https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9963

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **THE CIVIL APPELLATE DIVISION** ***(Coram: A.C Mrima, J.)*** **CIVIL APPEAL NO. E612 OF 2023** ***-between-*** 1. **HEZRON NJOROGE MWANGI** 2. **JAMES GICHERU WATUKU** ................................ **APPELLANTS** ***-versus-*** **ISAAC MAINA MATHENGE** ......................................... **RESPONDENT** ***(Being an Appeal from the Judgment and Decree of Hon. C.K. Cheptoo (Principal Magistrate) in Civil Suit No. E8588 of* 2021 delivered on 6th June 2023)** **JUDGMENT** **Background:** 1. The appeal before this Court emanates from a road traffic accident that occurred on or about 28th/29th August 2019 along Thika Road. *Isaac Maina Mathenge*, the Respondent herein was a fare-paying passenger on board motor vehicle registration number KBQ 251P, [hereinafter referred to as ***‘the vehicle’***]registered to *Hezron Njoroge Mwangi*, the 1st Appellant herein and driven by *James Gicheru Mwangi*, the 2nd Appellant herein. 2. The Respondent pleaded that the 2nd Appellant negligently managed the vehicle, resulting in a loss of control whereby the radiator cap blew off and sprayed hot water on him as the vehicle rammed into the side of the road causing him grievous bodily harm. The Respondent pleaded that he suffered communited fracture of the left femur, a deep cut on the left zygomatic region, bruises on the left forearm, and a swollen, tender and painful leg. 3. After a full trial, wherein the Appellants failed to call any witnesses or adduce evidence to controvert the Respondent’s case, the trial Magistrate found the Appellants liable and awarded the Respondent special and general damages, including Kshs. 1,100,000/= for general damages and Kshs. 1,350,208/- for loss of earning capacity. It was that determination that prompted the instant appeal which was heard by way of written submissions. **The Appeal:** 1. Dissatisfied with the trial Court’s judgment, the Appellants filed a Memorandum of Appeal dated 4th July 2023 and preferred the following grounds of appeal: - 2. *The Learned magistrate erred in fact and in law in arriving at a quantum that was too high in the circumstances.* 3. *The learned magistrate erred and misdirected himself when he failed to consider the applicants submissions on both points of law and facts.* 4. *That the learned magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.* 5. *That the learned trial magistrate erred in law and fact by failing to judiciously analyse the evidence on record and the appellants submissions and authorities thereby arriving at a finding on liability which finding was unfair and unjust to the appellants.* 6. *The learned trial magistrate failed to consider conventional awards made in respect of cases of similar injuries thereby arriving at an excessive award.* 7. *The Learned magistrate erred in fact and in law in failing to appreciate the nature of injuries sustained by the respondent and in so doing arrived at an erroneous assessment of damages.* *The Submissions:* 1. In their written submissions dated 19th December 2025, the Appellants consolidated their grounds of appeal into a single issue concerning the quantum of damages. They submitted that the trial Court’s award of Kshs. 1,350,208/- for loss of earning capacity was inordinately high. They argued that the Respondent did not discharge the burden of proving on a balance of probability how the accident affected his earning capacity. The Appellants contended that the witness statement and the plaint failed to indicate the Respondent’s occupation to warrant such an award. They stated that the Respondent did not establish the nature of his employment, how the injuries made him fail to perform his duties, or how he incurred or will incur future losses. 2. In support of their argument, the Appellants relied on the Court of Appeal decision in *Mumias Sugar Company Limited -vs- Francis Wanalo (*2007) eKLR. They highlighted the holding that the justification for an award for loss of earning capacity for an employed plaintiff is to compensate for the risk of losing their job in the future or the diminution of chances of securing alternative employment in the labour market. 3. The Appellants prayed that the appeal be allowed and the award on loss of earning capacity be disallowed. **The Respondents’ case:** 1. *Isaack Maina Mathenge* challenged the appeal through written submissions dated 17th December 2024. From the outset, it was his case that the judgment was sound. On the issue of liability and evaluation of evidence, the Respondent pointed out that he called four witnesses at trial who were cross-examined, whereas the Appellants called no witnesses and adduced no evidence. The Respondent argued that by failing to call evidence, the Appellants left his evidence uncontroverted. In that regard, he relied on *Mursal & another -vs- Manese (suing as the legal administrator of Dalphine Kanini Manesa)* (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR), which outlined that an opponent must adduce evidence to rebut a plaintiff’s case, failing which the evidence remains unchallenged. 2. On the issue of general damages, the Respondent submitted that the award of Kshs. 1,100,000/= was adequate compensation for the grievous bodily harm suffered, which resulted in a 40% permanent incapacity. He noted a tabulation error by the trial Court where Kshs. 1,000,000/= was used in the final computation instead of the awarded Kshs. 1,100,000/=, and requested this Court to correct it. To support the quantum arrived at by the trial Court, the Respondent cited comparable awards in *Prima Management Ltd -vs- Wilson Suba Kindaranga*, where Kshs. 900,000/= was awarded for a fractured femur and *Francis Ndungu Wambui & 2 others -vs- VK (a minor suing through next friend and mother MCWK,* where Kshs. 1,000,000/= was upheld for compound fractures. 3. On the issue of diminished earning capacity/loss of earnings, the Respondent asserted that he produced a 5-year employment contract dated 4th September 2017 showing he was employed as a driver earning a monthly salary of Kshs. 50,300/=. Following the accident and his subsequent 40% permanent disability, his employment was terminated. Drawing from the decision in *Butler -vs- Butler* [1984] KLR 225 and *Alpharama Limited -vs- Joseph Kariuki Cebron* (2017) eKLR, the Respondent argued that diminished earning capacity was properly proven and justified as his ability to earn income in the future was severely restricted. 4. In conclusion, the Respondent drew this Court’s attention to the decision in *Jonah Racha Abdi -vs- Kenya Forestry Research Institute* [2014] eKLR, *Butt -vs- Khan* (1977) 1KAR, and *Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M. Lubia and olive Lubia* (1985) 1 KAR 727 to underline the legal principle that an appellate Court should not interfere with a trial Court’s finding of fact or exercise of discretion regarding damages unless it is based on wrong principles, misapprehension of evidence, or is inordinately high or low. **Analysis and Determination:** 1. Having carefully reviewed the record of appeal, the impugned judgment, and the submissions of both parties, the following issues crystallize for determination: - 1. *Whether the trial Court erred in law and fact in its finding on liability and its evaluation of the evidence.* 2. *The propriety of the trial Court’s assessment of damages.* 2. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In *Selle & Another -vs- Associated Motor Boat Co. Ltd & Others* [1968] EA 123) the Court spoke to the foregoing in the following manner; *An appeal from a High Court is by way of rehearing and the Court of Appeal is a first appellate court. It is not sufficient to merely scrutinize the evidence and say whether the trial Judge was right or wrong. An appellate court is not bound to accept the trial Judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.* 1. In ***Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates***[2013] eKLR the Court set out the role of the first appellate Court in the following terms; *… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212.* 1. This Court will hence interrogate the issues sequentially. **[a] Whether the trial Court erred in law and fact in its finding on liability and its evaluation of the evidence:** 1. The Appellants’ Memorandum of Appeal alleges that the trial Court failed to judiciously analyze the evidence and that the decision was against the weight of the evidence. The record establishes that the Respondent presented oral testimony alongside documentary evidence, including a P3 Form, Police Abstract, and Medical Reports, to prove the occurrence of the accident and the resultant injuries. Conversely, the Appellants filed a joint statement of defence but elected not to call any witnesses or table any evidence to controvert the Respondent’s case. 2. As rightly submitted by the Respondent and guided by ***Mursal & another -vs- Manese* *(suing as the legal administrator of Dalphine Kanini Manase)***Civil Appeal E20 of 2021, (2022) KEHC and ***Motex Knit Wear Limited -vs- Gopitex Knitwear Mills Limited****,* Milimani HCCC number 834 of 2002 pleadings are not evidence. A defendant who fails to call evidence to support their defence leaves the plaintiff’s evidence unchallenged. In the latter case it was observed; *Although the Defendant has denied liability in an amended defence and counter-claim no witness was called to give evidence on his behalf. That means that not only does the defence by the 1st Plaintiff stand unchallenged but also the claims made by the Defendant in his defence and counter-claim are unsubstantiated (and) in the circumstances the counter-claim must fail.* 1. Therefore, the trial Court did not err in holding the Appellants entirely liable based on the uncontroverted evidence presented on a balance of probabilities. **[b] The propriety of the trial Court’s assessment of damages:** 1. It is a settled legal principle that an appellate Court can only interfere with a damages award if the trial judge applied wrong principles, took into account irrelevant factors, left out relevant factors, or if the award is so inordinately high or low that it amounts to an erroneous estimate [See ***Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini -vs- A M Lubia and Olive Lubia***[1982-88] 1 KAR 727). Earlier, in ***Mbogo and Another -vs- Shah***[1968] E.A. 93, the Court observed thus; *… an appellate Court should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in law or acted on wrong principles or that he has allowed extraneous matters to influence his decision or that he has failed to take into consideration a matter which he should have taken into consideration and as a result thereof arrived at a wrong conclusion.* 1. From the uncontroverted evidence, Respondent suffered grievous harm resulting in a 40% permanent incapacity. The trial Court awarded the sum of Kshs. 1,100,000/=. As to whether the amount is within acceptable bounds of comparable injuries, this Court will be guided by the Court of Appeal decision in ***Simon Taveta -vs- Mercy Mutitu Njeru***[2014] eKLR where it was observed; *… The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.* 1. In the present case, the Respondent suffered grievous bodily harm, specifically a communited fracture of the left femur requiring an implant, a deep cut on the left zygomatic region, and bruises on the left forearm, which resulted in a medically assessed 40% permanent incapacity. To determine whether the trial Court’s award of Kshs. 1,100,000/= was inordinately high as alleged by the Appellants, this Court must benchmark the award against the conventional bracket established by recent jurisprudence for similar injuries and incapacities. 2. As regards the award on loss of earning incapacity, Courts have established a clear compensation bracket for a 40% disability rating. In ***Subati Flowers Limited -vs- Walter Wanyonyi Wekesa***(2019) eKLR, the High Court upheld an award of Kshs. 1,600,000/= where permanent disability was assessed at 40%. Similarly, in ***Sophia Wanjiru Njuguna -vs- Kyoga Hauliers Kenya Limited***(2020) eKLR, the trial Court awarded Kshs. 1,200,000/= for the exact same 40% permanent disability rating. The trial magistrate’s award of Kshs. 1,100,000/= sits just below this established bracket. 3. In ***Prima Management Ltd -vs- Wilson Suba Kindaranga***(2012) eKLR, an award of Kshs. 900,000/= was upheld specifically for a fracture of the left femur. Factoring in the passage of time and inflation between 2012 and the trial court’s judgment in 2023, an upward adjustment to Kshs. 1,100,000/= is both logical and proportionate. 4. For severe, communited lower-limb fractures, Courts consistently awarded sums exceeding one million shillings. In ***Fred Ogada Azere -vs- Ezekiel Kiarie Nganga***(2019) eKLR, the appellate Court awarded Kshs. 1,350,000/= for a communited fracture of the right acetabulum (hip joint) and soft tissue injuries. In ***George William Awuor -vs- Beryl Awuor Achieng***(2020), the High Court reduced a trial Court award to Kshs. 1,200,000/= for a simple right femur fracture combined with a tibia/fibula fracture. 5. As observed in ***Mbogo and Another -vs- Shah*** (supra) an appellate Court will not disturb an award for damages unless it is so inordinately high or low that it represents a wholly erroneous estimate. With the foregoing findings, this Court is of the view that the trial Court’s award of Kshs. 1,100,000/= for a communited femur fracture resulting in 40% permanent incapacity is neither excessive nor erroneous. It falls squarely within a conservative side of the conventional range of Kshs. 1,200,000/= to Kshs. 1,600,000/= awarded in recent, comparable cases. Therefore, there is no legal or factual basis to disturb this award. 6. However, the typographical or computational error in the trial Court’s final tabulation, which utilized Kshs. 1,000,000/= instead of the awarded Kshs. 1,100,000/=, ought to be rectified. 7. Regarding the award for loss of earning capacity of Kshs. 1,350,208/- the Appellants contended that the Respondent’s occupation was unproven. The record contradicts this assertion. The Respondent produced an employment contract detailing his position as a driver with a basic salary of Kshs. 50,300/=, alongside payslips. 8. Whereas this Court notes that there was no documentary proof of termination of employment, in his unrebutted testimony, the Respondent stated that he was paid until December of 2019 and as at that time he still had 33 months to go according to his 60-month contract. 9. In ***Butler -vs- Butler***[1984] KLR 225 the Court of Appeal observed: *… A plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury. … It is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained in this way: compensation for loss of future earnings is awarded for real accessible loss proved by evidence. Compensation for demotion of earning capacity is awarded as part of the general damages. …* 1. In the case of ***Mumias Sugar Company Limited -vs- Francis Wanalo***[2007] eKLR, an award of loss of earning was discussed as follows; *… The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.* 1. The above decisions affirm that an award for loss of earning capacity is justified to compensate a plaintiff for the substantial risk that their disability has diminished their chances of securing future employment. Given the 40% permanent incapacity and the strict proof of his previous earnings and subsequent termination, the trial Court’s award under this head was grounded on sound legal principles and factual evidence. It is neither inordinately high nor an erroneous estimate. **Disposition:** 1. For the reasons set out above, this Court finds that the appeal lacks merit. The trial Court properly evaluated the uncontroverted evidence on liability and applied the correct legal principles in assessing the quantum of damages. 2. Consequently, the following final orders hereby issue: - **[a] The appeal is hereby dismissed.** **[b] The judgment of the trial Court on liability is upheld.** **[c] The trial Court’s award on quantum is also upheld. However, the computation error in the trial Court’s judgment is corrected to accurately reflect the General Damages award of Kshs. 1,100,000/= as intended by the learned trial Magistrate.** **[d] The costs of this appeal to the Respondent.** Orders accordingly. **DELIVERED**, **DATED** and **SIGNED** at **NAIROBI** this **9th** day of **July, 2026.** **A. C. MRIMA** **JUDGE** **Judgment virtually delivered in the presence of:** **Miss Munene,** Learned Counsel for the Respondent. **Amina** –Court Assistant.