https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8687

Maina alias George Kangeta Maina v Shreeji Enteprise (Kenya) Ltd & another (Civil Appeal E080 of 2023) [2026] KEHC 8687 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8687 (KLR) Republic of Kenya In the High Court at Makueni Civil Appeal E080 of 2023 RA Oganyo, J June 19, 2026 Between George Kangeta Maina alias George Kangeta Maina alias George Maina Kangeta alias George Kangeka Maina alias George Kangeka Maina alias Kangeta George Maina Appellant and Shreeji Enteprise (Kenya) Limited 1st Respondent Gedion Kilelo Kilonzo 2nd Respondent (Being an appeal from the Judgement of the Chief Magistrate’s Court at Makindu by Honorable J.D. Karani (SRM) delivered on 30th August 2023 in Civil Case No 117 0f 2020) Judgment 1.This appeal arises from the Judgement of the learned Senior Resident Magistrate, Honorable J.D. Karani delivered on delivered on 30th August 2023 in Civil Case No 117 0f 2020. The genesis of this underlying dispute was a road traffic accident that occurred on or about 1st December 2019 at about 9:00 am along the Mombasa -Nairobi Road at Pipeline Area. 2.The Plaintiff (now the Appellant) averred that he was lawfully travelling as a passenger in motor vehicle registration number KYJ 993 along the Mombasa–Nairobi Road at the Pipeline Area when the 2nd Defendant (now the 2nd Respondent) so negligently drove, managed, and/or controlled motor vehicle registration number KBX 540K/ZE 7385 that he caused and/or permitted it to lose control and violently ram into the rear of motor vehicle registration number KYJ 993. As a result of the impact, motor vehicle registration number KYJ 993 lost control and violently collided with motor vehicle registration number UAU 006F/UAU 175F. Consequently, the Plaintiff sustained severe personal injuries and suffered loss and damage. 3.In a Plaint dated 26th May 2020, the Appellant pleaded that the accident was occasioned by the negligence of the 2nd Respondent's driver. He further averred that, as a result of the accident, he sustained serious bodily injuries, namely a segmental fracture of the right femur and a segmental fracture of the right tibia/fibula, and consequently suffered loss and damage. He also stated that the 2nd Respondent was charged with the offence of causing death by dangerous driving contrary to section 46 of the Traffic Act, Cap. 403, Laws of Kenya vide Traffic Case No. 1393/2019. 4.The Respondents, in their Statement of Defence dated 16th July 2020, denied all the allegations contained in the Plaint, including the occurrence of the accident in the manner pleaded, negligence, liability, the Appellant's alleged injuries, and the criminal proceedings against the 2nd Respondent. In the alternative, they attributed the accident to the negligence of the drivers of motor vehicles registration numbers KYJ 993 and/or UAU 006F/UAU 175F, and indicated their intention to institute third-party proceedings against their owners and/or drivers. 5.At the hearing, the Plaintiff called two witnesses, PW1 Inspector Michael Mbugua, the Officer in Charge of Traffic at Mtito Andei Police Station, who testified that investigations into the accident of 01.12.2019 along the Nairobi–Mombasa Highway involving motor vehicles KBX 540K/ZE 1385, KYJ 993 and OAU 006F/UAU 175F established that KBX 540K rammed into the rear of KYJ 993, causing a chain collision with an oncoming vehicle, resulting in fatalities, serious injuries to the Plaintiff, and the conviction of the driver of KBX 540K in Traffic Case No. 1393 of 2019, and PW2 George Kangeta Maina, who testified that he was a loader in KYJ 993 at the time of the accident, that he sustained fractures of the right femur and tibia/fibula, continues to suffer pain and reduced mobility, and has diminished earning capacity, attributing the accident to the negligence of the driver of KBX 540K for failing to keep a proper distance and ramming into their vehicle from behind, whereupon the Plaintiff closed his case and the Defence closed its case without calling any witnesses. 6.Upon considering the evidence on record, the learned trial magistrate found that the Respondents had failed to adduce any evidence in rebuttal and consequently held them jointly and severally 100% liable for the accident. The trial court further found that the Appellant had sustained a segmental fracture of the right femur and a segmental fracture of the right tibia/fibula, resulting in an 8–10% permanent disability, and awarded him Kshs. 1,200,000 in general damages for pain, suffering and loss of amenities, Kshs. 96,820 as special damages, together with damages for loss of earning capacity. Aggrieved by the said decision, the Plaintiff (now the Appellant) lodged the present appeal. 7.The Appellant’s case is anchored on four primary grounds articulated in the Memorandum of Appeal dated 18th September 2023 amplified in the written submissions dated 15th March 2026. These are as follows:i.That the learned magistrate misdirected herself in law and in fact by failing to award general damages for diminished earning capacity or such an award on general damages for pain and suffering as is commensurate to the degree of incapacity.ii.That the learned magistrate misdirected herself in law and in fact by failing to appreciate the degree and/ or standard proof for a claim on diminished earning capacityiii.That the learned magistrate erred in law and in fact by failing to appreciate the evidence adduced by the Appellant that gave rise to an inference that his capacity to earn was diminished.iv.That the learned magistrate erred in law and in fact by failing to wholly consider the Appellant’s submissions and authorities. Appellant’s Submissions 8.The Appellant strenuously contended the judgment of the trial court in Makindu SPMCC No. 117 of 2020, challenging the refusal to award damages for diminished earning capacity. It is submitted that the Appellant was involved in a road traffic accident on 01.12.2019 while a passenger in motor vehicle KYJ 993, which was violently struck from behind, causing a chain collision and resulting in severe injuries. Although the trial court found the Respondents 100% liable and awarded general and special damages, it declined to award damages under the head of diminished earning capacity, which forms the core grievance of this appeal. 9.The Appellant contended that the trial court erred in law and fact by misapprehending the evidence and applying wrong principles in assessing diminished earning capacity. It is argued that the Appellant proved, on a balance of probabilities, that his earning capacity was reduced due to permanent disability assessed at between 8%–10% by medical experts. The Appellant testified that he can no longer perform heavy manual work as before, his earnings reduced significantly, and he is now limited to light duties. Reliance was placed on authorities such as S J v Francesco Di Nello & Another, Mumias Sugar Company Ltd v Francis Wanalo, and Butler v Butler, which distinguish loss of earnings from loss of earning capacity and affirm that the latter is compensable as general damages once proved. 10.The Appellant further submitted that the trial court improperly focused on the Appellant’s ability to use his arms, thereby ignoring the totality of evidence showing incapacity affecting manual labour and competitiveness in the labour market. It is argued that the injuries involved weight-bearing bones, making manual work difficult, and that the Appellant’s evidence was uncontroverted. The Appellant urged the Court, as a first appellate court, to re-evaluate the evidence, find that diminished earning capacity was proved, and substitute the trial court’s finding with an award of Kshs. 500,000 as a global sum, together with costs and interest. Respondent’s Submissions 11.The Respondents opposed the appeal and submit that the trial court correctly declined to award damages for diminished earning capacity. It is contended that the Appellant’s claim arose from a road traffic accident of 01.12.2019, where liability was found 100% against the Respondents and general and special damages were awarded. However, the trial court rightly refused to grant damages under diminished earning capacity due to lack of proof of earnings, employment terms, or evidence showing any actual impact on the Appellant’s earning ability. 12.The Respondents argued that the Appellant failed to discharge the burden of proof as required in law. It is submitted that he admitted during trial that he had no proof of earnings and worked in a garage environment where duties are primarily manual and done using the hands, while his injury was to the leg. Medical reports by Dr. Musyoki and Dr. Wambugu assessed 8%–10% incapacity but did not demonstrate that the Appellant’s daily work or future earning capacity was affected. It is further contended that the Appellant continues to work, and therefore no loss or diminution of earning capacity was established. 13.The Respondents relied on authorities including Mumias Sugar Company Ltd v Francis Wanalo, Margaret Wothaya Kirweya & Another v James Muchai Muchiri, and other cited decisions to argue that diminished earning capacity must be supported by evidence showing risk or impact on future earnings. They urge the Court to uphold the trial court’s finding, dismiss the appeal in its entirety, and award costs to the Respondents on the basis that the Appellant failed to prove entitlement to the claim. Issues for Determination 14.Upon review of the record of appeal, the memorandum of appeal and submissions by the counsels, this appeal raises the following issues for determination:I.Whether the trial court misdirected itself in declining to award damages for diminished earning capacityII.Whether the Appellant discharged the legal burden of proving diminished earning capacity on a balance of probabilitiesIII.Whether the trial court failed to properly evaluate the evidence, submissions, and authorities on record Analysis and Determination 15.This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial Court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial Court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. 16.The principles which guide this court in an appeal from a trial court are now well settled. In Selle And Another v Associated Motor Boat Company Ltd & Others, [1968] EA 123, Sir Clement De Lestang, Vice President of the Court of Appeal for East Africa stated those principles as follows: - “An appeal to this Court from a trial by the High Court is by way of a 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. 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 account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 17.On the first issue, I revert to the Appellant’s witness statement of 26th May 2020 where at paragraph 9 as read together with paragraph 10, he averred that he was a labourer earning approximately Kshs. 500 per day, which he used for his personal upkeep and support of his family, and that due to the informal nature of his work his income was not documented; he further stated that following the accident he sustained permanent disability at the age of 39 years and has not been able to resume work to date, resulting in loss of income, and that his occupation involved physically demanding tasks such as handling and carrying motor vehicle spare parts, assisting customers, and undertaking manual work requiring full mobility and strength, contending that even with recovery he remains significantly limited in performing the same duties as before and is therefore disadvantaged in the labour market and unable to compete effectively with able-bodied persons for similar opportunities, hence his claim for damages for diminished earning capacity. 18.The nature of a claim for diminished earning capacity was explained by the Court of Appeal in Butler v Butler [1984] KLR 225, where the Court held as follows;“A plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury. … It is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained in this way: compensation for loss of future earnings is awarded for real accessible loss proved by evidence. Compensation for demotion of earning capacity is awarded as part of the general damages. …” 19.The Court in Eric Onyango Okumu vs SDV Transami (K) Limited [2007] eKLR discussed the factors to be considered in awarding damages for Loss of Earning Capacity. It observed as follows;“This is a head of damages awardable irrespective of whether the plaintiff was in salaried employment before injury or not. The factors to be considered in awarding it vary with the circumstances of each case. They include the age and qualifications of the plaintiff, his remaining length of working life, his disabilities, previous service, if any, and so on.” 20.In further elaboration of the applicable principles, the Court in Alpharama Limited v Joseph Kariuki Cebron [2017] eKLR held that:“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 the relevant factors.” 21.Diminished earning capacity refers to a decrease in a person’s earning ability as a result of the disability suffered. 22.From the evidence on record, the Appellant was examined by the consulting surgeon, Dr. P.M. Wambugu, approximately two years after the accident on 26th October 2021. The doctor opined that the Appellant’s injuries were consistent with blunt force trauma, as would likely occur in the subject road traffic accident. He confirmed that the Appellant sustained both skeletal and soft tissue injuries as previously detailed. 23.The medical expert assessed the Appellant at 8% permanent incapacitation, attributable to the residual effects of the fractures and associated complications. The doctor further noted that the Appellant would benefit from a shoe heel raise in order to correct uneven weight distribution and improve functional balance during ambulation. 24.This medical opinion confirms that the Appellant’s injuries were not only serious but have resulted in permanent physical impairment with ongoing functional consequences affecting mobility and daily physical activity. 25.The Learned Magistrate, in declining the award under the head of diminished earning capacity, relied on the reasoning in Margaret Wothaya Kirweya & Another v James Muchai Muchiri [2020] eKLR, where Ong’udi J. observed that although the plaintiff’s occupation as a casual labourer, earning approximately Kshs. 500 per day, was not supported by documentary evidence, it was not controverted by the defence. The Court further held that despite the injuries sustained, particularly where the claimant’s work involved manual tasks, an award under this head may still be declined where the nature of the injury is considered not to significantly impair the specific work functions relied upon. 26.Taken together with the Appellant’s testimony that his occupation is physically demanding and dependent on full mobility and strength, the medical findings support a conclusion that his capacity to perform manual work at the same level as before the accident has been materially reduced. 27.With respect, in this Court’s view, the Learned Magistrate did not fully consider this aspect of the medical evidence. The Trial Court adopted a narrow approach in evaluating the Appellant’s capacity for work and failed to consider the totality of the medical and oral evidence demonstrating permanent impairment and its attendant economic consequences. 28.In light of the Appellant’s testimony and the medical evidence confirming 8% permanent incapacitation with ongoing functional limitations affecting mobility and manual labour, this Court is satisfied that the Appellant’s earning capacity was materially diminished. Therefore, the trial court erred in declining to make an award under this head. 29.The court now turns to issue two namely, Whether the Appellant discharged the legal burden of proving diminished earning capacity on a balance of probabilities. Section 107(1) of the Evidence Act, 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.” 30.This was the position in Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.” 31.The Appellant’s case was that following the accident of 01.12.2019 he sustained permanent injuries assessed at 8%–10% incapacity, which substantially limited his ability to perform heavy manual labour and reduced his competitiveness in the labour market. This position was supported by medical reports confirming residual functional impairment affecting mobility and physical exertion, particularly in relation to weight-bearing activities. 32.In the case of Makori v Gitau (Civil Appeal E517 of 2024) [2024] KEHC 13120 (KLR), the Court held that even in the absence of documentary evidence of actual earnings, where the totality of the evidence discloses that the appellant was engaged in gainful work at the time of the accident, an award for diminished earning capacity is still warranted where permanent incapacity is proved. The Court stated:“The appellant though he did not have evidence of the amount he earned all the evidence discloses is that he was indeed a rider at the time of the accident. He was operating in the city county as per his witness statement. He claimed the sum of Kshs. 200,000 under the head of diminished capacity to earn. The magistrate declined to grant the same. This Court is minded to interfere with that decision since in this court’s view the failure to award a figure for diminished earning was a material misdirection on a fundamental aspect of the evidence. “The Court proceeded to award Kshs. 150,000/= under the head of diminished earning capacity. 33.Assessment of damages in respect to diminished earning capacity is also a matter within the discretion of the trial court and depends on the circumstances of each case. In Beatrice Anyango Okoth v Rift Valley Railways (Kenya) Limited & another (2018) eKLR, the court, in making an award for diminished capacity, stated thus:“69.…. damages under this heading are awarded where it is proved that owing to the injury suffered by the plaintiff, his chances of getting a job in the labour market comparable to the one he held before the injury are diminished or just lowered….”“70. …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 in assessing damages for lost and diminished earning capacity provided the judge considers the relevant factors….” 34.It is well established that a claim for diminished earning capacity falls under general damages, and that there is no fixed formula for its assessment. The quantum awarded is discretionary and depends on the specific circumstances of each case. Such compensation may either be incorporated into the general award for pain, suffering, and loss of amenities, or pursued independently under a separate head of damages. 35.In the present case, the Respondent prayed for damages for loss of earnings and earning capacity, and the trial court was correct in making a global award under this head. The next consideration is whether the sum of Kshs. 500,000/= awarded was reasonable. Dr. Wambugu estimated the Respondent’s incapacity at 8%–10%, which supports the basis for the award. 36.Accordingly, this Court finds that the Appellant discharged the legal burden of proving diminished earning capacity on a balance of probabilities. The Learned Magistrate erred in failing to make an award under this head. 37.Consequently, the appeal succeeds on this limb. The Appellant is entitled to damages for diminished earning capacity, which this Court assesses at Kshs. 300,000/= as a global award. 38.Moving to the last issue namely, Whether the trial court failed to properly evaluate the evidence, submissions, and authorities on record 39.The Court finds that the trial court did not properly evaluate the evidence, submissions, and authorities on record. It failed to give due weight to the Appellant’s testimony and the medical evidence showing permanent incapacity and instead placed undue emphasis on the lack of documentary proof of income. 40.Accordingly, this Court is satisfied that the trial court misdirected itself in its evaluation of the evidence, and this warrants interference by this Court. Disposition 41.In the result, and for the reasons set out above, this Court finds that the appeal succeeds on the issue of diminished earning capacity. 42.The decision of the learned trial magistrate declining an award under the head of diminished earning capacity is hereby set aside and substituted with an award in favour of the Appellant. 43.The Appellant is awarded a global sum of Kshs. 300,000/= for diminished earning capacity. 44.The Appellant shall have costs of this appeal, together with interest on the award at court rates from the date of judgment of the trial court until payment in full.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE, 2026.R. A. OGANYOJUDGEIn the presence of;Court Assistant…E, SanaMr. Ndung’u h/b for Mr. Mutua for the AppellantMiss Wangui for the Respondent-I seek 45 days of stay of execution.Mr. Ndung’u-We concede to 30 days of stay