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Obisa Ltd v Ndetei (Civil Appeal E145 of 2024) [2026] KEHC 10141 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10141 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E145 of 2024 KL Kandet, J July 10, 2026 Between Obisa Limited Appellant and Mwandeto Mutuku Ndetei Respondent (Being an Appeal against the Judgment of Hon. Judith Omollo delivered on 31.07.2024 in Limuru SPMCC No. E346 of 2022) Judgment Background 1.This appeal arises from the Judgment of Hon. Judith Omollo (Senior Resident Magistrate) delivered on 31st July 2024 in Limuru SPMCC No. E346 of 2022, Mwandeto Mutuku Ndetei v Obisa Limited. The suit was commenced by way of a Plaint dated 28th June 2022, wherein the Plaintiff (now the Respondent) sought general damages for pain, suffering and loss of amenities, general damages for diminished/reduced earning capacity, special damages of Kshs.41,550, future medical expenses for removal of implants estimated at Kshs.80,000, costs of the suit and interest. 2.The Respondent pleaded that on 5th June 2021 at about 2.40 p.m., he was lawfully travelling as a pillion passenger aboard motorcycle registration number KMDU 271J along Nyambari–Uplands–Githunguri Road when motor vehicle registration number KDC 138T, owned by the Appellant and driven by its servant, agent and/or authorized driver, was so negligently driven, managed and controlled that it suddenly joined the road, collided with the motorcycle and ran over his right leg, thereby occasioning him severe bodily injuries. He attributed the accident to the negligence of the Appellant's driver, particulars whereof were set out in the plaint. 3.The Respondent pleaded that as a result of the accident he sustained compound (open) fractures of the right tibia, right fibula, right foot metatarsals (2nd–5th) and right foot tarsal bones, resulting in 15% permanent incapacity. He further pleaded that he continued to experience difficulty in walking and was unable to work gainfully. In addition to special damages of Kshs.41,550, he sought general damages for pain, suffering and loss of amenities, diminished earning capacity, and future medical expenses for removal of implants estimated at Kshs.80,000. 4.Upon considering the evidence, the trial court found the Appellant 100% liable for the accident and awarded the Respondent:i.General damages for pain, suffering and loss of amenities-Kshs.1,000,000;ii.Damages for diminished earning capacity – Kshs.250,000;iii.Special damages -Kshs.41,550 5.Aggrieved by the said judgment, the Appellant lodged the present appeal through a Memorandum of Appeal dated 20th August 2024, raising the following grounds:i.That the learned trial Magistrate erred in law and in fact in finding the Appellant 100% liable for the alleged accident.ii.That the learned trial Magistrate erred in law and in fact in failing to consider the evidence adduced by the Appellant.iii.That the learned trial Magistrate erred in law and in fact in failing to consider the Appellant's submissions and authorities while assessing quantum of damages.iv.That the learned trial Magistrate's award of damages was an erroneous estimate and manifestly excessive in the circumstances.v.That the Appeal be allowed and the Lower Court’s Judgement be set aside 6.The Respondent, being dissatisfied with the awards on quantum, filed a Notice of Cross-Appeal dated 28th August 2024 on the grounds that:i.The learned trial Magistrate erred in law and in fact in awarding Kshs.1,000,000 as general damages, which award was inordinately low considering the evidence, pleadings and injuries sustained.ii.The learned trial Magistrate erred in law and in fact in awarding Kshs.250,000 for loss of earning capacity, which amount was too low in light of the medical evidence on permanent incapacity.iii.The learned trial Magistrate erred in law and in fact by failing to take into account and fully consider the authorities relied upon by the Respondent before arriving at the award of general damages.iv.The learned trial Magistrate erred in law and in fact in disregarding the Respondent's authorities on the basis that they were old and not comparable.v.The learned trial Magistrate erred in law and in fact by basing the award of general damages on extraneous considerations.vi.The learned trial Magistrate erred in law and in fact by basing the award for loss of earning capacity on extraneous considerations.vii.That the Cross Appeal be allowed and the Appeal against the Respondent herein be dismissed with cost Submissions on the Appeal 7.The appeal was canvassed by way of written submissions. Both parties filed submissions. The Appellant’s submissions is dated 15th April 2025 and the Respondent’s submissions dated 8th June 2025. 8.On liability, the Appellant submitted that the trial magistrate erred in law and fact in finding it 100% liable for the accident. He argued that the Respondent admitted during cross-examination that he was not wearing a helmet at the time of the accident, thereby exposing himself to needless peril. The Appellant further contended that the Respondent failed to call any independent witness to corroborate his testimony and that the police officer who testified was neither the investigating officer nor an eyewitness to the accident. It was further submitted that the police abstract indicated that investigations were still pending and, therefore, there was no basis for the trial court to apportion liability wholly against the Appellant. The Appellant maintained that the Respondent ought to have borne a measure of contributory negligence. 9.On quantum, the Appellant submitted that the award of Kshs.1,000,000 for pain, suffering and loss of amenities was manifestly excessive in view of the injuries sustained and the comparable authorities cited before the trial court. Counsel submitted that although the Respondent sustained fractures of the right tibia, fibula and foot bones, both medical reports confirmed that the fractures had united and assessed permanent incapacity at between 10% and 15%, averaging 12.5%. The Appellant argued that the trial court erred in finding that the decision in Kihara & another v Mutuku (Civil Appeal No. 27 of 2018) [2022] KEHC 15626 (KLR) was not comparable and that an award of Kshs.700,000 would have constituted adequate compensation for pain, suffering and loss of amenities. 10.Regarding the award for diminished earning capacity, the Appellant submitted that the award of Kshs.250,000 was unsupported by the evidence and was therefore excessive. It was argued that the Respondent neither adduced evidence of his earnings nor demonstrated the extent to which the injuries had diminished his earning capacity. Relying on Tile & Carpet Centre Warehouse v Okello (Civil Appeal No. 74 of 2019) [2022] KECA 5 (KLR) and Nyatogo v Mini Bakeries Limited (Civil Appeal No. E38 of 2021) [2023] KEHC 1593 (KLR), the Appellant submitted that where diminished earning capacity is not specifically proved, the court should make only a modest global award. Counsel therefore urged the Court to substitute the award of Kshs.250,000 with an award of Kshs.100,000. 11.In opposition to the cross-appeal, the Appellant submitted that the same was devoid of merit. He contended that the Respondent's medical evidence assessed permanent incapacity at 15% and not 30% as suggested in the cross-appeal. Counsel further argued that the authorities relied upon by the Respondent before the trial court involved more severe injuries and were therefore not comparable. The Court was accordingly urged to dismiss the cross-appeal with costs and allow the appeal. 12.The Respondent opposed the appeal and supported the cross-appeal. On liability, it was submitted that the trial court properly found the Appellant wholly liable for the accident based on the evidence on record. The Respondent maintained that he was merely a pillion passenger and no evidence was tendered to demonstrate that he contributed to the occurrence of the accident. It was further submitted that the Appellant's contention that the Respondent was not wearing a helmet had no causal connection with the occurrence of the accident and could not be a basis for apportioning liability. The Respondent therefore urged the Court to uphold the trial court's finding on liability. 13.On quantum, the Respondent submitted that the awards made by the trial court were inordinately low and failed to adequately compensate him for the injuries sustained. He contended that the Respondent suffered multiple compound fractures of the right tibia, fibula, metatarsals and tarsal bones, underwent treatment involving external fixators and K-wires, and sustained permanent incapacity assessed at between 10% and 15%. 14.The Respondent further submitted that the award of Kshs.250,000 for diminished earning capacity was manifestly low. Counsel argued that although damages for diminished earning capacity are awarded as a global sum, the trial court failed to adequately consider the permanent disability suffered by the Respondent and its effect on his ability to earn a livelihood. Reliance was placed on Nyatogo v Mini Bakeries Limited (Civil Appeal No. E38 of 2021) [2023] KEHC 1593 (KLR), wherein the Court recognized that damages for diminished earning capacity may be awarded as part of general damages without strict proof of actual loss of earnings. 15.The Respondent consequently urged the Court to dismiss the appeal, allow the cross-appeal, enhance the awards for general damages and diminished earning capacity to appropriate amounts, and award the costs of both the appeal and the cross-appeal to the Respondent. Analysis and Determination 16.The court has considered the original record, the record of appeal and the submissions on record plus the authorities cited in support thereof. As a first appellate court, the duty of this court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Peters v Sunday Post Limited (1958) EA 424; Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123 and Williams Diamonds Limited v Brown (1970) EA 1. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278 stated that:“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.” 17.Having considered the Record of Appeal, the Judgment of the trial court, the Memorandum of Appeal, the Cross-Appeal and the rival submissions, the issues that fall for determination are:i.Whether the trial court erred in finding the Appellant 100% liable for the accident.ii.Whether the award of Kshs.1,000,000 as general damages for pain, suffering and loss of amenities warrants interference.iii.Whether the award of Kshs.250,000 for diminished earning capacity should be disturbed. (i) Liability 18.The principles upon which an appellate court may interfere with a trial court's findings on liability are well settled. An appellate court will not interfere with findings of fact unless they are based on no evidence, are founded on a misapprehension of the evidence, or the trial court is shown to have acted on wrong principles. This principle was stated in Khambi & Another v Mahithi & Another [1968] EA 70. 19.The Respondent testified that on 5th June 2021 he was lawfully travelling as a pillion passenger on motorcycle registration number KMDU 271J when the Appellant's motor vehicle, which had been parked off the road after offloading building materials, suddenly joined the road in an attempt to make a U-turn and collided with the motorcycle, running over his right leg. His evidence was corroborated by the Police Abstract and the testimony of PW2. 20.The Appellant filed a defence denying negligence and pleaded contributory negligence on the part of the Respondent. However, no witness was called to testify on behalf of the Appellant. The only evidence tendered by the defence was the medical report prepared by Dr. Wambugu. Consequently, the allegations contained in the defence remained mere averments unsupported by evidence. 21.The law is settled that pleadings are not evidence. Where a party fails to adduce evidence in support of its pleadings, the pleadings remain mere allegations. In Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & Another [2016] eKLR, the Court reiterated that where evidence adduced by one party remains uncontroverted, the court is entitled to rely upon it. 22.The Appellant has argued that the Respondent admitted that he was not wearing a helmet and therefore contributed to the accident. I am unable to agree. The issue before the trial court was whether the Respondent contributed to the occurrence of the accident. The failure to wear a helmet, if proved, may aggravate the injuries sustained but does not, without more, establish negligence in causing the collision itself. No evidence was led to demonstrate that the absence of a helmet contributed to the occurrence of the accident. 23.Equally, the Appellant submitted that investigations were pending and that the police officer who testified was neither the investigating officer nor an eyewitness. While that may be so, the Respondent gave direct eyewitness testimony regarding the occurrence of the accident, which remained unchallenged. The Appellant neither called its driver nor any other witness to controvert that evidence. 24.I am therefore satisfied that the learned trial magistrate properly evaluated the evidence before the court and correctly found the Appellant wholly liable for the accident. I find no basis for interfering with the finding on liability. (ii) General damages 25.The principles governing interference with an award of damages are equally settled. An appellate court will only interfere where the trial court acted on a wrong principle, took into account irrelevant factors, failed to consider relevant factors, or where the award is so inordinately high or low as to represent an erroneous estimate of the damages suffered. See Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988]“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low”. 26.Similar principles were restated in Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No. 2) [1987] KLR 30. 27.The Respondent sustained compound fractures of the right tibia, right fibula, right foot metatarsals and right foot tarsal bones. Both medical reports confirmed the nature of these injuries and assessed permanent incapacity at between 10% and 15%. 28.The learned trial magistrate considered the authorities cited by both parties before awarding Kshs.1,000,000 as general damages. Although the Respondent contends that the award ought to be enhanced to Kshs.3,500,000 while the Appellant urges that it be reduced to Kshs.700,000, an appellate court is not entitled to substitute its own assessment merely because it would have awarded a different figure. 29.Having considered the injuries sustained, the comparable authorities cited before the trial court and before this Court, and taking into account the passage of time and prevailing awards for comparable injuries, I am not persuaded that the award of Kshs.1,000,000 was either so inordinately high as argued by the Appellant or so inordinately low as contended by the Respondent. In my view, the award represented a fair exercise of the trial court's discretion and calls for no interference. (iii) Diminished earning capacity 30.The trial court awarded the Respondent Kshs.250,000 for diminished earning capacity. 31.Damages for diminished earning capacity compensate a claimant whose ability to earn income in future has been impaired by the injuries sustained. Unlike loss of future earnings, diminished earning capacity is awarded as part of general damages and need not be proved with mathematical precision. In Butler v Butler [1984] KLR 225, the Court of Appeal distinguished diminished earning capacity from loss of future earnings, holding that the former is awarded as part of general damages to compensate for the risk that a claimant's earning capacity has been impaired, even where actual future loss cannot be calculated with precision. Similarly, in Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, the Court of Appeal observed that such damages may be awarded even where the claimant remains in employment, provided there is evidence that his competitiveness in the labour market has been diminished. 32.In the present case, the Respondent pleaded diminished earning capacity and testified that the injuries affected his ability to work. The medical evidence confirmed permanent incapacity of between 10% and 15%. While it is true that the Respondent did not adduce evidence of his earnings or occupation, such evidence is not invariably necessary where the court makes a modest global award for diminished earning capacity. 33.In light of the permanent incapacity established by the medical evidence, I am satisfied that the award of Kshs.250,000 was reasonable and within the discretion of the trial court. I find no basis for either reducing the award as urged by the Appellant or enhancing it as sought in the cross-appeal. Disposition 34.In the result, I find that both the Appeal and the Cross-Appeal are devoid of merit. Accordingly:a.The Appeal dated 20th August 2024 is hereby dismissed.b.The Cross-Appeal dated 28th August 2024 is likewise dismissed.c.The Judgment and Decree of the Senior Resident Magistrate delivered on 31st July 2024 in Limuru SPMCC No. E346 of 2022 are hereby upheld.d.Each party shall bear its own costs of the appeal and the cross-appeal. DATED, SIGNED AND DELIVERED AT NAIROBI, THIS 10TH DAY OF JULY, 2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Ms Muregi For The AppellantKemunto For The RespondentCourt Assistant: Jael Nosim