[2025] KEHC 5313 (KLR)

Mutunga (Sued Aas the Personal Representative of the Estate of Samuel Mutunga Nzioka) v Awuor (Civil Appeal E267 of 2023) [2025] KEHC 5313 (KLR) (Civ) (29 April 2025) (Judgment)

Neutral citation: [2025] KEHC 5313 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E267 of 2023

RC Rutto, J

April 29, 2025

Between

Makau Mutunga

Appellant

Sued Aas the Personal Representative of the Estate of Samuel Mutunga Nzioka

and

Owuor Evaline Awuor

Respondent

(Being an appeal from the Judgment and orders of Honourable Chief Magistrate E.H Keago in CMCC No. 201 of 2020, delivered on 14th September, 2023)

Judgment

1. This is an appeal against both liability and quantum. In the trial court, the Respondent vide a plaint sued Samuel Mutunga Nzioka and Lilian Ndunge Mang’oka for general damages, special damages, and future medical expenses arising from a road traffic accident that occurred on 18th September 2019 along Nairobi-Machakos Road. Lilian Ndunge Mang’oka, the 1st Defendant, was sued as the owner of Motor Vehicle Registration Number KBN 256R, in which the Respondent was a passenger. The Appellant, the 2nd Defendant in the suit, was sued as the owner of Motor Vehicle Registration Number KBR 906A.

2. It is alleged that both vehicles were negligently and carelessly driven by the Defendants, resulting in a collision that caused the Respondent to sustain severe bodily injuries.

3. Upon the demise of Samuel Mutunga Nzioka, the Appellant herein was appointed as his legal representative. In his defence, he denied the claim and the matter proceeded to full hearing. Thereafter, the trial court entered judgment in favour of the Respondent as against the Appellant herein only as the suit against Lilian Ndunge Mang’oka was dismissed. Judgment was in the following terms:a.Liability 100%b.Pain and suffering Kshs. 800,000/=c.Future Medical Expenses Kshs. 300,000/=d.Special damages Kshs. 45,250/=e.Diminished earning capacity Kshs 300, 000/=f.Costs of the doctor’s attendance Kshs 10, 000/=g.Costs of the suit and interest from the date of judgment

4. Being aggrieved by the Judgment, the Appellant herein filed this appeal citing grounds that the Learned Trial Magistrate erred in fact and in law by failing to consider all the averments made in the Appellant’s pleadings in response to the Plaint, thereby reaching wrong conclusions of law and fact; by failing to take into consideration evidence on record while considering his judgment and apportioning liability at 100% on the Appellant; by finding and holding that the Appellant had not proved their case on a balance of probabilities notwithstanding the evidence on record; by failing to consider the nature and extent of the injuries alleged to have been sustained by the Respondent and hence came to a wrong assessment of damages; by totally failing to consider and to compare the nature of injuries to other precedents thus reaching an unconventional award for general damages; by ignoring the principles applicable and relevant authorities which were binding upon the court vide the principle of judicial precedents and the doctrine of stare decisis on quantum, cited in the written submissions presented and filed by the Appellant; by assessing a sum in respect of general damages which was punitive, excessive and or inordinately high in the circumstance thus occasioning miscarriage of justice.

5. The Appeal was canvassed by way of written submissions.

Appellants’ submissions 6. The Appellant’s submissions are dated 17th October 2024. The Appellant identified five issues for determination namely; whether the trial court erred in apportioning liability at 100% against the Appellant without any basis; whether the Honourable Magistrate erred in law by failing to consider all the averments made in the Appellant’s pleadings; whether the Honourable Magistrate erred in law by failing to give the jurisprudential basis and precedent relied on in awarding damages; and whether the award of Kshs.800, 000 as general damages was inordinately high and whether the Magistrate erred in law and in fact in awarding cost of future medical expenses of Kshs.300, 000 which were not specifically proven and was excessive in the circumstances.

7. On the first issue of liability, the Appellant, relied on the cases of Evans Nyakwana v. Cleophas Bwana Ongari [2015] eKLR, William Kabogo Gitau v. George Thuo & 2 Others [2010] 1 KLR 526, and Palace Investment Limited v. Geoffrey Kariuki Mwenda & Another [2015] eKLR, to submit that the Respondent failed to provide sufficient evidence to prove that the Appellant was responsible for the accident. The Appellant further relied on the case of Peter Kanithi Kimunya v. Aden Guyo Haro [2014] eKLR to argue that the mere production of a police abstract by a police officer does not, in itself, establish negligence. The Appellant also submitted that, while he had a duty of care towards other road users, the Respondent equally had a responsibility to take reasonable steps to avoid the accident and no evidence was presented to demonstrate what she did in that regard.

8. On the second issue, the Appellant submitted that the trial Magistrate failed to consider all the averments in his pleadings as well as the evidence he presented. He relied on the cases of Meya Agri Traders Limited v. Elgon House [2010] [2023] KECA 574 (KLR), Directline Assurance Company Limited v. Nzioka (Civil Appeal E257 of 2022) [2024] KEHC 6140 (KLR), Keziah & Another (Personal Representatives of the Late Isaac Macharia Mutunga) v. Lochab Transport Limited [2022] KECA 477 (KLR), and Joseph Muthuri v. Nicholas Kinoti Kibera [2022] eKLR. He argued that the trial court only considered the Respondent’s evidence and failed to assess his own, despite the absence of proof that he was liable for the accident.

9. On the third issue, the Appellant relied on the case of Odinga Jacktone Ouma v. Maureen Achieng Odera [2016] to buttress the principle that comparable injuries should attract comparable awards. The Appellant further submitted that the trial court failed to cite any relevant legal authorities to justify the damages awarded.

10. On the fourth issue, the Appellant submitted that the quantum of damages awarded was inordinately high and prejudicial as it was neither moderate nor consistent with awards in similar cases with comparable facts. The Appellant referred to the cases of Michengechi Enterprises Limited v. Ngari (Civil Appeal 485 of 2019) [2023] and SN (A minor suing through her father and next friend Joshua Kanae) v. Nyanchera & Another (Civil Appeal 9 of 2020) [2024] to draw comparisons between the injuries sustained and to urge the court to consider these precedents when assessing the quantum of damages.

11. The Appellant further submitted that the trial court erred in awarding damages for diminished earning capacity, as the Respondent did not adduce any evidence to prove loss of earning capacity. He submitted that diminished earning capacity was not even mentioned in the Respondent’s witness statement but only in the Plaint. Relying on the cases of Magdaline Nzilani Mutende v. Kennedy Mutwili [2019] and Akhwaba Olubuliera Nicodemus v. Patrick Afuma Wetende [2020] eKLR, the Appellant maintained that the Respondent failed to demonstrate that the injuries sustained diminished his earning capacity, and as such, the award was unjustified.

12. On the final issue, the Appellant submitted that the trial court erred in awarding Kshs.300,000/= for future medical expenses, as the amount was not specifically proven and was excessive. The Appellant argued that, according to the medical report, the doctor had estimated the cost of the procedure for the removal of metal implants at Kshs.150,000/=.

13. Relying on the case of Board of Governors Ongata Academy v. Gabriel Ngaiyaiya Rumoi [2021] eKLR, the Appellant contended that the amount awarded for future medical expenses should depend on various factors, including the facility where the treatment will be undertaken and the condition of the injury at the time of treatment. Since the doctor explicitly stated that the total cost for the procedure at the same hospital would be Kshs.150,000/=, the Appellant argued that the court ought to have awarded this amount instead of Kshs.300,000/=, which was excessive.

14. The Appellant concluded by urging the court to allow the appeal with costs as prayed.

Respondent’s submissions 15. The Respondent relied on their submissions dated 23rd October 2024. The submissions set out three issues for determination as follows; first was the duty of the court as a first appellate court, secondly on liability, and general damages for pain and suffering and lastly on future medical expenses.

16. On the duty of the court as an appellate court, the Respondent referred to the case of Anne Wambui Ndiritu v. Joseph Kiprono Ropkoi & Another [2004] eKLR, to submit that the court's primary responsibility is to review and re-evaluate the evidence presented before the trial court and reach an independent finding.

17. On the issue of liability, the Respondent submitted that the Appellant did not call any witnesses or produce any evidence in support of the defence filed. As a result, the trial court could not rely on the defence to assess liability. In support of this argument, the Respondent cited the cases of Grace Nzula Mutunga v. Joyce Wanza Musila [2017] eKLR and Kenya Power & Lighting Co. Limited v. Rassul Nzembe Mwadzaya [2020] eKLR.

18. Further relying on the case of Lakhamshi v. Attorney General [1971] E.A 118, 120, the Respondent contended that her case was sufficiently proven, given that she was a fare-paying passenger in Motor Vehicle Registration No. KBN 256R and that no contributory negligence was attributed to her.

19. On the issue of general damages for pain and suffering, the Respondent submitted that the trial court clearly outlined, at paragraph 3, page 99 of the Record of Appeal, the principles it applied in awarding general damages. Based on these principles, the court awarded a sum of Kshs.800,000 as compensation for pain and suffering.

20. The Respondent further submitted that the awarded damages were not excessive, as the trial court relied on several comparable decisions that aligned with the severity of her injuries. Additionally, the Appellant did not present any material evidence disputing the extent of the injuries sustained.

21. On future medical expenses, the Respondent submitted that the cost for the removal of the implants in a private medical facility was Kshs.300,000. The medical doctor stated that such procedures are generally more expensive in private institutions, typically costing around Kshs.300,000. Since the Appellant did not present any contrary evidence, the trial court relied on the doctor's professional assessment in awarding Kshs.300,000.

22. In conclusion, the Respondent urged the court to dismiss the appeal with costs.

Analysis and Determination 23. This being a first appeal, this court has a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that unlike the trial court, the appellate court, had no advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424).

24. After careful analysis of the record of appeal and the submissions the following issues arise for determination:a.Whether liability was properly apportioned; andb.Whether the Trial Court misdirected itself in the assessment and award of damages.

Whether liability was properly apportioned 25. Section 107 (1), 109 and 112 of the Evidence Act, provides for burden of proof and can be summarized as follows;“Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he asserts must prove that those facts exist.”

26. In this appeal, the dispute is who was to blame for the accident. The scope and extent of the fundamental legal principles on this subject are settled. In the cases of Nandwa v Kenya Kazi Ltd [1988] KLR 488 and Regina Wangechi v Eldoret Express Co. Ltd [2008] eKLR the Courts on this issue held that:“In an action for negligence, the burden is always on the plaintiff to prove that the accident was caused by the negligence of the defendant. However, if in the course of the trial there is proved a set of facts which raises a prima facie case inference that the accident was caused by negligence on the part of the defendant, the issue will be decided in the plaintiff’s favour unless the defendant provides same answer adequate to displace that inference.”

27. In the present suit, it is undisputed that an accident occurred on 18th September 2019 involving Motor Vehicles Registration Numbers KBN 256R and KBR 906A.

28. During trial, the Respondent testified that Motor Vehicle KBR 906A, belonging to the Appellant, was speeding, lost control, and veered into the lane of Motor Vehicle KBN 256R, in which the Respondent was a passenger, thereby causing the accident as a result of which she sustained injuries.

29. During cross-examination, the Respondent stated that she was seated behind the driver of Motor Vehicle KBN 256R, allowing her to see the road clearly. She also stated that she partly blamed the driver of Motor Vehicle KBN 256R for failing to take any action when the Appellant’s vehicle entered their lane. However, upon re-examination, the Respondent clarified that since she saw the Appellant’s vehicle moving into their lane, it was the Appellant’s vehicle that was responsible for the accident.

30. PW2, a police officer, produced a police abstract indicating that investigations were still pending. During cross-examination, PW2 stated that while investigations had not been concluded, the preliminary report indicated that the Appellant’s vehicle was at fault for careless overtaking. Although he was not the investigating officer, PW2 explained that the assigned officer, who had been sent to Nairobi, had interviewed witnesses, and all relevant information was contained in the police file.

31. The Appellant closed its case without adducing any evidence and/or calling any witnesses. This is despite stating in his defence that he was not to blame for the accident.

32. After analyzing the evidence of the parties, the honourable magistrate found the appellant totally liable and was to blame for the accident. The trial court in the judgment observed;“On the issue of liability, I have considered the evidence and submissions before court. The said accident is said to have occurred when Motor vehicle KBN 256R was knocked while on its rightful lane. Although the Plaintiff has said that their driver did nothing to avoid the accident there is no evidence on how he contributed to the occurrence of the accident. The most probable cause of the accident is the 2nd Defendant’s failure to keep to his proper traffic lane and overtaking when it was not safe to so do. I will for that reason find the 2nd Defendant liable at 100% for the accident and the subsequent injuries suffered by the Plaintiff who was a mere passenger. Since the 2nd Defendant didn’t lead any evidence as to how the 1st Defendant contributed to the occurrence of the accident the suit against the 1st Defendant is hereby dismissed.”

33. It has since been settled that mere occurrence, of an accident, without more, cannot be proof of negligence. As the Court of Appeal stated in Eastern Produce (K) Ltd Christopher Atiado Osiro [2006] eKLR, the onus of proof lies upon him who alleges and where negligence is alleged, some form of negligence must be proved against the defendant (or third party as in the instant matter). The court in the case cited the decision of Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258 where the Court of Appeal, reiterated the foregoing and stated that:“There is, as yet no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence.”

34. In Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to quote Lord Reid in Stapley vs Gypsum Mines Ltd (2) [1953] AC 663 at p 681 as follows:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”

35. This court notes that in the evidence presented, the Respondent was the sole eyewitness to the accident, and her testimony was not controverted by any other witness account. The Appellant did not provide any evidence to clarify the circumstances of the accident or to challenge the Respondent’s version of how the accident occurred. Furthermore, I note that in this appeal the appellant has not appealed against the dismissal of the case against the 2nd defendant (Lilian Ndunge Mangoka). Consequently, the Respondent’s evidence being the only material available before the trial court to determine liability the trial court was correctly guided by relying on the evidence presented.

36. Therefore, having reviewed the Respondent’s evidence before the trial court, this court is satisfied that, on a balance of probabilities, she proved negligence against the Appellant.

37. As to whether there is proof of contributory negligence on the part of the Respondent, the Appellant, argued that the Respondent ought to have taken steps to avoid the accident. However, no evidence was presented to show the steps the Respondent, as a fare-paying passenger in a moving motor vehicle, would have taken to prevent the accident. Since the Appellant did not present any evidence to rebut the circumstances leading to the occurrence of the accident, liability rests with the Appellant.

38. In view of the foregoing, I am satisfied that the learned trial magistrate correctly apportioned liability, and I find no reason to interfere with his determination on this issue. Accordingly, the appeal on this ground fails.

Whether the Trial Court misdirected itself in the assessment and award of damages 39. On quantum, the approach of the Courts is exemplified by the case of Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja CA No. 2 of 1986 KLR 730. Nyarangi J.A stated that:“an appellate Court does not interfere with quantum of damages simply because in its opinion the damages awarded is excessive, it only interferes if there is evidence. That the damages have been assessed on wrong grounds or are unreasonable.”

40. The Appellant submitted that the trial court failed to provide the jurisprudential basis and precedent relied upon in awarding damages. I concur with the Appellant on this point. A cursory review of the judgment reveals that the trial court did not make reference to any authority for comparable awards. While the trial court stated that it had considered the authorities cited by the parties, it did not explicitly mention the cases relied upon.

41. From the Appellant’s submissions, it is evident that the award of Kshs.800,000/= for pain and suffering is contested. The Appellant argues that a sum of Kshs.500,000/= would be appropriate. The injuries sustained by the Respondent are not in dispute and include: multiple deep cut wounds and bruises on the face, a Colles fracture of the right wrist joint, a fractured left tibia bone, a fractured right fibula bone, soft tissue injuries on the left lower limbs, pain at the injured sites, multiple scars on the face, a surgical scar on the left lower limb, tenderness on the left hand around the fracture site, and slight deformity of the wrist joint, inability to walk without support and permanent incapacity of 15%.

42. For purposes of comparison, I have considered the following decisions:-a.In the case of Kimita v Travel Budget Express & another (Civil Appeal E042 of 2022) [2024] KEHC 6435 (KLR) (4 June 2024) (Judgment) the court upheld the award of kshs.800,000/= for the following injuries Fracture distal end of the left tibia and fibula; severe soft tissue injury of the left leg; deep cut wound on the forehead leading to severe soft tissue injuries; cut wound on the zygomatic area leading to severe soft tissue injuries; deep cut wound on the left arm leading to soft tissue injuries; fracture of the right tibia; compound fracture of the left tibia; deep cut wound on the chin.b.George & another v Babu (Civil Appeal E130 of 2023) [2024] KEHC 5986 (KLR) (24 May 2024) (Judgment) general damages of kshs.1,300,000/- were awarded for the following pleaded injuries as follows: fracture of the left tibia, fracture of the left fibula, fracture of the right femur bruises to the left leg recurrent pains, inability to lift heavy load, surgical scar, permanent disability of 40% to the right leg, permanent disability of 20% to the left leg. This court notes that while the injuries appear almost similar, the assessment of disability was higher in this case than assessed in the appeal before usc.In the case of Michengechi Enterprises Limited versus Ngiri (Civil Appeal 485 OF 2019) [2023] Eklr, the court affirmed the lower court’s award of Kshs 700, 000/= for injuries sustained which are; a compound fracture of the proximal ulnar and radius of the right hand, deep cut on the chest, neck, right shoulder and left hand, angulation of the hand resulting in a wrist drop and generalized pain and trauma, permanent disability of 15%.

43. After considering the extent of the injuries sustained and the comparable cases cited above, I find that the award for pain and suffering was well founded and not excessive.

44. The second issue pertains to the award for future medical expenses. The Appellant submitted that, based on the medical doctor's opinion, the estimated cost of implant removal ranged from Kshs.150,000/= to Kshs.300,000/=, depending on the facility. The Appellant therefore argued that an award of Kshs.150,000/= would be more appropriate.

45. Upon reviewing the medical report, it is evident that the doctor provided an estimate of the costs involved and reiterated the same during the hearing. Notably, the trial court was not presented with any medical report to controvert the evidence of PW3. In the absence of such contrary evidence, the court was guided solely by the report on record. Given that the estimated costs were clearly outlined and that the Respondent had the option of seeking treatment at either a high-cost or low-cost facility, I find that the award of Kshs.300,000/= was reasonable. It falls within the range provided by PW3. Accordingly, I find that the award for future medical expenses was well founded and justified.

46. Lastly, regarding the award for diminished earning capacity, the Appellant has challenged the trial court’s decision, arguing that the Respondent failed to adduce any evidence to substantiate the claim that their earning capacity had been affected. The Appellant further contends that there was no reference to diminished earning capacity beyond its mention in the pleadings.

47. The principles to be considered in determining whether an injured person is entitled to damages under this head were settled by the Court of Appeal in Butler vs Butler [1984] KLR 225. It was held there as follows -“1. A Person’s loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labour market or work, as well as paid as before the accident are lessened by his injury.

2. Loss of earning capacity is a different head of damages from actual loss of future earnings. The difference is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence whereas compensation for diminution of earning capacity is awarded as part of general damages.

3. Damages under the heads of loss of earning capacity and loss of future earnings, which in English were formerly included as an unspecified part of the award of damages for pain, suffering and loss of amenity, are now quantified separately and no interest is recoverable on them.

4. Loss of earning capacity can be a claim on its own, as where the claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment then and/or at the date of the trial.

5. Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included, it is not proper to award it under its own heading.

6. The factors to be taken into account in considering damages under the head of loss of earning capacity will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant; his remaining length of working life; his disabilities and previous service, if any.”

48. Assessment of damages in respect to diminished earning capacity is also a matter in the discretion of the trial court and it depends on the circumstances of each case.

49. In Beatrice Anyango Okoth v Rift Valley Railways (Kenya)Limited & another (2018) eKLR, the court in making an award for diminished capacity stated thus:“69….damages under this heading are awarded where it is proved that owing to the injury suffered by the plaintiff, his chances of getting a job in the labour market comparable to the one he held before the injury are diminished or just lowered….70…The court would be properly entitled to make a global award because there is a general agreement in decisions rendered by courts that there is no formula in assessing damages for lost and diminished earning capacity provided the judge takes into account the relevant factors….”

50. In Mumias Sugar Company Limited vs Francis Wanalo [2007] eKLR the Court of Appeal held that loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as separate head of damages, as a token, modest or substantial depending on circumstances of each case. The Court added that there was no formula for assessing loss of earning capacity. The Court faulted a trial Court for using the multiplier/multiplicand approach in assessing damages for loss of earning capacity.

51. In Chelimo v Njami (Civil Appeal E001 of 2023) [2024] KEHC 12000 (KLR) (7 October 2024) (Judgment), the appellant sought damages for loss of future earning capacity. The court emphasized that such claims are general damages and should be awarded as a global sum, considering the case's circumstances. The trial court's award of Kshs.600,000 for diminished earning capacity was deemed reasonable.

52. It is, therefore, clearly established that a claim for diminished earning capacity is a general damage claim and that there is generally no formula for assessing such loss. The award depends on the circumstances of each case. Such an award may also be factored in the main claim for general damages for pain, suffering and loss of amenities or be sought separately.

53. In the present case, the Respondent prayed for general damages for loss of earning and earning capacity and the court was right in making a global award on this head. What follows is now a consideration of whether the award of Kshs.300, 000 made under this head was reasonable. By considering the circumstances of this case being that the Respondent was a graduate and was naturally at the verge of looking for an employment opportunity, the 15% incapacity rate that was established by the doctor limits the Respondent’s ability to operate normally. Therefore, I find that the award of Kshs.300, 000/= was reasonable and the appeal under this head also fails.

54. The upshot of the above is that the appeal lacks merit and the trial court judgment as to liability and quantum is upheld.

55. The Appellant shall bear the costs of the appeal.

Orders accordingly.

DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 29TH DAY OF APRIL, 2025RHODA RUTTOJUDGEIn the presence of;…………………………………………..Appellant…………………………………………...RespondentSam Court Assistant