https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6604

Gucha v Ali & another (Civil Appeal E004 of 2025) [2026] KEHC 6604 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6604 (KLR) Republic of Kenya In the High Court at Marsabit Civil Appeal E004 of 2025 FR Olel, J May 8, 2026 Between Nuria Ali Gucha Appellant and Fatuma Adan Ali 1st Respondent Mwananchi Credit Limited 2nd Respondent (BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF HON CHRISTINE WEKESA (SPM) DELIVERED ON 12th JUNE 2025 IN MARSABIT SPMCC No. EO29 of 2024) Judgment A. Introduction 1.The Appellant filed the primary suit, where she sued the respondent’s claiming damages arising from a road traffic accident, which occurred on 25.12.2023 along Marsabit - Moyale Road. It was her contention that on the material day she was a lawful paying passenger on motor vehicle registration Number KDD 015F ( hereinafter referred to as the 1st suit Motor vehicle), which was lawfully being driven along the said road, when they crashed into defendants motor vehicle registration Number KCV 065P/ZD 8912 ( hereinafter referred to as the 2nd suit motor vehicle ) that had stalled on the said road without the respondents agents/ driver/employee placing any warning signs or indicator to avert any danger for other road users. 2.As a result of the said accident, the Appellant averred that she sustained serious injuries, which included a fracture of C1 (1st cervical vertebra), and asserted that the respondents were vicariously liable for their driver’s negligence, which she particularized. The appellant further pleaded that prior to occurrence of the said accident, she had been employed as a senior employee of Ol-Njorowa Ltd and earned a monthly salary of Kshs.42,900/=, but due to the debilitating nature of injuries sustained had to stop working and also needed Kshs.300,000/= in order to pay for future medical expenses, which she would still incur. She thus prayed to awarded the set of damages prayed for in her plaint. 3.The Respondent’s herein filed their statement of defence dated 25.11. 2024 where they denied the occurrence of the accident and/or that the appellant was injured as a result of the said accident. In the alternative that if at all the accident did occur, (which was denied) then it was caused solely and/ or largely contributed to by the negligence of the driver of the 1st suit motor vehicle, and gave notice that they would institute third party proceedings as against the said party. They thus urged the court dismiss the Appellants claim. 4.Before hearing commenced, the appellant withdrew the case filed against the 2nd defendant and adopted her witness statement dated 01.03.2024 as her testimony in chief together with her list of claim supporting documents which were produced as an Exhibits in support of her case. She restated that on the material day she was a lawful fare paying passenger travelling at night on the 1st suit motor vehicle heading to Nairobi from Moyale. While enroute their vehicle had unfortunately crashed onto the back of the 2nd suit motor vehicle, which had stalled on the road and its driver had failed to place warning signs or indicators to warn other road users of the danger lying ahead. 5.As a result, she had sustained serious injuries and was treated at Marsabit County referral hospital and later visited Nakuru war memorial hospital for further checkups. She produced her doctors medical report which had assessed her degree of injury at 17% but also confirmed the same also did not indicate that future medical treatment would cost Kshs.300,000/= She also relied on her pay slip from Ol-Njorowa limited to prove that she worked at the said firm, and other receipts to prove treatment expenses incurred. Upon closure of her case, the respondent opted not to call any witness and proceed to close the defence case too. 6.The learned magistrate considered the pleadings filed, evidence adduced and the parties’ submissions and, in her judgment, delivered on 12th June 2025 apportioned Liability at 100% as against the respondent herein and proceeded to award the Appellant damages for pain and suffering of Kshs.500,000/=, Special damages pleaded and proved of Kshs.65,000/= plus costs and Interest of the suit. 7.The Appellant, being dissatisfied by the judgement did file their memorandum of appeal on 16th June, 2025 and raised several grounds of appeal namely: -a.That the learned Trial Magistrate erred in law and in fact in awarding general damages that were manifestly too low in the circumstances of the case.b.That the learned Trial Magistrate failed to adequately consider the nature, extent and long term impact of the injuries suffered by the appellant, thereby arriving at an unjust and unreasonable award.c.That the learned trial Magistrate erred in law and fact in disregarding or failing to properly consider the medical reports and treatment documents produced in evidence, which clearly demonstrated the seriousness of the injuries sustained.d.That the learned trial Magistrate erred in law and fact in disregarding or failing to award future medical expenses, despite the production of documentary evidence in support of the same.e.That the learned trial Magistrate erred in both fact and in law in failing to consider the submissions by the appellant and hence arrived at a decision that was erroneous and against the evidence, legal provisions and facts placed before her. B. Analysis and Determination. 8.I have considered the pleadings, evidence presented and submissions of the parties in this appeal. This court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions. As held in Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123 it was stated that;“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court is by way of retrial and the principals 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 conclusion 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 demeanor of a witness is inconsistent with the evidence in the case generally. (Abduk Hammed Saif V Ali Mohammed Sholan(1955), 22 E.A.C.A 270, 9.Also in the court of appeal case of Ephantus Mwangi and Another Vs Duncan Mwangi Civil Appeal No 77 of 1982{ 1982 -1988}1KAR 278 the appellate court did state that;“A member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 10.The two issues which arise for determination in this appeal is;a.whether quantum awarded was inordinately low and therefore warranted appellant’s court interference with the said award.b.Whether the trial Magistrate erred in failing to award the Appellant loss of future medical expenses and loss of future earnings. whether quantum awarded was inordinately low and therefore warranted appellant’s court interference with the said award. 11.Quantum is a matter of judicial discretion which can only be interfered with if the Appellate court is satisfied that the trial court 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. ( See Mbogo Vrs Shah (1968) EA 93 and Kamfro Africa Limited T/A Meru Express Services (1976) & Another Vrs Lubia & Another No 2 (1987) KLR 30.) 12.In Woodruff vs. Dupont [1964] EA 404 it was held by the East African court of appeal that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.” (Also see; Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730 ) 13.Since the decision on the quantum of damages is an exercise of discretion, barring the failure to adhere to the foregoing principles the decision on whether or not to interfere with an award by the trial court must necessarily be restricted. 14.The respondent suffered injuries to the scalp, which had multiple bruises, black right eye (hemorrhage) and a displaced fracture C1 (1st neck vertebrae). The said injuries were proved by the medical treatment notes and P3 form issued at Marsabit level 5 referral hospital, and the medical report of her doctor, one Dr. G.K Mwaura and the 2nd medical report issued by Dr W.M Wokabi. As a result of the said neck injury her disability was assessed by the said doctors at 17% and 25% respectively. 15.I have perused the authorities relied on by both parties herein. I am alive to the fact that no two injuries can be exactly the same. The Appellant relied on Kisumu Civil Appeal No. 94 of 2014, Akamba Public Road service limited Vs Maureen Akinyi Abok (2016) Eklr, and proposed that an award of Kshs 800,000/= would constitute adequate compensation for the injury suffered and further urged the court to find that she was entitled to an extra amount for loss of future earnings/treatment. Reliance was placed in the case of Nyatogo Vs Mini Bakeries Limited (Civil Appeal E38 of 2021), (2023) KEHC 1993 (KLR) to buttress this point. 16.The respondents on the other hand urged the court to find that the award given was proper and commensurate with the nature of injuries suffered. They further urged the court to find that the appellant had not proved her the claim for future medical expenses since it was not recommended by the medical reports produced into evidence. Finally on loss of future earnings the same too could not be ascertained as the pay slip produced by the appellant was not authenticated by her employer. It was also to be noted that the pay slip presented was for September 2023, yet the accident had occurred in December 2023 and in the absence of a more contemporaneous pay slip her status of employment had to remain in doubt. 17.The neck fracture injury suffered by the appellant was grievous and was assessed to have caused a permanent disability of about 20%. Having considered various similar injury precedent; Akamba Public Road Services limited Vrs Maureen Akinyi Abok (2016) eklr, Gabriel Kariuki Kigathi & Another Vs Monica Wangui Wangechi (2016) Eklr, Easy Coach Ltd Vrs Emily Nyaguthi (2015) eKLR and Mathew Alias Nkatha Elizabeth Vrs Muchuki (Civil Appeal E046),(2023)KEHC 6588 (KLR) I do find that the award of Kshs.500,000/= was low and constituted an erroneous estimate of the damages thus inviting this courts interference with the same. 18.Taking into account the above, fairly comparable injuries, the permanent effects of the neck injury, the degree of disability at 20 % and inflation inflation factors, I consider the Appellant’s proposal of Ksh.800,000 reasonable. Whether the trial Magistrate erred in failing to award the Appellant loss of future medical expenses and loss of future earnings. 19.Though specifically pleaded, the appellants claim for future medical expenses amounting to Kshs.300,000/= does not lie as it was not recommended by the doctors who examined her and filed their medical reports. 20.With respect to her claim for loss of future earning, the appellant provided her pay slip for September 2023, to prove that she was employed at Ol-Njorowa Limited and earned a gross pay of Kshs.54,106/=. As a result of the neck injury suffered, she was unable to continue working and thus was justified in seeking for damages under this head. The respondent on the other hand cast aspersions on the pay slip produced which was for September 2023 well before the said accident had occurred. If indeed the appellant was employed at the said firm, she would have presented a certified/authenticated pay slip. 21.The Court of Appeal in SJ vs. Francesco Di Nello & Another (2015) eKLR held as follows: -“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairley V John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40 at pg. 14 wherein Lord Denning M.R. said as follows:“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.” (Emphasis mine) 22.The appellant did produce her pay slip to prove that she earned a gross pay of Kshs.54,106.00/=, the said pay slip was not certified and nor does not state simple detail such as her role and/or under which department she worked at Ol-Njorowa Ltd. The veracity of the said pay slip is therefore doubtful and the learned trial magistrate cannot be faulted for failing to award the appellant damages under this head. C. Disposition 23.The Upshot from the above analysis is that this Appeal is partially successful and the following orders are issued;a.The judgment and decree of Honouble C. Wekesa (SPM) delivered in Marsabit CMCC No E029 of 2027 dated 12th June 2024, with regard to general damages of Kshs.500,000/= is set aside and the same is increased to Kshs.800,000/=.b.The Appellant is awarded costs of this Appeal which is assessed at Kshs.150,000/= all inclusive 24.Stay of execution 45 days 25.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT MARSABIT THIS DAY OF MAY, 2026.FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAM THIS 8TH DAY OF MAY 2026.In the presence of: -N/A ……………………………………..AppellantN/A ………………………………………………. RespondentMr. Jarso ………………………………………………. Court Assistant