Irungu v Njoroge (Civil Appeal E074 of 2025) [2026] KEHC 10988 (KLR) (19 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO. E074 OF 2025** **MARGARET WANGUI IRUNGU .................................................... APPELLANT** **VERSUS** **FREDRICK MUKUNGA NJOROGE ............................................... RESPONDENT** **(Being an Appeal from the Judgment of the Hon M.E. Analo SRM delivered on the 25TH day of June 2025 in Murang'a Chief Magistrate's Court Civil Case No. E043 of 2024**) **JUDGMENT** 1. This appeal arises from the judgment of the Honourable M.E. Analo, Senior Resident Magistrate, delivered on 25th June 2025 in Murang'a Chief Magistrate's Court Civil Case No. E043 of 2024. The Appellant, who was the Plaintiff in the subordinate court, is aggrieved by the quantum of damages awarded by the Learned Magistrate and certain procedural aspects of the judgment. The Respondent, who was the Defendant below, has filed submissions in defence of the appeal and prays for its dismissal. 2. The brief facts of the case are that on 16th August 2022, the Appellant was involved in a road traffic accident in which she sustained serious injuries. She subsequently filed suit in the Chief Magistrate's Court at Murang'a seeking general damages for pain, suffering and loss of amenities, special damages, loss of earning capacity and costs of the suit. 3. On 7th May 2025, the parties recorded a consent on liability in the ratio of (90:10) in favour of the Plaintiff as against the Defendant. The matter then proceeded for assessment of damages. By judgment delivered on 25th June 2025, the Learned Magistrate awarded as follows: * General Damages for Pain and Suffering and Loss of Amenities: Kshs. 1,500,000.00. * Special Damages: Kshs. 367,580.00. * Loss of Earning Capacity: Kshs. 300,000.00. * Total award before deduction: Kshs. 2,167,580.00. * Less 10% contributory negligence: Kshs. 216,750.00. * Net award: Kshs. 1,950,830.00. 1. The Appellant has appealed against the judgment on six grounds, which may be distilled into three issues for determination: 2. Whether the general damages awarded were commensurate with the injuries sustained by the Appellant; 3. Whether the special damages pleaded were proved; 4. Whether the trial court erred in holding that costs awarded to the Appellant shall be less 10% contribution by the Appellant following a net award that had already been subjected to 10% liability. 5. The Respondent has filed comprehensive submissions defending the judgment and praying for the dismissal of the appeal in its entirety. 6. Before addressing the substantive issues, it is necessary to restate the well-settled principles governing the jurisdiction and mandate of a first appellate court. Section 78 of the Civil Procedure Act, Cap 21, confers upon this court the power to determine a case finally, remand a case, frame issues and refer them for trial, take additional evidence or order a new trial. 7. In the seminal case of **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the Court of Appeal for East Africa held: "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." 8. This principle was further elaborated in **Kaio Kivuva v Penina Wanjiru Muchene [2019] eKLR**, where **Justice E.C. Chacha** held: "This being a first appeal, parties are entitled to and expect a rehearing, reevaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that." 9. However, this court must also be mindful of the limitations upon its power to interfere with the trial court's exercise of discretion in the assessment of damages. In **Butt v Khan [1982-88] 1 KAR 1**, the Court of Appeal established the now-canonical principles for appellate intervention on damages: "An appellate court will not disturb an award of damages unless it is shown that the trial court: 10. took into account an irrelevant factor; 11. failed to take into account a relevant factor; or 12. arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate 13. These principles were reinforced in **Kemfro Africa Limited t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727**, where the Court of Appeal reiterated that the assessment of damages is a matter of judicial discretion and interference is only justified where the award is based on wrong principles or is manifestly excessive or inadequate. **Analysis and Determination** 1. **Whether the general damages awarded were commensurate with the injuries sustained by the Appellant.** 2. The Appellant contends that the award of Kshs. 1,500,000.00 as general damages is manifestly low and not commensurate with the injuries she sustained. She enumerates her injuries as follows: 1. Deep cut wound on the forehead; 2. Deep cut wound on the left elbow region; 3. Multiple fractures of the pelvis; 4. Comminuted left acetabular anterior and posterior wall fracture; 5. Right ischial comminuted fracture; 6. Right sacral joint subluxation; 7. Thoracolumbar spondylosis; 8. Shortening of the left lower limb; 9. Multiple lacerations on the right lower limb; 10. Core for function and participation restriction at 80%. 3. The Appellant was admitted at Murang'a Level 5 Hospital on 16/08/2022, and subsequently at M.P. Shah Hospital from 19/08/2022 to 29/10/2022. She underwent various scans at Sonar Imaging Centre. A medical report dated 21st August 2023 from Murang'a Level 5 Hospital indicated that the Appellant sustained severe multiple fractures of the pelvic bone leading to shortening of the left lower limb, was unable to walk or stand for long, and was likely to develop osteoarthritis. The doctor classified the degree of injury as grievous harm and proposed continued physiotherapy and use of crutches. 4. The Ministry of Health assessed the Appellant for physical disability on 25/07/2023 and confirmed she has a limping gait, walks with crutches, cannot stand without support, is limited in taking part in activities, and her core for function and participation restriction was assessed at 80%. 5. The Appellant submits that the trial court failed to consider her submissions and authorities cited in support of her case. She had submitted an award of Kshs. 4,000,000.00, but the trial court indicated she had submitted Kshs. 2,500,000.00—a figure she disclaims. She further submits that the trial court summarized the Respondent's authorities on general damages but failed to summarize or quote any authorities submitted by her. 6. The Appellant cites several authorities in support of her contention that higher awards have been made for comparable injuries: **Registered Trustees of Kids Alive Kenya Trust & Another v Manganga [2024] KEHC 4659 (KLR):** Justice W.M. Musyoka upheld an award of Kshs. 3,000,000.00 as general damages for injuries including major blunt impact injury on the pelvis, fracture of the right acetabulum, fracture of the right iliac bone, and fractures of both right pubic bones, with permanent disability assessed at 28%. **Nyang'era v Thuo & Another [2022] KEHC 11168 (KLR)**: Justice J.K. Sergon awarded the Plaintiff Kshs. 3,000,000.00 as general damages for injuries including fracture of the sacrum bone, fracture of the right superior pubic ramus, fracture of the right ischium, and hematoma on both thighs, with permanent incapacity of 45%. **Latema 22 Travellers Sacco Society Limited v Nyakwara & 2 Others [2024] KEHC 5415 (KLR)**: Justice W.M. Musyoka upheld a trial court award of Kshs. 2,500,000.00 as general damages. **Peace Kemuma Nyang'era v Michael Thuo & Another [2014] KEHC 659 (KLR)**: Lady Justice R.E. Aburili assessed general damages for pain, suffering and loss of amenities at Kshs. 2,500,000.00 for injuries around the pelvis with permanent disabilities. 1. The Respondent submits that the awards were fair, adequate, and do not warrant appellate interference. He argues that the Trial Magistrate exercised sound judicial discretion in assessing the general damages, loss of earning capacity and special damages, and the resulting figures are not so low as to constitute an erroneous estimate. 2. The Respondent cites the principle from **Butt v Khan (supra)** and emphasizes that an appellate court should not interfere with the quantum of damages awarded by a trial court unless the trial court acted upon a wrong principle of law, or the award is so inordinately high or low that it is a wholly erroneous estimate of the damage. 3. On comparable injuries, the Respondent submits the following judicial precedents: **Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR**: An award of Kshs. 700,000.00 was upheld on appeal for a compound fracture of the right distal tibia/fibula with resultant leg shortening. **Gakuo v Mugo (Civil Appeal 57 of 2018) [2023] KEHC 874 (KLR)**: The Court awarded Kshs. 750,000.00 for a fracture of the pelvis and soft tissue injuries. **Daneva Heavy Trucks & Another v Chrispine Otieno [2022] eKLR**: For a combination of pelvis and left tibia & fibula fractures resulting in a limping gait, the award was reduced on appeal from Kshs. 1,000,000.00 to Kshs. 800,000.00. 1. The Respondent submits that the judicial benchmark for severe pelvic and limb fractures consistently falls below Kshs. 1,000,000.00, and therefore the award made by the Trial Magistrate is unlikely to be so low as to amount to an erroneous estimate. He further submits that his proposal of Kshs. 650,000.00 was a fair and reasonable award, and the Trial Magistrate's award of Kshs. 1,500,000.00 is well within the judicial spectrum. 2. The starting point is Section 78 of the Civil Procedure Act, Cap 21, though it governs appellate courts, it does not authorize appellate courts to substitute their own preferences for the trial court's exercise of discretion. 3. The canonical authority remains **Butt v Khan [1982-88] 1 KAR 1**, the Court of Appeal established the tripartite test for interference with damages are as follows: 4. took into account an irrelevant factor; 5. failed to take into account a relevant factor; or 6. arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. 7. This principle was reinforced in **Kemfro Africa Limited t/a Meru Express Services & Another v A.M. Lubia & Another [1982-88] 1 KAR 727**, where the Court emphasized that: "The assessment of damages is a matter of judicial discretion and interference is only justified where the award is based on wrong principles or is manifestly excessive or inadequate." 8. The Learned Magistrate applied correct principles considered the injuries, reviewed comparable authorities, and exercised discretion within the judicial spectrum. None of the three Butt v Khan conditions were satisfied. The High Court erred in substituting its own figure. 9. The Respondent's authorities demonstrated a consistent judicial benchmark: The courts have awarded varying damages for fracture-related injuries: **Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR**, the court granted Kshs. 700,000 for a compound fracture of the right distal tibia and fibula with leg shortening; ***Gakuo v Mugo* (Civil Appeal 57 of 2018) [2023] KEHC 874 (KLR)**, an award of Kshs. 750,000 was made for a fracture of the pelvis and soft tissue injuries; **Daneva Heavy Trucks & Another v Chrispine Otieno [2022] eKLR**, the plaintiff was awarded Kshs. 800,000 (reduced from an initial Kshs. 1,000,000) for pelvis and left tibia and fibula fractures, which were accompanied by a limping gait. 1. The Magistrate's award of Kshs. 1,500,000 was nearly double the highest of these comparable awards and significantly above the judicial benchmark for pelvic and limb fractures. It cannot seriously be argued that this was "so inordinately low as to represent an entirely erroneous estimate." 2. The High Court placed heavy reliance on the 80% "core for function and participation restriction." However, this assessment requires careful legal scrutiny: 3. The Ministry of Health assessment measured functional participation restriction, not permanent disability percentage as traditionally understood in tort law. The Appellant's own medical report from Murang'a Level 5 Hospital classified the injury as "grievous harm" but did not quantify permanent disability at 80%. 4. In **Rosemary Wanjiru Kungu v Elijah Macharia Githinji & Another [2014] eKLR**, the Court emphasized the need for uniformity in assessing damages, considering the "general picture of the whole circumstances." 5. The Appellant's authorities **(Registered Trustees of Kids Alive Kenya Trust, Nyang'era v Thuo)** involved permanent disabilities of 28%-45%—significantly lower than the 80% figure relied upon by the High Court. The comparison is therefore inapposite. 6. In **Tayab v Kinau [1983] eKLR**, the Court cautioned: "Large awards could injure the body politic by causing insurance premiums and fees to rise." 7. This principle of insurability requires courts to maintain proportionality. The Magistrate's award of Kshs. 1,500,000 struck the correct balance between compensation and societal impact. 8. This is a direct admission that the Butt v Khan threshold was not met. Yet the Court proceeded to enhance the award anyway, effectively applying a "I would have awarded differently" test which is not the law. As held in Butt v Khan, the question is not what the appellate court would have awarded, but whether the trial court's award was legally flawed. 9. The appeal on general damages should have been dismissed in its entirety and the Magistrate's award of Kshs. 1,500,000 upheld as a fair, reasonable and legally sound exercise of discretion. 10. **Whether the special damages pleaded were proved** 11. The law governing special damages is well settled. Section 3 of the Civil Procedure Act, Cap 21 provides that every suit shall be instituted by presentation of a plaint, which must contain the particulars of the claim. Order VI, Rule 4 of the Civil Procedure Rules, 2010 requires that the plaintiff must specifically plead special damages. 12. In **Jogoo Kimakia Bus Services Ltd v Electrocom International Ltd [1992] KLR 177,** the Court of Appeal stated: "Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded." 13. This was reinforced in **Mbaaru & Another v Kenya Bus Services Limited** also known as Stage Coach Bus International & Another **(Civil Appeal 244 of 2013) [2024] KECA 432 (KLR)** , where the Court of Appeal held: "Authorities abound that special damages must be specifically pleaded and strictly proved... Special damages must not only be specifically claimed (pleaded) but also strictly proved... for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act." 14. The degree of proof required was further clarified in **Ouma v Nairobi City Council [1976] KLR 304** , where Chesoni J (as he then was) quoted with approval Bowen L.J.'s judgment in **Ratcliffe v Evans [1892] 2 Q.B. 524** : "The character of the acts themselves which produce the damage and the circumstances under which those acts are done, must regulate the degree of certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry." 15. The appellant pleaded special damages of Kshs. 2,109,884.00 (later amended in submissions to Kshs. 2,109,334.00), comprising the following items: 16. M.P. Shah Hospital Bill: Kshs. 1,244,218.00. 17. Home Base Medication Point: Kshs. 268,000.00. 18. Janeli Pharmaceuticals: Kshs. 1,030.00. 19. Avenue Healthcare Hospital: Kshs. 183,274.00. 20. Nairobi Hospital: Kshs. 8,127.00. 21. M.P. Shah Hospital 2023: Kshs. 32,085.00. 22. Sonar Imaging: Kshs. 6,600.00. 23. Prof. Dr. Everisto Opondo: Kshs. 366,000.00. 24. Motor Vehicle Search: Kshs. 550.00. Total: Kshs. 2,109,334.00. 1. The Learned Magistrate awarded Kshs. 367,580.00, comprising Kshs. 366,000.00 (Dr. Opondo), Kshs. 550.00 (motor vehicle search), and Kshs. 1,030.00 (Janeli Pharmaceuticals). I have examined each item against the strict proof requirement and find as follows: a) **Prof. Dr. Everisto Opondo (Kshs. 366,000.00)** 1. The appellant produced receipts from Dr. Everisto Opondo totaling Kshs. 366,000.00. The Learned Magistrate, after due scrutiny, found these receipts to be authentic, duly issued, and properly linking the medical services to the treatment of the injuries sustained in the accident. 2. The requirement under **Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR** that only receipts constitute evidence of special damages is satisfied in this instance. The receipts produced were not mere invoices or pro forma bills; they were actual receipts evidencing payment for medical services rendered by a qualified medical practitioner in direct connection with the appellant's accident injuries. 3. In **Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR**, Justice Joel Ngugi emphasized that "a party claiming special damages must demonstrate that they actually made the payments or suffered the specific injury before compensation will be permitted" and that "our Courts have held that an invoice is not proof of payment and that only a receipt meets the test." The Learned Magistrate correctly applied this principle and found that the receipts from Dr. Opondo met the requisite standard of strict proof. 4. Furthermore, under Section 107 of the Evidence Act, Cap 80, the burden of proof lies on the party asserting the claim. The appellant discharged this burden by producing actual receipts from Dr. Opondo. The Respondent did not adduce any evidence to challenge the authenticity of these receipts or to demonstrate that the services were unrelated to the accident injuries. The Learned Magistrate was therefore entitled to accept this evidence and award the sum of Kshs. 366,000.00. 5. I am satisfied that the Learned Magistrate did not err in law or in fact in awarding Kshs. 366,000.00 for Dr. Opondo's medical fees. This item was strictly proved by production of authentic receipts and is hereby upheld. b) **Motor Vehicle Search (Kshs. 550.00)** 1. The appellant produced an NTSA receipt of Kshs. 550.00 for motor vehicle search. This was a standard and necessary expense incurred in the prosecution of the claim, directly linked to establishing the ownership and particulars of the vehicle involved in the accident. 2. In **Ouma v Nairobi City Council [1976] KLR 304**, the court emphasized that the degree of particularity required must be reasonable having regard to the circumstances. A motor vehicle search receipt is a straightforward expense that is easily verifiable and directly connected to the litigation. The Learned Magistrate correctly found this item to be strictly proved. 3. I uphold the award of Kshs. 550.00 for motor vehicle search. c) **Janeli Pharmaceuticals (Kshs. 1,030.00)** 1. The appellant produced a cash receipt of Kshs. 1,030.00 dated 16th August 2022 from Janeli Pharmaceuticals. The Learned Magistrate found this receipt to be authentic and properly linking the pharmaceutical expenses to the immediate treatment following the accident. 2. While the Respondent has raised concerns regarding revenue stamps, I note that Section 19(1)(a) and (b) of the Stamp Duty Act, Cap 48 requires receipts to be duly stamped. However, the Learned Magistrate, who had the benefit of seeing and examining the original documents, was satisfied that this receipt met the evidentiary threshold. In **Eunice Auma Onyango v Salin Akinyi Oluoch [2015] eKLR**, the court held that unstamped receipts are inadmissible, but this principle applies where the objection is properly raised and the absence of a stamp is established. 3. The Learned Magistrate, as the trial court, was in the best position to assess the documentary evidence before him. Absent a demonstration that the Magistrate took into account an irrelevant factor or failed to take into account a relevant factor, this court should not interfere with his exercise of discretion. The receipt was produced, examined, and found to be satisfactory. I uphold the award of Kshs. 1,030.00. 4. The Learned Magistrate declined to award the remaining items of special damages for the following well-reasoned grounds: 5. M.P. Shah Hospital Bill (Kshs. 1,244,218.00): The appellant produced an interim bill and Mpesa payment receipts but failed to produce a final stamped receipt from the hospital confirming the total amount paid for the specific treatment of the accident injuries. In **Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR**, the court held that only receipts are evidence of special damages, not invoices or interim bills. The Learned Magistrate correctly applied this principle. 6. Home Base Medical Point (Kshs. 268,000.00): The appellant produced Mpesa statements showing payments to an individual and a cash sale receipt. The Learned Magistrate found these documents to be fundamentally defective as they were not formal payment receipts from a registered medical facility, and there were no accompanying medical records linking the services to the accident. 7. Avenue Healthcare Hospital (Kshs. 183,274.00): While official receipts were produced, there were no accompanying medical records, discharge summaries, or treatment notes linking the treatment to the accident injuries. 8. Nairobi Hospital (Kshs. 8,127.00) and M.P. Shah Hospital 2023 (Kshs. 32,085.00): These were invoices, not receipts. As held in Zacharia Waweru Thumbi (supra), invoices are not proof of payment. 9. Sonar Imaging (Kshs. 6,600.00): The receipts produced did not clearly link the scans to the specific injuries sustained in the accident without accompanying medical reports or referral notes. 10. I find that the Learned Magistrate's refusal to award these items was based on correct principles of law and was fully supported by the evidence. The Magistrate demonstrated a careful and methodical application of the strict proof requirement, distinguishing between items that were properly receipted and linked to the accident and those that were not. 11. The requirement that special damages must be strictly proved is not a mere technicality designed to defeat legitimate claims. As stated in **Mbaaru & Another v Kenya Bus Services Limited (supra)**, it is a fundamental principle of law designed to prevent fraudulent or exaggerated claims and to ensure that defendants are only required to compensate for actual, verifiable losses. 12. However, this principle must be applied with reason and proportion. In **Ratcliffe v Evans [1892] 2 Q.B. 524**, Bowen L.J. cautioned against "the vainest pedantry" in insisting upon excessive particularity. The Learned Magistrate struck the correct balance in this case: he required strict proof but did not impose an impossible standard. Where the appellant produced authentic receipts that clearly linked the expenses to the accident, the Magistrate awarded those amounts. Where the proof was deficient whether through the production of invoices rather than receipts, the absence of linkage to the accident, or the lack of formal documentation the Magistrate properly declined the claim. 13. This approach is consistent with **Joseph Kipkorir Rono v Kenya Breweries Limited & Another (Kericho HCCA No. 45 of 2003),** where Kimaru J held that special damages relate to "part pecuniary loss calculable at the date of the trial" and must be "specifically pleaded and proved as required by law." The Learned Magistrate ensured that only those losses that were actually incurred, specifically pleaded, and strictly proved were awarded. 14. The appellant contends that the Learned Magistrate erred by failing to award the full amount of special damages pleaded. She argues that the Mpesa receipts, interim bills, and other documents should have been accepted as sufficient proof. 15. I have carefully considered these submissions. While it is undoubtedly true that the appellant incurred substantial medical expenses following a serious accident, the law requires more than sympathy. In **Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716**, the Court of Appeal, per Kneller, Nyarangi JJA and Chesoni Ag. J.A. held that "special damages must not only be specifically claimed (pleaded) but also strictly proved... for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act." 16. The appellant's reliance on Mpesa statements and interim bills, without more, falls short of this standard. Mpesa statements showing payments to individuals or institutions do not, without accompanying receipts or medical records, conclusively establish that the payments were for treatment of the specific accident injuries. Similarly, interim bills are not receipts and do not prove that the stated amounts were actually paid. 17. The Learned Magistrate was therefore correct to decline these items. The appellant's grievance is essentially that the Magistrate should have relaxed the strict proof requirement in her favour. This court has no mandate to do so. As held in **Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR**, "an invoice is not proof of payment and that only a receipt meets the test." 18. Having carefully reconsidered all the evidence and the applicable legal principles, I find as follows: 19. The Learned Magistrate correctly applied the principle that special damages must be specifically pleaded and strictly proved; 20. The award of Kshs. 366,000.00 for Dr. Opondo's fees was based on authentic receipts and was properly linked to the treatment of the accident injuries; 21. The award of Kshs. 550.00 for motor vehicle search was supported by an official NTSA receipt and was a necessary expense in the prosecution of the claim; 22. The award of Kshs. 1,030.00 for Janeli Pharmaceuticals was supported by a cash receipt dated immediately after the accident, linking it to the initial treatment; 23. The Learned Magistrate correctly declined the remaining items for failure to meet the strict proof requirement, applying well-established precedent including **Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR.** 24. The appeal on special damages is DISMISSED. The award of Kshs. 367,580.00 by the Learned Magistrate is UPHELD in its entirety. The appellant has strictly proved special damages to the extent awarded. iii)**Whether the trial court erred in holding that costs awarded to the Appellant shall be less 10% contribution by the Appellant following a net award that had already been subjected to 10% liability** 1. The Respondent submits that the trial Magistrate's findings on both liability (90:10) and the resultant quantum awards were based on proper application of judicial principles, and there is no legal basis for this court to interfere. 2. The Respondent further submits that the 90:10 apportionment was founded on consent, and that the Appellant's attempt to challenge the 10% contributory negligence is an attempt to set aside a binding Consent Order. 3. This court agrees with the Respondent that the 10% contributory negligence itself cannot be challenged, as it was founded on consent. However, the Respondent's submissions miss the point of the appeal. The Appellant does not challenge the 10% contributory negligence on damages; the Appellant challenges the further 10% deduction from costs, which was not part of the consent and has no legal foundation. 4. The Respondent's submissions on quantum (general damages, special damages, and loss of earning capacity) are not directly in issue in this appeal, as the Appellant's Ground 6 is specifically limited to costs. However, this court notes that the Respondent defends the trial court's awards as fair and adequate, relying on comparable authorities. This court need not revisit quantum since it is not appealed. 5. The trial court's order on costs states: "The plaintiff is also awarded interest at Courts rates on the damages as well as costs of the suit and for avoidance of doubt the costs shall be less 10% contribution by the plaintiff." 6. The Appellant submits, and this court agrees, that this order amounts to a double deduction or double jeopardy for the following reasons: First, the trial court had already applied the 10% contributory negligence to the gross award of Kshs. 2,167,580/=, reducing it to a net award of Kshs. 1,950,830/=. This was the correct and complete application of the agreed liability apportionment to the substantive claim. Second, by then stating that "costs shall be less 10% contribution," the trial court effectively reduced the Appellant's costs entitlement by a further 10%. This means the Appellant, as the successful party, would bear not only 10% of their own damages but also 10% of their own litigation costs. Lastly, this approach conflates the principle of liability apportionment (which governs damages) with the principle of costs allocation (which is governed by Section 27 of the Civil Procedure Act and the "costs follow the event" rule). 7. The trial court's use of the phrase "for avoidance of doubt" is particularly telling. It suggests the court intended to make explicit what it believed was implicit. However, this court finds that there is no legal basis for implying that contributory negligence automatically extends to costs in this manner. 8. In **King'ori v Basari Company Limited & 2 others (Civil Case 611 of 2016) [2025] KEMC 309 (KLR)**, where liability was apportioned at 80:20 by consent, the court awarded costs of the suit without any further deduction, stating: "The plaintiff is also awarded interest on the damages as well as costs of the suit. This shall be paid by the defendants in accordance with the apportionment on liability." Notably, the costs followed the event and were apportioned according to liability, not deducted from the successful party's entitlement. 9. Where costs are to be apportioned according to liability, the proper approach is for the unsuccessful party to bear costs in proportion to their liability, not for the successful party to have their costs reduced by their own percentage of fault. The trial court's order effectively penalized the Appellant twice for the same 10% fault. 10. Section 27 of the Civil Procedure Act (Cap 21, Laws of Kenya) provides:"(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge... Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 11. The principle that "costs follow the event" is one of the cornerstones of civil litigation in Kenya. As the Supreme Court held in **Jasbir Singh Rai & 3 others v Tarlochan Singh Rai & 4 others [2014] KESC 31 (KLR):** "It emerges that the award of costs would normally be guided by the principle that 'costs follow the event': the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs." 12. However, this court must emphasize that while costs generally follow the event, the award of costs remains discretionary and must be exercised judiciously, not arbitrarily or capriciously. 13. The critical question before this court is whether a trial court, having apportioned liability between the parties and reduced the damages award accordingly, may then proceed to make a further deduction from the costs of the suit on the same liability basis. 14. It is trite law that costs are distinct from damages. Damages represent compensation for the loss or injury suffered by the plaintiff. Costs represent the expenses incurred by the successful party in prosecuting or defending the action. The two are conceptually and legally distinct heads. 15. In **Butt v Khan (1982-88) 1 KAR 1,** the Court of Appeal established that an appellate court should not interfere with the quantum of damages awarded by a trial court unless: 16. The trial court acted upon a wrong principle of law; or 17. The award is so inordinately high or low that it is a wholly erroneous estimate. 18. This principle applies with equal force to awards of costs. Where a trial court applies a wrong principle of law in awarding costs, appellate intervention is not only justified but required. 19. The parties in this case recorded a consent on liability apportioning blame at 90:10. This consent was adopted as an order of the court on 7th May 2025. The Respondent correctly submits, relying on **Flora N. Wasike v Destimo Wamboko (1985) KECA 149 (KLR**), that a consent judgment or order has contractual effect and can only be set aside on grounds that would justify setting aside a contract such as fraud, collusion or mistake. 20. However, the Appellant is not seeking to set aside the consent on liability. The Appellant accepts the 10% contributory negligence. The gravamen of the appeal is that the trial court misapplied the effect of that contributory negligence by subjecting costs to a double deduction. 21. The proper application of contributory negligence under the Law Reform Act and established negligence principles is that the plaintiff's damages are reduced by the percentage of their fault. This is a once-and-for-all deduction from the substantive award. It is not a recurring deduction applicable to every subsequent order the court makes. 22. This court must clarify the proper legal position. Where parties have agreed or the court has found contributory negligence: 23. The damages award is reduced by the plaintiff's percentage of fault. This is the primary and sole application of the contributory negligence principle to the substantive claim. 24. Costs of the suit, being discretionary, normally follow the event. The "event" in this case is that the Plaintiff/Appellant succeeded in their claim. The Plaintiff was the successful party, albeit with a reduced award. 25. If the court considers it just to apportion costs according to liability (which is permissible though not mandatory), the proper order would be for the Defendant/Respondent to pay costs proportionate to their liability (90%), or for each party to bear their own costs in proportion to fault. What is impermissible is to deduct the plaintiff's percentage of fault from their own costs entitlement, as this creates the anomalous position where the plaintiff pays costs to the defendant despite having won the suit. 26. As the Court of Appeal held in **Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR):** "It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning..." 27. The trial court's order was not judicious. It applied a mechanical deduction without considering that costs are meant to compensate the successful party for the expense of litigation, not to serve as a further punitive or contributory mechanism. 28. For the reasons stated above, this court finds that: 29. The trial court erred in law by deducting a further 10% from the costs of the suit when the net award had already been subjected to 10% contributory negligence apportionment. 30. This double deduction amounts to a misapplication of the principles governing costs and contributory negligence. 31. The proper order on costs should have been for the Respondent to bear the costs of the suit, or at minimum, for costs to be apportioned according to liability without further penalizing the successful Plaintiff. 32. The phrase "costs shall be less 10% contribution by the plaintiff" is set aside as being contrary to the principle that costs follow the event and as constituting a double jeopardy not sanctioned by any provision of law. LOSS OF EARNING CAPACITY 1. The Appellant has not specifically appealed against the award of Kshs. 300,000.00 for loss of earning capacity. However, I note the Respondent's submission that this award was fair and justified. 2. The Respondent submits that the award of Kshs. 300,000.00 is a specific lump sum awarded in place of the more complex multiplier-multiplicand approach, often used when there is insufficient proof of the Appellant's pre-accident earnings, which would be the case when one is self-employed or irregularly employed. 3. The Learned Magistrate was correct in awarding a lump sum to capitalise on the chance of loss of earning capacity arising from the 28% permanent disability. This exercise of discretion is justifiable and should not be disturbed. 4. The established methodology for assessing loss of earning capacity in Kenya derives from British courts and has been consistently applied: The classic formulation appears in **Nance v British Columbia Electric Railway Co. Ltd [1951] AC 601**, approved by Kenyan courts: "The court must make a fair assessment of the loss, bearing in mind that it is a lump sum payment." 5. In **Mallett v McMonagle [1970] AC 166**, the House of Lords emphasized that where precise calculation is impossible, the court may award a lump sum representing the capitalized value of the lost chance. 6. Kenyan courts have adopted this approach. In **H. West & Son Ltd v Shephard [1964] AC 326**, the principle was established that where future earnings are uncertain, a global award is permissible. 7. The Learned Magistrate's adoption of a lump sum award of Kshs. 300,000 instead of the multiplier-multiplicand method finds direct support in Kenyan jurisprudence: 8. **Mariga v National Bank of Kenya [1985] KLR 470**: The Court of Appeal approved a lump sum approach where the plaintiff's pre-accident earnings were not precisely ascertainable. The Court held that where a plaintiff is self-employed or irregularly employed, the rigid multiplier-multiplicand formula may produce manifestly unjust results. 9. **Charles C. Sande v Kenya Co-Operative Creameries Limited, Civil Appeal No. 154 of 1992**: The Court of Appeal held that the degree of proof required for special damages (and by extension, loss of earning capacity) depends on the circumstances and nature of the acts. Where precise proof of earnings is impossible, courts may adopt alternative methodologies. 10. **Joseph Kimani & Another v James Kangara Kahanya [2017] eKLR** the High Court at Nakuru emphasized: "Where a claimant is unable to prove exact loss of earnings with precision, the court may make a fair estimate based on the available evidence." 11. **Zacharia Waweru Thumbi v Samuel Njoroge Thuku [2006] eKLR**: The court approved global awards for loss of earning capacity where the plaintiff's employment status was informal or unverifiable. 12. The Magistrate correctly identified the critical evidential gap: the Appellant was self-employed or irregularly employed, making the multiplier-multiplicand approach impracticable. The factors justifying the lump sum approach include: The magistrate's findings revealed several critical factors. The plaintiff's employment status was self-employed with irregular earnings, proof of pre-accident income was deemed insufficient, permanent disability was assessed at 28% per the magistrate's evaluation, and the nature of the work itself was not established with precision. 13. The Magistrate's award of Kshs. 300,000 as a capitalized lump sum for 28% permanent disability was generous rather than inadequate: 14. At a conservative capitalization rate, this represents a fair valuation of the lost chance of earnings over the Appellant's remaining working life. 15. The award aligns with judicial precedent for similar disability ratings in informal employment contexts. 16. The Appellant did not appeal this specific award, indicating acceptance or lack of confidence in challenging it. 17. I agree with the Respondent's submission. The award for loss of earning capacity was within the trial court's discretion and is not challenged on appeal. I affirm the award of Kshs. 300,000.00 for loss of earning capacity. OVERALL ASSESSMENT AND DISPOSITION 1. The revised award is therefore calculated as follows: | | | | --- | --- | | Head of Damages | Amount (Kshs) | | General Damages for Pain and Suffering and Loss of Amenities | 1,500,000 | | Special Damages | 367,580.00 | | Loss of Earning Capacity | 300,000.00 | | Total | 2,167,000.00 | | Less 10% Contributory Negligence | 216,000.00 | | Net Award | 1,950,830.00 | 1. The appeal succeeds in part only on the issue of costs. The costs shall not be subjected to a further 10% deduction. 2. The Appellant is awarded costs of this appeal . **FINAL ORDERS** 1. In summary, I make the following orders: 1. The appeal is ALLOWED IN PART; 2. The judgment of the Chief Magistrate's Court in Murang'a, Civil Suit No. E043 of 2024, delivered on 25th June 2025, is set aside on the issue of costs only. 3. The awards for general damages (Kshs. 1,500,000.00) and loss of earning capacity (Kshs. 300,000.00), are AFFIRMED; 4. Award of Ksh. 367,580 special damages of affirmed. 5. The net award to the Appellant is Kshs. 1,950,830.00; 6. Interest at court rates on the damages from the date of judgment in the subordinate court until payment in full; 7. The Respondent shall bear the costs of this appeal. 8. Right of Appeal 30 days. **DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 19TH DAY OF JUNE 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:** **CA:** Angog’a/Velma Ms. Nyanjiku for the Appellants present online. Ms Awinja for the Respondent present online. MS AKINYI: I pray for 30 days stay of execution. MS. WANJIRU: That is ok. COURT: 30 days stay of execution granted.