https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1909

 REPUBLIC OF KENYA IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT KILIFI COUNTY COURT NAME: MALINDI ELRC CASE NUMBER: ELRCA/E008/2025 MAURICE OMONDI OYOLO VS RAPID KATE SERVICES (K) LIMITED JUDGMENT 1. The Appellant instituted legal proceedings against the Respondent in the aforementioned case, asserting that at all relevant times, he was an employee of the Respondent and suffered injuries during the course of his employment when the Respondent’s motor vehicle, registration number KCL 269U/ ZC2312, was involved in a traffic accident on 5th May 2019. 2. The Appellant asserted that the accident occurred as a result of the negligence of the Respondent’s driver in the manner in which he drove and/or managed the motor vehicle at the material time. Further, as a result of the accident, he suffered multiple injuries, including a fracture of the T12 vertebral body [partial wedge collapse], bruises to the left elbow joint, a cut wound and bruises on the right ankle lateral aspect, and injury to the back. 3. He further asserted that, as a result of the injuries sustained, he would need a lumbar corset for life to stabilise his back and enable him to perform activities related to daily chores. The corset could need to be replaced every six months, at an estimated cost of KShs. 21,500 per unit. 4. He further stated that he required decompression surgery costing approximately KShs. 250,000, and physiotherapy sessions costing him approximately KShs. 50,000 per year for three years. 5. He claimed special and general damages, and loss of earning capacity, at KShs. 23,771 per month. He contended that at the time of the accident, he was 41 years old. 1. The Respondent denied the Appellant’s allegation that the accident resulted from the negligence of its driver and/or servant, and also contested the claim that the Respondent suffered the injuries and damages alleged, along with the reliefs sought. 2. In the course of the proceedings before the trial Court, the parties recorded a consent on liability. It was agreed that the Respondent bears 90% and the Appellant bears 10%. Accordingly, for determination by the trial Court, the quantum aspect was left. 3. After hearing the parties on their respective cases, considering their evidence and submissions, the learned trial Magistrate entered judgment for the Appellant and awarded him [i] General damages for pain and suffering, KShs. 550,000; [ii] Special damages, KShs. 20,000, and declined the other remedies, including loss of future earnings and future medical expenses. 4. Dissatisfied with the decision of the learned trial Magistrate, the Appellant challenged it through this appeal, outlining the following primary grounds. 5. The learned trial Magistrate erred in law and fact in failing to take into account the severity of the injuries sustained by the Appellant, thereby making an award for general damages for pain, suffering and loss of amenities that was inordinately low, unfair and unjust in the circumstances. 6. The trial Magistrate erred in law and fact and applied wrong principles in the assessment of general damages for pain, suffering and loss of amenities, thereby making an unfair and unjust award. 7. The learned trial Magistrate erred in law and fact in misapprehending the evidence on record on the issue of future medical costs, applied wrong principles and, in the process, declined to make any award under this head, which was unfair and unjust in the circumstances. 8. The learned trial Magistrate erred in law and fact when he misapprehended the evidence on record on the issue of earning capacity, failing to take into account relevant factors and applying the wrong principles of law, thereby declining to make any award under the head of loss of earning capacity. 9. The learned trial magistrate erred in law and in fact by failing to consider the Appellant’s submissions and the authorities cited therein, thereby reaching an erroneous decision. The Appellant’s submissions 1. In written submissions dated 20th November 2025, learned counsel for the Appellant candidly indicated that, although the Memorandum of Appeal dated 24th March 2025 raised five grounds of appeal, the Appellant would abandon grounds 1 and 2, both of which challenged the adequacy of the award of Kshs. 550,000 for general damages for pain, suffering and loss of amenities, and would confine the appeal to grounds 3, 4 and 5, touching on the trial Magistrate's refusal to award future medical expenses and damages for loss of earning capacity. 2. On the jurisdiction of this Court as a first appellate court, counsel relied on Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira, Nairobi CA No. 161 of 1999 [2013] eKLR, for the proposition that this being a first appeal, the Court is reminded of its primary role to re-evaluate, re-assess and re-analyse the record and determine whether the conclusions reached by the trial court are to stand, giving reasons either way. 3. On future medical expenses, counsel relied on Catholic Diocese of Kisumu v Tete, Kisumu CA No. 284 of 2001 [2004] eKLR, for the threshold an appellant must cross before an appellate court will interfere with an award of damages, and on Tracom Limited & Another v Hassan Mohammed Adan, Nyeri CA No. 192 of 2006 [2009] eKLR, for the proposition that while a claim for future medical expenses must be pleaded, it need only be pleaded, and proved, to the extent of the approximate sum required. It was submitted that the Appellant pleaded, at paragraphs 5 and 8 of the Plaint, the need for decompression surgery of the spine at a cost of Kshs. 250,000, physiotherapy at Kshs. 50,000 per year for three years, and painkillers and nerve-stabilising medication; that both Dr Kiema and Dr. Udayan Sheth agreed that the Appellant required decompression surgery, which he had, as at the date of trial, been unable to undergo for want of funds; and that the proposed cost of Kshs. 250,000 was conservative when regard is had to Nuhu Abdi Osman & Another v Saumu Hamadi Mwarialie, Mombasa HCCA No. E201 of 2021 [2024] eKLR, in which a comparable back injury attracted an award of Kshs. 350,000 for future medical treatment. It was accordingly urged that the trial Magistrate erred in declining to award any sum under this head, and this Court is urged to award Kshs. 400,000. 4. On loss of earning capacity, counsel relied on Voi HCCA No. E047 of 2021, Joseph Njenga Kariuki v Robert Sila Muthini [2022] eKLR, and on Mumias Sugar Company Ltd v Francis Wanalo, Kisumu CA No. 91 of 2003 (2007) eKLR, for the principle that an award for loss of earning capacity may be made whether or not the claimant remains employed, that there is no fixed formula for its assessment, and that the true inquiry is the effect of the permanent injury on the claimant's future employment prospects. Reliance was further placed on Tile & Carpet Center Warehouse v David Odhiambo Okello, Mombasa CA No. 74 of 2019 [2022] eKLR. It was submitted that the Appellant, aged 41 years and earning Kshs. 23,771 per month at the time of the accident, sustained a permanent disability of between 5% and 10% according to the two doctors, that he was relieved of his duties by the Respondent on account of the injury, and that he can no longer lift or bend as required of a turnboy/loader. The Court was urged to allow the appeal on this ground and award a modest lump sum of Kshs. 1,000,000. The Respondent's submissions 1. In written submissions dated 25th November 2025, learned counsel for the Respondent supported the judgment of the trial court in its entirety and opposed the appeal, submitting that all five grounds of appeal turn, in substance, on a single question, namely the correctness of the trial court's assessment of quantum. 2. On general damages, it was submitted that the learned trial Magistrate properly considered the parties' submissions and independently identified, and correctly applied, the comparable authority of Nuhu Abdi Osman & Another v Saumu Hamadi Mwarialie (supra), in which the High Court declined to interfere with an award of Kshs. 350,000 for a plaintiff who had sustained a compressed fracture of the vertebrae at both T11 and T12, together with a blunt injury to the back, a more extensive spinal injury than the single T12 fracture sustained by the Appellant. Counsel further relied on Samson Ombati Getange v Waridi Ltd, HCCA at Machakos (compressed fractures of the cervical spine C3 and C4, Kshs. 300,000 upheld) and Pan Africa Paper Mills Ltd v Sylvester Nyarango Obwocha, HCCA No. 118 of 2002 at Eldoret (2019) eKLR (fractures of T11 and a compressed fracture of T12, 10% permanent disability, Kshs. 400,000 confirmed), and sought to distinguish Ahmed Salim Said v Safina Kidodo Wewa, HCCA No. E166 of 2021, Mombasa, relied upon by the Appellant, on the basis that the plaintiff in that case additionally suffered loss of lumbar lordosis and muscle spasms, features absent in the present case. 3. On future medical expenses, it was submitted that Dr. Udayan Sheth, a consultant orthopaedic surgeon who examined the Appellant on 12th September 2019, some four months after the accident, found that the lumbar spine had regained full and painless movement, that there was no neurological deficit, and that the straight-leg-raising test was normal, assessing permanent incapacity at only 5%, as against the 10% assessed a month after the accident by Dr. Kiema, whose area of specialisation, unlike Dr. Sheth's, is not orthopaedics. Reliance was placed on Simon Mutisya Kavii v Simon Kigutu Mwangi, Mombasa HCCC No. 197 of 2007, for the proposition that the opinion of an orthopaedic consultant ought to be preferred to that of a general medical officer on matters of bone injury. It was further submitted that the Appellant produced no receipts or other tangible proof, notwithstanding the more than five years that had elapsed since the accident, that he had purchased painkillers, undergone physiotherapy, or used a lumbar corset, and that he was not even using a lumbar corset at the time he testified; that Dr. Kiema conceded in cross-examination that receipts would have existed had such expenses genuinely been incurred; and that the modest sum of Kshs. 18,000 actually proved as special damages for treatment undermined the claim for hundreds of thousands of shillings in future medical expenses. 4. On loss of earning capacity, it was submitted that Dr. Kiema himself testified that the Appellant, while on a lumbar corset, can still work, albeit with breaks, that his disability was partial and not total, that he was “90% ok”, and that persons in his position are likely to lead almost a normal life, and that there was accordingly no credible evidence of any loss or diminution of earning capacity. Reliance was placed on Pietro Canobbio v Joseph Amani Hinzano, Malindi HC Civil No. 48 of 2013, where, notwithstanding an 18% permanent disability arising from amputation of three fingers, an award for loss of earnings was declined on the footing that the claimant remained capable of employment. 5. On the principles governing the exercise of this Court's appellate jurisdiction, counsel relied on Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123, and Wambaira & 17 Others v Kiogora & 2 Others, CA No. 10 of 2004 [2004] eKLR, for the proposition that while a first appellate court has the duty to re-evaluate the evidence and reach its own conclusions, it must remain mindful of the advantage enjoyed by the trial court, which saw and heard the witnesses, and should be slow to differ from findings that turn on the credibility and weight of conflicting evidence. The Court was urged to dismiss the appeal with costs to the Respondent. Analysis and Determination 1. I have carefully considered the record of the proceedings before the trial court, the judgment of the learned trial Magistrate, the Memorandum of Appeal, and the rival written submissions filed by learned counsel for the parties together with the authorities cited therein. 2. It bears restating, at the outset, the settled principles that govern this Court sitting as a first appellate court. This Court has both the jurisdiction and the duty to re-evaluate, re- assess and re-analyse the evidence on the record and to draw its own conclusions, bearing in mind, however, that unlike the trial court, it neither saw nor heard the witnesses testify. See Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123; and Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira [2013] eKLR. As regards an award of damages in particular, it is equally settled that the assessment of damages lies primarily within the discretion of the trial court, and an appellate court will only interfere with that discretion where it is shown that the trial court applied wrong principles of law, took into account irrelevant factors, failed to take into account relevant factors, or arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. See also Catholic Diocese of Kisumu v Tete, Kisumu CA No. 284 of 2001 [2004] eKLR. 3. Although five grounds of appeal were originally pleaded, learned counsel for the Appellant, quite properly, abandoned grounds 1 and 2, both of which challenged the adequacy of the award for general damages, and confined the appeal to grounds 3, 4 and 5. For completeness, and lest it be thought that the abandonment of those grounds was a mere tactical concession that this Court has not itself tested, I address the propriety of the award for general damages before turning to the grounds that were pursued. 4. General damages for pain, suffering and loss of amenities 5. Even though not pursued, I have, out of an abundance of caution, considered whether the sum of Kshs. 550,000 awarded for general damages was inordinately low, as had originally been contended. I find that it was not. The learned trial Magistrate correctly directed himself to the comparable authority of Nuhu Abdi Osman & Another v Saumu Hamadi Mwarialie [2024] eKLR, in which the High Court declined to interfere with an award of Kshs. 350,000 for a plaintiff who had sustained a compressed fracture of the vertebrae at both T11 and T12, together with a blunt injury to the back, a materially more extensive spinal injury, at two vertebral levels, than the single T12 fracture sustained by the Appellant in this case. That the trial court nonetheless made a higher award of Kshs. 550,000 for a less extensive injury demonstrates, if anything, that the award was generous rather than inordinately low. This is reinforced by Pan Africa Paper Mills Ltd v Sylvester Nyarango Obwocha, HCCA No. 118 of 2002 at Eldoret (2019) eKLR, and Samson Ombati Getange v Waridi Ltd, HCCA at Machakos, both involving comparable, and in the former instance more severe, spinal injuries, and both attracting awards of between Kshs. 300,000 and Kshs. 400,000. I am satisfied that the trial Magistrate applied no wrong principle, took into account no irrelevant factor, and left out of account no relevant factor, in arriving at the sum of Kshs. 550,000 for general damages, and that the award cannot, on any view, be described as inordinately low, unfair or unjust. Grounds 1 and 2 of the appeal, even had they been pursued, would have failed. 1. Future medical expenses 2. It is trite, as was correctly appreciated by the trial court, that while a claim for future medical expenses is a species of special damage that must be specifically pleaded, and while it is not, as a matter of principle, necessary for a claimant to prove the precise quantum of expenses not yet incurred with the same exactitude demanded of expenses already incurred, it remains incumbent on the claimant to place before the court credible evidence establishing, on a balance of probabilities, that the medical intervention in question will in fact be required and the expense in fact incurred. See also Tracom Limited & Another v Hassan Mohammed Adan [2009] eKLR. 3. In the present case, the evidence relied upon in support of the claim for future medical expenses was materially undermined by the medical evidence taken as a whole. Dr Kiema, upon whose report of 11th June 2019 the Appellant principally relies, examined the Appellant barely a month after the accident and assessed a 10% permanent disability, opining that the Appellant would require decompression surgery at an estimated cost of Kshs. 250,000, together with physiotherapy and medication. Dr. Udayan Sheth, a consultant orthopaedic surgeon, examined the Appellant later, on 12th September 2019, some four months post-accident, and found that the lumbar spine had by then regained full and painless movement, that there was no neurological deficit, that the straight-leg-raising test was normal, and assessed the permanent incapacity at a considerably lower 5%. Where the opinions of two medical experts diverge in this manner, it is open to, and indeed the duty of, the trial court to weigh that evidence and to prefer the opinion it finds, on the whole of the evidence, the more reliable (Simon Mutisya Kavii v Simon Kigutu Mwangi, Mombasa HCCC No. 197 of 2007). I find no fault in the trial court's approach of preferring, for purposes of assessing the ongoing and future state of the Appellant's injuries, the later and more specialised assessment of Dr. Sheth, a consultant orthopaedic surgeon, over the earlier and more general assessment of Dr. Kiema. 4. Beyond the divergence in medical opinion, the claim for future medical expenses suffered from a further and, in my view, decisive infirmity: the want of any tangible evidence, notwithstanding the more than five years that had elapsed between the accident and the hearing, that the Appellant had incurred, or was continuing to incur, any of the expenses said to be necessary. The Appellant did not produce a single receipt for painkillers, nerve-stabilising medication, physiotherapy, or a lumbar corset, and was not, on his own evidence, even using a lumbar corset at the time he testified. Dr. Kiema himself conceded, under cross-examination, that had the Appellant genuinely been incurring such expenses, receipts would have been available. Nor is it insignificant that the special damages actually proved for treatment and medication amounted to a modest Kshs. 18,000, a sum that sits uneasily with the suggestion that hundreds of thousands of shillings would additionally be required for future treatment. In these circumstances, I am satisfied that the trial Magistrate correctly declined to award future medical expenses, including the cost of the proposed decompression surgery, for want of credible proof that the law requires. The reliance placed by the Appellant on Nuhu Abdi Osman & Another v Saumu Hamadi Mwarialie (supra) does not assist him, since the award of Kshs. 350,000 for future medical treatment in that case rested on its own distinct evidentiary foundation and cannot, without more, be transposed to the present case, where that evidentiary foundation is, for the reasons given, absent. Ground 3 of the appeal accordingly fails. 1. Loss of earning capacity 2. The principles applicable to a claim for loss or diminution of earning capacity are equally well settled. Such an award may be made whether or not the claimant remains in employment at the time of trial, may be assessed as part of general damages or as a separate head, and may be a token, modest, or substantial sum depending on the circumstances of each case; there is no fixed formula for its assessment, but the trial court must apply the correct principles and have regard to the relevant factors in order to arrive at a real or approximate estimate of the claimant's loss. See also Mumias Sugar Company Ltd v Francis Wanalo, Kisumu CA No. 91 of 2003 (2007) eKLR. It is not, however, sufficient for a claimant merely to establish a permanent injury, the claimant must additionally establish that the permanent injury has some demonstrable effect on his future employment prospects, as was held in Joseph Njenga Kariuki v Robert Sila Muthini [2022] eKLR. 3. In this case, the only evidence that the Appellant had lost, or would in future lose, his capacity to earn was his own oral assertion that he had been relieved of his duties on account of the injury and was no longer working. That assertion was not corroborated by any letter of termination, any documentary evidence from the Respondent, or any other independent source, notwithstanding that it lay squarely within the Appellant's ability to produce such evidence. More significantly, it sits uneasily with the evidence of the Appellant's own witness, Dr. Kiema, who testified that, while on a lumbar corset, the Appellant “can still work... but with breaks,” that his disability was partial rather than total, that he was “90% ok,” and that persons in his position “are likely to lead almost a normal The Judiciary of 7/8 life.” That evidence falls well short of establishing the demonstrable effect on future employment prospects required to sustain an award for loss of earning capacity. I am accordingly satisfied that the trial Magistrate did not err in declining to make an award for loss of earning capacity; on the evidence led, the claim remained one of speculation rather than of proof. Ground 4 of the appeal accordingly fails. 1. As to ground 5, that the trial Magistrate failed to consider the Appellant's submissions and the authorities cited therein, I find no substance in this ground. The judgment of the trial court demonstrates that the learned Magistrate engaged directly with the parties' rival submissions and the authorities relied upon. A trial court is not obliged to individually recite and distinguish every authority cited by counsel provided, as here, that its judgment discloses that it engaged with the substance of the parties' respective cases and arrived at a reasoned conclusion. Ground 5 accordingly fails. 2. In the final analysis, I find that the learned trial Magistrate applied the correct principles of law, took into account all relevant factors and no irrelevant ones, and did not misapprehend the evidence on record, whether in respect of the award of general damages or in declining to make awards for future medical expenses and loss of earning capacity. There is accordingly no basis upon which this Court, sitting on a first appeal, would be justified in disturbing the judgment of the trial court. The appeal, in its entirety, lacks merit. Disposition 3. In the upshot, for the reasons set out above, I make the following orders: - 4. The appeal be and is hereby dismissed in its entirety. 5. The judgment and decree of the trial court in Mariakani PMCC No. E167 of 2019, delivered on 18th March 2025, is hereby upheld. 6. The costs of this appeal shall be borne by the Appellant. It is so ordered. READ, DELIVERED AND SIGNED THIS 24th DAY OF JUNE 2026. SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. MR. JUSTICE OCHARO KEBIRA** Malindi ELRC Employment and Labour Relations Court Date: 2026-07-04 12:59:56 The Judiciary of 8/8