https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1499

Ndiso v Wahome & 2 others (Civil Appeal E001 of 2023) [2026] KECA 1499 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1499 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Civil Appeal E001 of 2023 SG Kairu, AK Murgor & P Nyamweya, JJA July 24, 2026 Between Titus Musembi Ndiso Appellant and Rureri Wahome 1st Respondent Charles Muringu 2nd Respondent Julius M. Nkanata t/a Zebra Safaris Ltd 3rd Respondent (An Appeal against the Judgment and Decree of the High Court of Kenya at Mombasa (P.J. Otieno, J.) delivered on 12thApril, 2019inHCCC No. 102 of 2003 Civil Suit 102 of 2003 ) Judgment 1.The Appellant, Titus Musembi Ndiso, filed a re-amended Plaint dated 17th August 2005, against the Respondents where he stated that he is an adult residing and working for gain in Mombasa, and that the 1st and 2nd Respondents also worked for gain in Mombasa, while the 3rd Respondent, Julius M. Nkanata trading as Zebra Safaris, was also based in Mombasa. 2.The Appellant pleaded that at all material times, the 1st and 2nd Respondents were the joint owners of Motor Vehicle Registration Number KAL 022H, a Nissan matatu, whereas the 3rd Respondent was the registered and beneficial owner of Motor Vehicle Registration Number KAA 584G, an Isuzu minibus. 3.On or about 10th December 2001 at about 4:45 p.m., the Appellant was lawfully travelling as a passenger aboard Motor vehicle KAL 022H from Mombasa heading towards Mikindani when, upon reaching Kibarani along the Makupa Causeway, a collision occurred involving Motor Vehicle KAL 022H and Motor Vehicle KAA 584G. It was pleaded that, the accident was occasioned by the negligence of the Respondents, their authorised drivers, servants or agents in the driving, management and control of the motor vehicles. 4.According to the Appellant the accident was wholly and solely caused by the negligence of the Respondents and, where necessary, he would rely on the doctrine of res ipsa loquitur. As a consequence of the accident, the Appellant pleaded that he sustained very severe and incapacitating injuries, suffered loss and damage, and that his left leg was amputated, necessitating that he be fitted with a prosthesis. 5.At the time of the accident, the Appellant was 29 years old, in good health, and living a productive life, earning an average monthly income from operating a café and restaurant business, but that due to the injuries sustained, he was no longer able to engage in his business. He stated that despite demand, the Respondents failed to admit liability or to compensate him, thereby necessitating the institution of the suit. 6.The Appellant prayed for judgment against the Respondents jointly and severally for:a.Special damages of Kshs. 32,750.00b.General damagesc.Cost of prosthesis and loss of earning capacityd.Costs of and incidental to the suite.Interest on (a), (b) and (c) above from the date of filing suit until payment in full. 7.In a defence, the 1st and 2nd Respondents denied being the owners of Motor vehicle KAA 022H. They denied that the Appellant was a fare paying passenger, and also denied causing the accident, and put the Appellant to strict proof thereof. 8.The 3rd Respondent also filed a defence where he denied having caused the accident or causing injury to the Appellant and instead contended that the accident was caused by the negligence of the 1st and 2nd Respondents. He further denied responsibility for the Appellant’s claims and put him to strict proof, whereupon, the matter proceeded to hearing. 9.It was the Appellant PW1’s evidence, that on 10th December 2001 at about 4.45 p.m., as he was travelling as a passenger in a Nissan matatu registration number KAL 022H from Mombasa heading towards Mikindani, at Kibarani along the Makupa Causeway, the road was under repair and traffic from both directions was using one side of the road. At this point, the Nissan matatu KAL 022H drove towards the extreme side of the road so as to enter into the Changamwe town side, and collided into motor vehicle KAA 584G, owned by the 3rd Respondent that came from the opposite direction heading towards town on the Changamwe side of the road. 10.The Appellant stated that he sustained severe injuries as a result of the accident. His left leg was fractured and almost severed, he sustained fractures to his right leg, injuries to his left arm, and chest injuries, and was thereafter rushed to Coast General Hospital where he was admitted and treated. He stated that his left leg was later amputated, and he remained hospitalized for a prolonged period. After discharge, he continued attending hospital as an outpatient and used crutches. 11.The accident was reported to the police and police abstract dated 18th June 2002 was obtained. He also produced treatment receipts, a medical report, and a P3 form as exhibits. He stated that he incurred medical expenses amounting to Kshs. 26,180 and produced receipts in support. He further stated that he was 29 years old at the time of the accident and was operating an eating house in Mikindani, earning approximately Kshs. 40,000 per month. Due to the injuries sustained, he stated that he could no longer manage the business. 12.The Appellant clarified that vehicles heading towards Changamwe were using two lanes, while those heading towards town used one lane, and that their matatu was in the right lane when the oncoming motor vehicle, which was in the middle lane heading towards town, entered their lane and caused the accident. 13.Dr. Stephen Kang’eni Ndegwa was PW2, a medical doctor holding a Bachelor of Medicine degree obtained in 1991. He stated that he examined the Appellant in relation to injuries sustained in a road traffic accident that occurred on 10th December 2001; that the Appellant sustained traumatic amputation of the left leg, segmented fractures of the right tibia and fibula, contused bruises on the left elbow, blunt trauma to the chest and abdomen, and lacerations on the left leg. He was admitted at Coast General Hospital for approximately three months and that the X-rays confirmed the fractures; that the amputation of the left leg was carried out in theatre, while fractures on the right leg were treated with plaster of Paris. That the Appellant complained that he could not resume work and experienced difficulty walking; that the stump had healed well, scars were present on the left leg and elbow, and there was slight stiffness in the right elbow. He concluded that the Appellant sustained severe multiple bone and soft tissue injuries. 14.PW2 assessed the Appellant’s permanent disability at 50% due to the loss of the left leg; that the Appellant could be fitted with a multi-functional prosthesis costing approximately Kshs. 370,000, with an additional Kshs. 10,000 required annually for reviews. He explained that there were segmented fractures occurring at different levels of the bones. He produced his medical report as an exhibit and stated that he charged Kshs. 1,500 for the report and Kshs. 4,000 as his attendance fee. 15.The 3rd Respondent DW1 stated that he lived in Mikindani and was a businessman and farmer; that on the material day, he was travelling on the Changamwe Road in his motor vehicle registration number KAA 584G, an Isuzu minibus. At a railway crossing where the road was under construction at Kibarani, he saw a Nissan matatu KAL 022H heading towards Changamwe; that the Nissan matatu left its lane and came onto his side of the road, knocking his vehicle on the side. He stated that he was seated in the first seat next to the door on the left and could see everything in front. He stated that the driver and conductor of the Nissan matatu fled the scene immediately after the accident. 16.He went on to state that his driver was not charged with any traffic offence and that his motor vehicle was not being driven at a high speed; that his vehicle was hit on its side and that it was the driver of the Nissan matatu who was to blame for the accident. 17.In cross-examination, DW1 testified that although the motor vehicle KAA 584G belonged to him, he was not driving it on the material day; that he joined the vehicle at Changamwe roundabout and was seated in the front seat next to the door. He stated that there was no island separating the road at the material point and that road repairs were ongoing elsewhere. He stated that he had never sued the owner of the Nissan matatu for damages, but confirmed that the accident occurred on 10th December 2001 and that he remembered it clearly, although he could not recall the name of his driver. He confirmed that no one in his vehicle was injured but the occupants of the Nissan matatu were injured. 18.Upon considering the pleadings, the evidence on record, and the submissions by the parties, the trial court found that it was not in dispute that a road traffic accident occurred on 10th December 2001 along the Mombasa– Mikindani Road involving motor vehicle KAL 022H and motor vehicle KAA 584G. 19.On the issue of liability, the court evaluated the testimonies of the Appellant PW1 and the 3rd Respondent DW1 and found that both accounts were consistent in material respects. The court found that the motor vehicle KAL 022H, in which the Appellant was travelling, swerved from its lane to the right and collided with motor vehicle KAL 584G. The court further found that there was no evidence of negligence on the part of the driver of motor vehicle KAA 584G. 20.The court further observed that although the 1st and 2nd Respondents had filed defences denying liability, they failed to attend court and did not adduce any evidence in support of their pleadings. Consequently, the Judge held that their defences remained mere allegations unsupported by evidence. In contrast, the evidence adduced by the Appellant clearly pointed to negligence on the part of the driver of motor vehicle KAL 022H. On that basis, the court held that the accident was wholly and solely caused by the negligence of the driver of motor vehicle KAL 022H and accordingly absolved the 3rd Respondent from any liability. 21.With regard to injuries sustained, the learned Judge accepted the medical evidence tendered by Dr. Ndegwa, and found that the Appellant suffered severe and extensive injuries, including the traumatic amputation of the left leg, segmented fractures of the right tibia and fibula, injuries to the left arm, and blunt trauma to the chest and abdomen. The court accepted the doctor’s assessment that the Appellant suffered permanent disability assessed at 50%. 22.On quantum, the court found that the Appellant had proved special damages to the extent of Kshs. 31,250, but noted that part of the pleaded sum had not been strictly proved. 23.Regarding the cost of prosthesis, the court accepted the uncontroverted evidence of PW2 that the Appellant required a prosthetic limb costing approximately Kshs. 300,000 with an annual maintenance cost of Kshs. 10,000. Taking into account the Appellant’s age and projected life expectancy, the court awarded a total sum of Kshs. 550,000 for the purchase and maintenance of the prosthesis. 24.As to general damages, the court found that the Appellant suffered severe, life-altering injuries resulting in loss of amenities and permanent incapacity. Guided by comparable awards, the principle that damages should be compensatory rather than punitive, and the need to account for inflation, the court awarded Kshs. 2,500,000 as general damages for pain, suffering, and loss of amenities. The court declined to make a separate award for loss of earning capacity, holding that the claim had been vaguely pleaded and insufficiently proved, and further noted that the lump sum award could reasonably compensate the Appellant if prudently invested. 25.In conclusion, the court entered a Judgment in favour of the Appellant against the 1st and 2nd Respondents jointly and severally for a total of Kshs. 3,081,250, comprising special damages, costs of prosthesis and maintenance, and general damages. The Appellant was also awarded costs of the suit and interest, with interest on special damages to accrue from the date of filing suit and interest on general damages to accrue from the date of the Judgment. 26.The Appellant was aggrieved by the trial court’s Judgment, and filed an appeal to this Court on grounds that; the learned Judge was in error in holding that there was no evidence of any wrong doing by the driver of KAA 584 G and in finding that the accident was solely and wholly occasioned by the driver of motor vehicle KAL 022 H; in wholly relying on the evidence of the 3rd Respondent DW1 and wholly rejecting the Appellant’s evidence of the manner and circumstances in which the accident occurred; in failing to critically analyse the evidence on liability and in so doing wholly ignored the evidence of the Appellant and arrived at an unsafe and unbalanced decision on liability; in failing to find that on the basis of the evidence, both drivers of motor vehicles registration numbers KAL 022 H and KAA 584 G were liable and for failing to apportion liability between the Respondents appropriately; in awarding the sum of Kshs. 2,500,000 on general damages for pain and suffering and loss of amenities, which award was low and not commensurate with the severe and incapacitating nature of injuries sustained by the Appellant, leading to 50% disability; in failing to award the Appellant damages for loss of earning capacity; in holding that the award of Kshs. 2,500,000 on general damages, if paid in lump sum and in advance, can be invested to earn interest are matters of opinion, not supported by any law and cannot be a basis for denying a party an award for legally claimable damages; and in awarding Kshs. 550,000.00 for costs of prosthesis and maintenance which amount was too low and in contradiction to the medical evidence on record which supported a higher award. 27.When the appeal came up for hearing on a virtual platform, learned counsel Mr. Tindika appeared for the Appellant, but there was no appearance for the Respondents, and neither did they file written submissions. 28.In their written submissions, counsel for the Appellant contended that the learned trial Judge was wrong in the determination of liability and on the quantum of damages awarded. 29.On liability, counsel submitted that this being a first appeal, the Court is enjoined to re-evaluate the evidence afresh and draw its own conclusions, Counsel argued that the evidence on record disclosed material contradictions as to how the accident occurred and failed to conclusively establish fault against the 1st and 2nd Respondents. It was submitted that where the evidence does not clearly apportion blame between drivers, courts have held that liability should be shared equally or apportioned according to the circumstances. In this regard, counsel relied on the cases of Barclay-Steward Limited & Another v Waiyaki [1982–88] 1 KAR 1118 and Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472. Counsel therefore urged the Court to set aside the finding that the 1st and 2nd Respondents were wholly liable for the accident and instead apportion liability at 30% against the 1st and 2nd Respondents and 70% against the 3rd Respondent. 30.On quantum of damages, counsel submitted that the awards made by the trial court were inordinately low and not commensurate with the serious injuries sustained by the Appellant, which included multiple fractures, traumatic amputation, blunt trauma and permanent disability assessed at 50%. It was argued that an appellate court is entitled to interfere with an award of damages where the trial court acted on wrong principles or where the award is so low or so high as to represent an entirely erroneous estimate. 31.With regard to general damages for pain, suffering and loss of amenities, counsel submitted that comparable authorities demonstrate that the sum awarded by the trial court was manifestly inadequate. Counsel placed reliance on the case of Evelyne Shivachi v Thara Trading Co Ltd [2013] eKLR and Macharia Francis Mundia & Another v Welrose Wanjiru [2021] eKLR, where substantially higher awards were made for comparable injuries. Counsel urged that the award be enhanced to Kshs. 4,500,000. 32.On loss of earning capacity, counsel argued that the trial court was in error in declining to make an award despite clear evidence that the Appellant, who was 29 years old at the time of the accident, had suffered permanent disability that diminished his capacity to earn a livelihood. Reliance was placed on the cases of Butler v Butler [1984] KLR 225 and Mumias Sugar Company Ltd v Francis Wanalo [2007] eKLR for the factors to be considered in assessing such damages for loss of earning capacity. 33.Finally, on future medical expenses and prosthesis, counsel submitted that the evidence of the medical expert established the need for periodic replacement of prosthetic fittings, and that the award made by the trial court was inadequate. Counsel urged enhancement of this head of damages in line with the evidence on record. 34.In conclusion, counsel prayed that the appeal be allowed, the finding on liability be set aside and substituted with an apportioned liability, and that the awards on general damages, loss of earning capacity and future medical expenses be enhanced as proposed in the submissions. 35.As this is a first appeal, it is the duty of this Court to analyze and re-assess the evidence and reach our own independent conclusions. As succinctly put in the case of Selle v Associated Motor Boat Co. [1968] EA 123, that:“An appeal to this Court from a trial by the High 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. In particular this 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 demeanor of a witness is inconsistent with the evidence in the case generally ( Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E. A. C. A. 270).” 36.Arising from the record and grounds of appeal, and the submissions of counsel, the issues that fall for determination are:i.Whether the learned trial Judge was in error in his determination of liability.ii.Whether the award of Kshs. 2,500,000 as general damages for pain, suffering and loss of amenities was inordinately low, having regard to the severe and permanent injuries sustained by the Appellant; andiii.Whether the learned trial Judge rightly declined to award adequate damages for loss of earning capacity; andiv.Whether the award for future medical expenses, including the cost of prosthesis and maintenance was sufficient. 37.As concerns the question of whether the learned Judge rightly determined that the 1st and 2nd Respondents were liable for the accident, the Appellant’s case is that, as an innocent fare-paying passenger, he bore no responsibility for the occurrence of the accident and that the trial court misdirected itself by treating the matter as a contest solely between the two drivers. 38.The Appellant submits that the evidence on record established that the accident occurred at a section of the road that was under construction, with traffic from both directions sharing limited road space. According to the Appellant, this fact alone called for a careful evaluation of the conduct of both drivers; that the learned Judge failed to critically analyse this evidence and instead wholly relied on the testimony of the 3rd Respondent DW1, while discounting or disregarding the Appellant’s account of how the accident occurred. 39.With regard to the issue of liability the learned Judge held:“The totality of that corpus of evidence is that indeed an accident occurred when the two disclosed motor vehicles collided. The evidence by both PW1 and DW1 was in agreement that it was the motor vehicle KAL 022H pleaded to have been owned by the 1st and 2nd defendant that swerved to the right and collided with the motor vehicle KAA 584G. There was no evidence of any wrong doing by the driver of KAA 584G. Accordingly I do find that the accident was solely and wholly caused by the driver of motor vehicle KAL 022H wholly. Those defendants did in fact file a defence which denied all the allegations by the plaintiff but come to the date of the hearing no attendance was made on their behalf and no evidence was led on the defence filed with the consequence that the defence filed remained mere allegation without proof. I would to that extent and at this juncture absolve the 3rd defendant wholly from any liability based on the evidence on the record particularly the evidence of the plaintiff PW1.” 40.The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in the case of Stapley v Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681 as follows:To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it…“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.” 41.It is not disputed that the Appellant was a lawful passenger in motor vehicle registration number KAL 022H and that a road traffic accident occurred on 10th December 2001 between motor vehicle KAL 022H and motor vehicle KAA 584G. It is equally not in dispute that the Appellant did not contribute to the occurrence of the accident. The Appellant has argued that the 3rd Respondent’s negligence was as much a cause of the accident as the 1st and 2nd Respondent, and therefore he should be held 70% liable for the accident. 42.In the case of David Onchangu Orioki (Suing as personal representative of Anthony Nyabondo Onchangu (Deceased) v Ismael Nyasimi & Charles Michieka Nyoungo [2019] KECA 434 (KLR) it was held that:“When a collision occurs between two vehicles, as between them, the issue of contributory negligence and apportionment may arise. However, as between a passenger and the owners/drivers of the two vehicles involved in the accident, liability on the part of the owners is 100% joint and several and no question of apportionment arises unless it is proved the passenger was negligent.29.In the persuasive case of Jackline A. Obondo v Kenya Bus Services & Another (2007) eKLR, Kimaru, J observed as follows: -“However, upon evaluating the evidence on record, it is clear that when the plaintiff boarded the said motor vehicle at Bondo, she expected to be ferried safely to her destination, Nairobi. She did not reach safely to her destination. The bus which she was travelling in was involved in an accident as a consequence of which she was injured. I agree with the finding of the Court of Appeal in the case of Embu Public Road Services Ltd. v Riimi (1968) EA 22 where it was held that where an accident occurs and no explanation is given by the defendant which could exonerate him from liability, then the court would be at liberty to apply the doctrine of res ipsa loquitur and hold the defendant liable in negligence.” (See also P I v Zena Roses Ltd & another [2015] e KLR).”See also Michael Hubert Kloss & another v David Seroney & 5 others [2009] KECA 146 (KLR). 43.A consideration of the Appellant’s evidence shows that it was the driver of motor vehicle KAL 022H who was liable for the accident. In his examination in chief, the Appellant stated that:“Motor vehicles were using the left side of the road as one proceeded towards Changamwe. As we went up, there was a jam and motor vehicle stopped. Our driver left the uPWards going side of the road to enter the Changamwe town side. There was another one coming motor vehicle our driver then try to go on the extreme side of the road but the oncoming motor vehicle moved there too in the Changamwe town side of the road. There was a collision of the road on the right as one proceeded from Changamwe”For their part DW1 stated thus:At railway crossing at Kibarani, I saw a Nissan Matatu KAL 022H which heading towards Changamwe the road was under construction ongoing. The middle of the road was being repaired. The Nissan left its lane and came on our side and knocked us head on. I was seated on the first seat at the door on the left was able to see everything in front, including the driver.” 44.The above excerpts clearly depict the circumstances in which the accident occurred. Both the Appellant’s and DW1’s evidence was that the driver of KAL 022H crossed the road from the left side heading out of town to Changamwe, drove to the side of the road heading to town from Changamwe, and collided into motor vehicle KAA 584G belonging to DW1 that was heading to town. There is no doubt that with the collision having occurred on the side of the road headed to town, placed KAL 022H on the wrong side of the road, which meant that the driver of motor vehicle KAL 022H, was squarely to blame for the accident. This being the case, there is nowhere in the evidence that pointed to the driver of motor vehicle KAA 584G as having contributed towards the accident. Consequently, just like the learned Judge, we find that the 1st and 2nd Respondents, who fled from the scene immediately after the accident occurred, were the persons wholly and solely liable for the accident. 45.As to whether the award of Kshs. 2,500,000 as general damages for pain, suffering and loss of amenities was inordinately low, the evidence accepted by the trial court showed that the Appellant suffered traumatic amputation of the left leg, multiple fractures, blunt trauma, and permanent disability assessed at 50%. These injuries resulted in permanent loss of a limb, prolonged hospitalization, continued medical follow-up, and a lifelong diminution in the Appellant’s quality of life. 46.The principles guiding the award of damages and the powers of an appellate court to interfere with an award are now well established. 47.In the case of Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55 the Court set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“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 an entirely erroneous estimate.”See also Bashir Ahmed Butt v. Uwais Ahmed Khan [1982-88] KAR where the Court set out the parameters under which an appellate court will interfere with an award in general damages and held that:“An appellate court will not disturb an award for general 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...” 48.In assessing damages, the court is required to consider the nature and severity of the injuries, the degree of permanent disability, the pain endured, the loss of amenities, and comparable awards in similar cases, while also bearing in mind the need for consistency and the effects of inflation. 49.A consideration of the award of Kshs. 2,500,000 made by the trial court leads us to conclude that it was inordinately low, particularly when it is considered alongside the evidence that the Respondent sustained grave injuries comprising a traumatic amputation of the left leg, segmented fractures of the right tibia and fibula, blunt chest and abdominal injuries, soft tissue injuries and lacerations. And where the medical evidence further established that he suffered a permanent disability assessed at 50%, required a prosthetic limb and would continue to incur expenses for its periodic replacement and review. The Respondent also underwent prolonged hospitalization and was left with permanent physical limitations that significantly diminished his mobility, independence and enjoyment of life. 50.Guided by comparable authorities on awards for pain, suffering and loss of amenities in cases involving amputation and permanent disability, we consider it necessary to review the award.For instance, in the case of James Maina Muriithi v My Beauty Transporters Limited & 2 Others [2018] eKLR the plaintiff, who was 52 years old, sustained multiple severe injuries, including frictional burns to the lower abdomen and thighs, a crush injury to the right lower limb leading to amputation below the knee, a crush injury to the left upper limb with eventual disarticulation, as well as pain, blood loss and soft tissue injuries. The court awarded a sum of Kshs. 4,200,000 as general damages for pain, suffering and loss of amenities. The injuries in this case seem more sever, and extensive, compared to those in case at hand and would therefore explain the higher award in general damages. 51.In the case of Elgon Kenya Limited v Peter Musyoka Kamuya [2022] KECA 1395 (KLR), this Court upheld an award of Kshs. 2,500,000 as general damages where the claimant sustained a traumatic amputation in the course of employment and required a prosthesis. 52.Similarly, in the case of Kenya Agricultural Research Institute v Nickson Muthoka Mutava [2023] KECA 1470 (KLR), this Court upheld an award of Kshs.3,000,000 for severe electrical burn injuries that resulted in permanent disability. 53.Likewise, in the case of Walter alias Walter Ngugi Kimani v Fred Onyoni Nyabuto [2025] KECA 604 (KLR) this Court considered an award of Kshs.5,000,000 for catastrophic spinal injuries resulting in permanent paralysis and 100% incapacity. Although the injuries in that matter were more severe than those sustained in the present appeal, the decision provides an apt contemporary benchmark of the range of awards for permanent, life-altering injuries. 54.When the comparable authorities are viewed against the Appellant’s age of 29 years at the time of the accident and the permanent disability he suffered that was assessed at 50%, as well as the prevailing economic conditions, an award of Kshs. 3,500,000 for pain, suffering and loss of amenities is fair, reasonable and consistent with current judicial awards. 55.In the circumstances, we find it necessary to interfere with the trial Judge’s award of Kshs 2,500,000 and replace it with an award of Kshs. 3,500,000 instead. 56.Concerning the issue of loss of earning capacity, it is true that the trial Judge declined to award damages for the loss of earning capacity. The Judge reasoned that;“I have taken note that I have declined to award to the plaintiff loss of earning capacity for I take the view that this sum if paid in lumpsum and in advance can be invested to earn own yields hence I consider it sufficient compensation to the plaintiff. The second reason I have declined to consider an award for loss of earning capacity is that the same was vaguely pleaded and no evidence credible evidence was led on the plaintiff’s earnings at the time to enable court assess how much had been lost. Accordingly, I have come to the conclusion that the sum awarded for pains and suffering if invested can yield a monthly sum equivalent or comparable to the basic minimum wage the plaintiff would earn in his station in life.” 57.After considering the English case of Butler v Butler (supra), in the case of Mumias Sugar Company Ltd v Francis Wanalo (supra), this Court identified the following emerging principles as:“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 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. 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.” 58.What this means is that loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or it can be assessed as a separate head of damages. The award can be a token, modest or substantial depending on the circumstances of each case. No formula is prescribed for assessing loss of earning capacity, save that 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 the disability. 59.In this case, after the learned Judge awarded the Appellant Kshs. 2,500,000 for pain and suffering and loss of amenities, the Judge considered that a further amount for loss of earning capacity was not warranted for the reason that the lumpsum amount of Kshs. 2,500,000 adequately catered for the loss of earning capacity. More importantly, in determining the issue of loss of earning capacity, the Judge took into account that the claim was vaguely pleaded and no credible evidence was led on the Appellant’s earnings. 60.A review of the pleadings reveals that indeed this head of claim was not specifically pleaded or prayed for. Upon re-analysing the Appellant’s evidence when asked for his earnings, the Appellant stated:“I was running an eating house but I have no town council papers, etc. No books of account of this business”. 61.It is trite that parties are bound by their pleadings. Not only was the claim for loss of earning capacity omitted from the Amended Plaint, there was also no evidence supportive of this claim. The learned Judge having appreciated that the loss of earning capacity was not specifically supported, in doing the best he could in the circumstances, the Judge went on to incorporate the loss of earning capacity under general damages for pain, suffering and loss of amenities as a lumpsum award. Hence the award being higher than that awarded in comparative cases. 62.The learned Judge having already factored the loss of earning capacity into a lump sum award for pain, suffering, loss of amenities, which lumpsum amount we have increased to Kshs. 3,500,000, we are satisfied as was the learned Judge, that if properly invested, it should now provide the Appellant with a monthly equivalent or an amount comparable to the basic minimum wage to cater for his monthly needs. Consequently, we find no reason to award a separate amount for loss of earning capacity. 63.In relation to future medical expenses, PW2 testified that the Appellant required a multi-functional prosthetic limb whose cost at the time of examination was approximately Kshs. 370,000. He further stated that the Appellant would require regular annual reviews and maintenance of the prosthesis at an estimated cost of about Kshs. 10,000 per year. PW2 also explained that the cost of prosthetic limbs was not static and had been increasing over time. 64.The learned trial Judge accepted this evidence and awarded Kshs. 550,000 for the cost of the prosthesis and maintenance. A consideration of the amount awarded shows that it was over and above what was specified in evidence. In our view, the trial court properly considered and accepted the uncontroverted medical evidence and in awarding a global sum of Kshs. 550,000, the court took into account the cost of the initial prosthesis as well as future reviews and maintenance, while also exercising judicial discretion to arrive at a reasonable and practical figure. We have no reason to disturb the amount awarded for future medical expenses. 65.In sum, the appeal succeeds in part and fails in part. In effect, save for the award for general damages which has increased from Kshs. 2,500,000 to Kshs. 3,500,000, all other grounds are without merit and fail. Each party to bear their own costs.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY,2026.S. GATEMBU KAIRU, FCIArb, C.Arb. (PRESIDENT)JUDGE OF APPEAL.................................JUDGE OF APPEALA. K. MURGOR.................................JUDGE OF APPEALP. NYAMWEYAI certify that this is the true copy of the originalsignedDEPUTY REGISTRARJUDGE OF APPEAL