https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13014

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E103 OF 2024** **GITHINJI GICOBI KANYA…………………………..…...…………….APPELLANT** **VERSUS** **THE REAL IPM CO. (K) LTD……………………………….……1ST RESPONDENT** **LUKE KIMATHI………………………………………..………….2ND RESPONDENT** *(Appeal from the judgment of Hon. S.M Nyaga (PM), delivered on 22/8/2024 in Baricho PMCC No. E180 of 2023)* **JUDGMENT** 1. By a plaint dated 24/10/2023, the Appellant sued the Respondents seeking general damages for pain, suffering and loss of amenities and loss of earning capacity and future medical expenses, special damages and costs of the suit plus interest. The Appellant pleaded that on 9th September, 2023, he was grazing his cows along the Sagana-Kagio Road at Kangaru area, when the 2nd Respondent or his agent so negligently rode motor cycle registration number KMEY 021 Z that it veered off the road and hit him. In the premises, his claim against the Respondents was for general damages for pain and suffering and loss of amenities, loss of earning capacity and future medical expenses of Ksh. 250,000 and special damages. 2. The Respondents denied the claim vide their statement of defence dated 23/11/2023 and prayed for the Appellant’s suit to be dismissed with costs. 3. The parties recorded a consent judgment on liability at the ratio of 80:20 in favour of the Appellant against the Respondents, and upon full hearing on quantum, the trial court awarded general damages of Ksh. 700,000, Future Medical costs of Ksh. 250,000 and special damages of Ksh. 10,550 less 20% contribution = Ksh. 768,440 together with costs and interest. **The appeal** 1. On appeal, the Appellant vide his memorandum of appeal dated 9/9/2024 set out 4 grounds as follows: 1. *The Learned trial Magistrate erred in law and fact in failing to consider adequately, or at all, the totality of the evidence that was tendered on quantum, and in so doing he arrived at an erroneous finding on quantum.* 2. *The learned trial magistrate erred in law and fact in the manner that he assessed general damages and in awarding damages that were low in the circumstances.* 3. *The learned trial magistrate erred in law and fact by failing to award damages for loss of earning capacity despite evidence in support of the same.* 4. *The learned trial magistrate erred in law and fact in failing to consider the Appellant’s submission on quantum and in so doing he arrived at an erroneous decision.* **Duty of the Court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See ***Selle & Another v Associated Motor Boat Company Ltd & Others* [1968] EA 123**). 2. The case was heard by way of written submissions and the Appellant’s documents produced by consent, without calling the makers. **Submissions** 1. The Appellant cites ***Selle & Another v Associated Motor Boat Co. Ltd & Others* (1968) EA 123** on the duty of the first appellate court, and ***Butt v Khan* (1977) KLR**, on when an appellate court can disturb an award of damages by a trial court. He urges that the award on general damages was inordinately low considering the severe injuries he sustained and the degree of incapacity. He prays for the award to be enhanced to Ksh. 2,500,000, and relies on ***Imbezi v Fairmile School Limited & another* (Civil Appeal 561 of 2019) [2024] KECA 486 (KLR) (9 May 2024) (Judgment), *Christine Mwigina Akonya v Samuel Kairu Chege* [2017] eKLR and *Penina Waithira Kaburu v LP* [2019] eKLR**. 2. The Respondents submit that the development of osteoarthritis is a possibility, not a certainty, and therefore any resulting incapacity may not materialize, and cites ***Miregwa & another v Mokaya* (Civil Appeal E080 of 2023) [2024] KEHC 5586 (KLR) (7 May 2024) (Judgment)** in urging that the medical report by Dr. Robert K. Kabugi, dated 3/2/2024, offered the most recent and accurate evaluation of the Appellant’s condition. They fault the Appellant for misrepresenting that the Court of Appeal in the Imbezi case (Supra) awarded Ksh. 4,000,000. They urge that the trial court acted judiciously and with full appreciation of the facts, and cite ***Kimita v Travel Budget Express & another* (Civil Appeal E042 of 2022)[2024] KEHC 6435 (KLR) (4 June 2024) (Judgment) and *Sereni Fries Limited & another v Kuria* (Civil Appeal E1045 of 2022)[2024] KEHC 9097 (KLR) (19 July 2024) (Judgment)**. They urge that no evidence was adduced as to the Appellant’s economic activities for the court to assess the extent of his loss, and therefore the trial court was justified in declining the award. **Analysis and determination** 1. From the grounds of appeal as framed, the twin issues for determination are whether the general damages of Ksh. 700,000 were inordinately low, whether an award for loss of earning capacity was justified and whether the Appellant’s submissions were considered. 2. This court has previously considered the principles for appellate interference with an award of damages by a trial court in ***Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA)* [2020] eKLR** as follows: ***“The well-known principles for interference of an award of damages by a trial court are laid down by the Privy Council in Nance v. British Columbia Electric Railway Co. Ltd. (1951) A.C. 601, 613 and applied in East Africa by Sir K. O’Connor (with whom Sir Alastair Forbes, V.-P. and Newbold, J.A. agreed) in Henry H. Ilanga v. M. Manyoka [1961] EA 705, 713 as follows: “The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tired the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking in some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage*** *(****Flint v Lovell****,* ***[1935] 1 K.B.), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd.******[1942] A.C. 601.”*** 1. The injuries sustained by the Appellant are particularized in the medical report of Dr. Kenneth W. Munyi dated 25/9/2023 as a fracture of the tibia and fibula on the right, a deep cut wound proximal to the right eye and soft injuries to the head, chest and upper limbs. At the time of examination, the Appellant was unable to walk without crutches, there was stiffness of the right ankle joint, swelling on the right leg, and the fracture was healing well. The doctor estimated the cost of future medical expenses at Ksh. 250,000, and assessed the degree of permanent incapacity at 30%. In the doctor’s opinion, the Appellant, **“will require close follow-up by an orthopaedic technician to alleviate the right limb pain.”** 2. When the Appellant was examined by Dr. Robert K. Kabugi on 3/2/2024, he was fully dependent on others as at his age he could not use crutches, he had an external fixator and the right limb was dressed and healed scars on the face and the hands. The doctor opined that,***“Githinji was involved in a traffic accident which he sustained blunt trauma on the head. He had sustained soft tissue injuries on the upper limbs. He had open fracture of the lower end of the right tibia and fibula. He was treated in three hospitals namely Kerugoya, Afya Bora hospital, and eventually at Jumuia hospital in Thika where he was done initially debridement and put external fixator because the wound had become very septic for internal fixation. He still goes for dressing. He will recover but the position of the fracture might require further surgical procedure which at his age are not easy. He is very predisposed to developing osteoarthritis of the right ankle joint and will take long to use the limbs on his own. These are permanent injuries assessed at 15% (fifteen percent).”*** 3. Undoubtedly, the injuries sustained by the Appellant were severe, and despite prolonged hospitalization from 9/9/2023 to 7/11/2023, full recovery has not yet been achieved, necessitating future medical intervention. 4. This court in ***Pelton Transporters Limited & another v Mureithi* [2025] KEHC 12406 (KLR)**, substituted a trial court’s award of Ksh. 800,000 with Ksh. 500,000 where the claimant sustained a fracture of the left tibia bone, bruises on the scalp, blunt soft tissue injuries of the anterior chest and swelling and lacerations on both legs. 5. The injuries sustained by the Appellant were soft tissue in nature save for a fracture of the tibia and fibula. Dr. Munyi noted in his medical report that the fracture was healing properly, and the prognosis was favourable, with complete recovery anticipated in the foreseeable future. 6. This court thus finds that the award of Ksh.700,000 was commensurate with the pain suffered by the Appellant, in view of the permanent incapacity and long journey to recovery. 7. With respect, the injuries sustained by the claimants in the cases relied on by the Appellant were more severe and, therefore, incomparable with the ones he sustained. In the ***Penina Waithira*** case, the claimant sustained multiple fractures of the pelvis including bilateral superior and inferior pubic rami and rapture of the urethtra and the court awarded general damages of Ksh.2,000,000. In the ***Imbezi*** case, the Court of Appeal substituted an award of Ksh.800,000 with Ksh.1,300,000 where the claimant sustained 5 fractures of the orbit, left temporal bone, left zygomatic bone, left maxilla, left tibia and lacerations on the left arm. 8. On loss of earning capacity, the Court of Appeal in ***Mumias Sugar Company Ltd v Wanalo* [2007] KECA 485 (KLR)**, pointed out that: ***“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 the 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.”*** 1. In ***William J Butler v Maura Kathleen Butler* [1984] KECA 34 (KLR)**, the Court of Appeal highlighted that: ***“The question is what is the present value of the risk that at a future date or time the plaintiff will suffer financial disadvantage in the labour market because of his injuries? It can be a claim on its own (where the plaintiff had not worked before the accident) or in addition to another (where the plaintiff was in employment then and or at the date of trial). The factors to be taken into account will vary with the circumstances of each case. Examples include the age and qualifications of the plaintiff; his remaining length of working life; his disabilities; previous service, if any, and so on. Mathematical calculation may not be possible, but a court can try to assess what earnings a plaintiff may lose after the trial and for how long. There is no formula and the judge must do the best he can. “*** 1. The Appellant was aged 93 years at the time of the accident, and no evidence was adduced to show that he was gainfully engaged. This court is constrained to find that the Appellant had no ascertainable earning capacity capable of being diminished, owing to his advanced age, and the absence of any evidence that he was carrying out any income generating activities. **Consideration of the Appellant’s submissions** 1. The Appellant faults the trial court for disregarding his submissions. That fault is misconceived because submissions, however persuasive, cannot take the place of pleadings; their non-consideration cannot in itself be a basis to overturn a trial court’s decision; and the mere fact that the trial court was nor persuaded by the submissions of the Appellant does not imply that they were disregarded altogether. **ORDERS** 1. Accordingly, for the reasons set out above, this court finds the appeal is without merit and is dismissed. 2. Each party shall bear its own costs of the appeal. *Order accordingly.* **DATED AND DELIVERED THIS 20TH DAY OF AUGUST 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES**: Mr. Mwangi Maina for the Appellant. Ms. Jayo for the Respondent.