https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/800

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATE’S COURT AT NAKURU** **CIVIL SUIT NO. 333 OF 2015** **GILBERT KIPKORIR KOECH........................................PLAINTIFF** **VERSUS** **MARA MULTI FARMING.............................................DEFENDANT** **JUDGMENT** **Introduction** 1. The Plaintiff, Gilbert Kipkorir Koech, instituted this suit against the Defendant, Mara Multi Farming, seeking compensation for injuries sustained in a workplace accident which occurred on or about 3rd February 2014. 2. By an Amended Plaint dated 9th October 2017, the Plaintiff pleaded that he was employed by the Defendant as a general worker earning Kshs.10,000.00 per Month. He averred that while lawfully performing his duties, he was injured in an accident involving the Defendant’s combine harvester, which was being operated by the Defendant’s driver, servant and/or agent. 3. The Plaintiff alleged that the Defendant was negligent and in breach of its contractual and statutory duty of care by, inter alia, failing to provide a safe system of work, exposing him to foreseeable danger, failing to take adequate precautions for his safety and permitting him to work in an unsafe environment. He also relied on the doctrine of ***res ipsa loquitur*** and pleaded that the Defendant was vicariously liable for the acts and omissions of its driver. 4. The Plaintiff pleaded that as a result of the accident he suffered ***traumatic amputation of the left arm****.* He further pleaded that the injury occasioned loss of earning capacity and rendered him unable to continue undertaking manual work. 5. The Plaintiff claimed special damages of **Kshs.19,540.00** being Kshs.7,000 for a medical report and Kshs.12,540 for medical expenses. He further sought general damages, damages for loss of earnings and earning capacity, costs and interest. **Plaintiff's Evidence** 1. The Plaintiff testified that he was employed by the Defendant as a general worker and earned Kshs.10,000 per month. He stated that he was approximately 30 years old at the time of the accident. 2. His evidence was that on 3rd February 2014, while performing his duties, an accident involving the Defendant's combine harvester occurred. The accident resulted in the traumatic amputation of his left arm. 3. The Plaintiff attributed the accident to the negligent manner in which the combine harvester was operated by the Defendant's driver. He maintained that the Defendant had failed to ensure his safety while he was performing his work. 4. The Plaintiff relied on the documentary evidence placed before the Court in support of his employment, injuries and medical expenses. 5. The Defendant did not call evidence to rebut the Plaintiff's account of how the accident occurred. 6. The Defendant was served but did not file a Defence on the Amended Defence. Interlocutory Judgement was entered against the defendant and the matter proceeded for formal proof hearing on 23rd July ,2026. **Analysis and issues for Determination** 1. From the Pleadings, evidence and submissions, the following issues arise for determination: 2. Whether the accident occurred in the course of the Plaintiff's employment; 3. Whether the Defendant was negligent and/or breached its contractual and statutory duty of care; 4. Whether the Defendant is vicariously liable for the acts or omissions of its driver; 5. What injuries and loss were suffered by the Plaintiff; 6. What quantum of damages is payable; and 7. Who should bear the costs of the suit. **Liability** 1. The Plaintiff bears the burden of proving his case on a balance of probabilities. The question before the Court is whether, on the evidence presented, the Plaintiff established that the accident was attributable to the negligence or breach of duty on the part of the Defendant. 2. The Plaintiff's evidence was that he was an employee of the Defendant working as a general worker and that the accident occurred while he was performing his assigned duties. His evidence was that the Defendant's combine harvester was being operated by its driver, servant and/or agent when the accident occurred. 3. The Defendant owed the Plaintiff a duty to take reasonable care for his safety while at work. That duty includes taking reasonable precautions against foreseeable risks arising from the manner in which work is organised and machinery is operated. 4. The Plaintiff pleaded specific particulars of negligence against the Defendant's driver, including starting the combine harvester without due care and attention, failing to have regard to the safety of workers, failing to take adequate precautions and exposing the Plaintiff to a danger or injury which ought reasonably to have been anticipated. 5. The Plaintiff's evidence is that the injury occurred while he was carrying out his employment duties and while the machinery was under the control of the Defendant's employee or agent. The nature of the injury traumatic amputation of the left arm is consistent with the serious consequences that may arise from unsafe operation of heavy machinery. 6. The Plaintiff also pleaded the doctrine of *res ipsa loquitur*. The doctrine does not relieve a Plaintiff of the burden of establishing a prima facie case. It permits an inference of negligence from the circumstances of an accident where the relevant instrumentality was under the Defendant's control and the occurrence is one which, in the ordinary course, would not happen without negligence. 7. In the present case, the Plaintiff established that he was working for the Defendant and that he was injured in the course of that work by machinery operated by the Defendant's servant or agent. The Defendant did not call evidence to provide an alternative explanation or demonstrate that reasonable precautions had been taken. 8. I therefore find, on a balance of probabilities, that the Plaintiff has proved negligence against the Defendant's servant or agent. 9. Since the driver was acting in the course of his employment, the Defendant is vicariously liable for his acts and omissions. 10. I consequently find the Defendant 100% liable for the accident and the injuries sustained by the Plaintiff. **Quantum** 1. The Plaintiff sustained the serious and permanent injury of traumatic amputation of the left arm. The discharge summary from Provincial General Hospital and the medical report by Dr. Obed Omuyoma support the nature of the injury. The medical opinion assessed the Plaintiff as having suffered 50% permanent disability and classified the degree of injury as grievous harm. 2. In assessing damages, the Court must endeavour to make a fair award having regard to comparable injuries and awards, while recognising that no two cases are identical. The Court must also take into account the passage of time and the particular circumstances of the Plaintiff. 3. In **John Bosco Mutyetumo Mutunga v Kimanzi Musyoka [2018] KEHC 3851 (KLR)**, an award of **Kshs.800,000** for amputation of an arm at the elbow was upheld. 4. In **Umoja Rubber Products Limited v Bobson Rimba Lewa [2015] KEHC 1525 (KLR)**, an award of **Kshs.2,200,000.00** was made for amputation of the left arm below the elbow. 5. In **Macharia & Another v Ndichu [2023] KEHC 1337 (KLR)**, the High Court considered comparable authorities ranging from Kshs.800,000 to Kshs.2,700,000 for upper-limb amputations and upheld an award of **Kshs.2,000,000** in circumstances where the Plaintiff had suffered a below-elbow amputation together with other serious injuries. 6. More recently, in **Muinde v Yislam [2024] KEHC 8822 (KLR)**, the Court considered an above-elbow traumatic amputation and referred to the awards in ***Umoja Rubber Products Limited v Bobson Rimba Lewa* and *Roba Doti Guyo***. The decision illustrates the seriousness with which courts treat permanent upper-limb amputations. 7. In the present case, the injury is permanent and substantial. The Plaintiff lost his left arm, suffered 50% permanent disability, and the injury was classified as grievous harm. The loss of an upper limb affects physical functioning, ability to undertake manual work, independence and enjoyment of life. 8. Taking into account the nature and permanence of the injury, the Plaintiff's age, the medical assessment of 50% permanent disability, the effect of the injury on his physical functioning and enjoyment of life, the comparable awards cited above and the need for consistency in awards, I find an award of **Kshs.2,500,000.00** to be fair and reasonable compensation for pain, suffering and loss of amenities. **Loss of Earning Capacity** 1. The Plaintiff further claims damages for loss of earnings and earning capacity. He pleaded that at the time of the accident he was earning **Kshs.10,000.00 per month** and that, being aged 30 years, he would have continued working until the age of 70 years. 2. I have considered this claim carefully. Although the Plaintiff pleaded that he earned Kshs.10,000 per month, there is no sufficient documentary evidence before the Court establishing the alleged earnings. No payslip, employment record, bank statement or other satisfactory evidence of income was produced. 3. I would therefore not be justified in adopting Kshs.10,000 as a multiplicand and applying it over a projected working period of 40 years. Such an approach would amount to awarding damages for future earnings which have not been sufficiently proved. 4. It is important to distinguish between loss of earnings or future earnings and loss of earning capacity. Loss of future earnings is compensation for actual pecuniary loss which is capable of assessment and must be specifically pleaded and strictly proved. Loss of earning capacity, on the other hand, concerns the diminution of a person's ability to earn in the future and is compensable as general damages. 5. In **Mumias Sugar Company Limited v Francis Wanalo [2007] KECA 485 (KLR)**, the Court of Appeal held that loss of earning capacity may be awarded whether or not the Plaintiff is employed at the time of trial and that the award may be token, modest or substantial depending on the circumstances. The Court further stated that there is no fixed formula for assessing loss of earning capacity and that the Court must consider the relevant factors to arrive at the real or approximate financial loss occasioned by the disability. 6. Significantly, in ***Mumias Sugar Company Limited v Wanalo***, the High Court had calculated loss of earning capacity using a multiplicand and multiplier and arrived at Kshs.2,016,000.00 The Court of Appeal found that approach inappropriate in the circumstances and substituted the award with **Kshs.500,000.00** 7. The principle has subsequently been applied by the High Court. In **Munyala v Mwikya & Another [2023] KEHC 19405 (KLR)**, the Court held that in the absence of documentary evidence to assist in assessing earning capacity, a lump sum or global award was appropriate and awarded Kshs.300,000.00 8. More recently, in **Wanjohi v Murungi [2026] KEHC 307 (KLR)**, the High Court considered a claim for loss of earning capacity where the claimant's earnings had not been sufficiently established. The Court adopted the global approach and awarded **Kshs.500,000.00** under this head. The Court reaffirmed that loss of earning capacity does not have to be assessed by a rigid mathematical formula. 9. The Court of Appeal has also reiterated the relevant considerations in **Jubilee Haulers Limited & 2 others v Brian Muchiri Waihenya [2021] KECA 923 (KLR)**, citing ***Mumias Sugar v Wanalo* and *Butler v Butler***. The factors include the claimant's age, qualifications, disability, expected income and remaining working life. 10. Applying those principles to the present case, the Plaintiff was approximately **30 years old** at the time of the accident and was engaged in manual work. The traumatic amputation of his left arm and the assessed 50% permanent disability undoubtedly diminished his ability to undertake the same type of manual employment and reduced his competitiveness in the labour market. 11. However, the Court must equally avoid speculation. The alleged income of Kshs.10,000 per month was not proved by satisfactory documentary evidence. Further, the evidence before the Court does not establish that the Plaintiff is incapable of undertaking any form of remunerative employment. 12. In the circumstances, I decline to apply the multiplier/multiplicand approach and decline to adopt the pleaded Kshs.10,000 monthly income as a proven multiplicand. 13. Having regard to the Plaintiff's age, his occupation as a general worker, the permanent loss of his left arm, the consequent diminution of his capacity to undertake manual employment, the 50% permanent disability and the absence of satisfactory proof of his actual earnings, I find that a global award **of Kshs.750,000.00** is fair and reasonable compensation for loss of earning capacity. 14. I consider this amount to strike a proper balance. It recognises that the Plaintiff has suffered a serious and permanent disability, while avoiding an excessive award founded upon unproved earnings and an assumed 40-year working life. **Special Damages** 1. The Plaintiff pleaded Special Damages of **Kshs.19,540.00** however only **Kshs.8,000.00** has been proved by way of receipt. I proceed to award the same **Disposition** 1. Having considered the Pleadings, evidence and submissions, I find that the Plaintiff has proved his case on a balance of probabilities. 2. Accordingly, I find the Defendant **100% liable** for the accident and the injuries sustained by the Plaintiff. 3. The damages are therefore assessed as follows: General Damages for pain, suffering and loss of amenities...................Kshs.2,500,000 .00 Loss of Earning Capacity – Global Award....................Kshs.750,000.00 Special Damages ..............................................................Kshs.8,000.00 **Total ............................................................................Kshs.3,258,000.00** 1. Interest on General Damages and loss of earning capacityat court rates from the date of this Judgment until payment in full 2. Interest on Special Damages at court rates from the date of filing suit until payment in full; and **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **L.A. MUMASSABBA** **PRINCIPAL MAGISTRATE** **19.8.2026** **JUDGEMENT DATED, READ, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI VIA MICROSOFT TEAMS PLATFORM THIS 26TH DAY OF AUGUST ,2026** **In the presence of :** Mr.Mboga for the Plaintiff Defendant: Absent Court Assistant: Phoebe.