https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12904

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MAKUENI CIVIL APPEAL NO. E079 OF 2023 ROBERT KALANZO MUEMA alias ROBERT KALONZO………………………………APPELLANT VERSUS ASENATH MUTILE alias SENAATH MUTUKU MUTHEU Alias ASENATH MUTUKU MUTHILE alias AZENATH MUTILE………………………………………………….... RESPONDENT **JUDGMENT** ***(Being an appeal from the judgment and decree of Magistrate’s Court at Makindu Hon. B.N Ireri SPM in SPMCC No. E115 of 2020 delivered 14th August, 2023)*** **Introduction.** 1. A brief background of this appeal is that the respondent was travelling as a fare paying passenger in motor vehicle registration number KBK 648T (hereinafter referred to as the motor vehicle) on 18th August, 2018 along Makindu-Wote road which was being driven by Stephen Mutua Nyamai, then the 3rd defendant in the suit in the lower court. The respondent averred that the said vehicle was driven negligently causing the same to lose control and overturned and as a consequence the respondent sustained serious injuries. 2. According to paragraph 7 of the plaint filed in the lower court the respondent sustained the following injuries: 3. *Unstable fractures dislocation if T11, T12, L1 and L2 vertebrae* 4. *Muscle spasm with a gibbus deformity of the T12/L1 level* 5. *Retropulsion of the L1 fracture fragments posteriorly narrowing the spinal canal and causing cord compression at the same level* 6. *Cord edema at the T11-L1 levels* 7. *Post traumatic T12/L1 and L1/L2 disc bulges compressing the bilateral traversing nerve roots* 8. *Right erector spinae muscle edema* 9. *Paralysis of the lower limbs* 10. *Incontinence of urine and stools* 11. As at the time of medical examination the respondent complained of: 12. *Both legs have remained weak and hemiparalysis* 13. *Difficulties getting around. She cannot stand or walk without external support* 14. *She is incontinent of stools and urine. She wears diapers* 15. *She is not able to work* 16. *She cannot bend her back, kneel or squat* 17. *Permanent disability of about 75% to 100%.* 18. The appellant and 3rd defendant in the lower court suit filed a statement of defence denying the respondent’s claim and blamed the respondent for negligence. They denied all the particulars of injuries enumerated by the respondent in the plaint. 19. The trial magistrate in his judgment made the following award: 20. *General damages ……………………………..Kshs. 4,000,000/=* 21. *Loss of future earning capacity…………Kshs. 1,500,000/=* 22. *Loss of consortium……………………………Kshs. 300,000/=* 23. *Future medical expenses…………………. Kshs. 1,680,000/=* 24. *Special damages ……………………………Kshs. 95,360/=* **The Appeal.** 1. Dissatisfied with the decision of the trial magistrate, the appellant filed the instant appeal raising the following grounds: 2. *The learned trial magistrate erred in law and in fact in assessing general damages at Kshs. 7,575,300/= and so doing considered irrelevant facts and principles and as such made an assessment of general damages that was manifestly excessive.* 3. *The learned trial magistrate erred in fact and in law in assessing general damages by failing to compare relevant case law, where injuries were not the same as in this case as well as capacity of disability and by so doing made an erroneous decision.* 4. *The learned trial magistrate erred in law and in fact by making excessive award by failing to hold that the award was paid fully wholly this would be a factor to consider since interest shall be charged on the entire award when invested.* 5. *The learned trial magistrate erred in law and in fact by making an award that was manifestly excessive while making an award for loss of future earnings or diminished earning capacity which was not supported by evidence being presented by the respondent.* 6. *The learned trial magistrate erred in law and in fact by making an award of consortium which was not appropriate since the respondent was not married.* 7. *The learned trial magistrate erred in law and in fact by assessing future medical expenses at Kshs. 1,680,000/= and as such reached at the wrong decision.* 8. The appellant urged this court to allow the appeal and set aside the lower court judgment and substitute it with a reasonable judgment. The appellant also prayed for the costs of the appeal. **Submissions.** 1. The appeal was heard by way of written submissions. The appellant submissions are dated 28th May, 2025. The respondent submissions are undated. **Appellant Submissions.** 1. The appellant in his submissions argues that the general damages awarded were not comparable with awards made by the courts for injuries similar to what the respondent sustained. The appellant cited several authorities to support his argument that the award was not comparable to the trend of awards in similar injuries. He cited the cases of ***Simon Taveta vs Mercy Mutitu Njeru (Civil Appeal No. 26 of 2013*** where an award of Kshs. 4,000.000/= was reduced to Kshs. 3,500,000/= where the respondent had sustained multiple injuries leading to complete paralysis resulting to 100% disability; ***Wambua vs Nyakundi (2023) KEHC 24589 (KLR)*** where an award of Kshs. 4,000,000/= was made for traumatic cord compression with fracture dislocation at T4/5 resulting to paraplegic incontinent and 100% disability; ***Nancy Oseko vs Board of Governors Masai Girls High School (2011) e KLR*** where general damages were assessed at Kshs. 2,500,000/= for multiple spina injuries leading to 100% disability; ***Joseph Magnga Kasha vs Kenya Power & Lighting Company Ltd (2012) e KLR*** where general damages were assessed at Kshs. 3,000,000/= for multiple spinal injuries leading to paralysis and incontinence of stool and urine. 2. The appellant argued that the injuries sustained by the claimants in the cites cases were more severe than the injuries sustained by the respondents in this appeal and as such the trial court misapprehended the evidence, ignored relevant comparable decisions and relied on an excessive unjustifiable award to the prejudice of the appellant. 3. The appellant further submitted that the trial court applied wrong multipliers, multiplicands and ignored that a lump-sum award if invested would generate interests. The appellant argued that the award of the general damages should be discounted with 10%. 4. Further the appellant submitted that the award of loss of earnings or diminished earning capacity was not supported by sufficient evidence as the respondent did not produce documentary evidence demonstrating actual earnings before the accident neither did she show that she was permanently incapacitated rendering her incapable of engaging from gainful employment. The appellant urged the court to set aside the award of Kshs. 1,500,000/= for future earnings. 5. The appellant in his further submissions argued that the award of damages for loss of consortium was not supported by any evidence that the respondent was married or in a legally recognizable spousal relationship. He cited the case of ***Acceler Global Logistics vs Gladys Nasambu Waswa & Christoher Obedi Hanna (Suing as the administrators and legal representative of the estate of Agripa Melise Williem.*** The appellant urged this court to set aside the award of Kshs. 300,000/= for loss of consortium. 6. The appellant further submitted that the trial court erred in applying multiplier approach when awarding damages for future medical expenses, arguing that there was no proof of life expectancy or treatment duration to justify a multiplier of 28 years. the appellant cited the case of ***Mwanzia vs Ngalali Mutua & Kenye Bus Services Ltd HCCA No. 35 of 1989*** where the court held that multiplier approach was appropriate but speculative when applied without proof. 7. The appellant urged the court to set aside the judgment of the trial court and substitute it as follows: 8. *General damages……………………………………. Kshs. 2,000,000/=* 9. *Loss of future earning capacity………………Kshs. 100,000/=* 10. *Loss of Consortium……………………………….. NIL* 11. *Future Medical expenses…………………………..Kshs. 200,000/=* 12. *Special damages ……………………………………..Kshs. 95,360/=* **Respondent Submissions.** 1. The respondent referred to the decisions before the trial court in proposing an award of Kshs. 4,500,000/= and argued that they were of comparable injuries the respondent sustained in this case. The decisions cited in the lower court by the respondent were, ***Nicholas Njue Njuki vs Eliud Mbugua Kahuro (2014) e KLR*** where the court awarded Kshs. 3,800,000/= for unstable fracture of the lumber vertebrae leading to spinal cord damage and paralysis resulting to 100% disability; ***Charlene Njeri Kuria vs Gitu Geoffrey & Another (2016) e KLR*** where the court awarded Kshs. 5,000,000/= for spinal injuries leading to inability to walk, fracture dislocation at the level of L1 to L2 among other injuries resulting to 60% disability; ***Fred Onyoni Nyabuto vs Kimani Walter (2019) e KLR*** where an award of Kshs. 5,000,000/= was made for fracture at T11, T12, L1 with paraplegia, stool and urine incontinence among other injuries resulting to 100% disability; ***Nelson Mghadi vs Razick Obuna (2021) e KLR*** where an award of Kshs. 6,000,000/= was made for compression of the spinal cord at T11 causing paralysis ant the level of and stool and urine incontinence among other multiple spinal injuries resulting to 100% disability. The appellant argued that the award by the trial court was comparable to the authorities cited. 2. The respondent further submitted that, the appellant in his submissions that the award was inordinately high, relied on the decisions which he did not cite before the trial court hence it was improper at the appellate stage. The respondent cited that case of ***Sila Tiren & Another vs Simon Ombati Omiambo (2014) e KLR*** where the court emphasized that the duty of the appellate court is to correct the errors made by the trial court and not to receive new or further evidence. In any case the respondent distinguished the decisions cited by the appellant and submitted that the said decisions do not support the proposed award of Kshs. 2,000,000/= general damages by the appellant. 3. Consequently, the respondent argued that the trial court did not take into account irrelevant facts and principles in assessing the general damages. In any case the respondent argued that the appellant had not demonstrated the irrelevant facts and principles the trial considered or failed consider. The respondent urged the court to uphold the award of Kshs. 4,000,000/= general damages. 4. Regarding the award on diminished earning capacity, the respondent submitted that the appellant’s submissions that there was no documentary evidence to support incapacitation is misplaced. It was argued that the respondent pleaded the same in paragraph 7 and 8 of the plaint and led evidence in her oral testimony and the medical reports produced in court confirming that the respondent was permanently incapacitated with the degree of disability assessed at 100%. The case of ***Ndoro Kaka Kakondo vs Salt Manufacturing (K) Limited (2016) KEELRC 984 (KLR)*** where the court held that damages for loss of earning capacity/diminished earning capacity is based on the claimant’s potential earning power whether the claimant was in employment or unemployed at the time of the injury and all one need to prove is on a balance of probability that his/her earning potential has been diminished because of the injuries. The respondent cited that case of ***Mumias Sugar Company Limited vs Francis Wanalo (2007) e KLR*** where the court awarded Kshs. 500,000/= for diminished chances of the respondent to get employment in the labour market where the respondent suffered 15% disability. 5. It was argued by the respondent that going by the uncontroverted evidence it was clear that the respondent will be disadvantaged due to the incapacity and the award of Kshs. 1,500,000/= by the trial court was not inordinately high. 6. The respondent further submitted that the appellant’s argument that multiplier approach method is not applicable in assessment of damages for future earnings is a misapprehension of the evidence adduced and the applicable principles. It is argued that there was uncontroverted evidence by the doctors who examined the respondent that she would require diapers owing to the incontinence. Dr. Wokabi estimated the costs thereof at Kshs. 5,000/= per month and opined the incontinence would persist forever. The respondent relied on the case of ***Francis Muvinga Musili vs Afro Plastic (K) Limited & Another (2016) e KLR*** where a multiplier approach was used in calculating future medical expenses. 7. On the award on loss of consortium, the respondent submitted that much as at the time of the trial court decisions the position as regards the award of damages for loss of consortium was not settled, the same has now been settled in the cases of ***Nicholas Njue Njuki vs Eluid Mbugua Kahuro (2014)e KLR, John Mwongela vs Stanley Maingi Ngeera (2007) KEHC 3247 (KLR)*** and ***Muriithi vs My Beauty Transporters Limited & 2 others (2025) KECA 516 (KLR)*** where the court held that damages for loss of consortium is awardable to injured victim. In any case the respondent argued that the submissions by the appellant in this appeal were not made before the trial court. 8. On the appellant submissions that the trial court failed to discount 10% the interest that would be charged when the entire award is fully paid and invested, the respondent argument is that the said argument was not made before the trial court hence it is not open for this court to entertain the same. In any case the principle fronted by the appellant is not applicable in the instant case. 9. The respondent urged the court to dismiss the appeal and uphold the judgment of the trial court. **Analysis and Determination.** 1. This appeal is against assessment of damages by the trial court. It has been restated that the appellate court must very cautious not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were stated in the case of ***Kemfro Africa Ltd & Another vs Lubia & Another (1982-88) KLR*** where the Court of Appeal rendered itself: ***“In deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge, an appellate court must be satisfied that the judge in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”*** 1. This position was restated in the case of ***Catholic Dioceses of Kisumu vs Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001*** where it was held: ***“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent and entirely erroneous estimate.”*** 1. In the instant case, the injuries sustained by the respondent are not in contest. I have reproduced the same in this judgment. The guiding principles in assessment of damages in personal injury claims have been restated by this Court and Court of Appeal. In the case of ***Southern Engineering Company Ltd vs Musingi Mutia (1985) KLR 730*** the court of appeal held that: ***“It is trite that measurement of quantum of damages is a matter for the discretion of the individual judge which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated… The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgment and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of views and opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment. It is investable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with facts of another before comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them od a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”*** 1. Flowing from the above, the consideration in assessment of damages in personal injury claims include but not limited to: 2. *An award of damages is not meant to enrich the victim but to compensate such victim for injuries sustained.* 3. *The award should be commensurate with the injuries sustained.* 4. *Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.* 5. *Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.* 6. *The awards should not be inordinately low or high.* 7. Guided by the foregoing principles, I have noted the injuries sustained by the respondent in this case. I have equally considered the authorities cited by both the appellant in the lower and this court. I note that the authorities relied by the appellant in this appeal were not cited before the trial court. As rightly submitted by the respondent it is improper for the appellant to rely on the decisions not considered by the trial court. In the case of ***Sila Tiren & Another vs Simon Ombati Omiambo (2014) e KLR*** the court held: ***“None of these 3 cases were placed before the trial court… in effect the learned trial magistrate was not given the benefit of the case law which has now been placed before me, on this appeal. That means that this court has been invited to assess a decision arrived at by the trial court using a yardstick that was not made available to that court. In my understanding of the law an appeal process is intended to correct errors made by the trial court… it should determine the correctness or otherwise of the decision being challenged, using the same material which had been placed before the trial court… The appellate court is not, ordinarily, expected to receive new or further evidence. To my mind, the exercise of placing wholly new authorities before the appellate court and using them to either challenge or to otherwise support the decision of the trial court is not a proper use of the mechanism of an appeal.”*** 1. I entirely agree with the holding of the court in the above decision. It is improper for the appellant to rely on the decisions which were not before the trial court. Having stated so, I have considered the authorities cited by the respondent in the lower court and I find that the same were comparable to the injuries sustained by the respondent in this case. Even assuming, for the sake of it, that the authorities cited by the appellant in this appeal were to be considered, I find that the same do not support the proposal by the appellant that an award of Kshs. 2,000,000/= would have been reasonable compensation. 2. Consequently, I find that the award of general damages by the trial court of Kshs. 4,000,000/= was based on the sound principle in the assessment of general damages. 3. Regarding the award of damages for loss of earning capacity/diminished earning capacity, the appellant argued that the same was not based on any evidence. Having considered the evidence adduced before the trial court, it is clear that the respondent stated that the injuries permanently affected her physically jobwise and social life. The medical reports produced were also clear that the respondent suffered 100% disability. It is therefore not correct that the respondent did not adduce evidence to support the claim for damages for loss of future earnings/diminished earning capacity. 4. The claim for damages for loss of future earning capacity/diminished earning capacity is awardable as general damages where there is evidence that the victim’s potential earning power has been diminished. This position was considered in the case of ***Ndoro Kaka Kakondo vs Salt Manufacturers (K) Ltd (supra)*** where the court held: ***“Damages for loss of future earning capacity and/or diminished earning capacity, unlike damages for loss of earnings, is a type of remedy based on the claimant’s potential earning power. It focuses on the claimant’s ability to earn income. The remedy is granted based on the difference in potential earning power, not on what the claimant actually earned in the past. Even if a person is unemployed at the time the injury occurs, he would be entitled to pursue damages for loss of earning capacity or diminished earning capacity. This item is therefore treated as general damages, which though not required to be specifically proved, must be proved on the balance of probability.”*** 1. In the instant case, it is not in contest that the respondent suffered 100% disability. It is also clear from the nature of the injuries as described by the doctors that the respondent may never meaningfully engage in income generating venture including continuing working as a teacher. I am of the finding that the trial court correctly found that the respondent future earning capacity was diminished. 2. Regarding the damages awarded by the trial court, it is clear from the judgment that the trial court was guided by the case of ***Mumias Sugar Company Ltd vs Francis Wanabo (supra)*** where the court awarded Kshs. 500,000/= for loss of future earning capacity where the claimant suffered of between 10-15% incapacity. Considering that the respondent in this case suffered 100% disability, the award by the trial court of Kshs. 1,500,000/= was reasonable in the circumstances and I have no reason to interfere with the same. 3. On damages for loss of consortium, the appellant submission is that the respondent did not prove that she was married or in a legally recognized spousal relationship. The trial court basis of awarding damages for loss of consortium was based on the finding of the medical doctors who examined the respondent and found that her prospect of getting married and sire a child remain uncertain. The respondent in her submissions acknowledged that there are varying views by the court on whether an injured victim can claim damages for loss of consortium. 4. In the case of ***Mbaaru & Another vs Kenya Bus Services Limited Also Known as Stage Coach Bus International (2024) KECA 432 (KLR)*** the Court of Appeal observed that: ***“Loss of consortium means loss of any or all of the following; companionship, love and affection, comfort, mutual services and sexual intercourse.”*** 1. In the case of ***Gitee & Another vs Njeri (suing as the administrator of the estate of James Kimulu Mwangi-deceased (2024) KEHC 4722 (KLR)*** the court stated: ***“Be that as it were, for one to be awarded loss of consortium evidence has to be availed to the nature of the relationship between the spouse. A mere prescription of marriage will not suffice. I say so, because there are cases where though the parties may be legally married this claim will not arise if at the time of death, they were estranged or separated.”*** 1. From the foregoing, it emerges clear that a claim for loss of consortium applies where there are legally recognized spousal or marital relationships. Such claim is in the nature of derivative in the sense that such right belongs to the spouse, compensating them for how the primary victim’s injuries have disrupted the marital bond. It is my view that such claim is not sustainable by an injured victim. The injured victim can only claim damages for pain and suffering. 2. From the foregoing I agree with the appellant that the claim for loss of consortium was not sustainable and the same ought not to have been granted by the trial court. 3. The appellant faulted the trial court for using multiplier approach in calculating the damages for future medical expenses. The respondent pleaded in her plaint paragraph 9 that she has no urine and stool control and will require adult diapers estimated at a cost of Kshs. 5000/= per month. This averment is supported by the medical evidence adduced by Dr. Wokabi and Professor Ating’a. They opined that the respondent would require diapers for the rest of her life. This evidence was not contested by the appellant. I am satisfied that the respondent pleaded and proved the claim for future medical expenses. 4. The issue for determination is whether the trial court properly applied the multiplier approach in arriving at the award of Kshs. 1,680,000/=. It is trite that future medical expenses are in the nature of special damages that must not only be pleaded but strictly proved. 5. In this case the doctors who examined the respondent were categorical in their opinion that the respondent would require an estimated sum of Kshs. 5,000/= per month for purchase of diapers for rest of her life. It is my considered view that where the evidence makes it possible to quantify the monthly or annual costs and life expectancy without undue speculation, the multiplier approach would be the just is assessing damages for future medical expenses. 6. It is clear from the evidence adduced especially by the doctor that the estimated costs of diapers can be estimated. The doctor estimated the same at Kshs. 5,000/= per month. 7. From the evidence, it is not disputed that the respondent was aged 23 years at the time of the accident. Based on life expectancy and taking into account the vicissitudes of life, the multiplier of 28 applied by the trial court was reasonable. I have no reason to interfere with the finding of the trial court. 8. In the end the appeal partially succeeds. The finding of the trial court is upheld save to the award of damages for loss of consortium which is hereby set aside. 9. Regarding the costs, since the appeal has partially succeeded, each party shall bear own costs. 10. Orders accordingly. **Dated, signed and delivered virtually this 19th day of August, 2026** **Francis Kyambai** **Judge of High Court.** **………………………………………**