies on the doctrine of volenti non fit injuria. Appellant’s Submission’s 6.The appellant submits that the award of damages was not commensurate with the injuries. She contends that the respondent suffered single fracture injuries, which have fully healed without occasioning any disability. She asserts that the same should attract an award of Ksh 500,000/=.He relies on the following cases:Civicon Limited V Richard Njomo Omwancha& 2 Others[2019] eKLR, where the court awarded Kshs. 450,000 for a deep cut wound on the left ear lobe, a tender left lateral chest wall, swollen and tender left arm, bruises on the left hand, swollen and tender left elbow, bruises on the left elbow, cut wound on the left foreleg, fracture of the left tibia and fibula and dislocation of the left hip joint.Akamba Public Road Services V Abdikadir Adan Galgalo(2016) eklr where the award of Kshs. 800,000 by the trial court was substituted with an award of Kshs. 500,000 on appeal for injuries particularized as fracture to the right tibia leg bone malleolus, right fibular bone and blunt injury to the right ankle. 7.In Vincent Mbogholi vs. Harrison Tunje Chilyalya [2017] eKLR, the appellate court declined to disturb an award of Kshs. 500, 000.00 for a fracture of the left tibia leg bone (medial malleolus), blunt injury to the chest and left lower limb and bruises on the left forearm, right foot and right big toe 8.In regard to future medical costs, the appellant contends that future medical expenses must be pleaded and proved through producing receipts with the Ksh 450 000/= indicated. She also states that the respondent did not have a driving licence to indicate that he was a boda boda rider nor attached any documentation to prove the same hence, the award for diminished earning capacity should be re-examined. Respondent’s Submission’s 8.The respondent stated that he drew his submissions from the appellant’s memorandum of appeal since she had not filed a record of appeal despite several mentions. Regarding the award for general damages, he submits that Ksh 1,700,000/= was reasonable given the pain and suffering sustained and the current inflation trends. He adds that this court is not bound by the authorities cited by the parties. He also states that the award given was not too high to warrant this court’s interference. 9.In regards to the future medical expenses, he asserts that the same was pleaded under paragraph 5a of the plaint and also stated in the last paragraph of the medical report. He states that the appellant failed to provide a contrary medical report to challenge the respondent’s medical report. 10.As for what the appellant did for a living, the respondent asserts that the appellant did not bring any evidence to prove that the respondent did something else for a living and that his occupation was pleaded and never disputed. The respondent calls upon this court to adopt Ksh 21,942.30/= as per the Regulation of Wages (amendment) order, 2017. Analysis and determination 11.The issues arising are as follows:1.Whether the respondent’s source of income was sufficiently proven.2.Whether the quantum of damages awarded was excessive.3.Was the respondent entitled to damages for diminished earning capacity and if in the affirmative, was the award too excessive? 12.Being a first Appeal, the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:“..this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular,, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 13.In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:-“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 14.On the issue of whether the respondent’s source of income was sufficiently proved, Section 107 of the Evidence Act, Chapter 80 of the Laws of Kenya states as follows:“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. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 15.The burden and standard of proof in civil cases were comprehensively discussed in Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] eKLR, where the Court of Appeal, while citing Lord Denning in Miller v Minister of Pensions [1947] 2 All ER 372, stated as follows:“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally unconvincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 16.The appellant invites the court to look at the proceedings, which she asserts show that the respondent did not have a motor vehicle license to indicate that he was a boda-boda rider. She states that there was no documentation attached to prove the same. The respondent submits that the appellant did not bring any evidence to the contrary. 17.I have looked at the evidence meticulously. Apart from the fact that the respondent was riding a motorcycle on the said date, when he was knocked down by the appellant, there was no evidence tendered to prove that he was a motorcycle rider making a living from the venture. However, the absence of a driver’s license does not disentitle the respondent to an award of damages, nor does it, in itself, amount to contributory negligence. The Supreme Court of India in the case of Sri Dinesh Kumar J. @ Dinesh J v. National Insurance Co. Ltd. & Ors. is (2018) 1 SCC 750 held as follows:“... 9. If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and negligently. If he was not driving rashly and negligently which contributed to the accident, we fail to see as to how, only because he was not having a license, he would be held to be guilty of contributory negligence ...” 18.In the case of Ahmad Zulfendi Anuar v. Mohd Shahril Abdul Rahman [2022] 4 MLJ the Court of Appeal in Malaysia stated as follows:“We are of the view that the non-holding of such license should not be factored into increasing the liability of the said motorist especially given the facts of this case where his contribution towards his negligence has been assessed by the Sessions Court to be 30% liable. The factors of lack of a license or road tax or insurance do not in the circumstance of this case make the appellant more negligent or contributed much more to his negligence other than as previously held by the Sessions Court to be assessed at 30%. These factors should not deny the right of the appellant from claiming relief either in whole or in part.” 19.The Court of Appeal at Kisumu, in the case of Jacob Ayiga Maruja & Another v Simeon Obayo [2005] eKLR, the Court emphatically rejected the proposition that earnings can only be proved through documentary evidence. The Court stated as follows:“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.” 21.As demonstrated in the cases above, the absence of a driving license is not fatal to a plaintiff’s case especially in a case such as this one where the parties entered into a consent judgement and agreed that the appellant was 75% liable for the road accident that took place on 6th August 2021. 22.Concerning the issue whether the quantum of damages awarded was excessive, the duty of the appellate court was explained in the case of KEMFRO AFRICA LTD T/A MERU EXPRESS SERVICES [1976] & ANOTHER VS LUBIA & ANOTHER (No.2) [1985] eKLR. The court observed:“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 a wholly erroneous estimate of the damage.” 23.In this case, the parties apportioned liability between themselves by consent, with the appellant accounting for 75% and the respondent for 25%.The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. This position finds support in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No 147 of 2002 [2004] eKLR, where the Court of Appeal held:“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 24.It is not in dispute that the respondent suffered the following injuries:a)left lower limb fracture tibiab)clavicular deformity right fracturec)left humerus fractured)left lower limb deformitye)inability to use both upper limbsf)severe headacheg)generalized chest painh)abdominal pains. 25.The respondent relied on the medical report by doctor Dennis Nyariki. 26.The trial magistrate awarded a sum of 1,700,000. The appellant submits that the award on general damages was not commensurate with the injuries and stated that the same should be substituted for 500,000. She relied on the cases stated above. The trial magistrate stated that the injuries in the said case were far less serious compared to the ones sustained in this suit. The trial Magistrate relied on the following cases:The case of Mwaura Muiruri v Suera Flowers Limited & another (2014) eKLR where the plaintiff was awarded Kshs 1,750,000/= for sustaining multiple lacerations on the face, soft tissue injuries on the chest cage (mainly left subaxilliary area), comminuted fractures of the right humerus, upper and lower thirds of the tibia and compound double fractures of the right upper and lower 1/3 tibia fibula.The case of James Gathirwa Ngugi v Multiple Hauliers (EA) Limited & another (2015) eKLR where Kshs 1,500,000/- was awarded for compound comminuted fracture of the right tibia, compound fracture of the right fibula, fracture of the left proximal radius, fracture of the left ulna, head injury, deep cut wound of the parietal region about 4 cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations and pathological fracturing of the right leg.The case of Geoffrey Mwaniki Mwinzi v Ibero (K) Limited & another (2014) eKLR where Kshs 2,000,000/= was awarded for extensive fractures of the left tibia and fibula with extensive damage to the soft tissues of the left leg and fractures of the left leg and fracture collar bone with resultant amputation of the left leg. 27.Taking into consideration all the above, I find that the authorities cited by the appellant indeed contained less serious injuries compared to those in this suit. At the same time, those cited by the trial Magistrate were far more catastrophic compared to those in this suit. With this in mind, I find the award to be so inordinately high and calls for this court to interfere with the exercise of discretion by the learned Magistrate in the assessment of general damages. (see overleaf analysis of medical report) 28.Moses Mairua Muchiri v Cyrus Maina Macharia (Suing as the personal representative of the estate of Mercy Nzula Maina (deceased) [2016] eKLR, the Court held as follows-“It has been held elsewhere that where it is not possible to ascertain the multiplicand accurately, as appears to have been the case here, courts should not be overly obsessed with mathematical calculations in order to make an award under the head of lost years or loss of dependency. If the multiplicand cannot be ascertained with any precision, courts can make a global award, which by no means is a standard or conventional figure but is an award that will always be subject to the circumstances of each particular case.” 29.In the case of Court of Appeal case of Mumias Sugar Co. Ltd vs. Francis Wanalo, (2007) eKLR held:-“…the award for loss of earning capacity can be made both when the plaintiff is employed at the time of trial and even when he is not employed. The justification for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him to either losing his job in the future or in case he loses his job, his- diminution of chances of getting an alternative job in the market while the justification for the award where the plaintiff is not employed at the date of trial is to compensate the plaintiff for the risk that he will not get employed or suitable employment in future.” 30.Concerning the third issue, the appellant submits that the respondent did not tender any proof to show that he is a motorcycle rider. He further adds that the medical records did not illustrate any form of disability nor indicate that the respondent cannot work. 31.Guided by the principles illustrated in the cases above, I find that despite the absence of a driver’s licence or payment records, the respondent is still entitled to damages. It is also evident from the medical records that the respondent, as a result of this incident, was deemed unable to use both his upper limbs. This means that the respondent was unable to conduct any work whatsoever for some time. In the event that he could work, his job options were significantly limited. 32.As held by the Court of Appeal in the case of Mumias Sugar Co. Ltd vs. Francis Wanalo, (2007) eKLR (supra) loss of earning capacity is awarded when the plaintiff is employed or unemployed. For this reason, the same should also be awarded in this matter. However, because of the absence of payment records by the respondent’s customers, I refrain from using the multiplicand approach because the same is used in cases where the plaintiff’s income can be ascertained. 33.Given the foregoing, I set aside the trial Court’s award on diminished earning capacity and substitute it with a global award of Ksh 1,000,000/=. 34.In regards to the future medical expenses, I refrain from interfering with the trial Magistrate’s assessment, as the same was explicitly indicated on the medical report in accordance with Dr. Nyariki’s advice, and opinion. The appellant did not disprove this assessment as they did not request the appellant to go for a second medical examination. 35.In conclusion and for the reasons stated above, I set aside the award by the learned Magistrate and substitute as follows:a)General damages Ksh 1,300,000b)Future Medical expenses Ksh 450, 000c)Diminished earning capacity Ksh 1,000,000d)Special damages Ksh 5,550Total Ksh 2, 755,550e)Less 25% contribution Ksh 688,885.50Total Ksh 2,066,662.50The appellant is awarded costs to the suit. DATED & DELIVERED THIS 18TH OF JUNE, 2026L. GITARIJUDGE