https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1358

Nibhma Enterprises Limited v Morwabe (Appeal E183 of 2024) [2026] KEELRC 1358 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1358 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Appeal E183 of 2024 JW Keli, J May 15, 2026 Between Nibhma Enterprises Limited Appellant and Boaz Nyakenyanya Morwabe Respondent (Being an Appeal from the Judgment and Decree of the Hon. B.M. Cheloti (PM) delivered at Nairobi on the 5th day of March, 2024 in Milimani CMCC No. 5741 of 2018) Judgment 1.The Appellant herein, being dissatisfied with the Judgment and Decree of the Hon. B.M. Cheloti (PM) delivered at Nairobi on the 5th day of March, 2024 in Milimani CMCC No. 5741 of 2018 between the parties, filed a memorandum of appeal dated the 28th of June, 2024 seeking the following Orders:-a.The appeal be allowed.b)The judgment of the learned Magistrate dated 5th March, 2024 be reviewed and/or set aside.c)The Respondent does bear the costs of this appeal. Grounds Of The Appeal 2.The Honourable Magistrate erred in law and fact and misdirected herself as to the extent and nature of the Respondent's injuries and thereby erred in law in his assessment of damages which is inordinately high. 3.The Honourable Magistrate erred in law and in fact in awarding general damages that were manifestly and so inordinately high and not in tandem/commensurate with the respondent's injuries. 4.The Honourable Magistrate erred in law and fact in assessing damages and failed to apply the trite principles in awarding damages and specifically on general and special damages and comparable awards for analogous injuries. 5.The judgment and decree is erroneously high and against the weight of the evidence and law. 6.The Honourable Magistrate erred in law by failing to properly and sufficiently appraise, interpret and apply the provisions of Order 21, Rule 4 and Order 21, Rule 5 of the Civil Procedure Rules in writing her judgment. 7.The Honourable Magistrate erred in law and fact by completely disregarding evidence on record in awarding for injuries sustained by the Respondent. Background To The Appeal 8.The Respondent filed a claim against the Appellant vide a plaint dated the 23rd of April 2018, later amended and filed on 23rd January 2019 seeking the following orders:-a.General damagesb.Special damages of Kshs.1,566, 413/-c.Loss of future earning capacity of Kshs. 3,000,000/-d.Costs of the suit.e.lnterest on (a), (b) and (c) above at Court rates.f.Future medical expenses of 1.5 million for the-replacement of the left hip joint.g.Any other relief or further relief that this Honourable Court deems fit to grant(Pages 3-5 and 18-21 of the ROA dated 29th September 2025). 9.In support of his claim, the Respondent filed his list of witnesses dated 23rd April 2018, witness statement of even date, and list of documents of even date with the bundle of documents attached (See pages 8-11 of ROA; and 46-64 of Supplementary Record of Appeal dated 11th December 2025). 10.The claim was opposed by the Appellant who entered appearance and filed a defence dated the 23rd of July 2018, later amended and dated 23rd March 2021 (pages 22-29 of ROA). They also filed a list of witnesses dated 23rd July 2018; and list of documents dated 20th November 2023 with the bundle of documents attached (pages 30-33 of ROA). 11.The parties recorded a consent on 30th November 2023 on liability, apportioning it in the ration 80:20 in favour of the Plaintiff/Respondent. They also agreed to admit the Plaintiff/Respondent’s documents without calling the makers thereof; and requested to file submissions on quantum of damages (pages 44-45 of ROA). 12.The parties took directions on filing of written submissions after the hearing, and the Plaintiff complied. 13.The Trial Magistrate Court delivered its judgment on the 5th of March 2024 allowing the Claimant’s claims to the tune of Kshs. 3,653,130.40 comprised of general damages and loss of future earning capacity at Kshs. 3,000,000/-, special damages at Kshs. 66,413, and future medical costs at Kshs. 1,500,000/-, plus costs of the suit and interest (Judgment at pages 38-39 of ROA). Determination 14.The appeal was canvassed by way of written submissions. Both parties filed. Issues for determination 15.In their submissions dated the 18th of January 2026, the Appellant submitted generally on the quantum of damages. 16.Similarly, in his submissions dated 10th February 2026, the Respondent submitted generally on the appeal. 17.The court finds the issue for determination is whether the trial court erred in fact and law in award of quantum of damages. 18.The court proceeded to re-evaluate the evidence before the lower court on the two main awards -a.General damages and loss of future earnings and future medical expensesb.Assessment of general damages The Appellant’s submissions 19.The appeal invites this Honourable Court to interrogate whether the award made by the trial court was manifestly excessive having regard to the nature and extent of the injuries sustained, and whether the learned Magistrate’s failure to give reasons for the award, as mandatorily required under Order 21 Rules 4 and 5 of the Civil Procedure Rules, rendered the impugned judgment defective, unsustainable, and amenable to appellate interference. 20.The Appellant therefore submits as follows: A. General Damages. At the outset, the Appellant submits that the impugned judgment is fundamentally defective for failure by the learned Magistrate to give reasons for the awards made. The trial court neither set out the issues for determination nor analysed the medical and documentary evidence placed before it, and further failed to explain how the quantum of damages under each head was arrived at. This omission contravened the mandatory requirements of Order 21 Rules 4 and 5 of the Civil Procedure Rules. The error was compounded by the learned Magistrate’s decision to lump together distinct heads of damages, namely general damages and loss of future earning capacity, without isolating the sums attributable to each head or explaining the legal basis for such an approach, thereby rendering the judgment opaque, unreasoned, and incapable of effective appellate scrutiny. A cardinal rule of pleadings is that a party is bound by his pleadings. On that premise, we submit that the assessment of damages in this case must be by reference to the particulars of injuries as enumerated at paragraph 7 of the Amended Plaint which appears at page 19 of the record of appeal to wit▪ Fracture neck left femur. We invite the Court’s attention to the first medical report produced by the Respondent (at page 51 of the Supplementary Record of Appeal), prepared by Dr. Moses Kinuthia and dated 14th February 2017. The said report recommends a total hip replacement of the left hip joint at an estimated cost of Kshs. 1,500,000 and assesses the Respondent’s permanent incapacity at 50%. However, the subsequent medical report on record, prepared by Dr. Modi M. Y. (at page 33 of the Record of Appeal) and dated 23rd April 2019, presents a materially different and more current clinical assessment. In that report, it is noted that corrective surgery would cost approximately Kshs. 600,000, and that the degree of permanent disability is assessed at 35%, reducible to 15% upon successful surgical intervention. That, the second medical report, being more recent, more accurately reflects the Respondent’s medical progression and functional status over time. Crucially, it expressly demonstrates that the alleged permanent disability is neither static nor irreversible, having already reduced and being capable of further substantial diminution following surgical intervention. This evidence directly negates any assumption of severe, lifelong incapacity and confirms that the Respondent’s condition is amenable to treatment and improvement. It is therefore submitted that, when the medical evidence is assessed holistically and comparatively, it does not justify an award premised on grave or permanent disability, but instead calls for a measured, proportionate, and reasoned assessment of damages, which the trial court regrettably failed to undertake or explain. We draw the Court’s attention to the well-established principle that in suits brought in respect of bodily injuries, the measure of damages is governed by the principle of restitutio in integrum, that is; an award for bodily injuries is intended to be compensatory in nature such that the Plaintiff should receive in monetary terms no more and no less than his actual loss. There are principles established by authorities for the assessment of damages in personal injury claims. These are, fairness, reasonableness, moderation, and principles of “stare decisis” .... That an injury should attract an award equivalent or near equivalent to previous court awards for similar injuries. These principles have been restated in many cases, including– West (H) & Son Ltd vs. Shepherd [1964] AC 336 at p. 345, Lim Poh Choo vs. Camden & Islington Area Health Authority [1979]1 ALL E.R. 332, both of which cases were applied in Cecilia W. Mwangi & Another V Ruth W. Mwangi [1997] Keca 62 (Klr) where the court cited Lord Morris in the locus classicus of West (H) & Son Ltd. vs. Shepherd (1964) A.C. 326 at page 345 as follows: - “But money cannot renew a physical frame that has been battered and shattered. All that Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be an endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.” Further in Lim Poh Choo vs. Camden and Islington Area Health Authority (1979) 1 AII ER 332, Lord Denning M.R. aptly set out as follows:- “In considering damages in personal injury claims, it is often said: “the Defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.” That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error much as may befall of us. I stress this so as remove the misapprehension, so often compensated for all the loss and detriment she has suffered. That is not the law she is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the Defendants. According to the most recent medical report prepared by Dr. Modi M.Y., while the Respondent is noted to have sustained a left neck femur fracture, the same report confirms that his reduced left-leg mobility is expected to significantly improve following successful surgical intervention. In essence, the medical evidence does not support any long-term disability or impairment. In the premises, we humbly submit that an award of Kshs. 300,000.00 would have been a fair and adequate compensation as General Damages. We respectfully draw the Court’s attention to the following cases, which we humbly submit are instructive in the assessment of damages herein given the fact that they are fairly recent decisions: -In Igoki v Kanini (2023) eKLR, the claimant had sustained a fracture of the right tibia bone, and an award of Kshs. 300,000 was made by Judge Gitari. In James Nganga Kimani & another v Giachagi Njoroge & 2 others [2019] eKLR, the appellate Court substituted the trial Court’s award of Kshs.300,000.00/- to Kshs. 200,000.00/= on general damages for pain and suffering for a Respondent who suffered multiple soft tissue and fractures with no adverse consequences beyond scarring. The alleged injuries sustained by the Respondent herein are less severe than those sustained by the Respondents in the cases relied on above. As such the award should also be less to the ones awarded to the Respondents in the above stated matters. We therefore humbly pray that this Honourable Court be pleased to set aside the award of the trial court and substitute it with an award of Kshs. 300,000 as general damages. Any higher award would be manifestly excessive, unsupported by the medical evidence on record, and would defeat the settled principles governing the assessment of damages. Respondent’s submission on general damages 21.In regards to paragraphs 8 and 9 of the Appellant's Submissions, the Appellant compares the two Medical Reports by Dr. Moses Kinuthia (for the plaintiff) and Dr. M.Y. Modi (for the defendant). The two doctors agreed as to the nature of injuries sustained and recommended total hip replacement. The difference between the two Reports arises from the cost of the total hip replacement and the degree of permanent disability. The Report by the defendant's doctor tends to under state what the Report by the doctor for the plaintiff says. This is where the Appellant would have rebutted the evidence given by the Respondent by producing evidence to support its rebuttal unfortunately, the Appellant did not do so neither did it prepare submissions for the Court to appreciate its views on the question of damages to be awarded and the cost of a total hip replacement. 22.In his submissions before the trial court, the Respondent relied on the authority of Kennedy Ooko Ouma Dachi v Joseph Maina Kamau & another [2018] KEHC 7839 (KLR) .This is a 2016 authority. At paragraph 6 the cost of total hip replacement was placed at Kshs. 1 million. Judgment in this matter was delivered on 5th March, 2024. We are of the view that a total hip replacement at the cost of Kshs 1.5 Million is not inordinately high given the inflation factor and the passage of time (it now going to Ten years from 2016 when the cost of total hip replacement was placed at Kshs 1 million). This fact was not controverted by the Appellant. The Respondent submits that the cost of total replacement of the hip at Kshs 1.5 million is reasonable and fair in comparison to figure of Kshs 1 million as stated in the authority the Respondent had relied on in his submissions in the lower Court. At the time of recording the consent, the Respondent could not walk. He was carried into his Advocate's Office and the Advocate for the Appellant saw him through a video call. A cost of Kshs 600,000/= as recommended by Dr. Modi is highly understated and not in keeping with the costs applicable in treatment of such cases. 23.On the question of damages, going by paragraphs 16 and 17 of the Appellant's Submissions, the Appellant seems to take the injuries sustained by the Respondent as fracture of the tibia bone or sustenance of soft tissue injuries and fractures where the Court awarded general damages of Kshs 300,000/= and Kshs 200,000/= respectively. The Court at paragraph 32 of the authority the Respondent relied on in the lower Court, the Court observed that"a fracture of the tibia or femur for instance, is very different from hip fracture especially in terms of long-term consequences to the victim's health and especially mobility. In my view the trial magistrate ought to have considered more specifically the consequences that the fracture to the acetabulum predisposed the Appellant to, more so because he had obviously been persuaded that one consequence was the requirement for total hip replacement, as a result of osteo - Arthritis." The court revised the general damages from Kshs 1 million to Kshs 1.4 million. In his submissions, the Respondent prayed for general damages of Kshs 1,500,000/= which figure may now have been overtaken by events given the economic conditions prevailing in the country. The Respondent urged that general damages of Kshs 1,500,000.00 is not excessive. It is in line with the authority the Respondent relied on whereas the Appellant did not provide any evidence to the contrary to rebut this prayer. Decision on general damages 24.The impugned decision is challenged on quantum, only as the parties having entered consent on liability at 80:20 in favour of the respondent. On quantum the trial court held –‘Quantum: 8. The Court has assessed the damages and awards the same as follows: a. Total damages of Kshs.3,653,130.40/- Kshs. 4,566,413/- less Kshs. 913,282.60/-being 20% contributory negligence i. General damages & loss of future earning capacity at Kshs. 3,000,000/ ii. Special damages at Kshs. 66,413/- iii. Future medical costs at Kshs. 1,500,000/- b. The cost of this suit be borne by the Defendant. C. Interest on (a), and (b) above at court's rate from the date delivery of this judgment until payment in full.’ It was obvious to the court that the award for general damages lumped with loss of earnings was not explained. 25.The court agreed with the appellant that the learned Magistrate’s decision to lump together distinct heads of damages, namely general damages and loss of future earning capacity, without isolating the sums attributable to each head or explaining the legal basis for such an approach, rendered the judgment opaque, unreasoned, and incapable of effective appellate scrutiny. In Selle -Vs- Associated Boat Co Ltd. [1968] EA 123, it was stated that:-“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding 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.An appeal to this court from a trial by the High Court is by way of 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. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. (Abdul Hameed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270). 26.The respondent sought for the following reliefs before the lower court –(a)General damages(b)Special damages of Kshs.1,566,413/=(c)Loss of future earning capacity of Kshs.3.000,000/=(d)Costs of the suit.(e)Interest on (a), (b) and (c) above at Court rates.f)Future medical expenses of 1.5Million for the replacement of the left hip joint.(g)Any other relief or further relief that this Honourable Court deems fit to grant. (page 21 of ROA) 27.The trial court gave a lump sum figure for both the general damages and the loss of future earnings. The appellant opined that excessive general damages were awarded, taking into account the medical report by their doctor, Dr Modi, who assessed the respondent later and found less permanent incapacity. The appellant was of the opinion that this was the relevant report as it was done after some time of the injury and appeared to state that the status of injuries would be less in the future. 28.The parties produced the 2 medical reports by consent. The respondent produced a medical report dated 14th February 2017 by Dr Kiinuthia, which stated- ‘Current Physical Examination Results. He is a young man walking with a crutch with a left-sided limping gait. Relevant physical findings included:- 1. The left lower limb is shorter than the right by about 5cm. There is eversion of the foot. OPINION The injuries Boaz sustained in this accident were grievous harm and they caused him pain. suffering and blood loss. The injuries sustained are valid and consistent with the mode of injury. The fracture neck left femur resolved with a gross malunion hence the permanent shortness of the left lower limb. He is predisposed to posttraumatic osteoarthritis of the left hip joint. Total hip replacement left hip joint is required to alleviate this at an estimated cost of Ksh.1.5M. Total permanent incapacity is assessed at 50% (fifty percent).’(page 52 of ROA) 29.Conversely, the appellant produced a report by Dr Modi dated 23rd April 2019 which stated as follows- ‘Present Complaints: Pain Left Hip Short Left Leg Cannot Walk Properly Current Findings: Left hip -lower limb 3.0cm short, hip mobility reduced, walks full weight bearing with gross limp and one crutch Conclusion/comments: Boaz Nyakenyanya Morwabe sustained left neck femur fracture following injury at his work place when heavy weight engine block fell on him. Fracture required surgery - surgery was planned as well but due to some reason it was not done. As per current examination in my office he is having left leg shortening by 3.0 cm. Left hip mobility is grossly reduced. He is walking with gross limp using one crutch. He will require surgery - total hip replacement in future to rectify his problem. Currently he has sustained permanent disability of 35% thirty five percentages which will reduce to 15% after successful surgery. Surgery will cost approximately Kshs 600,000 at medium 'cost private hospital.’’ 30.The court found consensus in the two medical reports on injuries suffered by the respondent with grossly reduced hip mobility and the recommendation of total hip replacement. The variance in the medical reports was that the first report stated the left lower limb is shorter than the right by about 5cm, while the 2nd opinion by Dr Modi stated the lower limb was shorter by 3cm. The other variance was regarding the incapacity with the first report at 50% and the 2nd at 35%, and stating the incapacity would reduce to 15% after hip replacement. The court noted the 1st report stated that ‘He is predisposed to posttraumatic osteoarthritis of the left hip joint’. The 2nd medical report did not give an opinion on this issue despite the existence of the first report. The court finds the authorities relied on by the appellant to challenge the award had much less severe injuries and none required hip replacement, which, to the court, held the respondent suffered much more severe injuries. The appellant relied on Igoki v Kanini (2023) eKLR, where the claimant had sustained a fracture of the right tibia bone, and an award of Kshs. 300,000 was made and in James Nganga Kimani & another v Giachagi Njoroge & 2 others [2019] eKLR, the appellate Court substituted trial Court’s an award of Kshs.300,000.00/- to Kshs. 200,000.00/= on general damages for pain and suffering for a Respondent who suffered multiple soft tissue and fractures with no adverse consequences beyond scarring. 31.Conversely, the respondent placed before the trial court and before this court decision of the High Court in a case which required hip replacement in Kennedy Ooko Ouma Dachi v Joseph Maina Kamau & another [2018] KEHC 7839 (KLR). The injuries in the case were summarized by the appellate court as follows-‘17. The foregoing is the legal lens through which this appeal has to be considered. The Appellant’s submissions in respect of general damages for future medical expenses are founded on the report by Dr. Wasena Angira. This report was tendered during the trial as exhibit 2. The relevant portion of the report states that:-“The acetabula fracture will have a malunion (not heal properly) and he (Appellant) is bound to get arthritis of the left hip and he will be required to have total hip replacement after probably 8 to 10 years.”As for the medical report produced by Dr. Kiamba at the trial, the relevant portion states:“He (Appellant) has not recovered from the comminuted fracture of the left acetabulum. This fracture will eventually malunite and he will develop osteo arthritis of the left hip joint. He will eventually require total hip replacement. This operation will cost at least Kshs 1 million” The court finds that this was a relevant and comparable authority. In the case the appellate court held-‘32. A fracture to the tibia or femur for instance, is very different from a hip fracture, especially in terms of long term consequences to the victim’s health, and especially mobility. Besides, the awards in the authorities cited by the Respondents are too low. In my view, the trial magistrate ought to have considered more specifically the consequences that the fracture to the acetabulum predisposed the Appellant to, more so because he had obviously been persuaded that one consequence was the requirement for a total hip replacement, as a result of osteo-arthritis. Had the trial magistrate given attention to this factor, he would have awarded a higher figure as general damages. The court is satisfied that it is justified to interfere with the award for damages in respect of pain and suffering as the trial court failed to take into account the serious medical consequences arising from the fracture to the acetabulum. However, an award of general damages in the sum of KShs 2 million as sought on this appeal by the Appellant would be too high. This court therefore while setting aside the award of KShs 1 million for pain and suffering is of the view that a sum of Kshs 1,400,000/= (One million four hundred thousand) would be adequate compensation for pain and suffering.’’ I hold the foregoing decision to be comparable with the injuries sustained by the respondent in the instant case. It was a decision of 2018. The trial court mixed up the award of general damages for pain and suffering with loss of future earnings and awarded a total of Kshs. 3,000,000 . I award Kshs. 1,500,000 as general damages. This was the same sum asked for by the appellant in submissions. Quantum on loss of future earnings 32.On loss of future earnings, the appellant submitted that the Respondent in his Amended Plaint pleaded a claim for loss of future earning capacity premised on the assertion that prior to the accident, he was earning Kshs. 25,000 per month as a mechanic and that he allegedly suffered 50% permanent and functional incapacity as a result of the injuries sustained. The trial court in its judgement proceeded to make an all inclusive award together with the General Damages without segregating the two. The Respondent, in his Amended Plaint, pleaded a claim for loss of future earning capacity premised on the assertion that, prior to the accident, he was earning Kshs. 25,000.00 per month as a mechanic and that he allegedly suffered 50% permanent and functional incapacity as a result of the injuries sustained. 30. It is respectfully submitted that this claim is fundamentally unsustainable both in law and on evidence. Firstly, the Respondent did not tender any documentary or independent proof whatsoever to substantiate the alleged monthly earnings. No payslips, employment records, contracts, tax returns, business permits, or bank statements were produced before the trial court to establish either the nature of the Respondent’s engagement or the income claimed. The alleged earnings therefore remained a bare assertion, incapable of forming the basis of a compensatory award. Secondly, and more critically, the claim was anchored on an outdated medical assessment estimating incapacity at 50%, which position was directly contradicted by the subsequent and more recent medical report dated 23rd April 2019. The later report confirmed that the Respondent’s incapacity had already reduced to 35% and was expected to further diminish to 15% following successful surgical intervention. This medical evidence clearly demonstrates that the Respondent retained substantial functional capacity and was not rendered incapable of engaging in gainful employment. Loss of future earning capacity is a distinct and specific head of damages, separate from general damages for pain, suffering, and loss of amenities. It is compensatory in nature and is only awardable where a claimant demonstrates, on a balance of probabilities, that the injuries sustained have resulted in a real and measurable diminution of earning ability. The assessment under this head must be grounded on evidence of actual impairment of earning power and cannot be presumed from the mere fact of injury or disability. In the present case, the learned Magistrate erred in law by lumping the award for loss of future earning capacity together with general damages, without isolating the sum attributable to each head or setting out the basis upon which the award for loss of earning capacity was made. This approach obscured the reasoning process of the court and rendered it impossible to ascertain whether the Respondent had, in fact, satisfied the legal and evidential thresholds required to justify an award under this distinct head. Further, the learned Magistrate failed to analyse the evidence underpinning the claim for loss of future earning capacity or to give reasons for accepting the Respondent’s assertions on income and incapacity, as required under Order 21 Rules 4 and 5 of the Civil Procedure Rules. No findings were made on whether the Respondent had proved his earnings, whether his medical condition materially impaired his ability to work, or how the court reconciled the conflicting medical reports. In the absence of such analysis and clear findings, the award under the head of loss of future earning capacity was speculative, arbitrary, and legally unsustainable. Any such award, particularly when merged with general damages, offends the principle of restitutio in integrum and results in double compensation for the same injury. In the premises, it is respectfully submitted that the Respondent wholly failed to discharge the burden of proof required to sustain a claim for loss of future earning capacity. The Appellant therefore urges this Honourable Court to set aside the award under this head in its entirety, and to reassess general damages separately and in accordance with the evidence and applicable principles of law. 33.Conversely, the respondent submitted as follows- On the question of loss of future earnings, the Respondent is of the view that issues being raised in paragraph 30 of the Appellant's submission, ought to have been raised by the Appellant at the trial stage. It is rather late for it to start countering the evidence of the Respondent at the appeal Stage. The Respondent denies that the Medical report furnished by Dr. Kinuthia is outdated as claimed by the Appellant's submissions. The two Medical Reports, at pages 51 to 52 and page 33 of Supplemental Record of Appeal respectively, fully agree on the nature of injuries and the mode of treatment. The difference was the cost of total hip replacement and the percentage of permanent disability. The Respondent provided an authority that gave guidance on the quantum and the costs of total hip replacement. We refer the Court Kennedy Ooko Ouma Dachi Vs Joseph Maina Kamau & Anor (above). At paragraph 32 of the Appellant's Submissions we are in agreement that loss of future earning capacity is a distinct and specific head of damages separate from general damages for pain, suffering and loss of amenities. Both Medical reports are in agreement that: -In the case of Dr. Kinuthia: -"The Respondent complained of shorter left lower limb. He was a young man walking with the aid of a crutch with a left sided limping gait. The left lower limb was shorter than the right by 5 cm. There is eversion of the foot" The doctor recommended total hip replacement.In this case of Dr. Modi: -The Respondent's present complaints were: -Pain Left hipShort Left legCould not walk properlyLower limb 3cm short, hip mobility reduced walks full eight bearing with gross limp and one crutch. The doctor also recommended total hip replacement. 34.The Respondent is a mechanic by profession and was unable to work after the accident. The Respondent was admitted at Kenyatta National Hospital from 29th August, 2015 and discharged on 25th January, 2016 - a period of about 4.75 months. When he left hospital, he used crutches for sometime but at the time of hearing, his condition had worsened. He could not walk. The Suit herein was filed on 20th June, 2018. When it became apparent that the Respondent was unlikely to work, he instructed his advocates on record to claim for loss of come, hence the amendment of the pleadings which were done on 11th day of March, 2020. 35.The parties proceeded by way of documentation. The respondent pleaded in paragraph 9 of the amended claim that he was working as a mechanic and earning Kshs. 25000. The employment was not in dispute. The appellant in amended defence at paragraph 12 rendered a mere denial of the salary but failed to state an alternative salary. There is no doubt the respondent as an employee was earning, and for failure to state an alternative figure, the assertion of salary of Kshs 25000 by the respondent was an uncontroverted fact. The appellant was custodian of employment records under section 10 of the Employment Act, and if the salary was different, nothing would have been easier than to produce the employment records. section 10(7) of the Employment Act states- ‘If in any legal proceedings an employer fails to produce a written contract or the written particulars, prescribed in subsection (1) the burden of proving or disproving an alleged term of employment stipulated in the contract shall be on the employer.’ one of the terms required to be in contract of employment is remuneration as per section 10(2)(h) to wit- ‘the remuneration, scale or rate of remuneration, the method of calculating that remuneration and details of any other benefits.’’ The court finds that for failure to produce documents and even call witness to prove payable salary the statement in the defence amounted to mere denials. The respondent submitted before the lower court that his date of birth as per Dr Modi (report relied on by the appellant) stated he was born on 1st January 1986. At time of injury he was 29 years old. The retirement age of 55 years was applied, and a multiplier of 10 years, leading to a claim of KShs. 3,000,000. The respondent pleaded 8 years post the accident, he had yet to work. The court noted that at that time, he was yet to get the hip replacement to increase mobility. The court deduced that the respondent was awarded Kshs. 1,500,000 as the total award for general and loss of future earning was lumped at Kshs. 3,000,000 and the court awarded general damages for Kshs. 1,500,000 above. The basis of the appeal was the dispute over the payable salary, which the court held to be uncontroverted. There was evidence that the respondent had not been able to work for 8 years post-accident, and his age was established to be 29 years. 36.I find no basis to interfere with the award of total sum of Kshs. 3,000,000 for general damages and loss of future earnings. In this case, the portion of the loss of future earnings would be 1,500,000, which is not excessive, taking into account the proof of the incapacity to work for a period of 8 years, as at the time the case was heard, and the fact that the respondent did not call witnesses to challenge the medical assessment of incapacity of 50 %. The subsequent medical report at 35% incapacity while, produced in court by consent, never referred to the earlier report but confirmed the severe injuries suffered by the respondent. I find the difference in the assessment of the injuries is not material to the award by the trial court. 37.On the cost of hip replacement - DR Modi for the appellant stated the cost for hip replacement was Kshs. 600,000 while Dr Kinuthia stated Kshs. 1,500,000. The court was persuaded that the cost was within the range suggested by Dr Kinuthia, taking into account that in Kennedy Ooko Ouma Dachi v Joseph Maina Kamau & another [2018] KEHC 7839 (KLR), it was stated before the trial court in 2014 that the cost was Kshs. 1,000,000 as reproduced by the appellant court that –‘. In his oral evidence Dr. Kiamba stated inter alia that:-“He (Appellant) will require a total hip replacement at a cost of 1 million (shillings)………The (2) hip replacements will cost 3 million (shillings)’. 38.Taking into account inflation as at 2024, when the award of 1,500000 for future medical (hip replacement cost ) was awarded, I find the amount justified and no basis to interfere with the decision of the trial court. In .Mbogo V Shah [1968] EA Page 93 De Lestang V.P (As He Then Was) Observed At Page 94:“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’ The special damages 39.The appellant submitted -the Respondent herein, in his Plaint at paragraph 8 claims and pleads for an award on special damages for a sum of Kshs. 66,413/=. We humbly submit and implore this Honourable Court to award only that amount that has been pleaded and specifically proven by way of documentary evidence in receipts. It is not enough for the Respondent to claim special; damages herein. The same must be strictly proven by receipts. The receipts produced must reflect and totally account for the sum pleaded herein for it to be awardable. Notably, the Court of Appeal in several cases has stated that special damages must not only be pleaded but also strictly and specifically proven. See, the Court of Appeal in Civil Appeal No. 180 of 1993 William Kiplangat Maritim & Another –versus Benson Omwenga as cited in Francis Muchee Nthiga v David N. Waweru (2014) eKLR where it was stated: “It is now trite law that special damages must not only be pleaded but must also be specifically proved…”Conversely, the respondent submitted that, in regard to the Special damages, the Respondent produced an Inpatient Credit Form duly executed at pages 60 and 61 of the Supplementary Record of Appeal, showing the amounts that had been cleared by NHIF, being Kshs 144,000.00, and the balance of Kshs 61,413.60 was to be cleared by the Respondent. The Respondent was unable to clear the Kshs 61,413.60 and we gave an undertaking at page 64 of the Supplementary Record of Appeal dated 7th April, 2017. Upon receiving our undertaking KNH agreed to release the treatment notes for purposes of filing this suit against the Appellant. The Respondent has produced a receipt of Kshs 5000.00 being fees for the Medical Report. We refer the court to page 53 of the Supplementary Record of Appeal. 40.On perusal of the record, the Court confirmed the position of the respondent as true. The court thus upheld the decision of the trial court on special damages as proved. 41.In conclusion, I found no merit in the appeal and the same is dismissed with costs to the respondent. The judgment and Decree of the Hon. B.M. Cheloti (PM) delivered at Nairobi on the 5th day of March, 2024, in Milimani CMCC No. 5741 of 2018 is upheld. 42.It is so Ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 15TH DAY OF MAY, 2026.JEMIMAH KELI,JUDGE.In The Presence Of:Court Assistant: OtienoAppellant – Ms BettRespondent: Ms Kitonga