Sagana Nuts Limited & another v Gitau (Civil Appeal E030 of 2025) [2026] KEHC 7484 (KLR) (28 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CIVIL APPEAL NO. E030 OF 2025** ## **SAGANA NUTS LIMITED ……………………………..…..... 1ST APPELLANT** ## **DANIEL NGURE MWANGI …............................................ 2ND APPELLANT** ## **VERSUS** ## **PETER NJUGUNA GITAU ………………………….……….. RESPONDENT** **JUDGMENT** 1. This appeal arises from the Judgment and decree of Hon. R. N. Kimeu, Resident magistrate, delivered on 7.02.2025 in Kandara CMCC No. E035 of 2023. The appeal is on quantum only. 2. The appeal relates to award for diminished capacity. The Appellant filed a 9-paragraph mammoth Memorandum of Appeal dated 06.03.2025 on the single issue. This is anathema to the provisions of Order 42 Rule 1 of the Civil Procedure Rules, which posits as doth: - 3. **Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.** 4. **The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.** 5. The Court of Appeal had this to say about compliance with Rule 86 of the Court of Appeal Rules (which is *pari* *materia* with Order 42 Rule 1 of the Civil Procedure Rules) in the case of **Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -** We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented: We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs. The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues… 1. Repetitive grounds of appeal tend to cloud the key issue in dispute for determination by the Court. The same issue was addressed succinctly by court of appeal in the case of **Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR** as follows: Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the**Kenya Ports Authority Act**ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In **William Koross** **V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013**, this Court stated: **The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.** 1. The grounds are thus ancillary, repetitive, prolix and a waste of judicial time. Given that it is a single-issue appeal, it is unnecessary to go through the entire evidence. The appellant is said to have suffered 100% incapacity arising from: 1. Compound fracture of the right tibia and fibula. 2. Chronic infarct 2. The respondent was said to have suffered incapacitating injuries at the age of 50 years and could not engage effectively in any economic venture. The respondent claimed among other prayers, for general damages from diminished/reduced earning capacity. 3. Discharge summary showed a fracture of right tibia and fibula. He was ambulating on the crutches. The P3 showed that the Respondent suffered multiple injuries secondary to RTA, which was classified as grievous harm. The radiological report showed that the respondent suffered right front temporal lobe acute infarct (MCA territory). 4. A report by Prof. J.E.O. Ating’a indicated that the respondent has an infected nonunion and left side weakness secondary to his road accident. His total disability is 100%. He will require repeated surgery to manage his infection and will constantly need physiotherapy to hold his weakness on the left side. 5. The appellant filed a defence of 13.04.2023. Dr. Waithaka Mwaura of Work Afya Clinic advised inclusive of skin grafting with a degree of permanent disability at 45%. The court awarded general damages of Ksh. 700,000/=, diminished capacity of Ksh. 500,000/=, special damages of Ksh. 79,080/=. Submissions 1. The appellant submitted that the second medical report indicated 45% permanent disability. Reliance was placed in the case of *Butler v Butler* (1984) KECA 34(KLR), where the court held as follows: **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.** 1. The said amount could be awarded separately or with general damages. Reliance was placed on a persuasive case of **Jacaranda Bodaboda Operators & Another v Nyasero [2023] KEHC 23086(KLR):** The trial court made an award of diminished earning capacity because the Respondent had suffered 10% permanent incapacity. In my view, there was no basis to award diminished earning capacity as the same was not supported by the medical report and the evidence of the doctor who examined the Respondent. The doctor in his evidence said that after recovery the respondent would be able to resume some work. The doctor was not asked whether the injury had any lifelong effect on the respondent’s capacity to do construction work. More so, the Respondent was not examined after the recovery period to determine whether his capacity to do construction work was affected by the injury. The award of diminished earning capacity was therefore not supported by evidence. It is therefore my view that the award of Kshs. 200,000/= for diminished earning capacity was wrongly awarded and the same is set aside. 1. They submitted that the respondent did not prove that he lost a job or chances of gaining future employment. They submitted that the award of Ksh 500,000/= was therefore not supported with material to support the award. They invited the court to set aside the award in its entirety. 2. The respondent filed submissions dated 11.12.2025. On the duty of the court they relied on the cases of **Abok James Odera V John Patrick**. On the duty of the court on quantum they relied on the case of **Kemro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27** as follows: **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 damages, took into account an irrelevant fact, or left out 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 damages.** 1. They also rely on the **Catholic Diocese of Kisumu v Sophia Tete** where the court stated as follows: 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 or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. 1. They relied on two cases on damages for pain and suffering. The court was urged to uphold the award in the court below. 1. On the loss of earning capacity, they stated that the appellant suffered permanent incapacity of 100%. Reliance was placed on the case of *SJ V Francesco di nello & another (2015) eKLR* and the case of *Butler v Butler*. They also relied on the decision of Nyarangi as follows; 2. Further reliance was made on the case of **Mumias Sugar Company Limited v Francis Wanalo**, where the court held as follows: The award for 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 trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. 1. They prayed that the appeal be dismissed. Analysis 1. The issue that falls for this Court’s determination is whether the lower court erred in award of damages for diminished capacity. 2. This being a first appeal, the Court should consider arguments by parties and apply the law thereto, and make its own determination of the issues in controversy. However, it should take into account that it neither saw nor heard the witnesses’ testimony. In the case of **Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123**, the Court stated as follows: The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 1. Finally, in deciding whether to disturb quantum given by the lower court, the court should be aware of its limits. Being exercise of discretion the exercise should be done judiciously in the circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages. 2. The court of appeal, pronounced itself succinctly on these principles in **Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27** as follows: - “The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages. 1. In the case of *Henry Hidayo Ilanga versus Manyama Manyoke* [1961] EA 705, 713 at paragraph c, Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agree with nothing useful to add, the former court of appeal for East Africa held as follows: In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd [1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge. “The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 1. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. So my duty as the appellate court is threefold regarding quantum of damages: - 1. *To ascertain whether the Court applied irrelevant factors or left out relevant factors.* 2. *To ascertain whether the award is too high as to amount to an erroneous assessment of damages.* 3. *To ascertain whether the award is simply not justified from evidence.* 2. In this case, the court awarded Ksh. 500,000/= for damages for diminished capacity. The question appears to have been that of loss of earnings as opposed to loss of earning capacity. There is a difference. The question of his liability is set out in the two doctors reports. The court did not at any time make a finding on which of the two reports is correct. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in **Shah and Another vs. Shah and Others [2003] 1 EA 290**: ***“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”*** 1. Further, the Court of Appeal, on its part in **Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139**held that: ***“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”*** 1. Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in **Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29,**it was held that: **“While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of**Elizabeth Kamene Ndolo vs. George Matata Ndolo**, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-** "The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it." 1. Both reports relate to certain aspects of the capacity of the appellant. At 45% or at 100%, the award of 500,000/= for diminished capacity is still on a lower side. Even if the respondent was a minimum wager, at 45% for 10 to 20, he could have lost as follows; 45% x Ksh. 13,572 x 10 x 12 = 732,888/= At 100% it will be 100% x Ksh. 13,572 x 10 x 12 = 1,628,640/= 1. Therefore, whichever way anyone looks at it, the award of Ksh. 500,000/= was low. There is however no appeal, by the respondent. It is thus unnecessary to determine which of the two amounts were correct, since both are above what the court awarded. The appeal thus lacks merit and is accordingly dismissed. 2. This leaves the issue of costs, which is governed by section 27 of the Civil Procedure Act, which provides as follows: (1) subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) the court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 1. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of [**Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) had this to say: **It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.** 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: 18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation. 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 1. The respondent will have costs of Kshs. 75,000/=. Determination 1. In the upshot, I make the following orders: 2. The appeal lacks merit and is accordingly dismissed with costs of Ksh. 75,000/= to the Respondent. 3. 14 days right of appeal. 4. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **28th** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mr. Olunga for the Appellant No appearance for the Respondent Court Assistant – Martin