Ouma & another v Huka (Civil Appeal E286 of 2024) [2026] KEHC 9526 (KLR) (2 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E286 OF 2024** **JOSEPH KANGETHE OUMA...………………………...……1ST APPELLANT** **DERRICK OMONDI OGUTU……………………………..…...2ND APPELANT** **VERSUS** **HUKA KANTOMA HUKA. ……………………………..……..RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon. E.G. Nderitu, CM in MOLO CMCC NO.137 (B) OF 2020 in Molo delivered on 14th March, 2023)* **JUDGEMENT** 1. This an appeal against Judgment/Decree. The Respondent sued the Appellants Vide an Amended Plaint dated 3rd August, 2021 filed on 10th August, 2021 in MOLO CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 137B OF 2020 - HUKA KONTOMA HUKA VS JOSEPH KATHETE OUMA & DERRICK OMONDI OGUTU (hereinafter referred to as the suit), the Respondent sought various reliefs against the Defendants, jointly and severally following a road traffic accident in which the Respondent was seriously and severely injured. 2. The Respondent's case was that on 22nd December, 2018, while the Respondent and one **Mohamed Wario Ulufo** were inspecting motor vehicle registration number KBU 779M/ZE 2904 which was completely parked off the Eldoret-Nakuru road, the 1st Appellant drove the 2nd Appellant's motor vehicle registration number KCD 076U/ZB 4048 (offending vehicle) as a result of which it violently knocked down the Respondent causing him grave injuries. 3. The Appellants entered appearance in the suit through a Firm of Advocates and eventually filed an Amended Statement of Defence dated 31st August, 2021. Through the said Amended Defence, the Appellants denied occurrence of an accident or that the same was caused by the negligence of the 1st Appellant. In the alternative, they pleaded that the accident arose as a result of the Respondent's negligence. 4. Parties exchanged pre-trial documents and the suit was set down for hearing. On 18th January, 2022, before hearing commenced, directions were taken that the evidence on liability herein would apply and be relied on in the other matter in the series, that is, MOLO CHIEF MAGISTRATE'S COURT CIVIL CASE NUMBER 62 OF 2020-KAMISO WARIO (SUING AS THE LEGAL REPRESENTATIVE OF THE ESTATE OF MOHAMED WARIO ULUFO) VS JOSEPH KATHETE OUMA AND DERRICK OMONDI OGUTU. 5. The suit eventually took off with the Respondent calling a total of three witnesses and the 1st Appellant being the only witness for the defence. Both parties closed their respective cases afterwards paving the way for filing of written submissions. 6. On 14th March, 2023, the Trial Court delivered Judgment in favour of the Plaintiff against the Defendants, jointly and severally, in the following terms:- 7. Liability at 100%; 8. General damages-KShs 4,000,000/-; 9. Lost earnings - KShs 1,440,000/-; 10. Damages for diminished earning capacity - KShs 2,640,000/-; 11. Cost of wheelchair-KShs 250,000/-; 12. Special damages-KShs 1,578,395/"; 13. Costs of the suit; 14. Interest on above awards at Court rates from the date of Judgment till payment in full. 15. Aggrieved by the said decision, the Appellants appealed to this Honourable Court after obtaining leave to appeal out of time. The Appellants appealed against the whole of the said Judgment as per the Memorandum of Appeal. 16. The 1st Appellant was sued as the driver of the motor vehicle registration No. KCD 076U /ZB 4048, and the 2nd Appellant as the registered owner. The Respondent was the driver of the motor vehicle registration No. KBU 779M /ZE 2904, which was involved in a road traffic accident with motor vehicle registration no. KCD 076U /ZB 4048 on the night of 22nd December 2018 at Salgaa Trading Centre along Nakuru – Eldoret Highway. The accident occurred at around 11 pm. 17. The Respondent sets out the circumstances of the accident and the particulars of the 1st Appellant’s alleged negligence in paragraph 5 of the amended plaint dated 3rd August 2021. He states that, the accident happened when “he was lawfully inspecting the motor vehicle registration no. KBU 779M /ZE 2904 which was rightfully parked completely off the road.” The Appellants denied liability in the amended defence dated 31st August 2023. Therefore, it was incumbent upon the Respondent to prove that he was “lawfully inspecting the vehicle that he had rightfully parked completely off the road” at the time of the accident, and that the 1st Appellant’s negligence caused the accident. It is trite that he who alleges, proves. He can only establish negligence by proving the particulars of negligence stated in paragraph 5 of the amended plaint. The Appellants also denied the claim for the alleged loss and damage stated in paragraphs 8 to 14 of the amended plaint, inclusive. Therefore, the Respondent was to prove the loss and damage, and specifically plead and strictly prove the special damages claimed. The Appellants contend that the learned magistrate erred both in law and fact in the manner in which she evaluated the evidence on record and arrived at the findings on liability and quantum**.** They contend that the trial court failed to properly consider the conduct of the Respondent at the time of the accident, which made him the author of his misfortune. Additionally, the damages awarded were manifestly excessive and unsupported by the evidence on record. The special damages were not specifically pleaded and strictly proven as required by law. They were thus speculative. The Appellants rely on the proceedings and judgment in the MOLO TRAFFIC CASE NO. 70/2019, where the court held that the 1st Appellant was not liable for the accident and acquitted him. The ODPP has not preferred an appeal from this acquittal. Therefore, it stands the Appellant submit that the acquittal should be considered by this Honourable Court under then doctrine of horizontal Stare Decisis. It is trite that the first Appellate Court’s duty is to re-evaluate and reassess the entire evidence on liability and quantum vis-à-vis the applicable law, and arrive at its findings on liability and quantum. Therefore, we respectfully invite the Honourable Court to re-evaluate and re assess the evidence in the MOLO CMCC NO. 137 (B) OF 2020 and MOLO TRAFFIC CASE NO. 70/2019 and arrive at its own finding on liability and quantum. 18. Whereof the Appellant prays that the Appeal be allowed, the judgment of the Trial Court be set aside and dismiss the Respondent's claim for general damages and/or at the very least substitute it with proper finding with the Respondent paying cost in the Trial Court and in this appeal. 19. The Appeal was heard by way of written submissions. **Appellant’s submissions** 1. The Appellants submit that the following issues arise for determination in this appeal: 2. **Whether the learned trial magistrate erred in holding the 1st Appellant wholly liable for the accident.** 3. **Whether the Respondent substantially contributed to the accident and was, therefore, the author of his misfortune.** 4. **Whether the damages awarded by the trial court were excessive and unsupported by the evidence.** 5. **Whether the awards under the various heads of damages should be interfered with by this Honourable Court.** 6. The Appellants submit with regard to the 1st issue as to whether the learned magistrate erred in law and fact in holding the 1st appellant wholly liable for the accident, that the learned trial magistrate erred in law and fact in finding the 1st Appellant wholly liable for the accident without properly considering the evidence demonstrating negligence on the part of the Respondent. 1. Whether the Respondent was lawfully inspecting the vehicle at the time of the accident. In the subordinate court, the Respondent alleges that he was lawfully inspecting the vehicle at the time of the accident. However, he testified in MOLO TRAFFIC CASE NO. E70/2019 that they were changing diesel with the turn boy when the accident occurred. This contradicts his averment in paragraph 5 of the amended plaint, and his testimony in the subordinate court that they were inspecting the vehicle is false and was meant to mislead the court. The traffic court made a finding that they were siphoning fuel at the time of the accident. He did explain why they would park the truck by the road side to change diesel and not at a petrol station. His testimony was false. Siphoning fuel is an unlawful activity. 2. Was the Respondent’s vehicle lawfully parked on the side of the road? The proceedings and judgment in MOLO TRAFFIC CASE NO. E70/2019 prove that the Respondent and his turn boy had parked the vehicle on the right-hand side of the road in the direction towards Eldoret. This was the wrong side of the road. Therefore, the Respondent averments in paragraph 5 of the amended plaint that he had parked his vehicle registration no. KBU 779M /ZE 2904 lawfully completely off the road are false, inaccurate and misleading. His evidence is that he was from Mombasa driving towards Eldoret and stopped at Salgaa Trading Centre and parked on the right-hand side of the road. The other vehicle was travelling towards Nakuru and the Respondent had parked on his side of the road. The vehicles were travelling towards different directions. 1. The Appellants submit that the Respondent’s vehicle was supposed to be parked on the left-hand side of the road on your way to Eldoret since he was travelling towards Eldoret. The parking on the right-hand side towards Eldoret was reserved for the vehicles travelling towards Nakuru, which was their left. Therefore, the Respondent’s vehicle was not rightfully parked on the side of the road. The accident would not have happened had the Respondent parked his vehicle on the left–hand side of the road that was meant for the vehicles travelling from the Nakuru direction towards Eldoret. The other vehicle would not have rammed into the Respondent’s vehicle if it was parked on the left-hand side towards Eldoret. The accident occurred at night when it was dark and visibility was poor. It was therefore incumbent on the Respondent to secure the vehicle and make it visible to the motorists coming from the opposite direction. However, there is no evidence that he did this. He was supposed to put the life saver triangle hazard road sign in front and behind the vehicle to warn the motorist from behind and in front. However, he did not do this. He did not prove to the subordinate court that he did so. 2. The Respondent did not also prove to the lower court that he had parked his vehicle at a safe distance from the edge of the road. It was his duty to do so because it was his duty to prove the 1st Respondent’s negligence in the accident. Most importantly, the 1st Appellant testified both in the civil subordinate court and the traffic courts that the trailer of the Respondent’s vehicle was too close to the road, though the head/prime mover was off the road. The full headlights were on, which was blinding to him as he approached the vehicle. This made him unable to see the road clearly ahead of him. 3. In **Embu Public Road Services Ltd v Riimi [1968] EA 22**, the court held that negligence must be proven and liability must be based on the conduct of the parties which caused the accident. By engaging in an illegal and hazardous activity on a public highway, the Respondent exposed himself and other road users to danger. The learned magistrate therefore erred in failing to attribute liability to the Respondent. The police abstract produced in evidence as PExhibit-2 by the traffic officer, **Mathew Nyachae** (PW-1), indicates that the accident was still marked PUI (pending under investigations). His evidence appears on page 3 of the subordinate court judgment and page 77 of the record. There was no conclusive report on the accident, blaming the 1st Appellant for the accident. He could not, therefore, blame the 1st Appellant for the accident. He admitted on cross-examination, appearing on page 4 of the judgment and page 78 of the Record, that he was not the investigating officer. The Investigating Officer (I/O) who visited the scene had been transferred and did not testify. It is noteworthy, that it is the I/O who had marked the accident as pending under investigation. 4. Therefore, PW-1 could not blame the 1st Applicant for the accident. His evidence is therefore untruthful. He merely re-stated what the Respondent had told him. He did not give independent evidence. For instance, when he said that the Respondent was inspecting the vehicle at the time of the accident. This contradicted what the Respondent stated in the Molo Criminal/Traffic Case No. E70/2019 that they were changing disease. This is a serious contradiction which cannot be used by the court to hold the 1st Appellant 100% liable for the accident. 1. Finally, the traffic court in the Molo Criminal/Traffic Case No. E70 of 2019 tried the 1st Appellant for careless driving contrary to Section 49(1) of the Traffic Act and causing death by dangerous driving contrary to Section 46(1) of the Traffic Act and acquitted him on both counts. This means that the traffic court found the 1st Appellant with no fault. Therefore, he cannot be found 100% liable for the accident in a civil case. 2. With regard to the 2nd issue as to whether the respondent substantially contributed to the accident and was, therefore, the author of his misfortune. That the Respondent’s case (as seen at pages 1–3 of the Judgment) was that he had parked off the road and was inspecting his vehicle when he was knocked down. However, evidence from DW1 showed that the Respondent’s vehicle was dangerously positioned on the roadside at night, with the trailer (behind part) being too close to the road, and they were siphoning fuel. This is corroborated by the evidence in the traffic case. The trailer side was near the road, which created obstruction. And there were no warning or hazards signs. 3. That the trial court failed to properly analyze contributory negligence. The Appellants submit that the Respondent was guilty of 100% contributory negligence, which arises where a party fails to take reasonable care for his own safety and thereby contributes to the occurrence of the accident. 4. In **Stapley v Gypsum Mines Ltd [1953] AC 663**, the House of Lords explained that contributory negligence arises where a party’s own negligence materially contributes to the damage. 5. The Respondent, parked his vehicle so close to the road along a highway at night on the wrong side of the road while engaging in siphoning fuel. This conduct significantly increased the risk of an accident occurring. Had the Respondent exercised reasonable care, by parking the vehicle rightfully on the left-hand side of the road, the accident would likely have been avoided. 6. The learned magistrate therefore erred in failing to find the Respondent 100% liable in contributory negligence because of his reckless behavior. We submit that the Respondent’s contribution to the accident was 100% relying on the traffic case cited. 7. The Appellants further submit that the Respondent’s conduct amounted to clear negligence as he dangerously parked his vehicle along the road at night. Parking a vehicle on or near a highway without proper warning signals or hazard indicators and on the wrong side of the road creates a foreseeable risk to other road users. 8. In **Barclays Bank of Kenya Ltd v Evans Ondusa Onzere (2015) eKLR**, the court held that a motorist who leaves a vehicle in a position that obstructs or endangers other road users may be found negligent where such conduct contributes to the occurrence of an accident. Parking a vehicle at night on the wrong side of the road, close to the road, and without warning or hazard sign is dangerous and endangers the lives of motorists, as in this case. 9. The Respondent’s decision to stop along the roadway at night while siphoning fuel without placing adequate warning signs or hazard lights created a dangerous obstruction to oncoming motorists. Such conduct falls below the standard of care expected of a reasonable road user. This conduct significantly increased the danger to other motorists using the road at night. 10. Further guidance can be found in **Statpack Industries Ltd v James Mbithi Munyao [2005] eKLR**, where the Court held that a person who creates a hazardous situation on a road must bear responsibility where such hazard contributes to an accident. 11. Additionally, in **Kenya Bus Services Ltd v Humphrey (2003) eKLR,** the Court emphasized that motorists must ensure their vehicles are not left in positions that may cause danger or obstruction to other road users. It is therefore submitted that the learned trial magistrate failed to properly evaluate the Respondent’s negligent conduct which substantially contributed to the occurrence of the accident. The subordinate court ought to have found that the Respondent contributed to the accident 100%. Therefore, the Appellants urge this honourable court to set aside the finding of liability against the 1st Appellant in its entirely. 12. The Appellants submit that, whether the damages awarded by the trial court were excessive and unsupported by the evidence if the court was to find the 1st Appellant liable for the accident, the general damages awarded by the subordinate court was excessive and the special damages not specifically pleaded and not supported by evidence. 13. The principles guiding appellate interference with an award of damages were set out in **Butt v Khan [1981] KLR 349**, where the court held that an appellate court may interfere with an award if it is inordinately high or low or if the trial court acted on wrong principles. Similarly, in **Kemfro Africa Ltd v Lubia [1987] KLR 30**, the court held that an appellate court may interfere where the trial court took into account irrelevant factors or failed to consider relevant ones. 14. This is further emphasized in the case **of Peters v Sunday Post Ltd (1958)** EA **424**, it was held that an appellate court will interfere where the trial court failed to take into account relevant matters or took into account irrelevant matters. 15. In **Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123,** the court held that a first appellate court must reconsider the evidence and draw its own conclusions. An appellate court will interfere with an award where the court applied wrong principles; or the award is inordinately high or low. It calls for interference by this Honourable Court, where the award made by the trial court was significantly higher than comparable awards. 1. Further, in **Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] eKLR**, the Court of Appeal reiterated that comparable injuries should be compensated by comparable awards and that courts must strive to maintain consistency in awards. Similarly, in **Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR**, the Court emphasized that damages must be reasonable and based on comparable awards in similar circumstances. 2. The Appellants submit that, the trial court failed to properly consider comparable authorities and instead awarded an amount that is significantly higher than awards issued in similar cases involving comparable injuries. **Whether the awards under the various heads of damages should be interfered with by this Honourable Court** **Under the head of General Damages** 1. The learned trial magistrate awarded Ksh 4,000,000/= as general damages for pain and suffering. The Appellants submit that this award was manifestly excessive and inordinately high when compared with awards made in similar cases. The trial court relied on authorities involving more severe injuries. While the Respondent suffered serious injuries, awards must remain comparable to similar cases. In **Civicon Ltd v Richard Njomo (2019) eKLR**, the Court awarded Ksh 700,000/= for comparable orthopedic injuries. Furthermore, in **Daniel Owino & Another v Elizabeth Achieng Owuor (2020) eKLR**, an award of Kshs. 500,000/= was upheld for 50% incapacity. 2. In **Kemfro Africa Ltd v Lubia**, the court held that an award will be disturbed where it is so high as to represent an entirely erroneous estimate. The learned magistrate failed to consider comparable awards and failed to properly assess contributory negligence. Duplicated damages under separate heads and applied excessive multipliers. This Honourable Court is obligated to re-evaluate, re-analyze and re-assess the evidence on record and reach its own independent conclusion. Therefore, the award of Ksh 4,000,000/= as general damages was manifestly excessive and not in line with comparable awards. An award of Ksh 700,000/= would suffice under this head. Therefore, we urge the honourable court to set aside award of Ksh 4,000,000/=. **Under the head of Loss of Earnings – Kshs. 1,440,000/=** 1. The Respondent alleged earning Kshs. 40,000/= per month but failed to produce supporting evidence as pays slips, employment contract or bank statements. It is trite that special damages must be strictly proved. **In Hahn v Singh (1985) KLR 716**, the Court held that, special damages must be specifically pleaded and strictly proved. The multiplier of 4 years was also speculative and unsupported by medical certainty. 2. The Appellants submit that the subordinate court erred in making this award without having been specifically pleaded with the amount claimed, i.e., Ksh 1,440,000/=, and strictly proven. The award should therefore be set aside. **Under the head of Diminished Earning Capacity – Kshs. 2,640,000**/= 1. Firstly, the trial court awarded both loss of earnings and diminished earning capacity which amounts to double compensation. In **Mumias Sugar Co. Ltd v Francis Wanalo (2007) eKLR**, the Court cautioned against duplicating awards under both heads. The award under diminished earning capacity was speculative and lacked a proper evidentiary foundation. Secondly, there was no basis for the computation without the documentary evidence of salary/ wages. The Appellants submit that the subordinate court erred in making this award without having been specifically pleaded with the amount claimed, i.e., Ksh 2,640,000/=, and strictly proven. The award should therefore be set aside. **Under the head of Caregiver Expenses – Kshs. 1,800,000/=** 1. The alleged caregiver (PW-3) did not produce evidence that he was being paid the alleged Ksh 500/= per day. No payment records, receipts, or a formal contract were produced. The court used a multiplier of 15 years without any medical basis. Caregiver expenses as a future expense must be strictly proved by a medical report and testimony from a qualified medical doctor stating the injuries sustained, resulting in the need for future treatment, and an estimate of the cost of treatment. However, this evidence was missing. Therefore, this award was speculative. The award for caregiver expenses should therefore be set aside. Courts must avoid making speculative awards. 2. In **Hahn v Singh [1985] KLR 716**, the Court held that damages must be proved with reasonable certainty and cannot be based on speculation. In **Tracom Ltd & Another v Hassan Mohamed Adan [2009] eKLR,** the court held that claims for future medical expenses must be pleaded and supported by credible medical evidence. 3. The Appellants submit that the subordinate court erred in making this award without having been specifically pleaded with the amount claimed, i.e., Ksh 1,800,000/=, and strictly proven. The award should therefore be set aside. **Under the head of Electric wheelchair – Ksh 250,000/=** 1. The trial court awarded Kshs 250,000/= for the cost of an electric wheelchair. This prayer, as a future medical expense, should have been specifically pleaded and strictly proven. In **Tracom Ltd & Another v Hassan Mohamed Adan [2009] eKLR**, the court held that claims for future medical expenses must be pleaded and supported by credible medical evidence. 2. The evidence on record did not sufficiently establish the necessity or exact cost of the alleged future medical expenses. The award under this head was therefore erroneous. The learned magistrate awarded damages for loss of earnings and diminished earning capacity. The Appellants submit that the Respondent did not sufficiently prove his alleged income. Courts have consistently held that claims for loss of earnings must be supported by documentary proof of income, such as employment records or business records. 3. The Appellants submit that the subordinate court erred in making this award without having been specifically pleaded with the amounts claimed, i.e., Ksh 250,000/=, and strictly proven. The award should therefore be set aside. **Under the head of Medical Expenses** 1. The plaintiff pleaded a lump sum amount of Ksh 1,578,395/= as medical expenses without giving the particulars of the expenses. It is a trite law that special damages must not only be specifically proven but also strictly proven. 2. The medical expenses were not specifically pleaded as required by law. It could not, therefore, be strictly proven. There was no strict proof of the medical expenses as well. 3. The Appellants submit that the subordinate court erred in making this award without having been specifically pleaded with the amount claimed, i.e., Ksh 1,440,000/= broken down with specificity, and strictly proven. The award should therefore be set aside while reiterating that, the prayers of loss of earnings and earning capacity; future medical expenses and related expenses; caregiver expenses and wheelchair are not general damages that the Plaintiff could give the amounts claimed in the submissions without having specifically pleaded the same. These are special damages that must be specifically pleaded and strictly proven. 4. Additionally, medical expenses is a special damage that must be specifically pleaded item and item and the amount broken down. Pleading a lump sum amount is not permitted by law and does not suffice. All these awards should therefore be set aside. 5. In conclusion, the Appellants respectfully submit that the appeal be allowed with costs and the subordinate court’s finding on liability against the 1st Appellant at 100% be set aside based on the evidence in the civil and the traffic courts. Similarity, the judgment of Ksh 11,708,395/= against the Appellants, jointly and severally, be set aside. **Analysis and Determination** 1. This being a first Appeal the Court is reminded of the principles established in **Selle vs. Associated Motor Boat Co. [1968] EA 123** to reevaluate the evidence afresh, draw its own conclusions but exercise caution since did not see the witnesses testify. See ***Peters vs Sunday Post Limited* [1958] EA 424,** 2. The Respondent at paragraph 10 of the Amended Paint prayed for: ***As a result of the injuries herein, the Plaintiff's way of life or earning capacity has been greatly affected. As at the time of filing this suit, the Plaintiff is yet to resume his economic duties. Consequently, he has lost substantial use of amenities and will claim damages in respect of******lost earnings or future earning capacity.*** 1. The issue of Loss of future earning capacity was addressed at paragraph 12 of the judgment wherein the trial Court stated that; ***“the award as opined thereto by the Plaintiff is fair and awardable”.*** The Respondent had prayed for Kshs. 5,000,000. 2. In the final award, the trial court awarded the Respondent Kshs. 5,000,000 as general damages. The loss of future earning capacity was therefore awarded under the head of general damages. 3. As regards the claim for loss of earning capacity, the Trial Court applied the Regulation of Wages (General) Amendment Order, 2018 and adopted the multiplier approach. The Court calculated the award as follows: Kshs. 12,000 per month × 12 months × 24 years × ratio of 1/3 arriving at a total of Kshs. 1,152,000. The Court went ahead and warded the award as diminished earning capacity. 4. From paragraphs 15 to 20 of the judgment, it appears that the Court was making reference to a deceased party or was under the impression that the Respondent had passed away. In doing so, the Court relied on the authority of **Naomi Nyambura Karanja (suing as the Administrators of the Estate of Simon Karanja Miringu (Deceased) v Zacharia Muteru Kadunga & another [2021] eKLR**. This was a case involving a deceased individual and the award therein was made under the head of loss of dependency. 5. There was some confusion in the trial court’s treatment of the claim for loss of earning capacity and future earning capacity or diminished earning capacity. Although the Respondent was alive and had testified, the Court proceeded to apply the multiplier approach in a manner akin to awards for loss of dependency. This created uncertainty as to whether the Court properly appreciated the nature of the injuries sustained or the heads under which the awards were made. 6. In **William J Butler v Maura Kathleen Butler [1984] KECA 34 (KLR) Kneller** JAdefined loss of earning capacity and stated: ***“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. The English Court of Appeal made an award under this head in*Ashcroft v Curtin *[1971] 1 WLR 1731, and by now, it is not a new principle in that jurisdiction.”*** 1. Further the learned judge stated: - ***“Loss of earning capacity 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 by Lord Denning M.R. in Fairely vs John Thompson (Design & Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40,42(CA)…..Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of the general damages.”*** 1. From the above authority, I agree with the Appellants that the award for diminished earning capacity is in the nature of general damages and is often classified with pain and suffering. 2. Now therefore I proceed to determine the appeal based on what the Respondent’s pleaded. The Respondent pleaded Lost earnings and future earning capacity 3. In considering whether to disturb the award of damages, I am reminded that assessment of damages in an excise of discretion and therefore should be considered judiciously to be satisfied that either that the Trial Court in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. The Court of Appeal pronounced itself on these principles in ***Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2)* [1985] KECA 137 (KLR),** **Lost earnings** 1. Lost earnings are a form of compensation for income that has already been lost due to injury or can be specifically calculated. For example, if someone missed six months of work after an accident, the wages they would have earned in that period are lost earnings*.* Courts treat this as special damages which must be pleaded and proved. 2. The Respondent testified that he was employed as a trailer driver by Abdi Mohammed Ali the registered owner of Motor registration no. KBU 779M /ZE 2904. 3. In ***Jacaranda Bodaboda Operators & another v Nyasero* [2023] KEHC 23806 (KLR)** the Court at paragraph 30 stated that: - ***“Diminished earning capacity is decrease in a person’s earning ability as a result of the disability suffered. It is different from loss of earnings which looks at what has actually been lost as a result of the accident. Diminished earning capacity need not be specifically pleaded and proved but loss of earnings must be specifically pleaded and proved.”*** 1. In as much as the Respondent claimed to have been a mechanic and making between Kshs 2000 to 6000, there was nothing to show the same. The Court is alive to the fact that individuals earning a living in the *Jua Kali* sector do not have proper paperwork and depend on their skill and the labour. 2. **Section 2** of the **Insurance (Motor Vehicles Third Party Risks) Act** and the **Regulation of Wages Orders** applicable at the time address gaps where the income of a person cannot be quantified. 3. All the same, I have carefully considered the record and I find that there was no credible evidence placed before the Court to establish that the respondent was earning the amount claimed or to demonstrate the nature of the work he was engaged in at the material time. 4. Equally, there was no evidence to show that the Respondent would be precluded from resuming gainful employment in the future including being a mechanic or that his capacity to engage in such work had been permanently impaired. 5. He has also not aptly demonstrated the loss he incurred or the period he was incapacitated. 6. It is simply not enough to claim. If the Respondent had claimed to have been an electrician, was the Court obliged to believe him? I think not. To hold otherwise would be to substitute conjecture for proof which the law does not permit. 7. I am therefore constrained not make any award under this head. **Future earning capacity** 1. This refers to the projected reduction in a person's ability to earn income over their lifetime due to long-term or permanent injury even if exact figures are not available. For instance, if an injury permanently limits someone’s career options, they may be compensated for the diminished capacityto earn. Courts usually treat this as **general damages.** 2. The injuries the Respondent pleaded are, Loss, of sight on the left eye resulting from corneal perforation, Fracture of the left clavicle, Corneal perforation of the left eye and lacerations on the upper eye lid, Deep lacerations on the left zygomatic region, deep cut wound on the right sagittal region, soft tissue injuries of the left should joint, Cut wound on the right-hand arm, soft tissue injuries of the right forearm and soft tissue injuries of the legs. 3. These injuries were disputed by the Appellants, who claimed that a second medical examination by **Dr. Malik** revealed less severe injuries noting that the fracture had already healed, thereby contradicting the report by **Dr. Kiambaa**. Upon perusal of the entire record, it is evident that the reports by Dr. Kiambaa and Dr. Malik, which may have offered differing views, are not on record. From the pleadings it appears Dr. Kiambaa apportioned incapacity at 40% while Dr. Malik apportioned it 30%. 4. Be that as it may, the Appellants’ failure to annex all the relevant documents operates to benefit of the Respondent. It was incumbent upon them to demonstrate that the injuries pleaded were not accurate and to establish that the second medical examination materially differed from the first one. 5. From the P3 report and the report by *Dr. Gichigo*, an ophthalmologist, it is evident that the Respondent suffered a corneal perforation of the left eye resulting in permanent loss of sight even after surgical intervention, a fracture of the left clavicle, lacerations on the face and hands, and soft tissue injuries on the limbs. Without an alternative medical assessment, the Court will proceed with the injuries pleaded. 6. In making its award, the Trial Court relied on the authorities presented by the Respondent noting that the injuries appeared similar. The first authority cited was ***James Wambua Kimila v Sinohydro Corporation Limited & another* [2020]** **eKLR (Civil Case No. 336 of 2014)** delivered on 14th May, 2020 by Justice C. W. Githua. The Respondent has attached the said decision where the Plaintiff was awarded Kshs. 6,000,000 for pain and suffering. 7. Interestingly, from the Kenya Law website there is a case of ***James Wambua Kimila vs Sinohydro Corporation Ltd & another KEHC 2463 (KLR)* (Civil Case No. 336 of 2014)** was delivered on 4th November, 2021 by Justice S. Chitembwe. The Plaintiff was awarded Kshs.2,500,000. 8. The case number, the parties and the injuries listed in both decisions are similar. The facts are almost similar and the summary of facts also almost similar but the finding on liability as well as on quantum, the degree of incapacity is different. Be that is it may both decisions the Plaintiff suffered severe injuries including several compounds and comminated skull fractures, brain bleed, fracture of the left ankle an injury to the left eye among others and had been hospitalized. 9. The other authority relied upon was ***Terry Kanyua Marangu v Wells Fargo Limited*** **[2014] KEHC 2290 (KLR),**where the Plaintiff therein was awarded Kshs. 3,500,000 for suffered severe injuries including compound skull fracture, fractured teeth, brain trauma, skull defect, memory lapses visual impairment among others. 10. The injuries in these authorities were extremely severe and are not comparable to those sustained by the Respondent herein. The Plaintiffs in those cases underwent head surgeries, were admitted for extended periods in hospital, and were left with deformities and unsightly scars beyond the visual challenges. By relying on such authorities, the trial court equated the Respondent’s injuries with far more grievous harm. 11. I have also noted the authorities cited by the Appellant ***Jalda Essa Diba T/A Diks Transporters & anor v Joseph Mbithi Isika* [2013] eKLR** and the case of ***Mercy Njoki v Tiny M Royal Co. & anor* [2016] eKLR.** The injuries are almost similar where in the latter the Plaintiff was awarded Kshs. 300,000 for injuries of perforation of left eye with soft tissue injuries and an award of Kshs.300,000/= made save for the fact that the cases are old. 12. Inthe present case, I am guided by the following authorities noting that no accident results in the same injuries and further the assessment of damages cannot be expected to achieve mathematical precision. 13. ***Glad Toto Apartment Limited v Mugasia* [2025] KEELRC 3721 (KLR)** injuries as corneal perforation, lens rapture and ureal prolapse which resulted to permanent blindness on the right eye. The injury was classified as maim with the degree of permanent incapacity of the right eye at 100%. And was awarded Kshs. 2,000,000 14. In ***Peter Oduor Shikuku versus Magnum Engineering & General contractors Limited & Another* (2021) eKLR** the victims were awarded Kshs 2,000,000 for injuries of loss of one eye with 30% degree of permanent incapacity. 15. In ***Kariuki v Shakombo* [2024] KEHC 4432 (KLR)** the Court on appeal upheld an award of Kshs. 1,700,000. The injuries sustained were a deep cut to the left eye brow involving conjunctiva, a deep cut to the left eye brow involving nasal bridge, Laceration of the eft eye brow, Blunt trauma to the left lower back and Posttraumatic loss of vision to the left eye with conjunctivitis. 16. In the premises, I am unpersuaded that the award made by the Trial Court was manifestly excessive. It does reflect a judicious assessment in making the award, thus ousting the exercise of discretion and interference by this Court. **Special damages** 1. Special damages must not only be specifically pleaded but must also be strictly proved. The law requires that a claimant set out the precise sums claimed in the pleadings and thereafter tender credible evidence in support. 2. The Appellant pleaded Special damages of Kshs. 44,850 but the totals are actually Kshs. 48,400 the Court awarded Kshs. 49,350 the figure that was submitted by the Respondent. Obtaining the Police abstract and the P3 form expenses have not been proved. 3. In light of the foregoing, the award for special damages as granted by the trial court is hereby set aside and substituted with one of Kshs. 48,400 4. The trial was informed by the doctrine of *repsa loquitor* and that no contributory negligence would arise, the trial court considered the 1st Appellants statement indicating he had lost control long before the accident, the case was decided on the balance of probability and not just the evidence of the police officer. 5. The Appellants have not showcased any error in principle taking into account irrelevant factors or ignoring relevant evidence by the trial court. 6. The Appellants have equally failed to show case how the award made was Inordinately High unreasonably excessive that no rational court could have arrived at that figure. I am thus unable to exercise my discretion to disturb the award. 7. The Extent of injuries occasioned upon the Respondent and resultant award would qualify the judgment against the Appellants as sound. 8. Accordingly, the Appeal herein fails and is dismissed for want of merit and the Judgment and Decree of Hon. E.G. Nderitu, CM in MOLO CMCC NO.137 (B) OF 2020 in Molo delivered on 14th March, 2023 is hereby confirmed; 9. The Respondent shall have the costs of the Appeal. It is so Ordered **Signed, Delivered Virtually on Teams platform** **On this 2nd day of July, 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **Mohochi S.M** **JUDGE**