https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9577

Macharia v Omboga (Civil Appeal E004 of 2023) [2026] KEHC 9577 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9577 (KLR) Republic of Kenya In the High Court at Kajiado Civil Appeal E004 of 2023 JL Tamar, J July 2, 2026 Between Julius Chege Macharia Appellant and Robert Onyonka Omboga Respondent Judgment 1.Before me is an appeal from the Trial Court’s Judgement delivered on 22nd December 2022 by the Honourable B.M. Cheloti, Senior Resident Magistrate, in Kajiado Chief Magistrate’s Court Civil Suit No. E043 of 2021. The learned Magistrate entered judgment against the Appellant and the Third Party, Joseph Ndirangu Njoki, jointly and severally, awarding the Respondent the sum of Kenya Shillings One Million Five Hundred Thousand (KES 1,500,000.00) as general damages for pain and suffering, loss of amenities and diminished earning capacity, and Kenya Shillings Twenty-Five Thousand Nine Hundred and Forty-Five (KES 25,945.00) as special damages, with costs of the suit and interest at court’s rate.The appeal is brought forth on the following grounds:a.That the learned Trial Magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases involving similar injuries and awarded general damages which were inordinately high.b.That the learned Trial Magistrate erred in fact and in law by failing to apply the correct legal principles in awarding general damages for loss of amenities of life and/or diminished earning capacity.c.That the learned Trial Magistrate erred in law and in fact by failing to consider the Appellant’s submissions and judicial authorities on quantum, thereby arriving at an erroneous figure.d.That the learned Trial Magistrate erred in law and in fact by failing to take into account the pertinent issues raised in the Appellant’s submissions.e.That the learned Trial Magistrate erred in law and in fact by failing to appreciate the Appellant’s contentions and arguments.f.That the learned Trial Magistrate erred in law and in fact by disregarding the evidence on record thus arriving at an erroneous decision.g.That the learned Trial Magistrate misdirected himself by considering erroneous facts and evidence hence reaching a wrong conclusion of law.h.That the learned Trial Magistrate’s ruling consequently occasioned a miscarriage of justice. 2.The parties have filed their rival written submissions in support of their respective positions, which I have had the privilege of reading alongside the authorities relied upon therein. I have also gone through the lower court file and have framed the following issues for determination. Issuesi.Whether the trial court erred in its decision on liability.ii.Whether this court should interfere with the Trial Court’s assessment and judgment on quantum. Analysis I. Whether the trial court erred in its decision on liability. 3.The Appellant submits that the learned Trial Magistrate erred in apportioning liability at 100% against the Appellant and the Third Party. The Appellant contends that the Third Party’s motor vehicle registration number KAZ 585V, on which the Respondent was a passenger, struck the Appellant’s motor vehicle registration number KBW 994D from behind. The Appellant avers that he had duly slowed down and indicated the direction he intended to divert to before the collision occurred. On this basis, the Appellant urges this Court to apportion liability at 60:40 between himself and the Third Party, and to set aside the finding of sole and joint liability against the Appellant. 4.The Respondent, for his part, submits that the Trial Court was correct in finding both the Appellant and the Third Party jointly and severally liable. The Respondent avers that the accident was occasioned by the Appellant’s motor vehicle making a sudden and unannounced U-turn on the path of the vehicle on which the Respondent was lawfully travelling as a passenger. The Respondent further contends that he bore no responsibility whatsoever for the accident and that the finding of joint and several liability is sound and ought to be upheld. 5.I am guided by the well-established principle that an appellate court will not ordinarily interfere with the findings of a trial court on liability unless it can be demonstrated that the trial court applied wrong principles of law, misapprehended the evidence in a material respect, or that the finding is plainly wrong. See Butt v Khan [1978] KECA 24 (KLR). 6.Having carefully considered the record and the rival submissions, I find that the Trial Court was correct in entering judgment against both the Appellant and the Third Party jointly and severally. The Respondent herein was a lawful passenger aboard motor vehicle registration number KAZ 585V and bore no control over or responsibility for the conduct of either vehicle involved in the accident. Both vehicles are established to have been involved in the collision that caused the Respondent’s injuries. The trial court rightly found that both the Appellant and the Third Party owed a duty of care to other road users and passengers, including the Respondent herein. As a passenger, the Respondent is not required to prove the precise negligent act of each driver; he correctly pleaded the doctrine of Res Ipsa Loquitur; it is sufficient that the collision occurred and caused his injuries. 7.I find that the Respondent satisfied the dual test for relying on the rule as was expounded on in Obino & another (Suing as the legal representative of the Estate of Robin Obino Ongere) v Ngatia & another [2022] KEHC 15731 (KLR). The Respondent proved that the accident occurred, and that it is one that ordinarily would not occur in the absence of negligence; and secondly that he was not in exclusive control of the vehicle that caused the injury. 8.I further note that the Appellant did not call any witness to rebut the Respondent’s evidence, leaving the Respondent’s account largely uncontroverted. The Third Party equally neither entered appearance nor filed a defence at trial. The question of the precise apportionment of blame as between the Appellant and the Third Party does not extinguish or diminish the Respondent’s entitlement to full recovery as a lawful passenger injured in the accident. The Appellant has not demonstrated that the Trial Court proceeded on wrong principles in this regard. I therefore find no basis for interfering with the Trial Court’s decision on liability and I uphold the same. II. Whether this court should interfere with the Trial Court’s assessment and judgment on quantum. 9.The Court of Appeal in Butt v Khan [1978] KECA 24 (KLR) set out the parameters under which an appellate court will interfere with an award of damages as:“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. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” 10.As further restated in Peter Namu Njeru v Philemone Mwagoti [2016] eKLR, this Court must be satisfied that the award was inordinately too high or too low as to present an entirely erroneous estimate of compensation, or that the court took into account irrelevant factors or failed to take into account relevant factors, before it may interfere with the trial court’s exercise of discretion in assessing damages. 11.From the submissions before me, the appellant faults the learned Magistrate in the assessment of general damages. I note that the Trial Court’s judgment combined the awards for pain and suffering, loss of amenities and diminished earning capacity into a single composite sum of Kenya Shillings One Million Five Hundred Thousand (KES 1,500,000.00), without separately setting out a reasoned analysis under each distinct head. In so doing, the learned Magistrate failed to engage with the relevant comparable authorities on each distinct head and did not articulate the reasoning that underpinned the composite award. I find this to constitute an error in approach that invites the closer intervention of this Court. I shall therefore set aside the Trial Court’s composite award and independently assess the claim under each head. 12.The medical evidence before the Trial Court consisted of the report of Dr. Cyprianus Okoth Okere dated 9th December 2020. Dr. Okere examined the Respondent and found that he had sustained the following injuries:a.Fracture of the right distal radius (right Colles fracture);b.Deep cut on the left shoulder;c.Bruises on the neck;d.Recurrent pains on the wrist;e.Recurrent pains on the left shoulder;f.Weakness of the right hand;g.Bruised scars on the anterior neck region;h.Lacerated scar on the left shoulder;i.Right distal radius is tender on palpation; andj.Permanent incapacity of 20%. a. Pain and Suffering 13.On pain and suffering, the Appellant submits that the general damages award is inordinately high and does not accord with comparable precedent for similar injuries. The Appellant relies on the case of Ngure v Omondi (Civil Appeal 451 of 2018) [2022] KEHC, where the court reduced an award from Kenya Shillings Seven Hundred Thousand (KES 700,000.00) to Kenya Shillings Five Hundred Thousand (KES 500,000.00) for a fracture of the distal radius and various soft tissue injuries. The Appellant also relies on Rose Makombo Masanju v Night alias Nightie Flora & Another [2016] eKLR, where the High Court on appeal substituted the general damages award with Kenya Shillings Five Hundred Thousand (KES 500,000.00) for injuries comprising a wrist fracture, comminuted fracture of the frontal bone and right eye nerve injury. 14.The Respondent urges this Court to uphold the award as a proper exercise of the Trial Court’s discretion. The Respondent relies on the authority of Francis Nzivo & Another v Jotham Wanyonyi Nakasana & Another [2020] eKLR (Civil Appeal 74 of 2016), where an award of Kenya Shillings Six Hundred Thousand (KES 600,000.00) was made for a fracture of the right radius/ulna and multiple cuts, and Joseph Njuguna Gachie v Jacinta Kavuu Kyengo [2017] eKLR, where the High Court upheld an award of Kenya Shillings Six Hundred Thousand (KES 600,000.00) for a comminuted fracture of the left radius, dislocation of the left ulna joint and related injuries. 15.Bearing in mind that no two cases are the same, I am called upon to assess damages based on the general findings of similar precedents. I am persuaded that the Trial Court erred in failing to separately consider and assess the applicable heads of general damages and to engage with the relevant comparable authorities, and to that extent the composite award is set aside. Having regard to the injuries sustained by the Respondent — comprising a right Colles fracture, extensive soft tissue injuries to the shoulder and neck, scarring, persistent wrist and shoulder pains, and weakness in the right hand — and having regard to the comparable authorities cited by both parties, I find an award of Kenya Shillings Seven Hundred Thousand (KES 700,000.00) to be fair and just for pain and suffering in the circumstances of this case. b. Special Damages 16.On special damages, the rule is strict; the precise amount of pecuniary loss must be specifically pleaded and proved. The Trial Court awarded the sum of Kenya Shillings Twenty-Five Thousand Nine Hundred and Forty-Five (KES 25,945.00) comprising Kenya Shillings Ten Thousand Nine Hundred and Forty-Five (KES 10,945.00) for motor vehicle search and medical expenses, Kenya Shillings Ten Thousand (KES 10,000.00) as doctor’s fees, and Kenya Shillings Five Thousand (KES 5,000.00) as police attendance fees, all of which were specifically pleaded and supported by evidence produced at trial. The Appellant has not mounted any substantive challenge to this head on appeal. I find that the Trial Court did not err in making this award and I uphold it. c. Diminished Earning Capacity 17.The principle for awarding damages for loss of earning capacity is well settled. In SJ v Francesco Di Nello & Another [2015] eKLR, the Court affirmed that loss of earning capacity is compensated by an award in general damages, once proved. It must be established that as a result of the injuries sustained, the plaintiff has been exposed to a risk of not attracting the same employment or comparable remuneration in the labour market. See also Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR. Loss of earning capacity is a different head of damages from actual loss of future earnings; compensation for the former is awarded as part of general damages, while the latter requires proof of real assessable loss by evidence. 18.The Appellant submits that this head of claim ought to fail on account of the Respondent’s failure to produce proof of earnings before the Trial Court. The Appellant relies on the case of Silas Shakava Tuli v Ezekiel K Chirchir [2019] KEHC 7410 (KLR) where the court set out the principles to be considered in assessing loss of earning capacity, including the age and qualifications of the claimant, his remaining working life, his disabilities and previous service. The Appellant urges that, as the Respondent provided no proof of earnings, this claim is not proved and ought to fail. 19.I have independently considered the evidence on record. The Respondent is a teacher by profession. His uncontroverted testimony before the Trial Court confirms that the injuries sustained have directly impaired his professional duties, particularly his ability to write on the blackboard and mark students’ work, owing to the persistent weakness and residual effects in his right hand. The medical report of Dr. Okere confirms a degree of permanent incapacity of 20%. The right hand is plainly the primary instrument of a teacher’s professional function, and a permanent incapacity of that degree directly and materially affects the Respondent’s capacity to perform his professional duties and to remain competitive in the labour market. I am satisfied that the Respondent has established to the required standard that the injuries have exposed him to a real and appreciable risk of diminished capacity in his occupation. 20.That said, I note that no documentary proof of salary, payslips or other earnings records were placed before the Trial Court, which precludes any mathematical computation akin to a loss of future earnings claim. The claim is properly characterised as loss of earning capacity and falls to be assessed as part of general damages. Taking into account the Respondent’s occupation as a teacher, the 20% degree of permanent incapacity confirmed in the medical report, the direct impact of the right-hand weakness on his professional duties, and the principles governing this head as set out in SJ v Francesco Di Nello & Another (supra), I find an award of Kenya Shillings Six Hundred Thousand (KES 600,000.00) to be fair and just under this head. Determination 21.The upshot of the above is that the appeal is partly successful. The judgment of the Trial Court is set aside and substituted as follows:1.Liability: The Appellant and the Third Party are jointly and severally liable to the Respondent.2.General Damages for Pain and Suffering KES 700,000.003.General Damages for Diminished Earning Capacity KES 600,000.004.Special Damages KES 25,945.00Total Kes 1,325945 22.Each party shall bear their own costs of this appeal. The Respondent shall have costs at the trial court. The above judgment shall accrue interest at court’s rate from the date of the trial court’s judgment delivered on 22nd December 2022. It is so ordered. DATED, SIGNED, AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY 2026JOHN.T. LOLWATANJUDGE