Maingi v M’Kanga (Civil Appeal E060 of 2024) [2026] KEHC 9818 (KLR) (7 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH OF KENYA AT MERU** **CIVIL APPEAL NO. E060 OF 2024** **PHINEAS MURUNGI MAINGI..................................APPELLANT** **VERSUS** **JOSES MUTEGI M’KANGA.........................………RESPONDENT** ***(Being an Appeal from the Judgment and Decree of Hon. E. M Ayuka (P.M) in Nkubu PMCC No. 45 of 2021 delivered on 22nd of June, 2023).*** **JUDGMENT** 1. This Appeal arises from the Judgment of the Learned Principal Magistrate Hon. E. M Ayuka delivered on 22.6.2023 in Nkubu Civil Suit No. 45 of 2021 wherein judgment was entered in the following terms; 1. **Liability 100%** 2. **General Damages Ksh. 500,000** 3. **Special Damages Ksh. 216,555** 2. Aggrieved by the said Judgment, the Appellant set forth the following grounds in the Memorandum of appeal dated 19th April, 2024; 1. **The Learned Magistrate erred in fact by failing to consider or take into consideration that the Appellant had sufficiently pleaded and proved loss** **of earnings and loss of earning capacity he had suffered as a result of the negligence on the part of the Respondent and thereby arrived at an erroneous conclusion.** * 1. **The Learned Trial Magistrate erred in fact and law in failing to make an award under the Loss of earnings and Loss of earning capacity in light of the evidence, law and submissions by the Appellant before the trial magistrate and thereby fell into an erroneous conclusion under the circumstances.** 2. **The Learned Trial Magistrate erred in law and fact in assessing the award under pain and suffering and loss of amenities by *inter alia* failing to give proper consideration and or at all the nature of injuries suffered by the Appellant, comparative case laws and therefore exercised his discretion capriciously and against laid down principles leading to a very low assessment of damages thereby arriving at an erroneous conclusion.** 3. **The judgment and decree of the Learned Trial Magistrate dated 22nd June 2023 is against the weight of pleadings, evidence, submissions and authorities placed before the honorable court and therefore erroneous.** **Oral evidence** 1. **PW1 Phineas Muriungi**, the Appellant herein, adopted his statement dated 6/8/2021 as his evidence in chief and produced the documents filed therewith as exhibits. He told the court that he worked as a matatu driver before the accident, earning a monthly salary of Ksh. 30,000 and a daily lunch of Ksh. 500. He lost a tooth and could no longer work as a result of the accident. 2. **PW2 Celina Karabai**, adopted her statement as her evidence in chief. She told the court that she owned motor vehicle registration No. KCF 684 T which the Appellant used to drive before the accident, and she paid him a monthly salary of Ksh. 30,000 and Ksh. 500 daily for lunch. **Submissions** 1. The Appellant, through the firm of Ngunjiri Michael & Co. Advocates, filed submissions dated 7/11/2025, citing ***Joel Kiogora M’iringo v Gabriel Memia (2020) eKLR***, on the duty of the first appellate court. Counsel faulted the trial court for failing to award damages for loss of earning capacity, loss of earnings, future medical expenses of Ksh. 50,000, and general damages for pain, suffering, and loss of amenities, which had duly been pleaded and proved. Counsel relied on ***Jovet (Kenya) Limited v Bavaria NV [2025] KESC 27 (KLR) and Wanjohi v Kamau another [2025] KECA 1474 (KLR)***, for the proposition that a Court has to determine each and every pleaded issue, as failure to do so could be a basis for setting aside a judgment. Counsel retorted that an award of Ksh. 1,000,000 for lost earning capacity and Ksh. 12,000,000 for lost earnings would suffice, and cited ***Choitram and Another v Nazari [1984] KECA 47 (KLR), Douglas Kalafa Ombeva v David Ngama [2013] 538 (KLR) and Mumias Sugar Company Limited v Francis Wanalo (2007) eKLR***. 1. The Respondent did not file any submissions. **Analysis and Determination** 1. This being a first appeal, the court is obliged to reconsider and re-evaluate the evidence adduced in the trial court and draw its own conclusions on the same. 2. In ***Selle & another v Associated Motor Boat Co. Ltd [1968] EA*** the court held as follows: ***“This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 3. I have considered the appeal herein, the trial court’s judgment, which is the subject of this appeal, as well as the submissions on record. 4. The issues for determination are twofold: whether awards for loss of earnings and loss of earning capacity were awardable, and whether the award of Ksh. 500,000 was inordinately low. 1. The principles to be considered by an appellate Court in deciding whether to disturb the trial Court’s assessment of damages were set out by the Court of Appeal for East Africa in the *locus classicus* case of ***Butt v Khan [1978] eKLR*** thus; ***“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.”*** 2. The injuries sustained by the Appellant are particularized in the medical report of Dr. Nicholas Koome Guantai dated 8/5/2021 as brain concussion with loss of consciousness for a period of approximately 30 minutes, fracture of the #12 tooth with retained root, deep cut wounds on the face and a laceration on the lip and soft tissue injury to the anterior chest wall. 3. At the time of examination, approximately 2 years after the accident, the Appellant was scarred on the injured areas, and there was notable residual neurological sequel following the mild head injury with deterioration of short and long term memory as well as speech impairment. The Doctor opined that, ***“The post injury neurological sequel is likely to be permanent. He has been unable to resume his occupation as a driver since the time of the accident and is reliant on a caregiver for activities of daily living.”*** 4. In ***Ndorongo v Ouma [2024] KEHC 9045 (KLR)***, the Court *(B.M. Musyoki, J)* substituted an award of general damages of Ksh. 1,200,000 with Ksh. 500,000 where the claimant suffered blunt injuries to the head resulting in loss of consciousness for an unknown duration, blunt injuries to the head resulting in loss of an upper tooth, blunt injuries to the left shoulder, a cut on the forehead, and a non-depressed fracture of the skull. 5. Quite frankly, the award of Ksh. 500,000 was commensurate with the injuries the Appellant sustained, owing to the fact that he did not suffer any permanent incapacity, and I so find. 6. On loss of future earnings and loss of earning capacity, the Court of Appeal in ***S J v Francesco Di Nello & another (2015) eKLR*** noted 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 or 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.”*** 1. In ***Mumias Sugar Company Limited v Francis Wanalo [2007] 485 (KLR)***, the Court of Appeal held that: ***“The award of loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification*** ***for the award when the plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not*** ***employed at the date of the trial, is to compensate the Plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”*** 1. The justification advanced by the trial court for its refusal to award damages for loss of earning capacity, was that it was neither pleaded nor proved. 2. That was erroneous as at paragraphs 6 and 7 of the plaint, the Appellant categorically pleaded that:- ***“As a result of the injuries that he suffered and the resultant health status, the plaintiff always requires a round the clock aid for the most menial of tasks and has been unable to resume his occupation as a driver since*** ***the time of the accident and is reliant on a caregiver for activities of daily living. He requires future medical treatment/attention at an approximate cost of Ksh. 50,000/=. Prior to the said accident, the plaintiff was working as a driver earning over Ksh. 40,000/= per month.”*** The Appellant went further to specifically pray for damages for loss of earnings and loss of earning capacity. 1. The Appellant maintained that he lost earnings as a direct consequence of the injuries sustained and the resultant inability to work, and was entitled to an award thereunder. While PW2 led uncontroverted evidence that she had employed the Appellant as a driver to her Motor Vehicle Registration No KCF 684 T at the time of the accident, earning approximately Ksh. 30, 000 per month, no documentary evidence was tendered to substantiate the said monthly income. 2. I find that the claim for loss of earnings, being in the nature of special damages, was not strictly proved as required by law, and consequently, no award can be made thereunder. 3. Nevertheless, the Appellant is entitled to damages for loss of earning capacity, as it was demonstrated that the accident substantially diminished his future prospects of gainful employment. The good doctor opined that permanent incapacity was highly probable owing to the post injury neurological sequel and the anticipated round the clock care. The Appellant was admitted at Mitinguu and St. Anne Mission Hospital for an aggregate of 12 days from 27/7/2019 to 8/8/2019. 4. Apart from the brain concussion with loss of memory for a period of approximately 30 minutes, no other major injuries were sustained by the Appellant. Further, at the time of testifying, the Appellant did not indicate that he was dependent on a caregiver, undergoing any post-medical treatment, or was on any medication, which must be taken as evidence of his continued recovery. 5. In the circumstances, therefore, although the Appellant’s earning ability was diminished, the extent thereof was minimal. I thus find that a modest and nominal award of Ksh. 350,000 for loss of earning capacity would suffice. 1. The upshot from the foregoing is that the appeal is partially merited and it is allowed in the following terms:- 1. **The Appellant is awarded Ksh. 350,000 for loss of earning capacity.** 2. **The other awards remain unaffected.** 2. Each party to bear own costs of the appeal. **DATED AND DELIVERED AT MERU THIS 7 DAY OF JULY, 2026.** **S.M. GITHINJI –JUDGE** **7/7/2026** **In the presence of:-** Mr. Ngunjiri for the Appellant (absent).