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Ng'ang'a v Nzioka & another (Civil Appeal E201 of 2025) [2026] KEHC 9534 (KLR) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 9534 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E201 of 2025 NIO Adagi, J June 10, 2026 Between Tabitha Wangari Ng'Ang'A Appellant and Bonface Gitaka Nzioka 1st Respondent Fredrick Muchina 2nd Respondent (Being an appeal from the judgement of the Chief Magistrates Court at Machakos by Hon. J. Omburah (S.P.M) in Machakos CMCС E300 OF 2023) Judgment 1.The Appellant in this appeal instituted a suit against the Respondents by way of an Amended Plaint dated 27th February, 2024 and filed on 28th February, 2024 the Appellant claimed general damages for pain and suffering, damages for loss of earning capacity and lost earnings, special damages of Kshs.545,258, future medical expenses of Ksh.580,000 plus costs of the suit. The claim was based on the alleged negligence of the 2nd Respondent who was the driver of motor vehicle registration number KCZ 089L which was owned by the 1st Respondent. It was pleaded that the Appellant was lawfully travelling in the said vehicle along Katumani Road in Machakos on 30th August, 2021 when the motor vehicle aforesaid lost control and violently rammed into the road pavement and as a result occasioned the Appellant severe bodily injuries. 2.Following the accident, the Appellant allegedly sustained bodily injuries which she itemised as :- Fracture of the shaft of left femur Compound (open) fracture of the left tibia Deep cut wound on the right shin Surgical scar on the outer aspect of the left thigh Gross deformity and stiffness on the left ankle joint Deep prominent scar on the left shin. 3.The Appellant filed a list of documents which included police abstract, copy of official search and receipt, medical report, treatment notes and receipts, P3 form, demand letter and notice to sue alongside her list of witnesses. 4.The Respondents were served with summons to enter appearance but failed to file any papers and interlocutory judgment was entered against them on 24th July, 2024 and the matter proceeded by way of formal proof. In her very brief evidence, the Appellant adopted her witness statement as evidence in chief and produced her documents filed and listed as exhibits and stated that on the material date, she was travelling in the motor vehicle which rolled three times and was admitted in hospital for one and a half months and she had metal plates fixed. One year later the metal implants broke and she underwent another surgery to fix another metal implant. She blamed the driver for causing the accident through negligent driving. 5.In determining liability, the trial court stated that Liability in every case is determinable upon facts and evidence presented before court and must be premised on the pleadings filed. In this case the evidence on record is only that of the Appellant which was never challenged at all by any evidence from the defence. On a balance of probability, the trial court found that the Appellant had proved her case against the Respondents as there was no evidence upon which this court could attempt to apportion liability or blame the Appellant in any way as having contributed to the accident if her evidence was that she was a passenger in m/v KCZ 089L. The trial court relied in the case of Kenya Akiba Micro Financing Limited -vs- Ezekiel Chebii & 14 others (2012) eKLR where the court stated as follows:“In my view, a statement made on oath should as a matter of fact be expressly denied on oath. If not challenged, it remains a fact and the truth of the matter." 6.The trial court also agreed with the decision that was cited by the Appellant's counsel of Justice John Mativo in Accelor Global Logistics vs Gladys Nasambu Waswa & Another (2020) eKLR who held inter alia;“.......perhaps I should add that where a party fails to call evidence in support of his case, that party's pleadings remain mere statements of facts since in so doing, the party fails to substantiate his pleadings. In the same vein, the failure to adduce evidence means that the evidence adduced by the plaintiff against the defence is uncontroverted and therefore unchallenged............." 7.For all these reasons the trial court held the Respondents wholly and jointly and severally liable for the accident and must bear liability at 100%. 8.On Quantum of damages Counsel for the Appellant filed submissions citing the decided cases of Pestony Ltd & Another vs Samuel Itonye Kagoko (2022) eKLR, Karanja & Another vs Mwachala, Civil Appeal No. E749 of 2021 and Too vs Kamau, (Civil Appeal E004 of 2020) [2024] КЕНC 14302 (KLR) where awards ranging up to Kshs.800,000 were awarded by different courts. The trial court cited the case of Karanu -vs- Rose Ndinda Kitema, High Court of Kenya at Kisii Civil Appeal No. 128 of 2019, where Justice A.K. Ndungu stated as follows;-“the guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. This position finds support in the case of Stanley Maore -vs- Geofrey Mwenda NYR Civil Appeal No. 147 of 2002 (2004) eKLR where the Court of Appeal held; "Having so said we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases". 9.Guided by the said cases and the medical report by Dr. W. M. Wokabi indicating that the Appellant sustained fracture of the shaft of the left femur, compound (open) fracture of the left tibia, deep wound on the right shin and other soft tissue injuries leaving her with 18% leg disability with a lot of blood loss and considering the long hospitalization period together with the pain of undergoing a second operation following the breakage of the implant and a scheduled third surgery in future to remove the implant, it is was the trial court’s considered finding that an award of Kshs.850,000 would be adequate and fair compensation to the Appellant and that sum was awarded as general damages for pain and suffering. The trial court also awarded her pleaded and proven future medical expenses in the sum of Kshs.580,000. The trial court declined to award any special damages stating that none of the pleaded sums were ever proved by way of evidence. Similarly, the claim for damages for loss of earning capacity or loss of earning also failed as there was no specific evidence led to support the claim and the 18% incapacity on the leg does not amount to loss of earning capacity. Consequently, the trial court entered judgment for the Appellant against the Respondents jointly and severally in the sum of Kshs.1,430,000 together with costs of the suit and interest. 10.Being aggrieved with the above trial court’s judgement on the lower award for general damages, refusal to award damages for loss of earning capacity or loss of earning and special damages, the Appellant lodged a Memorandum of Appeal dated 22nd August 2025 which raises four grounds of appeal as follows:-1.The learned Magistrate erred in law and fact by failing to consider the receipts tendered in support of special damages, despite the claim being specifically pleaded and substantiated through documentary evidence.2.The learned Magistrate erred in fact and in law by disregarding established legal principles, binding precedents, and the submissions on record, resulting in an inordinately low award of general damages.3.The learned Magistrate erred in law and in fact when he failed to award damages for loss of past, present, and future earning capacity, notwithstanding that the claim was properly pleaded and supported by evidence, particularly in view of the severity and long-term impact of the injuries sustained by the Plaintiff.4.The learned Magistrate erred in law and in fact when he failed to accord due and proper consideration to the pleadings, evidence, and submissions presented, thereby arriving at an erroneous judgment both in the award and denial of damages. 11.The Appellant prays that:a.the Appeal be allowedb.the order dismissing claim on special damages be set aside and this court do award the same as pleaded and proved, based on the receipts and documentation filed before the trial courtc.the order dismissing the claim on damages for loss of earning capacity and or loss on earning based on 18% incapacitation be set aside and this court do grant the same based on evidence on record.d.Judgement of trial court be on general damages be set aside and this court do re - assess judgement on quantum based on the evidence on record.e.Costs both at Lower and High Court be awarded to the Appellant. 12.The Respondents did not appear or participate in the Appeal. 13.The Appellant filed written submissions to canvass the appeal and submitted that the trial court's findings are inconsistent, contradictory, and unjust. That the Appellant did produce documentary evidence which the court acknowledged yet failed to act upon. The quantum awarded was too low for the suffering she has incurred & further, the denial of loss of earnings disregards the Plaintiff's permanent incapacity and its direct impact on her livelihood. This Court is urged to correct these errors and grant the reliefs sought. Analysis and determination.14.This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.15.In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.16.A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.17.It is the above legal threshold that will guide this Court in determining this appeal.18.I have carefully perused the Record of Appeal, considered the Appellant’s submissions on the appeal and also taken into consideration the judicial decisions cited; I will proceed to consider three issues on whether the trial court’s findings on general damages, loss of earning capacity or loss of earnings and special damages ought to be disturbed on this appeal. General damages for pain and suffering19.The rationale underpinning an award of damages for pain and suffering is to compensate the victim for enduring the physical and mental distress occasioned by the injuries before the trial and even after the trial. This includes but not limited to the ordinary pain that comes with the injuries, the pain that comes with the treatment of the said injuries, the embarrassment arising from disability or disfigurement (if any) and the anxiety. See Halsbury’s Law of England, 4th Edition, Vol. 12(1), page 348.20.Put it differently, the general purpose of awarding general damages is reparation. It is to put the party who has been injured in a position believed by law and courts to be the position as he would have been if he had not sustained the wrong for which he is receiving compensation. It has been observed that the court will always be confronted with stark difficulties in assessing general damages because of many unquantifiable variables involved. This observation was made in Ugenya Bus Service vs. Gachiki [1976-1985] EA, 575, at page 579, where the court observed thus:-“General damages for personal injuries are difficult to assess accurately so as to give satisfaction to both parties. There are so many incalculable. The imponderables vary enormously. It is a very heavy task. When I ponderingly struggle to seek a reasonable award. I do not aim for precision. I know I am placed in an inescapable situation for criticism by one party or the other, sometimes by both sides. I also therefore do not aim to give complete satisfaction but do the best I can"21.In order to enable a court to appropriately determine the quantum for pain, suffering and loss of amenities, the whole picture and in particular, the effect of the injuries on the victim must be painted. Where possible, a comparable injuries should attract comparable general damages. In the Court of Appeal of East Africa decision in Bhogal vs. Burbidge [1975] 1 EA 285, Law, Ag. P (as he then was), laid down key factors to guide a court when assessing general damages.22.I now turn to consider whether the award of Kshs.850,000 in general damages made by the trial court was just, fair, reasonable and adequate for pain and suffering. The Appellant produced among other documents, Dr. W. M. Wokabi’s medical report indicating that the Appellant sustained fracture of the shaft of the left femur, compound (open) fracture of the left tibia, deep wound on the right shin and other soft tissue injuries leaving her with 18% leg disability with a lot of blood loss and considering the long hospitalization period together with the pain of undergoing a second operation following the breakage of the implant and a scheduled third surgery in future to remove the implant. In this regard, Counsel for the Appellant submitted that adjusting for inflation an award of Kshs.4,000,000 would be reasonable compensation staking this proposition in the damages assessed and awarded in the following cases: In Pestony Limited & another v Samuel Itonye Kagoko [2022] КЕНС 1146 (KLR)-The Plaintiff suffered multiple fractures, including femur fractures, due to a motorcycle accident and was awarded Kshs1,400,000/= in lower court but court on appeal awarded Kshs.800,000/= in 2022.The injuries are similar to the ones the Plaintiff herein sustained and we seek compensation on the same for Kshs.900,000/= should - suffice due to the current market inflation. In Karanja & Another v Mwachala (Civil Appeal E749 of 2021) [2024] KЕНС 7171 (KLR) – The Plaintiff sustained a compound (open) fracture of the left tibia and fibula, with liability apportioned at 90:10 in favor of the Plaintiff. In the trial court, the compensation for such injuries was awarded at Kshs.900,000/= but on appeal court gave reduced the same to Kshs.700,000/=. In that case the Doctor opined that the Plaintiff had sustained a 10% incapacitation where else in the instant case, The Plaintiff's Incapacitation on her left leg is 18% and a such a compensation figure of Kshs.1,000,000/= should suffice. In Too v Kamau (Civil Appeal E004 of 2020) [2024] КЕНC 14302 (KLR) - The Plaintiff suffered deep wounds on the shin following a motorcycle accident, and the High Court awarded Kshs.400,000 in general damages. We submit that even if the same was to be correctable as per the doctors report an award of Kshs.200,000/= should suffice as an indemnification. 23.The trial court relied on the authorities cited by the Appellant in arriving at the award of Kshs.850,000 for general damages. This Court will therefore re-look at what Court have generally awarded for injuries in fracture of femur and tibia.24.Having given due consideration to the injuries sustained by the Appellant and having independently scoured through recent decisions and specially around comparable injuries to those sustained by the Appellant herein, I was fortunate to come across the following decisions: - In David Mutembei vs Maurice Ochieng Odoyo [2019] eKLR, the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia and was awarded general damages of Kshs.1,600,000.00 had the same reduced on appeal to Kshs.800,000.00. Joseph Mwangi Thuita v Joyce Mwole (2018) eKLR where the plaintiff suffered injuries of fractured right femur, compound fracture (r) tibia and fibula, shortening right led and episodic pain (r) thigh with inability to walk without support and the court awarded Kshs.700,000 as general damages. In Godfrey Wamalwa Wamba & Another vs. Kyalo Wambua [2018] eKLR, where the appellant sustained a compound fracture of the right distal tibia/fibula, cut wounds on the scalp and chest and a cut on the lower lip, he was in hospital for three weeks, he underwent surgery for repair of the fibula. The doctor testified that his leg had shortened and needed corrective surgery. The trial court awarded him general damages at Kshs.700,000.00, which the appellate court upheld. 25.Hence, from the foregoing comparison, this court finds that the trial court’s award of Kshs.850,000/= as general damages for pain suffering and loss of amenities to be adequate compensation. The same cannot be said to be manifestly low as to amount to a wrong assessment. In the premises, there is no sufficient cause, in my view, for disturbing the award made by the trial court under the general damages head. Loss of earning capacity or loss of earning26.The Appellant stated that she is a fruit vendor at Karatina Market and on the fateful day of the accident, she had gone to Machakos to buy assorted oranges and other fruits and the state she is in after the accident, she is unable to compete effectively in the market due to her disability. The Appellant submitted that the court failed to completely evaluate the impact 18% permanent incapacity in her left leg knee, gross deformity, scars & other injuries. The trial court held that no evidence was tendered in support of the said claim.27.The Appellant submitted that the trial court failed to apply the principle that damages for loss of earnings must reflect diminished earning capacity, particularly where incapacity directly affects the Plaintiff's trade. Reliance was placed on the Court of Appeal case in Jacob Ayiga Maruja & another Vs Simon Obayo [2015] eKLR where it was held as follows:“We do not subscribe to the view that the only way to prove the profession of a person must be by the production of certificates and that the only way of proving earnings is equally the production of documents. That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihood in various ways. If documentary evidence is available, that us well and good. But we reject any contention that only documentary evidence can prove these things."28.That courts have consistently held that permanent incapacity affecting livelihood warrants compensation. The Plaintiff's inability to compete in her trade due to deformity is a direct economic loss. Reliance was placed in Ondoto v Kigotho [2024] КЕНС 13223 (Nairobi High Court) where the court awarded damages for diminished earning capacity where permanent incapacity directly affected the appellant's ability to work. It recognized that incapacity must be tied to the plaintiff's occupation and livelihood. Similarly, in S J vs Francesco Di Nello & Another [2015] eKLR the Court of Appeal propounded the position enunciated in Fairley v John Thomson Ltd [1973]2 Lloyd's Law Reports 40 at page 14 wherein Lord Denning M. R. said in part as follows:“It is important to realize that there is a difference between an award for loss of earning as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages"29.In Butler v Butler [1984] KLR 225 the Court of Appeal identified the following principles in assessing the claim for loss of earning capacity;1.A Person’s loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labour market or work, as well as paid as before the accident are lessened by his injury.2.Loss of earning capacity is a different head of damages from actual loss of future earnings. The difference is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence whereas compensation for diminution of earning capacity is awarded as part of general damages.3.Damages under the heads of loss of earning capacity and loss of future earnings, which in English were formerly included as an unspecified part of the award of damages for pain, suffering and loss of amenity, are now quantified separately and no interest is recoverable on them.4.Loss of earning capacity can be a claim on its own, as where the claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment then and/or at the date of the trial.5.Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included, it is not proper to award it under its own heading.6.The factors to be taken into account in considering damages under the head of loss of earning capacity will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant; his remaining length of working life; his disabilities and previous service, if any.30.From the evidence of the Appellant, it is clear that she sustained a permanent disability of 18% on her left leg thus occasioning her more harm and struggles when she walks and she will be less immobile in her scope of work as compared before the accident. In her witness statement, the Appellant stated that she was a business woman and would earn approximately Kshs.250,000 to Kshs.2,000,000 from selling fruits and the accident led to the loss of her earnings. She has not been able to work since the accident occurred because her legs are almost immobile. She cannot lift up objects, cannot walk for long distances and cannot stand for long periods.31.The Appellant submitted that as a fruit vendor and single mother of three, the injuries have drastically impaired her ability to work. She was aged 34 years old at the time of the accident and expected to work until the age of 60 years. Due to limited mobility and permanent knee deformity, she can no longer conduct her business effectively. Reliance was placed in Njoka v Siboyi & Another (Civil Appeal 24 of 2019), where Kshs.1,200,000 was awarded for diminished earnings, the Appellant submits that Kshs.1,000,000/= should be awarded for loss of earnings.32.I have had a cursory look at the Appellant’s witness statement dated 5th September 2023 and filed in court on 11th September 2023, the same does not show for what period the Appellant was likely to be earning the stated amount. Was it daily, weekly, monthly or yearly. This court is therefore not in a position to assess the loss of earning by applying a multiplier approach. A composite or global figure of damages will be appropriate.In Thathi v Munene & 3 Others [2025] KEHC 14196, thedisability ranging between 15%–50%. In Njogu v Nyaga [2024] KEHC 1876 (KLR), the court awarded Kshs.900,000.00 where the victim suffered 80% disability.Nyatogo v Mini Bakeries Limited [2023] KEHC 1593 (KLR), a global sum of Kshs. 800,000.00 was awarded for court awarded Kshs.450,000.00 for diminished capacity. In33.The Appellant herein sustained a permanent disability of 18%. Being guided by the global award approach, I will make an award of Kshs.500,000/= for loss of earnings or earning capacity. Special damages34.Next, I turn to the Appellant’s claim for special damages which must not only be pleaded but must also be proved with a degree of certainty and particularity. Regarding special damages, it is trite that they must be specifically pleaded and proved with a degree of certainty and particularity though, that degree and certainty must necessarily depend on the circumstances and the nature of the act complained of. See the Court of Appeal decision in the case of Richard Okuku Oloo vs South Nyanza Sugar Co. Ltd [2013] eKLR.35.In the instant case the Appellant pleaded for special damages as follows;a.Medical Bills .................................Kshs.225,708b.Medical Report……......................Kshs. 4,000c.Official search of the m/vehicle....Kshs. 550d.Cash money lost ..........................Kshs.300,000e.Mobile Phone .............................Kshs. 15,000Total Kshs.545,25836.The trial court only awarded the Appellant future medical expenses in the sum of Kshs.580,000. The trial court declined to award any special damages stating that none of the pleaded sums were ever proved by way of evidence37.I have perused the Amended Plaint dated 27th February 2024 and I notice that apart from the future medical expenses, the Appellant pleaded for official search of the motor vehicle of Kshs.550, medical bills of Kshs.225,708, medical report at Kshs.4,000, cash money lost Kshs.300,000 and mobile phone worth Kshs.15,000 all totalling to Kshs.545,258.38.The Appellant produced at page 88 of the Record of Appeal the Motor vehicle copy of records for motor vehicle registration No. KCZ089L as at 06/09/2023 showing the owners to be Ncba Bank Kenya Plc and Loise Wangui Gichango and not the Respondents named in this appeal. I will therefore decline to award this amount.39.The Appellant also produced at page 85 of the Record of Appeal the receipt dated 13/07/2023 of Kshs.4,000 for the Medical Report. I find that the Appellant is entitled be awarded the said amount.40.The Appellant further availed a bundle of receipts comprising of 30 receipts of Kshs.94,000 for taxi charges and 44 receipts of Kshs.74,580 for medicines. I note that the Appellant did not plead the taxi charges. The same cannot be awarded.41.The Appellant did not provide proof of Kshs.300,000/= for money lost and of Kshs.15,000/= for mobile phone. There was no indication that the Appellant ever made a report of the loss of said items to the police. The make of the mobile phone is not pleaded at all.42.I find that the Appellant to have only pleaded and proved the charges for the medical report of Kshs.4,000/ =and medical bills of Kshs.74,580/=. The Appellant is awarded Kshs.78,580/= in special damages.43.In the end, I find this appeal partially successful. I uphold the award of general damages of Kshs.850,000/= and medical expenses in the sum of Kshs.580,000.44.I set aside the order declining award of special damages and loss of earnings and substitute the same with an award of Kshs.78,580/= and Kshs.500,000/= respectively.Total award is Kshs.2,008,580/=.45.The Appellant shall have costs of the suit in the lower court but no costs are awarded on this appeal.It is so ordered. This file is closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 10TH JUNE 2026NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 10TH JUNE 2026In the presence of :Mr. Kuria Ndegwa for AppellantN/A for RespondentMilly Grace -Court Assistant