Matuura Investment Ltd a.k.a Matula Investment & another v Kuira (Civil Appeal E033 of 2024) [2026] KEHC 10816 (KLR) (13 July 2026) (Judgment)

Matuura Investment Ltd a.k.a Matula Investment & another v Kuira (Civil Appeal E033 of 2024) [2026] KEHC 10816 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEHC 10816 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E033 of 2024 PN Gichohi, J July 13, 2026 Between Matuura Investment Limited a.k.a Matula Investment 1st Appellant Mwangi Ndirangu 2nd Appellant and Charles Munyora Kuira Respondent (Being an appeal from the judgment and Decree of Hon. Bildad Ochieng Chief Magistrate Nakuru , in CMCC No. E1342 of 2021 delivered on 22nd of February, 2024) Judgment 1.The background of this Appeal is that in a Plaint dated 8th December , 2021, the Respondent (Plaintiff in Nakuru Chief Magistrate’s Court Civil Case No. 1342 of 2021) sued the Appellants jointly and/or severally as the lawful registered , registered and/or beneficial owner (s) of M/Vehicle Registration Number KCL-600V Toyota Harrier. 2.The Respondent pleaded that he was lawfully riding motorcycle registration number KMDH- O18T TVS FM 342Y along Kinuthia Mbugua Road on 3rd June 2021 when the 2nd Appellant so carelessly, negligently and or recklessly dove said motor vehicle that he caused it said motor vehicle to collide with the Respondents motor cycle thus causing Respondent serious bodily injuries. 3.He blamed the 2nd Appellant for causing the accident as particularised in paragraph four (4) of the Plaint where he also pleaded the injuries he sustained as a result of that accused. He therefore prayed for:-a.General damages for pain and suffering.b.General damages for diminution and/or loss of Future Earning Capacity.c.Loss of Income/ Earnings at Kshs. 24,000/= per month (and or minimum wage and or any other sum) for such period /time that the court shall deem fit.d.Costs of future medication and or treatment.e.Special damages of Kshs. 57,650/=.f.Costs of the suit.g.Interests on all the above at court rtes.h.Any other relief that the court would might deem fit to grant. 4.In their Statement of Defence dated 8th January 2022, the Appellants generally denied the claim but on without prejudice baies, they pleaded that if an accident occurred as alleged , and which they denied, then it was entirely caused and/or substantially contributed to by the negligence on the part of the Respondent. They denied each and every prayer claim for the leading to the damages sought , otherwise putting the Respondent to strict proof. 5.In its judgment dated 22/2/2024, the trial court entered judgment in favour of the Respondent against the Appellants jointly severally as follows: Liability in the ratio 90:10 . General damages for pain and suffering- Kshs. 700,000.00. General damages for loss of income /earnings- Kshs. 300,000.00. Special damages of Kshs. 57,650/=. Costs and interest at court rates. 6.Aggrieved by this decision the Appellants filed this appeal vide a Memorandum of Appeal dated 7th March 2024 on Twelve (12) grounds now condensed into four (4) that:-1.The learned trial magistrate erred in law and in fact in apportioning liability at 90: 10 despite the evidence that the Respondent was overtaking the Appellants’ vehicle at a road junction.2.The learned trial magistrate erred in law and in fact in failing to find that the Respondent had failed to make out his case and therefore dismiss the same.3.The learned trial magistrate erred and misdirected himself in law and in fact by awarding damages that were manifestly excessive.4.The learned trial magistrate erred and fact in awarding loss of income /earnings in absence of evidence that met the threshold for such award. 7.The Appellants therefore prayed that :- The Judgment and Decree be quashed and/or set aside The Court be pleased to find that the Respondent was substantially culpable for the accident for overtaking at a junction or at a place vehicle were likely to turn and therefore apportion him a higher percentage of contribution. This court be pleased to re-assess and reduce the awards of the general and special damages under the head of of damages awarded. 8.Pursuant to the directions issued by this Court on 5/11/2025, the Appeal was canvassed by way of written submissions. The Appellants submissions dated 3/9/2025 were deemed as duly filed . The Respondent was to be served within 3 days so as to file and serve his within 30 days of service. Compliance was to be on 26th January 2026 but due to none- attendance by parties on the stated date, compliance by both parties was confirmed on 11th February 2026. Appellant’s Submissions 9.On liability, it was submitted that the Respondent failed to produce evidence to show the point of impact so as to prove that that the motor vehicle was joining a feeder when the accident occurred ; any photographic evidence of motor vehicle inspection report to show where the point of impact occurred’. 10.It was further submitted that through PW3 testified as a witness for the Respondent, his name did not appear in the Police Abstract. Further that there was no evidence to place PW3 at scene of the accident and therefore, the trial court erred in taking PW3’s word of mouth. 11.It was further submitted that the police officer who testified was not the investigating officer and further , he did not have the police file to help the court determine which party was to blame for the accident and therefore, the trial court ought to have dismissed the Respondent’s case for lack of sufficient evidence. In support of those arguments, the Respondents cited the decision by Mulwa J in the case of Samuel Irungu Njuguna vs Francis Kibe & another [2016]eKLR, and further, the High Court decision in Mwema Musyoka v Paulstone Shamwema Sheli [2020]eKLR. 12.Further it was submitted that no charge sheet or notice of intention to prosecute the Respondent was tendered to show that the driver of M/Vehicle Registration Number KCL 600V was indeed liable for the accident. In light of the foregoing, this court was urged to dismiss the Response’s case with costs to the Appellants. 13.It was however submitted that if this Court finds that the Respondent had proved its case against the Appellants, then with the Appellant and the Respondent being the only ones at the scene of accident, and with the two having given conflicting evidence of how the accident occurred, then both of them were equally to blame for the accident. 14.In support, the Appellants cited several cases including the Court of Appeal decision in Hussein Omar Farah v Lento Agencies [2006] eKLR (Nairobi Civil Appeal No. 34 of 20005) and urged the Court to apportion find liability at 50:50 between the parties. 15.On the award of damages, the Appellant submitted that the trial court only considered submissions by the Respondent, hence not considering comparable awards. 16.He therefore submitted that an award of Kshs. 400,000/= would suffice for the injuries sustained by the Respondents . In support, the Appellant cited the case of:-t Damaris Ombati v Moses Mogoko & another [2019]eKLR where the ward of Kshs. 800,000/- for the Claimant who sustained tenderness on the neck, lower back, anterior chest wall and abdomen , cut wound on the scalp and a fracture of the right patella was set aside and substituted with an award of Kshs. 350,000/-. Agroline Hauliers Limited & another v Michael Obongo Kisemba [2015] eKLR where High Court substituted an award of Kshs. 600,000 /- with an award of Kshs. 400,000/= for the Respondent who had sustained a contused neck, chest , left hand and swollen and a fracture of the left patella. Kenfreght East Africa Limited v Galu [2024] KEHC 5134 (KLR) where the High Court substituted the award of Kshs. 500,000/= with Kshs. 400,000/= for the Appellant who had sustained fracture of the left patella bone and fracture of the distal 1st phalanx left foot with nail damage. 17.On loss of income, Appellant cited several cases including SJ v Francesco Di Nelio & another (2015) eKLR where it was held that there is a distinction in “Claims under the heads of loss of future earnings and loss of earning capacity and Loss of income...” 18.The Appellant therefore submitted that the Appellant failed to adduce evidence to prove the alleged income of Kshs. 24,000/= and further, the final medical report did not guide the court on the period of disability to warrant the award for loss of income. 19.Arguing that the loss of income or future earnings is compensated for real assessable loss proved by evidence, it was submitted that with the Respondent having failed to prove damages under this head, the trial court erred in awarding damages under that head. The Appellants therefore urged the court to allow the appeal as prayed in the Memorandum of Appeal. Respondents’ Submissions dated 12th January, 2026. 20.On liability, and after emphasizing on the principles applicable in such an appeal as set out by he Court of appeal in Susan Munyi v Kesear Shiani [2013] eKLR and John Wambua v Mathew Makau Mwololo & another [2020] EKLR, it was submitted that contrary to submissions by the Appellant, the trial court aptly summarized the evidence adduced by the parties and arrived at the finding that the Respondent was overtaking the motor vehicle when the said vehicle suddenly turned right without indicating thus hitting the motor cycle, a fact supported by PW3, and conceded by DW1 that he indeed intended to exit the road and enter the main gate of the church who on the right side hence the collision with the motor cycle on the right lane. 21.Consequently, the Respondents submitted that the argument by the Appellants that the Respondent did not adduce evidence as to how the accident occurred was untenable. In support, reliance was placed on the Court of Appeal decision in John Wambua v Mathew Mwololo & another [2020] eKLR that an appellate court must accord due respect to factual findings by the court and will be circumspect and slow to disturb them, especially where the trial court has weighed the credibility of witnesses as done by the trial court in this case. 22.Regarding the Appellants’ argument that PW3 did not record a statement with the police, it was reiterated that the Respondent submitted on the same before the trail court that there is no legal or mandatory requirement for that evidence to be admissible in a traffic case. Therefore, the Respondent urged this court to uphold the trial court’s finding. 23.Regarding the argument that liability should have apportioned at 50:50 between the parties, it was submitted with the evidence on record as to how the accident occurred, the argument is untenable. In support, reliance was placed on John Wambua (supra). 24.On quantum, reliance was placed on John Wambua (supra) and in this case, it was submitted that the award of Kshs. 700,000/= was made by the trial court after putting consideration to the seriousness of the injuries and the material presented before court. Therefore, this court was urged to uphold the award. 25.On damages for loss of earnings/income, it was submitted that the court should take judicial notice the nature of boda boda operators in Kenya particularly that they do not issue receipts and therefore, it would be impactable to expect the Respondent to have availed such documents as explained by the Respondent during trial. Consequently, the trial court’s decision to determine the award in the manner it deed cannot be faulted. 26.In conclusion, the Respondent urged this court to uphold the judgement by the trial court and dismiss the appeal herein with costs. Analysis and Determination 27.This being a first appeal, this Court is obligated to re-evaluate and re-appraise the evidence adduced in the trial court in order to arrive at its own independent conclusion taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified- (Selle vs. Associated Motor Boat Company Ltd [1968] EA 123). 28.From the Memorandum of Appeal and the submissions by parties, the issues that arise for determination are both on liability and quantum. 29.On liability, the evidence of Chares Munyora Kuira (Respondent) was that he was riding his motor cycle behind the 2nd Appellant’s vehicle when he decided to overtake it. However , without warning or indication, the 2nd Appellant turned to the right and hit the Respondent’s motor cycle. 30.In his statemen dated 8th December 2021, Gershon Gitau (PW3 ) deponed that witnessed the accident. He blamed the driver of the subject motor vehicle for without any indication, the driver made a right turn near Catholic Church and hit the motor cycle. 31.On the other hand, the 2nd Appellant’s statement was that he was driving his motor vehicle and was ahead of the Respondent who was riding the motor cycle. The 2nd Appellant indicated to turn to the to the right to enter the church gate but suddenly, the motorcycle overtook him thus ramming onto the 2nd Appellant’s motor vehicle causing damage on the vehicle’s right side. 32.In his judgments, the trial court held:-According to the plaintiff he was overtaking the Toyota Harrier on his motor bike when the driver suddenly turned right without indicating and hit his motor bike. His evidence found support in that of an eye witness [PW3] who confirmed that the driver of the vehicle in issue made an abrupt right turn when the motor bike was almost completing overtaking it. The driver of the vehicle[DW3] concede that indeed he intended to enter the gate of the church on the right hand side of the road when he collided with motor bike and maintained that he had indicated his intention beforehand. In my considered view DW2 substantially contributed to the occurrence of the accident and consequently, I apportion liability at the ratio of 90:10.” 33.That was a finding of fact by the court that saw and heard witnesses as they testified. This s court is satisfied with that finding and therefore, there is no reason to interfere with it. The finding of liability is upheld. 34.On the award of pain and suffering, the medical report by DR. Wellington Kiamba dated 19th October, 2021 shows that the Respondent sustained Fracture of the left patella, soft tissue injuries on left leg and soft tissue on left ankle joint. He was managed from 3rd June 2021 to 11th June 2021. Open reduction was done and internal fixation was done with tension binding wire. Back slab plaster was applied and the plaster was removed on 17th August 2021. The doctor opined that that the Respondent would eventually develop traumatic osteoarthritis of the left ankle. 35.In awarding the Respondent general damages, the trial court took into consideration the nurture of injuries, the degree thereof that the permanent incapacity was 15 %. degree and held:-“The Plaintiff counsel proposed an award of Kshs. 900,000/= as adequate compensation to the plaintiff and availed as useful guides, the decided case of Bildad Onditi & another v Belinda Atieno Onyuka [2013]eKLR wherein High Court awarded Kshs. 750,000/= under this limb.Defence counsel on the other hand proposed Kshs. 200,000/= as reasonable compensation in general damages for pain and suffering and relied on the case of John Kosgey & another vs Duncan Kiplagat [2013]eKLR.Taking into account the nature and extent of injuries in relation to the awards made by the court in similar cases, I am satisfied and find that an award of Kshs. 700,000/= is adequate compensation.” 36.In the circumstances , and upon perusal of submissions by the parties before the trial court, the Appellant’s contention that the trial court only considered submissions by the Respondent, hence did not considering comparable awards is not factual 37.It is now settled that an award of general damages is discretionary and that the Appellate court should be slow to interfere with such discretion. Indeed, the Court of Appeal in Catholic Diocese of Kisumu v Tete [2004] eKLR , had this to say:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate.” 38.In this case, the court has considered the case law cited by the parties in this appeal. It is not fatal that the caselaw cited by the Appellant in this appeal was not cited before the trial court. It is trite that comparable awards should be based on comparable injuries. 39.It is a fact that the injuries sustained by the Respondent were fracture of the patella and soft tissue injuries on the left leg, left ankle joint. These injuries are more or less similar to those sustained in Agroline Hauliers Limited & another (supra). In the circumstances, this court finds that the award of Kshs. 700,000/= by the trial court excessive and unjustified. It is substituted with an award of Kshs. 400,000/=. 40.The Respondent’s claimed for “ General damages for diminution and/or loss of Future Earning Capacity and also Loss of Income/ Earnings at Kshs. 24,000/= per month (and or minimum wage and or any other sum) for such period /time that the court shall deem fit.” 41.In its judgment, the trial court held:-“[b]Damages for loss of income/earnings; the plaintiff ‘s evidence that he has never resumed work since he was involved in accident is corroborated by Gr. Kiamba’s final medical -legal re[ort when he noted that the plaintiff will never resume his usual duties of boda boda operation due to restricted movement of the knee joint resulting to reduction of the function of the leg. The doctor awarded permanent disability of 15 % .The plaintiff alleged he used to earn Kshs. 24,000/= pm but failed to produce any documentary evidence in support of this. In the circumstances a global award suffices and in my considered view an award of Kshs. 300,000/= is fair and reasonable.” 42.From the above argument, it is apparent that the trial court took the two heads as one and the same yet they are not. Indeed, the Court of Appeal in Tile & Carpet Center Warehouse v Okello (Civil Appeal 74 of 2019) [2022] KECA 5 (KLR),distinguished between loss of earning capacity and loss of earnings thus;- “Loss of earning capacity, as opposed to loss of earning which must be specifically pleaded and strictly proved, falls within the category of general damages but must also be proved on a balance of probabilities. See CECILIA W. MWANGI & another v RUTH W. MWANGI [1997] eKLR. In S J v Francesco Di Nello & another [2015] eKLR, this Court held that: Loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in FAIRLEY V JOHN THOMSON LTD [1973] 2 LLYOD’S LAW REPORTS 40 at pg. 14 wherein Lord Denning M.R. said 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 earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.” 43.In this case, there was no dispute that the Respondent was a boda boda rider but though he pleaded so, he had no document prove his earnings per month and therefore, there is no prove of loss of income or loss of earning. What came out is that due to the injuries resulting from the accident, the Respondent never resumed work and , with permanent disability of 15 % , he will never resume his usual duties of boda boda operations as noted by Dr. Kiamba. That means therefore, that the Respondent lost earning capacity due to restricted movement of the knee joint resulting to reduction of the function of the leg. 44.Applying these principles in Tile & Carpet Center Warehouse (supra) to the facts at hand, the Respondent was a boda boda operator, which work is physically demanding. Further, this court relies on the Court of Appeal decision in in Mumias Sugar Company Ltd v Wanalo (Civil Appeal 91 of 2003) [2007] KECA 485 (KLR), where the Court set aside a structured multiplier award of Kshs. 2,016,000/ and substituted it with a global sum of Kshs. 500,000/= for a claimant who was unemployed at the material time and had a disability assessment of 15%. 45.In those circumstances, this court finds the global sum of Kshs. 300,000/= awarded by the trial court sufficient, but in this case, as an award for loss of earning capacity. There was no challenge on special damages that were actually specifically pleaded and proved. That award is upheld. 46.In conclusion therefore, this court makes the following orders:-1.Judgment on liability at 90: 10 in favour of the Respondent as against the Appellants is hereby upheld.2.The award of Kshs. 700,000/= as general damages for pain and suffering is set aside and substituted with an award of Kshs. 400,000/=.3.The award of Kshs. 300, 000/= for loss of income /earning is set aside and substituted with an award of Kshs. 300,000/= for loss of earning capacity.4.The award of Special damages for Kshs. 57,650/= is hereby upheld.5.Interest at court rates from the date of this judgment.6.Each party to bear its own costs of the Appeal DATED AND SIGNED AT NAIROBI THIS 26TH DAY OF JUNE, 2026. PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 13TH DAY OF JULY, 2026.………………………DR. JOSEPH SERGONJUDGE