[2023] KEHC 25058 (KLR)

Kimondiu v Mombasa Maize Millers Nairobi Ltd & another (Civil Appeal 34 of 2020) [2023] KEHC 25058 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25058 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 34 of 2020

TM Matheka, J

November 10, 2023

Between

Mercy Mbula Kimondiu

Appellant

and

Mombasa Maize Millers Nairobi Ltd

1st Respondent

Hannington Kiio Kinyungu

2nd Respondent

(Appeal against the judgment of the Hon. D Karani SRM in Makindu MCCC 332 of 2018 delivered on 30th July 2020)

Judgment

1. This appeal arises out of the judgment of the learned trial magistrate in Makindu SPMCC 332 of 2018.

2. The appellant who was the plaintiff filed the suit and plaint dated 19th December 2018 against the defendants now respondents seeking orders:-a.Special damages aforesaid of Kshs.5,650/=b.General damages for pain, suffering and loss of amenitiesc.General damages for diminished/reduced earning capacity.d.Costs of this suit;e.Interest on (a), (b), (c) and (d) above at court rate: andf.Any other or further relied that his Honourable court may deem just to grant.

3. The claim arose from a traffic accident that occurred on 17th March 2018 when the plaintiff was a passenger in motor vehicle registration no. KCD 383Y whose registered driver was the 2nd defendant/respondent and it collided with motor vehicle registration KBB 102R/2D 3510 – registered in the name of the 1st defendant/respondent.

4. It was the plaintiff’s case that both respondents were equally negligent either by themselves, their agents, servants or employees in the driving/controlling of the respective motor vehicles, that they collided, and as a result she suffered injuries:Particulars of injuries.a.Fracture of the left humerusb.Abrasion on the right forearmc.Blunt injuries on the trunkd.Blunt injuries on the right legPresent complaints (as at the hearing of the suit in the subordinate court)a.Pain on the arm and shoulderb.An inability to perform heavy duty with the left handc.Pain and weakness of the left upper limbd.Back painse.Not able to do any form of work with the left upper limbf.Permanent incapacity of about 10%

5. As a result she claimed to have suffered pain, suffering and damage and incurred special damages of Kshs.5,650/=.

6. The 1st respondent filed defence dated 12th February 2019 and denied all the allegations of negligence and blamed the 2nd defendant/respondent for the accident. The particulars of the alleged negligence were set out in the defence.

7. The 1st respondent put the appellant on strict proof of special damages, injuries, damage suffered or any loss of future earnings as alleged.

8. The 2nd defendant/respondent filed defence dated 21st May 2019 and denied being the registered owner/beneficial owner/driver of the said motor vehicle KCD 383Y and equally blamed the diver of motor vehicle registration no. KBB 102R/2D 3510 for the accident. The 2nd respondent also denied all other allegations of injuries loss and damages the part of the appellant.

9. At the close of pleadings, the appellant set out the list of issues:-1. Whether the 1st defendant was the registered owner of motor vehicle registration number KBB 102R/ZD 3510 which was being driven by its employee, servant, agent and/or authorized driver as pleaded by the plaintiff.

2. Whether the 2nd defendant was the registered owner of motor vehicle registration number KCD 383Y which was being driven by the defendant himself or by his employee, servant, agent, and/or authorized driver as pleaded by the plaintiff.

3. Who was to blame for the accident that occurred on 17/03/2018 involving motor vehicle registration number KBB 102R/ZD 3510 and KCD 383Y and to what extent?

4. Whether the plaintiff sustained the injuries, loss and damage, articulated in the plaint as a result of the said accident.

5. Whether the plaintiff is entitled to the reliefs sought in the plaint and what is the quantum, if any, that would adequately compensate her for the injuries suffered.

6. Whether the defendants were served with a demand letter and or notice of intention to sue.

7. Who should bear the costs an interest of the proceedings?

10. The case for the plaintiff was presented by the plaintiff and a police officer. Pw1 No. 112590 PC Edwin Cheruiyot testimony was based on the information he had gathered from the Occurrence Bookas he was not the Investigating Officer. According to the OB 5/17/2/2018 report booked by the driver of the 1st respondent – Eric Masaku (who was DW1), he was driving along Makindu-Wote road about 7:30 pm heading towards Makindu direction. The driver of KCD 383Y Nissan matatu was behind him at high speed. This driver attempted to overtake but and on seeing an coming motor vehicle he swerved back to the lane only to ram into the rear tyre of his motor vehicle. The matatu rammed the lorry on its co-driver’s side and two passengers died on the spot – others were injured – among them the plaintiff herein. He testified that the driver of the matatu one Joseph Wambua was blamed for the accident and was charged with careless driving. He produced the police abstract.

11. Pw2 Mercy Mbula Kimondio testified that she was seated at the front seat next to the driver – that it was at night, and it was raining. The driver was at high speed. She saw the lorry at 10 metres and according to her it was stationary in the middle of the road – that the driver did nothing to avoid the road traffic accident, that she sustained injuries which affected her arm as she could no longer do the work she did e.g. washing clothes, farm work – that she could not lift things or sleep well – and her earning capacity had diminished. On the date of hearing 11th March 2020 she told the court she had last been in hospital in August of the previous year( 2019).

12. DW1 Eric Masaku adopted the statement he had recorded made with regard to the accident. He said he did not record the oncoming motor vehicle in his statement but he did show down for the driver of the matatu to overtake. That the matatu hit his motor vehicle from behind. That he is the one who opened the door for the driver of the matatu who fled from the scene. He urged the court to rely on his statement as he accepted that some of the things he was saying in court were inconsistent with the statement.

13. The 2nd defendant did not participate in the hearing. The defence case was closed and parties filed written submissions.

14. The learned trial magistrate vide judgment dated 30th July 2020 considered the submissions by parties – the plaintiff/appellant sought joint liability on the part of the defendants – and general damages of Kshs. 700,000/=. Appellant also submitted on loss of future earnings and sought the sum of Kshs. 500,000/= as there was assessment of permanent incapacity at between 5% and 10%.

15. The 1st defendant submitted it was not at fault – but in the event that that the court found that it was liable then a sum of kshs. 300,000/= would suffice as general damages.

16. The learned trial magistrate confirmed that interlocutory judgment had been entered against the 2nd defendant/respondent – but he had entered appearance and defence. The court found - on liability -that the 2nd defendant/respondent was wholly to blame for the accident and dismissed case against defendant/ 1st respondent. On quantum, general damages for pain and suffering was assessed at Kshs. 500,000/=. The court found that the claim for loss of earning capacity was not proved and dismissed it. Special damages were awarded as prayed.

17. The plaintiff/appellant was aggrieved and filed this appeal on the following grounds: -1. That the learned magistrate erred in law and in fact by failing to appreciate the fact that the 1st respondent adduced contradictory evidence.2. That the learned magistrate misdirected herself in law and in fact by placing too much reliance on contradictory evidence led by the 1st respondent at the exclusion of the appellant’s consistent evidence.3. That the learned magistrate erred in law and in fact by failing to find that if it was not clear who between the respondents was to blame for the accident, then both respondents ought to have been equally liable.4. 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.5. That the learned magistrate misdirected herself in law and in fact by failing to appreciate the degree and/or standard of proof for a claim on diminished earning capacity.6. 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 her capacity to earn had diminished.7. That the learned magistrate erred in law and in fact by failing to consider the appellant’s submissions and authorities.

18. There are no submissions on record from the respondents.

Appellant’s Submissions 19. The appellant submits that the seven grounds of appeal relate to the findings of the trial Court on liability and the claim on diminished earning capacity.

20. With regard to liability, she submits that she was able to prove that both Respondents were to blame for the accident and that it was therefore erroneous for the Learned Magistrate to place too much reliance on the 1st Respondent’s evidence which was contradictory. She contends that if the trial court was uncertain as to who between the Respondents was to blame, then it ought to have apportioned liability equally.

21. She submits that she produced the copies of records (P. Exh 10) and duplicate certificates of insurance (P.Exh.12, 13 & 14) to prove that the 1st and 2nd Respondents were the respective owners of motor vehicles registration numbers KBB 102R/ZD 3510 (Trailer) and KCD 383Y (Nissan). Relying on section 8 of the Traffic Act, Cap 403 she submits that the person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle. She contends that apart from denials in the Defense, the Respondents did not adduce any evidence to prove the contrary.

22. She submits that the occurrence of the accident on 17th March 2018 is not in dispute as it was admitted by the 1st Respondent and confirmed by PW1 and DW1.

23. She submits that she pleaded a raft of particulars of negligence against the Respondents and their defenses contained denials and counter allegations against each other. She submits that her evidence before the trial court was that the drivers of both motor vehicles were to blame for the accident for not making any attempt to avoid the accident. She blamed the driver of KCD 383Y for driving at a high speed and failing to keep a proper look out and the driver of KBB 102R/ZD 3510 for stopping in the middle of the road and failing to put any warning signs.

24. Referring to the judgment, she submits that the Learned Magistrate placed a lot of reliance on DW 1’s testimony which was patently contradictory and evasive. That the Learned Magistrate did not give reasons as to why she found DW1’s evidence more reliable than her (appellant’s) evidence.

25. She submits that in his report to the police, DW1 stated that he slowed down to allow the Nissan to overtake whereas in his written statement, he stated that the Nissan rammed onto the rear of the trailer as it was swerving to avoid an oncoming motor vehicle. She contends that failure by DW1 to mention the oncoming vehicle to the police was strange and it is plausible that he brought the issue up in order to deflect blame. That if indeed his account given to the police is true, then it was not reasonable for the Nissan to hit the Trailer. She contends that DW1 was trying to cover up the fact that the Trailer was stationary. It is also her contention that DW 1 did not explain why he left out the aspect of slowing down in his statement and notes that there is no requirement under the law to slow down when being overtaken. She relies on the case of Mwai Kabuthi –vs- Karimi Kabuthi [2017] eKLR where the Court of Appeal held thus:“(2)The learned Judge made a finding that the existence of a trust over the suit property was based on sound evidence as it was not disputed that the parties’ father was working in Eldoret from where he used to send money back home to pay to the clan elders for the suit property. The learned Judge found that this evidence ousted the appellant’s evidence that he was the one who paid contributions both in kind and money to the clan elders for the suit property, as his (appellants) evidence was contradicted by his own witnesses. The learned Judge had reason to disregard the appellant’s evidence as untruthful. There was a basis for disregarding the appellant’s testimony as his own witnesses who contradicted it were persons from the same locality and therefore conversant with the history of the suit property. Once excluded, there was nothing to counter the respondent’s assertions that the appellant got registered as proprietor of the suit property with the blessings of their late father and that such registration was meant to benefit the entire family…).”

26. The appellant submits that the trial court misapprehended the evidence when she concluded that; “both the plaintiff and the 1st Defendant agree that the 2nd Defendants (sic) driver was attempting to overtake and then hit the 1st Defendants vehicle on the rear.” She contends that there is nowhere in her evidence where she stated that the Nissan was attempting to overtake. That her entire case was about the Nissan ramming into the stationary Trailer. She submits that the misapprehension led the trial Court to believe that; it was uncontested that the accident occurred while the Nissan was attempting to overtake.

27. She submits that the trial court was uncertain as to how the accident occurred but still found the 2nd Respondent wholly to blame. That from a keen analysis of the judgment, it is obvious the Learned Magistrate did not come to a conclusive finding on how the accident occurred. That she oscillated between her (appellant) version and that of the 1st Respondent without settling on either. She submits that where a court cannot decide on who to blame based on the evidence tendered, it should apportion blame equally. She relies inter alia on the case of Hussein Omar Farah –vs- Lento Agencies [2006] eKLR where the Court of Appeal rendered itself thus:“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”

28. She submits that the trial magistrate failed to take into account a relevant fact to wit; that a conviction in a traffic case does not preclude a finding of contributory negligence in a civil case. That the trial Court seems to have hinged the finding of 100% liability against the 2nd Respondent on the fact that the driver of the Nissan was charged with the offence of careless driving. That in the judgment, the trial magistrate stated; “I agree with Pw1, the 2nd Defendant was solely to blame for the said accident.” She submits that PW1’s evidence was that the driver of the Nissan was blamed for the accident and was charged with the offence of careless driving. However, she contends that no evidence was adduced to show that the driver was convicted for the said offence. She relies on Philip Keipto Chemwolo & Mumias Sugar Co. Ltd -vs- Augustine Kubende [1982-88] 1 KAR 1036 at 1039-1040 where the Court of Appeal rendered itself thus:“It was not for the Judge to read the proceedings in the Traffic case as if the evidence recorded there was the final position in the case since not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness. It was therefore premature to come to the conclusion that not even prima facie case of contributory negligence could be established. It would have been right to have held that there was some evidence upon which a triable issue as to contributory negligence arose on the strength of the proceedings in the traffic case...It was correct for the learned Judge to refer to the conviction because section 47A of the Evidence Act (Chapter 80) declares that where a final judgment of competent court in criminal proceedings has declared any person to be guilty of criminal offence, after expiry of the time limited for appeal, judgment shall be taken as conclusive evidence that the person so convicted was guilty of that offence. But that does not matter because it may also be that the other party was also guilty of carelessness and despite the other party’s conviction, the issue of contributory negligence may still be alive if the facts warrant it and this may affect the quantum of damages.”

29. From the foregoing, she reiterates that both Respondents were to blame for the accident. She submits that the Nissan driver would have seen the Trailer if he had been keeping a proper look out and especially because the scene of accident is a straight stretch. That even if he was overtaking as claimed by DW 1; the fact that he hit the Trailer shows that it was not safe to overtake. On the other hand, she has relied on section 53 of the Traffic Act for the submission that the Trailer driver had a duty to notify oncoming vehicles about the obstruction caused by the stationary Trailer. Simon Ano Mua –vs- Kioga Mukwano (t/a Kioga Mukwano Transporters) & 2 Others [2013] eKLR where the court (Waweru J) stated;“There is only the uncontroverted testimony of the Plaintiff and PW3 as to how the accident occurred. They testified that the 2nd Defendant’s motor-vehicle was parked on the road without any warning sign. It was at night, about 4. 30 in the morning. It was also raining. The Plaintiff ended up ramming into it to avoid hitting oncoming vehicles. He could not avoid the accident despite applying emergency brakes. Because the road was wet his motor vehicle skidded. The 2nd Defendant did not appear in court to give his version of how the accident might have occurred. The act of parking at least part of his lorry on the road was extremely negligent on the part of the 2nd Defendant in the circumstances. There is no evidence that the Plaintiff was speeding, or otherwise driving without due care and attention. I find that the accident was caused by the sole negligence of the 2nd Defendant. On liability therefore I find for the Plaintiff at 100%.”

30. With regard to the claim for diminished earning capacity, she submits that the trial magistrate concluded that there was no proof yet She specifically testified that she could not work, could not lift the arm, could not wash clothes, carry luggage or even sleep well and had been forced to pay someone to farm for her. She has relied on S J –vs- Francesco Di Nello & Anor [2015] eKLR where the Court of Appeal held that;“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved.”

31. She has also relied on the case of Mumias Sugar Company Ltd –vs- Francis Wanalo [2007] eKLR where the Court of Appeal (Bosire, O’Kubasu & Githinji JJA) held as follows:“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of future earning capacity. Compensation for loss of future earnings are awarded for real assessable loss proven by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

32. She submits that her evidence was not controverted and as such, the court should believe and be guided by it. She relies on Unleek Electrical Company Limited –vs- Joseph Fanuel Alela Nbi HCCC Appeal No. 676 OF 2002 where the court held;“This evidence is uncontroverted. The Defense did not provide any evidence to the contrary. There was nothing easier for the Appellant to come to court and say no… or whatever it wanted to say, and then leave it to the court to decide who should be believed. Here the court had no choice. The only evidence before it was that of the Respondent and the court had no reason to disbelieve his testimony. Accordingly, I see no reason to interfere with that finding and I uphold the finding of fact.”

33. She submits that there are cases, in the Court of Appeal and the High Court, where lesser evidence on diminished earning capacity was led but the Courts still made an award under the head. She has cited the example of John Kibicho Thirima –vs- Emmanuel Parsmei Mkoitiko [2017] eKLR where the court observed as follows:“159. In this case the plaintiff pleaded and testified that he was a businessman (Book seller) and a student cum pastor. As a result of the accident and the serious injuries that he suffered, his business and savings were depleted as they were spent towards his medical care. He was 38 years at the time of this accident and that he lost his earning capacity.

160. In his testimony, the plaintiff stated that he was now a pastor and that his main problem was that he could not feed well. He did not say that as a pastor, he was unable to discharge his duties better when preaching. He did not say that as a result of the injuries, he could not get a better job in the labour market and that he had therefore resorted to being a pastor which was a lesser paying job. The defendant did not suggest that being a pastor was not his calling and that he only resorted to it after the accident.

161. There is no presumption that pastors are engaged in less paying jobs compared to any other job. Furthermore, what the plaintiff’s counsel submitted on as quantum for loss of earning capacity was in essence loss of future earnings based on what the plaintiff pleaded and testified that as a book seller he used to earn about Kshs 50,000/- per month which he had now lost and which indeed, is a special damage which must be pleaded and proved strictly.

162. In the premises, I find that in the instant case, the plaintiff being a pastor, he did not demonstrate that having regard to the degree of incapacity that he suffered, the risk of him being able to find suitable employment in the labour market was substantial. It was minimal if any. But that is not to say that he is not entitled to some fair compensation for the diminution of his chances of employment in the labour market.

163. In the Nzoia Sugar Company Ltd Vs Francis Wanalo (supra)case the Court of Appeal found that using a multiplier/multiplcand formula for the claim for loss of earning capacity was erroneous on the part of the trial court and set it aside. However, the court, even after finding that the risk of the respondent not getting a job in the labour market was not substantial but minimal, having regard to the injuries that he sustained, nonetheless, held that it was appropriate in the circumstances of the case to make a fair award of loss of earning capacity. The Court of Appeal substituted shs. 2,061,000 with shs 500,000 as adequate compensation for the diminution of the respondent’s chances of employment in the labour market.

164. Applying the above principles, I would, having regard to the serious injuries which the plaintiff sustained which involved fractures of the pelvis, right hand, leg, ribs and mandibles and their resultant effects, I award the plaintiff a sum of shs 600,000 compensation for diminution of the plaintiff’s chances of employment in the alternative labour market since not all pastors are full time pastors and they could still be engaged in other competitive work and be pastors on a part time basis.”

34. Further, she submits that the two doctors who examined her confirmed that she sustained 5 - 10% incapacity and contends that the trial court did not make any finding on the doctors’ opinions yet they play a crucial role on compensation for diminished capacity. That even under the Work Injury Benefits Act, 2007 there is a structured schedule on incapacity and the opinion of a doctor is still considered as set out under section 30 (3). She has relied inter alia on Cecilia Mwangi & Another –vs- Ruth W. Mwangi CA No. 251 of 1996 where the Court of Appeal stated;“The neurosurgeon having found as he did as set out in paragraph 11 above, there was no doubt left in the mind of any reader of the medical report that the appellant was rendered incapable of using his body from T10 downwards. There was no evidence that he could gainfully use the remaining upper torso to any meaningful extent or at all. What remained is the appellant’s evidence and the medical report which showed him as 100% paraplegic. With that in mind the learned trial judge should have found proved, the claim under loss of earning capacity. To the extent that she did not so find, she erred and it is now our duty to right that misdirection.”

35. Consequently, she submits that the trial Court should have either followed the opinions of the two doctors or given reasons for disregarding them. That by failing to direct its mind to such opinions, the court failed to take into account a relevant fact. She submits that the justification for the award is to compensate her for the risk that the disability has exposed her to. She relies on Mumias Sugar Company Limited (Supra) where the Court of appeal held as follows:“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 the 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.”

36. She submits that the general approaches by Courts are either a global sum or based on the multiplier/multiplicand formula. She submits that a global award of Kshs. 500, 000/= is fair and reasonable and has relied on the Mumias Sugar Co. Ltd (supra) where the court awarded Kshs. 500,000/= to the respondent who had sustained a 10 – 15% permanent incapacity.

1st Respondent’s Submissions before the Trial Court 37. On liability, the 1st respondent submitted that the major contradiction between its evidence and the plaintiff’s evidence was whether the Trailer was stationary or in motion. It submits that the police evidence from PW1 majorly corroborated the evidence of DW1 and that investigation officer who visited the scene and analyzed the circumstances of the accident attached credibility on the statement of DW1. It contended that the plaintiff’s attempt to cast doubt on the credibility of PW1 and DW1 was bad in law and lacked factual basis.

38. It submitted that there were facts which DW1 included in the police statement and did not include in his witness statement and vice versa. It contends that such is not an injury to the credit of the witness at all as long as those statements do not contradict. That the law of evidence allows discovery of new facts and does not restrict the witness from bringing more evidence for their case. Further, it submits that the police officers visited the scene immediately after the accident, did preliminary investigations, analyzed the recorded statements and preferred charges against the Nissan driver and not the Trailer driver.

39. It submits that in this case, it rebutted the plaintiff’s evidence hence the court was called upon to decide the case on a preponderance of evidence i.e the party bearing the burden of proof must present evidence which is more credible and convincing than that presented by the other party or which shows that the fact to be proven is more probable than not. It cited Clerks and Lindsell on Torts 20th Edn where at page 55, the author stated;“The burden of proving causation rests with the claimant in almost all instances. The claimant must adduce evidence that is more likely than not that the wrongful conduct of the defendant in fact resulted in the damage of which he complains.”

40. Further, the Respondent submitted that in Damaris Wanthi Musii –vs- Hussein Dairy Ltd & Anor (2012) eKLR, cited by the plaintiff, related to a situation where the defendant had not offered evidence. That such authority would only stand when a court is finding negligence based on the principle of res ipsa loquitor.

41. It submits that the Nissan driver was overtaking and this is illustrated by the fact that the driver survived but the passengers on the co-drivers seats (left) died instantly. It urged the court to find the 2nd respondent 100% liable and to note that he did not respond to the notice of claim and did not adduce any evidence. It also urged the court to rely on Multiple Hauliers (EA) Ltd –vs- Justus Mutua Malundu & 2 others [2017] eKLR where the High Court recognized the presumption that; he who hits another is ipso facto negligent.

42. With regard to the claim for diminished earning capacity, it submitted that the plaintiff had not adduced evidence of income or ownership of land where she used to farm. It is incredible, it contended, that a simple fracture on the right humerus would never recover at a certain time. It relied inter alia on Nihon Complex Ltd & Thomas Njoroge Kirima –vs- Joseph Kiplagat Towett (2019) eKLR where the High Court) appreciated that there is no formula for assessment of earning capacity considering that the plaintiff may only have a diminished capacity to earn employment.

43. Consequently, the 1st Respondent urged the court to consider a cumulative award for general damages and loss or earning capacity to the tune of kshs 300,000/=.

44. I have carefully considered the submissions filed by the appellant – it is submitted that the award of general damages is at the discretion of the trial court. For the appellate court to disturb the same principles are well settled the trial court must have ignored relevant factors/taken into account irrelevant factors/or the amount awarded so inordinately low/high as to be erroneous or that the trial court applied wrong principles, misapprehended the evidence. See Kemfro Africa Ltd & Anor –vs- AM Lubia & Anor (1982 – 1988) KLR, and Catholic Diocese of Kisumu –vs- Sophia Achieng Tete KSM Civil Appeal No. 284 of 2001. The court was urged to abide by Selle – Associated Motor Boat Co. Ltd (1986) 123 and re-evaluate the evidence and draw its own conclusions.

45. The issues that arise for my determination are whether the plaintiff /appellant established that the two defendant respondents were equally liable for the accident; and whether she established a case for diminished earning capacity.

46. It is not in dispute that the 2nd respondent rammed into the 1st Respondent‘s m/vehicle. The dispute is whether the 1st respondent contributed in any way in the occurrence of that event. The driver of the 1st respondent’s m/v Eric Masaku in his statement recorded on 20th March 2018 told the police that he was driving on that evening when a Matatu driving behind him tried to overtake at high speed. That he slowed down to let the Matatu overtake but that there was oncoming traffic and the Matatu was forced to swerve back to its lane behind him, in the process hitting the right corner of his trailer. He stated that as a result the two passengers on that side died on the spot while the driver survived. That he was the one who opened the door for the driver.

47. In the submissions by the appellant a lot of heat is raised out of what is said to be a second statement recorded by this driver who testified as DW1. The record shows that he adopted a statement dated 6th April 2019. I have perused the record of appeal. No such statement exists even in the record of appeal where the 1st defendants list of witnesses are captured at pages 45 to 47 and others at Pages 58 to 59. The statement is at page 46 to 47.

48. In court on cross examination the DW1 told the court that he heard what PW1. PW1 rehashed what was in the Occurrence Book and what it was that was reported by the DW1. He told the court that he never investigated the matter and that in any event it was the driver of the Matatu who was blamed for the accident and charged with the same.

49. I have considered the evidence given by DW1 and PW1 and find no contradiction. The DW1 did not contradict himself but clearly explained how the accident occurred. He was in motion. He was hit from the rear by the m/v driven by the 2nd respondent. The appellant avers that the 1st respondent’s m/v was stationary but there is no evidence to support. She said she did not see any oncoming m/v/ but saw the trailer when they were just 10m away from it.

50. There is evidence that the Matatu was damaged on the front passenger side and that is the side that hit the trailer. The PW1 told the court that investigations were carried out and the driver of the Matatu was found to blame. If indeed the m/v of the 1st respondent had been found to have been stationary, then what would have stopped the police from charging the 1st respondent’s driver? The allegation that the trailer had stalled in the middle of the road and there were no markings is denied and an explanation that is believable given. This is not a case where two m/vehicles collided. It is a case where one m/v hit another from behind while the other was in motion. In this case it is the one who hit the other who failed to keep safe distance and who was to blame. The allegation that the 1st respondent’s m/v had stalled on the road is not established and I find no reason to interfere with the finding of the subordinate court.

51. On diminished capacity to earn I reiterate the definitions set out inS J –vs- Francesco Di Nello & Anor [2015] eKLR where the Court of Appeal held distinguished the two claims loss of future earnings and loss of earning capacity. The appellant sought general damages for diminished or reduced earning capacity. The Court held that loss of earning capacity is compensated by an award in general damages, once proved. The onus is therefor on the appellant to prove that as a result of the injury sustained she was unable to earn what she was earning before. She testified that she could not farm any more, she could not wash her clothes, she could not carry heavy loads but the question is whether that is evidence that can prove loss of earning capacity.

52. I have considered the authorities cited in this regard and find there is no specific proof for loss of earning capacity, in Mumias Sugar Company Limited (above) the court held that compensation for diminution of earning capacity is awarded as part of general damages. The court was of the view that where the plaintiff is at the time of the hearing in employment but is at risk of losing that employment sometime in the future or be at the disadvantage of getting another job or an equally well-paying job in the future due to the injury.

53. In this case the court heard the testimony of the plaintiff who simply told the court that she was unable to wash her clothes or do her farm work. I have looked at the medical reports produced by the appellant and the 1st defendant. The appellant suffered fracture of the humerus around the wrist joint and other soft tissue injuries. The fracture healed and so did the other injuries. In tis my considered view that the general damages of Ksh 500,000 awarded by the learned trail magistrate were sufficient compensation for the pain and suffering sustained. There is no indication in the medical reports that the injuries were so serious as to amount to a disability that would diminish the appellant’s capacity to earn a living. It is my considered view that general damages awarded by the learned trial magistrate took into consideration the injuries sustained by the appellant.

54. In the circumstances I Find that the appeal in not merited. I find no reason to disturb the findings by the learned trail magistrate. The same is sustained.

55. The appeal is dismissed and since the respondents did not participate there will be no order as to costs.

DATED SIGNED AND DELIVERED THIS 10TH DAY OF NOVEMBER 2023Mumbua T MathekaJudgeCA MwiwaS N Ngare &Co AdvocatesKiarie Kariuki & Co AdvocatesJanet, Jackson & Susan AdvocatesJudgment HCCA 34 of 2020 Page 7 of 7