New Muthokinju Hardware Ltd aka Muthokinju Hardware & another v Wambui (Civil Appeal E003 of 2025) [2026] KEHC 9041 (KLR) (Civ) (25 June 2026) (Judgment)

New Muthokinju Hardware Ltd aka Muthokinju Hardware & another v Wambui (Civil Appeal E003 of 2025) [2026] KEHC 9041 (KLR) (Civ) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9041 (KLR) Republic of Kenya In the High Court at Nyandarua Civil Civil Appeal E003 of 2025 KW Kiarie, J June 25, 2026 Between New Muthokinju Hardware Ltd a.ka. Muthokinju Hardware 1st Appellant Paul Muema Kimeu 2nd Appellant and Dancan Waweru Wambui Respondent (Being an appeal from the judgment and decree in the Ol Kalou Principal Magistrate’s Court, PMCC No. E098 of 2023 by Hon. L. A. Mwera Sure (Resident Magistrate) Judgment 1.New Muthokinju Hardware Ltd a.ka. Muthokinju Hardware and Paul Muema Kimeu, the appellants, were the defendants in the Olkalou Principal Magistrate’s PMCC No. E098 of 2023. They had been sued by the respondent for general and special damages following a road traffic accident involving a Mitsubishi Fuso motor vehicle, registration number KDK 380A, and a motorcycle, registration number KMFF 637R. As a result of the accident, the respondents sustained injuries. The learned trial magistrate held the appellant 100% liable and awarded KShs. 26,820.00 special damages, KShs. 183,399.00 for loss of income and KShs. 800,000.00 general damages. 2.The appellants were dissatisfied with the judgments and submitted this appeal through Munene Wambugu & Kiplagat Advocates. They raised the following grounds of appeal:a.The learned trial Magistrate erred in law and in fact in finding the appellants 100% liable for the accident despite the absence of evidence to support such a finding.b.The learned trial magistrate erred in law and in fact in the manner that she assessed the general damages that were excessive in the circumstances.c.The learned trial magistrate erred in law and in fact in awarding loss of income in the absence of evidence in support of such a finding.d.The learned trial magistrate erred in law and fact in awarding Kshs. 26,820/= as special damages pleaded despite only receipts amounting to 16,000/= we provided.e.The learned trial magistrate erred in law and in fact in failing to consider the appellants’ submission on liability and quantum, and in so doing, she arrived at an erroneous decision. 3.The respondents were represented by J. Ndung’u Njuguna & Company Advocates. They argued that the learned trial magistrate did not err and her decision ought not to be disturbed. 4.This Court is the first appellate court. I recognize my duty to assess all the evidence on record, considering that I did not have the advantage of observing the witnesses testify and noting their demeanour. I will be guided by the decision in the case of Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, in which it was held that the first appellate court must reconsider and evaluate the evidence presented before the trial court, assess it, and draw its conclusions in the matter. 5.Liability is apportioned according to the degree of fault and blameworthiness of the responsible party. In the case of Kiema Mutuku vs Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, it was established that:There is yet no liability without fault in the legal system in Kenya, and the plaintiff must prove some negligence against the defendant where the claim is based on negligence. 6.The evidence of CPL. Thomas Mosoti (PW1), who investigated the case, blamed the driver of the motor vehicle, registration number KDK 380A, saying he was in the wrong for ramming into the rear of the motorcycle, registration number KMFF 637R. This caused the respondent's injury. This was the gist of the respondent’s evidence. 7.The appellants closed their case without calling any evidence. The finding by the learned magistrate on liability, therefore, cannot be faulted. 8.The appellants argued that the general damages were excessive in the circumstances. Before an appellate court can intervene in an award of damages, it must be satisfied that a wrong principle of law was applied, irrelevant factors were considered, relevant factors were omitted, or the award is inordinately low or high. These principles were established by the Privy Council in Nance vs British Columbia Electric Railways Co. Ltd. [1951] AC 601 on page 613, where it stated:The principles applicable under this head are not in doubt. Whether the assessment of damages is made by a judge or jury, the appellate court is not justified in replacing the awarded figure with another simply because it would have provided a different amount if it had initially tried the case. Even if the tribunal of first instance was a judge sitting alone, the appellate court must be satisfied that the judge, in determining the damages, applied an incorrect principle of law (such as considering irrelevant factors or omitting relevant ones); or, failing this, that the amount awarded is so inordinately low or high that it constitutes a wholly erroneous estimate of damages (Flint vs Lovell [1935] 1KB 354), as affirmed by the House of Lords in Davis vs Powell Duffryn Associated Collieries Ltd. [1941] AC 601. 9.Dancan Waweru Wambui, the respondent in this appeal, was examined by Dr Wellington K. Kiamba on the 17th day of July 2023. He sustained injuries as follows:a.Fracture of the left 3rd metacarpal,b.Fracture of the left 4th metacarpal,c.Soft tissue injuries of the left index finger,d.Soft tissue injuries of the left thigh,e.Severe soft tissue injuries of the left knee joint.The doctor was of the following opinion:Dancun Waweru Wambui sustained a fracture of the left 3rd metacarpal, a fracture of the left 4th metacarpal, soft tissue injuries of the right index finger, soft tissue injuries of the left thigh and soft tissue injuries of the left knee joint during this accident. He has not recovered from these injuries. He is still on treatment. He will be re-examined once he is through with treatment and final medical records showing the extent of his disability.I classify the degree of injury as “grievous harm”. He has not resumed his usual duties since the accident. 10.In the trial court, the appellants proposed an award of Kshs. 100,000 in general damages. They relied on the decision in Kenya Tea Development Agency vs Augustine Gori Makori [2014] eKLR. The respondent had sustained the failure of the right hand and index finger. Continuing effects of injury and inability to use the injured finger and the disfigured index finger. On appeal, the high court confirmed an award of Kshs. 100,000.00, saying that it was not inordinately high. 11.The respondent had proposed an award of Kshs. 1,000,000.00 and relied on the decision in Njora Samuel vs Richard Nyang’au Orechi [2018] eKLR, the respondent was awarded a sum of Ksh. 500,000/- as general damages for a closed fracture of the right 5th Metatarsal. The High Court upheld this award on appeal. The respondent in the instant case sustained more serious injuries than those sustained by the respondent in the Njora Samuel case (supra). I therefore find no reason to interfere with the award of general damages. 12.Loss of earnings is special damage and must be strictly proved. The Court of Appeal in Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR) held that as follows:Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically. In the present case, the appellant provided no evidence that he was indeed employed at Bons Company and that hedeed employed at Bons Company and that he was earning the 3,670.00. In this case, the sum pleaded was Kshs. 3,913.60, but like in the Karanu case, there was no evidence to support this claim. Even though the appellant claims that the sum was reasonable, and the court ought to allow it, we find no basis to do so. We are satisfied that the trial judge applied the correct principles on this head, and this ground of appeal therefore fails. 13.The respondent testified that he was out of work for 10 months. He, however, did not provide evidence of his monthly earnings. Consequently, the trial court used the minimum wage of Kshs. 18, 399. This gave a total of Kshs. 183,399. This approach was reasonable, and I see no reason to alter the award. 14.The appellants argued that, despite claiming Kshs. 26,820 as special damages, only receipts totalling Kshs. 16,000 were presented. Special damages must be both pleaded and rigorously proven. In the case of Coast Bus Service Ltd. v Sisco & Murunga Danii & 3 Others Civil Appeal No. 192 of 1992 (unreported), the Court of Appeal held as follows:We would restate the position special damages must be pleaded with as much particularity as circumstances permit and in this connection, it is not enough to simply aver in the plaint as was done in this case that the particulars of special damage were to be supplied at the time of the trial if at the time of filing the suit the particulars of special damages are not known with certainty, then those particulars can only be supplied at the time of trial by amending the plaint to include the particulars which were previously missing. It is only where the particulars of the special damage are pleaded in the plaint that a claimant will be allowed to proceed to the strict proof of those particulars. [Emphasis added] 15.In the instant case, the respondent pleaded special damages of Kshs. 26,820. Upon my perusal of the record, I find that the same was proven. 16.The appeal is therefore dismissed due to lack of merit, with costs awarded to the respondent. DELIVERED AND SIGNED AT NYANDARUA, THIS 25TH DAY OF JUNE 2026KIARIE WAWERU KIARIEJUDGE