[2023] KEHC 23282 (KLR)

United Millers Limited v Mukhuya (Civil Appeal 25 of 2020) [2023] KEHC 23282 (KLR) (3 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23282 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 25 of 2020

RE Aburili, J

October 3, 2023

Between

United Millers Limited

Appellant

and

David Mukhuya

Respondent

(An appeal from a Judgment and decree of the Chief Magistrates Court at Kisumu by Hon. W. K. Onkunya dated the 26th day of May 2020 in Civil Case No. 17 of 2014)

Judgment

1. This appeal was filed on 11th June 2020. It arises from the Judgment and decree of Hon. W. K. Onkunya, Senior Resident Magistrate, Kisumu in Kisumu CMCC No. 17 of 2014. The Judgment which is impugned was delivered on 26th May 2020. The Respondent herein David Mukhuya was the Plaintiff while the Appellant United Millers Limited was the Defendant in the lower court.

2. The claim by the Respondent herein against the Appellant arose from the traffic road accident pleaded to have occurred on 15th December 2011 when the Respondent was aboard the appellant’s Motor Vehicle Registration Number KAZ 062Z Isuzu NPR driven by PW 2 Arthur Shisukane, transporting bread to customers with the Respondent being the appellant’s employed loader/turnboy on board, lost control at Sori, Sega area and veered off the road, rolled and crushed into a trench thereby causing severe bodily injuries to the Plaintiff/Respondent herein.

3. The Respondent attributed the occurrence of the accident wholly to the Appellant herein, its driver, servant, agent and or employee and particularized the acts of negligence complained of at paragraph 6 of his plaint dated 16th January 2014 and filed in court on 17th January 2014.

4. The Respondent alleged that the vehicle was driven at:a.a speed which was excessive in the circumstances;b.driven without due care and attention;c.driven carelessly and recklessly without due regard to other motorists;d.without due care for passengers;e.drove without regard of the Highway Code and Traffic Act;f.attempting to overtake when it was not safe to do so;g.driving on the wrong laneh.failed to break, swerve, stop, reverse and or manage the vehicle in any other way as to avoid the accident;i.willfully permitting the accident to occur;j.driving a defective Motor Vehicle;k.driving without a valid driving license;l.failing to provide a safe working environmentm.failing to provide adequate supervision;n.failing to retain skilled personnel.o.exposed the plaintiff to a risk they knew or ought to have known.

5. The Respondent also relied on the doctrine of Res ipsa loquitur. On the injuries allegedly suffered, the Respondent pleaded as follows:a.1st degree burns on the chestb.1st degree burns on the abdomenc.1st degree burns on the scrotumd.1st degree burns on the left thighe.1st degree burns on the buttocksf.1st degree burns on the backg.Loss of libido

6. The Respondent prayed for special damages of Kshs.1,500/= and general damages for pain and suffering, costs of the suit and interest thereon at court rates.

7. The Appellant entered appearance on 11th March 2014 and filed defence on 20th March 2014 denying that the Respondent was in its gainful employment nor was he a turnboy as alleged. The Appellant also denied the occurrence of the accident on 15th December 2011 or that the Respondent was aboard the said Motor Vehicle as pleaded. It further denied the manner in which the accident allegedly occurred as pleaded and stated that it was a stranger to the particulars of negligence attributed to it or its driver or agent.

8. The appellant further denied that the Respondent sustained the pleaded injuries or damages pleaded. The Defendant/Appellant threatened to raise a preliminary objection to the verifying affidavit alleging that it was fatally defective and denied that demand and notice to sue was issued. It also denied the applicability of the doctrine of Res ipsa Loqitur.

9. In the alternative, the Appellant pleaded on a without prejudice basis that in the event that the disputed accident did occur, then the same was solely contributed to or solely caused by the Respondent’s negligence for the following reasons:a.traveling as an unlawful passenger;b.distracting the driver;c.jumping off the vehicle;d.not being observant;e.consenting to acts by the driver;f.allowing the accident to take place;g.not taking steps to avoid the accident;

10. The Appellant also in the alternative and without prejudice to the denials, blamed the occurrence of the accident on the negligence of the unnamed third party Motor Vehicle which is said to have done the following:a.Caused obstruction;b.Not obeyed the Traffic Act and Rules;c.Casing a dangerous situation;d.Causing the accident;e.Leaving the third party Motor Vehicle unattended.

11. The Appellant prayed for dismissal of the Plaintiff’s suit with costs. On 25th April 2014, the Respondent filed a reply to defence reiterating the averments in the plaint and denying the averments and contentions in the defence.

12. Parties also filed and exchanged documents they intended to rely on at the hearing. The Respondent filed two witness statements of himself and the driver of the alleged accident Motor Vehicle.

13. After a full interpartes hearing, the trial magistrate in her impugned judgment found the Appellant herein 100% liable for the accident and awarded special damages of Kshs.1500 as pleaded and proved, general damages of Kshs.1,200,000 or pain and suffering and damages for loss of earning capacity Kshs. 1,440,000 all totaling Kshs 2,641,500 together with costs and interest thereon.

14. That is the judgment which provoked this appeal vide memorandum of appeal dated 9th June 2020 and filed in court on 11th June 2020 setting out the following nine grounds of appeal, challenging both liability and quantum of damages awarded:1. The learned trial magistrate erred in law and fact in finding that the Respondent had proved his case on a balance of probabilities.2. The learned trial magistrate erred in law and fact by not taking into consideration the entire evidence on record in arriving at a finding on liability and quantum.3. The learned trial magistrate erred in law and fact by not taking into consideration that the cross examination of the Respondent and the witnesses formed part of the rebuttal evidence adduced at the time of the hearing.4. The learned trial magistrate erred in arriving at a finding that the Appellant was liable purely on the grounds that no rebuttal evidence had been adduced by the appellant.5. The learned trial magistrate erred in law and fact by not taking into consideration the appellant’s submissions in arriving at a finding on liability.6. That learned trial magistrate erred in law and fact by awarding damages for loss of earnings when the same had not been pleaded and proved.7. The learned trial magistrate erred in law and fact by not taking into consideration the submissions by the Appellant on quantum.8. There was misdirection on the part of the trial magistrate in awarding damages.9. The damages awarded were excessive.

15. The Appellant urged this court to allow the appeal, judgment in the subordinate court be set aside and the suit be dismissed or that liability and quantum be re assessed on appeal; and costs of the appeal.

16. The appeal was admitted to hearing on 22nd September 2021 and directions for its disposal given on 12th July 2022 where parties were directed to file and exchange written submissions to canvass the appeal.

17. By 29th November 2022 when the appeal came up for mention to confirm compliance with the directions for its disposal, the trial judge had been elevated to the Court of Appeal hence the delay in the conclusion of this appeal as the matter was being mentioned before the Deputy Registrar while the Respondent’s counsel was on maternity leave and only managed to resume and file submissions on 19th June 2023.

18. The Appellant’s counsel filed her written submission on 19th August 2023 and served them upon the Respondent’s counsel on the same day.

The Appellant’s submissions. 19. The Appellant’s counsel merged grounds 1, 2, 3, 4, 5 of her memorandum of appeal and argued them together as they are related to the issue of proof of liability. The Appellant’s first lamentation is that the trial magistrate erred in arriving at a finding that the Defendant/Appellant herein was liable for the accident because it did not adduce rebuttal evidence and that therefore the Plaintiff/Respondent’s evidence remained unchallenged, and in relying on the case of Milka Akinyi Ouma vs KPLC Limited & Another [2020] eKLR and Bwire vs Wayo & Sailoki CA 032/2021 on the effect of absence of rebuttal evidence.

20. It was therefore submitted that the cross-examination by the defendant of PW 1 and PW 2 and the fact that the Plaintiff did not re-examine on the evidence and therefore answers given in cross-examination by these witnesses constituted defence rebuttal evidence and that had the trial magistrate considered the said evidence as cross-examined on liability, and weighed it, she would have arrived at a finding that the defendant was not liable for the accident.

21. Counsel reproduced part of the answers given by PW 1 and PW 2 in cross-examination which she believes formed the rebuttal evidence by the defence. She also faulted the trial magistrate for introducing evidence that did not form part of the record which was that the lock of steering wheel came off and the canter started going in a zig zag manner, that he tried to maintain control but it was difficult and they eventually veered off the road and landed upside down in a wide ditch.

22. Counsel for the Appellant urged this court to analyze the evidence by PW 1 and PW 2 and find that the Respondent did not know how the accident occurred. That the Respondent was provided with safety gadgets; that he did not adduce evidence in support of the negligence pleaded in the plaint or adduce any evidence to enable the court arrive at a finding that the defendant was liable in view of the evidence by PW 2 that he drove diligently hence he was not liable for the accident; that the Motor Vehicle had been inspected before use, that he would not have used the Motor Vehicle if it was defective; that PW2 was a competent driver; that the Motor Vehicle had been inspected with no pre accident defects noted and that PW 2 did not adduce any evidence with regard to any negligence by the defendant.

Submissions by the Respondent 23. On the part of the respondent, it was submitted that on liability, he had established that the appellant was li able because the respondent was a passive passenger who was not in control of the accident motor vehicle and who could not have contributed to the accident in issue. the case of Boniface Waiti & Another v Michael Kariuki Kamau [2007]e KLR was relied on. It was further submitted that the respondent and PW2 had testified and it was not controverted by any evidence that they were employees of the appellant. Further, that the manner in which the accident occurred as pleaded and testified on had not been disproved by the appellant. Reliance was placed on Kimotho v Kenya Commercial Bank Limited [2003] 1 EA 108 on the inference to be made against the appellant for failure to call evidence to dispel the respondent’s employment.

24. On the appeal against the award for loss of earning capacity, it was submitted that the respondent had proved that he lost earning capacity following the injuries sustained as he testified that he had lost his job and that the loss of earning capacity was a general damage and not a special damage. Reliance was placed on Mumias Sugar Co. Ltd v Francis Wanalo [2007] e KLR citing Butler v Butler. Submission was made that the respondent’s chances of getting alternative employment were diminished.

25. On the appeal against damages for pain and suffering, it was submitted that the respondent sustained 1st degree and 10% burns and lost libido and the injuries were assessed as maim hence he underwent extensive pain and suffering. The respondent defended the award of kshs 1,200,000 and relied on the case of Agnes Wanjiku Ndegwa v Kenya Power & Lighting Co. Ltd [2014]e KLR where an award of kshs 1,300,000 was upheld for more or less similar injuries.

26. The respondent urged this court to dismiss this appeal with costs and uphold the awards made by the lower court on quantum and uphold the finding and holding on liability.

Determination 27. I have considered the grounds of appeal, the submissions as filed and the evidence adduced in the trial court and the main issue for determination is whether the respondent proved his case on a balance of probabilities on liability and whether the quantum of damages awarded were deserved. In resolving this issue, there are many questions that I will answer including whether the respondent was employed by the appellant, whether he was on duty on the material day, when did the accident occur if at all it occurred, whether the appellant was liable or whether the respondent was partially to blame and whether the damages awarded for loss of earning capacity were available and finally whether the general damages awarded were commensurate with the injuries sustained.

28. I will discuss the issues by revisiting and reevaluating the evidence adduced in the lower court as stipulated in section 78 of the Civil Procedure Act, bearing in mind the fact that unlike the trial court, I did not have the advantage of hearing and seeing the witnesses as they testified hence give an allowance for that.

29. On grounds 1, 2, 3, 4 and 5, the appellants’ counsel submitted that the burden of proof lies on he who alleges, as stipulated in Section 107 of the Evidence Act. In this case, the Respondent pleaded that he was employed by the Defendant as a loader and turnboy in 2002 and that on the material day, he was on duty with PW 1 to supply bread to their customers when the vehicle lost control, veered off the road and overturned upon which he was injured which injuries involve 1st degree burns on his body for which he was treated at Kendubay Sub-County Hospital.

30. The respondent testified that the accident occurred on 15th December 2022 which facts the appellant denied and vehemently put up a spirited defence and cross examination of PW 1 and PW 2 on the date of alleged accident, employment of the Respondent and PW 2 by the Appellant and the manner in which the accident allegedly occurred. Counsel for the appellant submitted fiercely that she had put up a rebuttal evidence through her cross examination of the two witnesses, which the trial magistrate should have considered as defence evidence.

31. The standard of proof of civil cases, it should be noted, is on a balance of probabilities and not on beyond reasonable doubt. Under Section 107 of the Evidence Act on the burden of proof:1. Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

2. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person under Section 108 on the incidence of burden.

32. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. On the proof of a particular fact, Section 109 of the Evidence Act provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall be on any particular person.

33. Under Section 112 of the Evidence Act on poof of special knowledge in civil proceedings, in civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.

34. In this case, therefore, on liability, the plaintiff /Respondent was expected to prove on a balance of probabilities that he was at the time of alleged accident in employment of the Defendant/Appellant; that an accident occurred on the pleaded date, that it occurred in the manner pleaded and that the Defendant/Appellant was therefore liable for the said accident.

35. On the other hand, the Defendant/Appellant having denied in toto the facts pleaded by the Plaintiff/Respondent and gone further to plead contributory negligence on the part of the Plaintiff/Respondent as well as an unnamed third party, the burden of proof lay on the Defendant/Appellant to prove the particulars of contributory negligence on the part of the Plaintiff/Respondent and or the third party and on a balance of probabilities.

36. In FH v Mc Dougall [2008], the Supreme Court of Canada clarified that the trial judge must scrutinize the relevant evidence with care to determine whether it is more likely than not that an alleged event occurred (paragraph 40). The level of scrutiny does not depend on the seriousness of the offence. The court does say that in all civil cases, evidence must be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test. (Paragraph 46).

37. The Black’s Law Dictionary, 2nd Edition defines probability to mean likelihood; appearance of truth; verisimilitude. The likelihood of a proposition or hypothesis being time, from its conformity to reason or experience, or from superior evidence or arguments adduced in its favour.

38. In TNT Management Party Limited vs Brooks (1979) 23 ALR 345, it was stated that the balance of probabilities when a matter is judged as a whole is a reference to the likelihood of one party’s version of events being more probable to have occurred than not proof of facts is done by adducing evidence whether oral or documentary or by observation by the court.

39. Section 3(1) of the Evidence Act defines evidence as:“evidence denotes the means by which an alleged matter of fact, the truth of which is submitted to investigations, is proved or disproved and without prejudice to the foregoing generality, includes statements by accused person’s admissions and observation by the court in its judicial capacity.”

40. In Re H (minors) sexual abuse; Standard of proof (1996) AC 563 and 505 for the Home Department vs Rehman (2003) 1 AC 152, the House of Lords laid down a series of guiding principles on standard of proof as follows:1. Where the matters in issue are facts, the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability.

2. The balance of probability standard means that the court must be satisfied that the event in question is more likely than not to have occurred;

3. The balance of probability is a flexible standard. This means that when assessing this probability, the court will inherently more likely than other.”

41. As was correctly stated in Christine Kalama v Jane Wanja Njeru & another [2021] eKLR that:“…it was the Appellant who bore the evidential burden to lead evidence against the Respondent to show that acts negligence and breach of the duty of care owed to her on the material day.On the other hand, once the Appellant discharges that burden of a prima facie case, the Respondent were to be under a duty to offer tactical evidence to rebut or controvert the elements of the Appellant’s case.”

42. The question here is, did the Respondent discharge that burden of proof on a balance of probabilities in the matters pleaded and challenged by the appellant?

43. The testimony by the Respondent which was corroborated by PW 2, the driver of the Appellant’s Motor Vehicle at the material time was that he was working for the Appellant as a turnboy and loader and that PW 2 was assigned the Respondent as a turnboy to offload flour and bread to clients at their premises. That the Respondent was a turnboy on shift, and they were to deliver bread to clients at Sori vide Motor Vehicle KAZ 062L Isuzu NPR. PW 1 stated that the vehicle suddenly lost control and the vehicle went zigzag on the road and veered off then left lane, went off the road, hit a culvert, rolled once in the air and they landed about 4 metres away on a wide trench. The vehicle landed on its back, the radiator broke and emptied hot scalding water on him. He later lost consciousness and found himself admitted at Kendubay Sub-County Hospital. That the company declined to issue him with LD 104 form workmen’s compensation form, despite various requests.

44. PW 2 the driver of the Motor Vehicle KAZ 062L testified that indeed PW 1 was his turnboy/loader on the material day of 15th December 2011 being among the many turnboys employed by the appellant herein to load/offload flour and bread to customers and that they left at 1. 30am and Enroute, the steering wheel lock came off and the canter zigzagged, he tried to maintain control but it was very difficult. They veered off the road on the left facing Homabay direction and landed upside down onto a wide ditch. He managed to get out and pulled out the turnboy through the windscreen. He called for help from Singh & Rakesh to no avail. Another driver, Ochieng Bonface assigned to Isebania passed by and saw them so he rescued them to Kendubay Sub-County Hospital where the Respondent was admitted as he had serious burns from hot water from the radiator.

45. PW2 returned to the scene to guard the vehicle and at 6. 00am, the police arrived, took measurements and called breakdown which towed the canter to Kendubay Police station. He recorded his statement and inspection was done and the vehicle was released to the Appellant. PW2 blamed the Appellant for the accident because the vehicle was defective, yet they gave it to him to drive and deliver goods. He stated that the defect was not apparent to him until after the accident and that they ought to have properly maintained the vehicle so as to avert any incident or accident.

46. In cross examination, the Respondent testified that they left at 1200 midnight on 15th December 2011 and the accident occurred on 16th December 2011 although the medical documents and demand notice read 15th December 2011. He maintained that he was employed by the Appellant. He reiterated that he could only recall the Motor Vehicle losing control but could not tell what happened and that he had his safety belt on, that PW 2 was on duty and that he was recruited by the driver. In re-examination, PW1 stated that the accident occurred on 15th December 2011 and that his employment documents remained with the company.

47. On the part of PW 2 in cross-examination, he stated that he had left the company 2 weeks earlier following an interdiction. He denied recruiting the Respondent and stated that the Transport Manager selected the plaintiff as turnboy. He maintained that they alternated turnboys and that the transport manager recruited turnboys. He stated that the accident occurred on 15th December 2011 at 11. 30pm not 1. 30am, although the police abstract stated 16th December 2011 and his name was not on the said police abstract.

48. He stated that the mechanic evaluated the vehicle and that when he started it and left, he did not notice any defects otherwise he would have known. He stated that the problem occurred suddenly, that he drove diligently and was not charged. He stated that if he had seen the defect, he would not have driven the motor vehicle. This witness was not re-examined.

49. PW 5 PC Kiplagat Cheboeh testified and produced the police abstract as P. Exhibit 7(a) showing that an accident occurred on 15th December 2011 involving KAZ 062L Isuzu NPR belonging to the Appellant herein and the Respondent who was injured. He also produced an original Police Occurrence Book details showing the information received following the alleged accident as P. Exhibit 7(b)

50. PW 6, Pius Ambala Shikure a union representative testified and confirmed that the Respondent was a member of the Bakery Confectionery Manufacturing and Allied Workers Union (K) from 2006 and a member No. 10185 which card he produced as P. Exhibit 3. He stated that the Union send a Notice to the employer to deduct dues through check off system. He produced a Notice dated 7th November 2006 issued to the Appellant.

51. It is worth noting that PW 6 was not the investigating officer. PC Nzioka and Corporal Kamwiti were not available. However, from the Occurrence Book report, it was stated that “the driver alleges that he was obstructed (sic) a Salon car and he tried to avoid it thereby losing control.”

52. I make the following observations from the above evidence:1. That although the suit was filed in 2014, it was not until 23rd August 2016 that the witness statement of PW 2 Arthur Shitsukane Ashitsa was recorded and filed into court and that this was 2 weeks after he had lost his employment with the Appellant. No doubt, the witness having been in control of the accident Motor Vehicle, he was expected to testify for his employer but he did not and elected to testify for the Respondent.2. That the said witness PW2 reported to the police that he had been obstructed by a Salon car which he tried to avoid upon which he lost control of his motor vehicle, which evidence he avoided in his testimony in court.3. That the Respondent stated that the vehicle lost control and veered off the road.4. That the inspection report dated 19th December 2011, about 4 days following the accident did not detect any pre accident defects although it was noted that in the steering mechanism, linkage was damaged, radiator core and accessories were damaged, among others, which damages were all caused by the accident impact.

53. I am inclined to believe the Respondent on the following evidence-That the Bakery Confectionery Manufacturing and Allied Workers Union (K) could not have written a notice to the Appellant with names of workers who were registered as unionisable and as working for the Appellant if those workers were not in the employment of the Appellant as the appellant had a right to refute that notice, which it did not. The Respondent’s name is on No. 10, Union Member No. 10185 and he signed the Notice on 28th September 2006, before the Notice was issued to the Appellant to remit the Union dues. I further believe the evidence of the respondent that the Respondent being a casual worker receiving daily wages, it was not expected of him to have a payslip which he could have produced in evidence.

54. I further believe the respondent’s testimony that albeit the Appellant claims that it was not proved that the Respondent was an employee of the Appellant, from my re-evaluation of the evidence on record as a whole, I am satisfied that the Plaintiff proved on a balance of probabilities that he was at the material time of the accident, in lawful employment as a casual worker/loader/turnboy for the Appellant; and that he was not a stranger in the Appellant’s Motor Vehicle as alleged by the Appellant.

55. On whether the accident did occur, I believe the evidence of PW 1, PW 2 and PW 5 PC Kiplagat that indeed, an accident occurred when the driver of Motor Vehicle KAZ 062Z Isuzu NPR lost control and veered off the road landing in a trench after the vehicle overturned, which accident was reported to the police station and action taken hence the police abstract and the Occurrence Book extract as produced in evidence

56. On the actual date or day of accident, I observe that the Plaintiff pleaded 15th December 2011 and in his testimony and the testimony of PW 2 the driver thereof, they maintained that the accident occurred on the night of 15th December 2011. The Hospital discharge summary shows that the Respondent was admitted in hospital on 15th December 2011 and discharged on 16th December 2011.

57. The police abstract report says 16th December 2011 and so is the certificate of examination and test of Motor Vehicle which show the time of accident to be 3. 30am. PW 5 also confirmed that the material accident occurred on 15th December 2011, that a call was made to the police station and Traffic police were notified.

58. There are inconsistencies on the date and time of accident. However, from the testimonies of the Respondent, PW 2 and PW 5, coupled with the treatment discharge summary from Kendubay Sub County Hospital, I believe that the accident occurred on the night of 15th December 2011 and the morning of 16th December 2011 thereby creating confusion among many players as to what date to record. Furthermore, no serious challenge was raised on the exact time of the accident whose occurrence was proved but the exact time of the night/morning not being accurate to exactitude. For the above reasons, I am inclined to find that the material accident occurred between the night of 15th December 2011 and morning of 16th December 2011 and that the discrepancies on the timing and date are minor and not fatal to the respondent’s case.

59. Back to the issue of employment of PW 2, I find that his testimony that he was on duty on the said night coupled with the evidence from the Occurrence Book that the Bread was looted from the canter by members of the public despite police intervention, and the certificate of service of the Respondent dated 29th February 2012 showing that the latter had worked as a driver from 1st March 2008 to 4th February 2012 was sufficient proof of his employment with the Appellant and therefore albeit his name was not in the police abstract Report produced in evidence by PW 5, that omission by the police to state his name as the driver of the motor vehicle was not fatal to the Respondent’s case. This witness too corroborated the Respondent’s testimony that the latter was the turnboy on duty with him on that day and despite the denial by the Appellant, there was no contrary evidence adduced to challenge that testimony.

60. On the manner in which the accident occurred and whether the particulars of negligence pleaded were proved to the required standard, I have reproduced the pleaded facts of what the Respondent claimed to have happened.

61. In his testimony, the Respondent maintained his stance that the driver lost control of the Motor Vehicle which then started to zigzag on the road, veered off the road, hit the culvert, rolled once in the air and they landed about four (4) meters away on a wide trench on its back. See paragraph 2 of the Respondent’s witness statement dated 22nd March 2013 which was adopted as his evidence in chief. From this evidence of the Respondent, indeed, he did not know why the driver lost control of the motor vehicle and the only person who could tell the court why he lost control of the Motor Vehicle, being a driver of 20 years’ experience, driving a Motor Vehicle that was well serviced and checked, and even stated in his testimony in cross examination that he did not know of any defect on the Motor Vehicle and that had he been aware of any such defect, he would not have driven the Motor Vehicle, and he even confirmed that from the Inspection Report, there were no pre accident defects, was none other than PW 2, the driver of the accident Motor Vehicle.

62. This driver PW2 acknowledged in his testimony that he was not injured and so he even went to the police station, reported and recorded his statement. The initial information which he supplied to the police as contained in the Occurrence Book produced as an exhibit is that the was avoiding a Salon car which had obstructed him when he lost control. In court, he gave the story of the lock of the steering wheel coming off thereby him losing the control of the Motor Vehicle.

63. In my humble view, PW 2 only accepted to testify for the Respondent after losing his job as a driver with the appellant and that is when he came up with the theory of a defective steering wheel whose lock dislodged. He was not ready to give evidence that he lost control of the vehicle because he was avoiding another vehicle. The first report to the police is very important as it informs a decision by the Police whether to investigate further and charge anybody with an offence or not.

64. It is that report in the Occurrence Book which informed the Appellant filing a defence that tended to lay blame on the unnamed third party but which defence the Appellant could not sustain without proof to the required standard as the driver never gave further details of this third party vehicle involved and neither did he agree to testify for the appellant in defence.

65. It has been stated not once but severally that accidents don’t just happen. They ae either caused by human error, mechanical defects, bad weather conditions or even acts of God. See the case of Nzoia Sugar Company Limited v David Nalyanya [2008] eKLR where the learned Judge had this to say and I concur that:“I am aware of the principle that where negligence is pleaded, the acts of negligence must be proved and that there should be no liability without fault. Nonetheless, I note that in this case the doctrine of “Res Ipsa Loquitur” is pleaded in the plaint. My finding is that the same would be applicable here. I say so because the accident did happen; the lorry was not being driven recklessly; there was no other motor vehicle or other object whatsoever that got into the driver’s way. There is no evidence of bad weather etc. The only presumption one can make is that the driver was the sole cause of the accident. Accidents don’t just happen on their own in absence of any of the above situations and in absence of any evidence of mechanical defects on the motor vehicle. The driver must therefore be held responsible for the same.”

66. In this case, I am not persuaded that the accident in issue occurred due to the steering wheel lock dislodging as alleged by PW 2 who had initially reported that he lost control of the Motor Vehicle due to obstruction by a Salon car. This witness knew the actual cause of the material accident since he was the driver thereof and albeit he gave his testimony on oath, having admitted in cross-examination that the vehicle was well maintained and was even checked before he started it, and with no pre accident defects noted on the Motor Vehicle other than the post-accident damages, I am satisfied that PW2 failed to control the Motor Vehicle while in control of the same on the road. The third party Motor Vehicle which allegedly obstructed the driver was never enjoined to the proceedings albeit the Appellant pleaded obstruction by the unnamed third party. This court cannot apportion liability where no such liability lies. Neither is there evidence that the respondent contributed to the occurrence of the accident. None of the acts of contributory negligence pleaded were proved by the appellant who never tendered any evidence to substantiate those pleaded acts.

67. Indeed, no court of law can apportion liability against a non-party to the suit.This is what Order 1 Rule 15 of the Civil Procedure Rules abhors. See the cases of Pauline Wangare Mburu vs Benedict Raymond Kutondo & Another (2005) eKLR; James Gikonyo Mwangi vs DM [2016] eKLR; Brian Muchiri Wachenya vs Jubilee Hauliers Limited & 2 Others [2017] eKLR and Mary Njeri Murigi vs Peer Macharia & Another [2010] eKLR.

68. Therefore, albeit the trial magistrate did not make a clear finding and reason why she held the Appellant liable, this court being a first appellant court is enjoined to consider the evidence on record as a whole and arrive at its own independent conclusion after evaluating the same and that is what I am doing now as I write this judgment. See Kenya Horticultural Exporters Limited vs Julius Munguti Maweu Civil Appeal No. 9 of 2004 where the Court of Appeal held thus:“On a first appeal the court has the duty of re-evaluating the evidence, assess it and make its own conclusions without overlooking the conclusions of the trial court.”

69. The state of the road was not stated at that time but it was at night hence the driver ought to have been driving with due care and attention. He lost control of the accident Motor Vehicle yet there is no evidence that the Motor Vehicle was defective prior to the accident or that it suddenly got defective.

70. From my assessment of PW 2’s evidence and the Occurrence Book report, the driver PW 2 was not driving with due care and attention which is one of the pleaded acts of negligence by the Respondent, and that is why he lost control of the accident Motor Vehicle, went zigzag and veered off the road. He was in my view, to blame for the accident and the fact that he was the agent, servant of the appellant herein, the latter is vicariously liable for acts of negligence attributed to the driver/agent/servant, PW 2.

71. The Respondent having been a passenger in the said Motor Vehicle and which passenger was in my view, authorized by virtue of his proven employment with the appellant and the assigned duties of a loader-turnboy, and in the absence of any evidence to support the pleaded acts of contributory negligence by the Appellant, I find no reason to hold him to have contributed to the accident. On whether a passive passenger can be held to have contributed to the occurrence of an accident, Okwengu J (as she then was) in Samuel Mukunya Kamunge vs John Mwangi Kamuni (Nyeri HCCA No. 34 of 2002), had this to say and I concur that:“Where the deceased was a passive passenger in the Motor Vehicle and the evidence adduced shows that the accident was caused by a tyre burst and that the driver lost control of the Motor Vehicle, without an explanation how the accident occurred, the evidence was sufficient to establish on a balance of probabilities that there was negligence on the part of the Respondent’s driver hence his inability to control the vehicle as a rear tyre burst would not ordinarily cause a Motor Vehicle to overturn if the vehicle is being driven at a reasonable speed with due case and attention.”

72. The learned Judge also cited the holding in Gian Singh Paneci & Others vs Lochab & Another (1966) EA 401 where Trvelyan J. stated that:“…this finding only affects the 1st Plaintiff, who was the driver for the passengers in the car were not identified with the driver’s negligence. In such circumstances it is no defence for the defendants to prove that someone else contributed to the accident.”

73. In the instant case, just like in the case I have cited above, the Respondent maintained that he had the seat belt on and there was no contrary evidence. The fact that the driver lost control of the Motor Vehicle which he was driving and his explanation for losing control thereof is not consistent, the only conclusion that this court makes is that he was driving without due care and attention, and it matters not that he was not charged with any offence in the self-involved accident.

74. On whether PW2 should have been charged with any offence, the Court of Appeal in Calistus Ochieng Oyato & Others vs Mr. & Mrs. Aoko Civil Appeal No. 130 of 1996, stated that police do conduct their investigations for their own purpose and a party cannot be expected to direct them on how to do it.

75. The appellant’s counsel in her submission delved deep into every aspect of the answers given by PW 1 and PW 2 in cross-examination and urged this court to find that the trial court should have found in the Appellant’s favour that those answers formed a rebuttal by the defence. Further, the trial magistrate has been castigated that she fell in error when she found that failure to call any evidence by the Appellant left the court to conclude that the Respondent’s case had been proved on a balance of probabilities.

76. The answer to the above lamentation lies in various decisions reached by the Court of Appeal and the High Court on the same issues. Thus, on whether answers in cross-examination and even submissions can amount to rebuttal evidence and therefore whether failure to call any other evidence to rebut the evidence adduced by the Plaintiff should never be used to find fault against a party not calling such rebuttal evidence as it is in this case, in Mary Njeri vs Peter Macharia & Another (2016) eKLR, this court held that “pleadings, answers in cross-examination and or submissions do not amount to evidence or defence. It follows therefore that however serious the cross examination was and however fervent and vehement the statement of defence is ae not evidence.”

77. In Daniel Toroitich Arap Moi & Another vs Mwangi Stephen Murithi & Another [2014] eKLR it was held that:“Submissions cannot take the place of evidence. The Respondent failed to prove his claim by evidence. What appeared in submissions could not come to his aid…submissions are generally parties’ marketing language…”

78. Cross examination and submissions are important in that they are tactical responses to the adverse party’s case but they are not evidence for the party cross-examining and or submitting and cannot be a basis for dismissing the adverse party’s case unless the case is so hopeless that it cannot survive the rigors of cross examination or submission on a point of law or fact or that even without cross examination, the case is so hopeless that no cause of action is disclosed. That is not the case here.

79. In Joachim Ndaire Macharia vs Mary Wangare Ndaire & Another Nyeri HCCA No. 63 of 2006 it was stated that:“24. A litigant ought not and must not put suggestions to a witness of the opposite party if he does not desire to call evidence with regard to such suggestion. Parties ought to know that cases are never conducted on the basis of cross-examination alone but are conducted on the pleadings and evidence. Cross examination is a tool for building upon one’s case hence where there is a case in the first place, cross examination however thorough cannot make out a case as the purpose of cross examination is to test the veracity of the witnesses on his evidence in chief.”[emphasis added]

80. Madan JA in CMC Aviation Limited v Cruis Arif Limited (1) [1978] eKLR 103 observed further that:“pleadings contain averments of the parties concerned and until they are proved or disproved, or there is admission of them or any of them by the parties, they are not evidence and no decision could be founded upon them. Prove is the foundation of evidence.”

81. Thus in this case, the Respondent levelled allegations against the Appellant and called evidence to establish those allegations on a balance of probabilities. The Appellant in its written defence denied those allegations by the Respondent and went ahead to level counter allegations against the Respondent and an unnamed third party on how the latter two were responsible for the occurrence of the denied accident. However, apart from cross examination, no evidence was tendered to prove any of those counter allegations. That notwithstanding, the defence counsel expected the court to treat the answers in cross-examination to be the evidence for the defence in rebuttal and even accused the trial court of failing to find that failure by the Respondent to re-examine witnesses to rebut/counter the answers in cross examination was fatal to the Respondent’s case.

82. That stance by the defence counsel is, in my view, not founded on any principle of law at all and is therefore objectionable as the defence expected the plaintiff o establish its case beyond reasonable doubt. This is not a criminal case where proof of a charge is beyond reasonable doubt. I have already explained above what prove on a balance of probabilities is and what it entails and therefore a party in a civil suit cannot expect that the other party’s evidence is so flawless and watertight that every inconsistency detected must be taken to be fatal to the party’s case.

83. It is true that the answers given by PW 1, PW 2, and even PW 5 had some inconsistencies which counsel pointed out in her well written submissions. However, those inconsistencies do not invalidate the Respondent’s claim that he was employed by the Appellant as a loader/turnboy; that on the material night he was on duty and being curried in the Appellant’s KAZ 062L Isuzu NPR going to supply bread to customers, which vehicle was being driven by PW 2 who was on duty and employed by the Appellant; that the accident occurred on the night of 15th and morning of 16th December 2011 and that the Motor Vehicle in question lost control and went zigzag before it veered off the left side of the road and overturned in a trench upon which the Respondent sustained injuries.

84. I reiterate that answers in cross examination and submissions cannot form the basis of a party’s case/defence. See Samuel Ndungu Munkunya vs Nation Media Group Limited & Another [2015]eKLR.

85. In addition, under Section 109 of the Evidence Act, the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. In this case, if the Appellant wanted to disprove the pleadings and evidence adduced by the Respondent by its own evidence and if it wanted to prove that the denied accident occurred in the manner pleaded in the defence, the burden lay on the Appellant to adduce evidence to prove their allegations and to also disprove the evidence adduced by PW 1 that the vehicle lost control and veered off the road after zigzagging and landed in a trench.

86. To crown it all, the Court of Appeal in John Wainatina Kagwe v Hussein Daniry Limited Mombas Court of Appeal Civil Appeal No. 215 of 2010 – Githinji, Makhandia & Murgor JJA were clear that answers in cross examination cannot form a basis of a party’s case and that parties must tender evidence in support of their allegations against the adverse party. It therefore follows that the trial magistrate cannot be faulted for finding that the failure by the appellant to call any evidence for the defence to controvert the evidence adduced by the Respondent left her with no option but to find that the Respondent’s case had been proved on a balance of probabilities on liability.

87. I say so because the trial magistrate was well guided by established principles of law espoused in the decision which she cited among other decisions. Similar holdings can be found in the following cases: Edward Muriga through Stanley Muriga vs Nathaniel D. Schulter CA 23 of 1997; Motex Knitwear Limited vs Gopitex Knitwear Mills Limited Nairobi HCC No. 834 of 2002 citing Autar Singh Bahra & Another v Raya Goridji HCC No. 548 of 1998. In the Edwar Muriga through Stanley Muriga (supra) case, the Court of Appeal held that:“…a part from filing its statement of defence, the Defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations… Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”

88. In Kenya Akiba Micro Financing Limited v Ezekiel Chebii & 14 Others [2012] eKLR, it was held that a statement made on oath should as a matter of act be expressly denied on oath. If not challenged, it remains a fact and the truth for that matter.

89. In the instant case, therefore, I am persuaded that in the absence of any contrary evidence, the Respondent’s testimony on the occurrence of the accident proved on a balance of probability that PW 2 did not drive with due care and attention hence losing control of the Appellant’s Motor Vehicle. The Respondent did not have to prove all the particulars of negligence pleaded. What was expected of him was to establish that the Appellant and its driver owed him a duty of care; that that duty of care was breached and that as a result of that breach, the Respondent suffered damages. Those are the essential ingredients of the tort of negligence.

90. For the above reasons, I am not persuaded by the Appellant’s counsel’s submissions that the trial magistrate erred in law and fact in finding the Appellant liable for the accident save that my finding on liability is predicated on the evidence of PW 1 and the Occurrence Book extract where the driver stated that he lost control of the Motor Vehicle following an obstruction by a Salon car yet he could not explain why he could not control the vehicle and in his sworn testimony, he claimed that the vehicle had defects contrary to his own assertion that the vehicle was maintained and that the inspection report revealed no pre accident defects.

91. I find no substance in the submission by the Appellant’s counsel that no negligence was established by the Respondent to warrant rebuttal evidence on liability by the Appellant. In this case, even if the respondent was asleep when the accident occurred, it was upon the appellant’s drive to explain how the accident occurred and or why it did occur.

92. Onto the ground of Appeal No. 6 which was argued as Ground No. 2 by the Appellant’s counsel, it was submitted that the award for loss of earnings was erroneously awarded when the same had not been pleaded and proved. It was submitted that no evidence of earnings by the Respondent was adduced and that the medical documents produced by PW 1 never established any disability which would have led to loss of earning capacity hence the Respondent was not entitled to the damages awarded. For avoidance of doubt, there is a difference between loss of earnings and loss of earning capacity and the appellant’s counsel referred to loss of earnings. I will explain this out in the succeeding paragraphs.

93. I have perused the Plaint by the Respondent as filed and I have also reproduced a substantial part of the said Plaint in my introductory part of this judgment.

94. Apart from special damages of Kshs.1500 claimed, the Respondent claimed damages for pain and suffering. There is totally no mention of loss of earnings or loss of earning capacity. I agree with the appellant’s counsel that Parties are bound by their pleadings and this is a cardinal principle of law.

95. In Dakianga Distributors (K) Limited vs Kenya Seed Company Limited (2015) eKLR, the Court of Appeal stated as follows on the importance of pleadings to which Odunga J (as he then was added flavor in Alex Njoroge & Another vs Florence Nduku Mutua [2021] eKLR :“A useful discussion on the importance of pleadings is to be found in Bullen and Leake and Jacob’s precedents of Pleadings, 12th Edition, London, Sweet & Maxwell (The common law Library No. 5) where the learned authors declare:-“The system of pleadings operates to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the court will be called upon to adjudicate between them. It thus serves the two-fold purposes of informing each party what is the case of the opposite party which he will have to meet before and at the trial, and at the same time informing the court what are the issues between the parties which will govern the interlocutory proceedings before the trial and which the court will have to determine at the trial.” 40. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. To condemn a party on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on ground on which his evidence has been improperly excluded. (See Esso Petroleum C. Ltd v Southport Corporation [1956] AC 218 at 238. )

41. In Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 Others; Civil Appeal No. 219 of 2013 [2014] eKLR, G. B. M. Kariuki J, P. O Kiage J and K. M’inoti J after making reference to authorities cited by Counsel held as follows:-“As the authorities do accord with our own way of thinking, we hold them to be representative of the proper legal position that parties are bound by their pleadings which in turn limits the issues upon which a trial court may pronounce. The learned Judge, no matter how well-intentioned, went well beyond the grounds raised by the petitioners and answered by the respondents before her and thereby determined the petition on the basis of matters not properly before her. To that extent, she committed a reversible error, and the appeal succeeds on that score.”

42. The court of Appeal in Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 Others; Civil Appeal No. 219 of 2013 [2014] eKLR while quoting with approval an excerpt from an article by Sir Jack Jacob entitled “The present Importance of pleadings” restated that:-“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice…. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called “Any Other Business” in the sense that points other than those specific may be raised without notice.” 43. The same position was adopted by the Malawi Supreme Court of Appeal in Malawi Railways Ltd v Nyasulu [1998] MWSC 3.

44. In MNM v DNMK & 13 others [2017] eKLR it was held that“Decisions abound from this Court that unequivocally declaim the power of a court to determine issues which the parties have not raised in their pleadings or otherwise by consent allowed the court to determine. For example in Chalicha FCS Ltd v. Odhiambo & 9 Others [1987] KLR 182, the Court held that:“Cases must be decided on the issues on the record. The court has no power to make an order, unless by consent, which is outside the pleadings. In this instance, the issues raised by the Judge and the order thereon, was a nullity.”Later in Kenya Commercial Bank Ltd v. Sheikh Osman Mohammed, CA No. 179 of 2010 the Court expressed itself thus:“It is not the function of a court in civil litigation to speculate or surmise as to the nature of the plaintiff’s claim. Pleadings must be deployed to serve their function, namely to inform the other party, and the court, with sufficient clarity what their case is so that the other party may have a fair opportunity to meet that case and more importantly, so that the issues for determination by the court are clear.”A court may validly determine an unpleaded issue where evidence is led by the parties and from the course followed at trial it appears that the unpleaded issue has been left to the court to decide (See Odd Jobs v Mubea [1970] EA 476). However that was clearly not the case in this appeal.”

45. That settled position was re-affirmed by the court of appeal in the case of Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 Others [2014] eKLR which cited with approval the decision of the supreme Court of Nigeria in Adetoun Oladeji (NIG) v Nigeria Breweries PLC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings:-“...it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded...In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”

46. The death knell for parties who wander away from their pleadings was sounded by the Supreme Court in Raila Amolo Odinga & Another v IEBC & 2 Others 92017) eKLR where it expressed itself as follows:-“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings....”

96. In his witness statement and testimony on oath, the Respondent testified that he used to earn Kshs. 400 per day and that for the 2 months that he was out of work, following the accident, he was not able to work and that the court should compensate him for loss of earning capacity because he could not work.

97. In the judgment, as impugned herein, the trial magistrate relied on submissions by the Respondent’s counsel on the claim for loss of earning capacity and she adopted 8,000 as the minimum wage of an unskilled worker and awarded him the claim for loss of earning capacity, using the multiple of 15 years arriving at Kshs.1,440,000.

98. As I have stated above, there was no pleading for this damage and therefore the question is whether the claim ought to have been pleaded and proved or it was a general damage claim where it was not necessary or mandatory to plead separately and prove.

99. The Court on Appeal is discouraged from interfering or disturbing the quantum of damages awarded by a trial court unless it is established that either the trial court in assessing 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 (see Kemfro Africa Limited t/a Meru Express Service & Gathogo Kanini v A.M Lubia & Olive Lubia [1982 – 88] 1 KAR 727 P. 730.

100. See also Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR; Gicheru vs Morton & Another [2005] 2 KLR 333 and Major General Peter M. Kariuki vs Attorney General Civil Appel No. 79 of 2012. (cited is Kiambu HCCA No. 136 of 2016 [2020] eKLR.

101. Both parties submitted on the issue of loss of earnings and loss of earning capacity awarded to the Respondent by the trial court, which loss was never pleaded. The Appellant submitted that loss of earning capacity as raised in submissions is a special damage which ought to have been pleaded and proved while the Respondent submitted that loss of earnings is a general damage which need not be pleaded separately for the Respondent to be entitled to relief. Reliance was placed on Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR where the court relied on Butler v Butler case. However, the quote from the cases cited related to the claim and principles on the award for loss of earning capacity and not loss of earnings.

102. From time immemorial, the Court of Appeal has distinguished between loss of earnings and loss of earning capacity. I will endeavor to give that distinction which is now settled to establish whether the Respondent was entitled to the award of loss of earning, capacity which were never pleaded or at all.

103. The trial magistrate in her judgment gave an award of loss of earning capacity and not loss of earnings. The trial court also noted that the Plaintiff in his submission sought for loss of earning capacity. From the submission by the Respondent in this appeal, he no doubt mixed up the claim and award for loss of earnings and loss of earning capacity. I will distinguish the two as stated by the Court of Appeal severally.

104. In Cecilia W. Mwangi & Another v Ruth W. Mwangi – Nyeri CA Civil Appeal No. 25` of 1996 [1997]eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim. It must be pleaded and strictly proved. The damages under the head of ‘loss of earning capacity’ can be classified as general damages but these have also to be proved on a balance of probabilities.”

105. Further, in Douglas Kalafa Ombera v David Ngama [2013] eKLR, the Court of Appeal held that:“loss of earnings is a special damage claim, and it is trite law that special damages, must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically.” In SJ v Francessco D. Nello & Another [2015] eKLR the Court of Appeal further stated that:-“claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages once proved. This was the position enunciated in Fairley v John Thomson Limited [1973] 2 Lyods’ Law Reports 40 wherein Lorn Denning M.R said 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. Learned counsel for the Respondent was therefore wrong in stating that loss of earning capacity was not pleaded and that it was not proved though it was a claim under loss of income or future earnings.”[emphasis added]

106. From the above binding decisions, it is clear that loss of future earnings must be pleaded and proved as they are in the nature of special damages. On the other hand, loss of future earning capacity need not be pleaded as it is in the nature of general damages. However, it must be proved on a balance of probabilities. Thus, even if loss of earning capacity need not be pleaded, it must be proved that as a result of the accident and the injuries suffered, the claimant was exposed to either losing his job in the future or that in case he had lost his job, his chances of getting an alternative job (earning capacity) in the labour market were slim. Such that even if it was not mandatory for the Respondent in this case to have pleaded the loss of earning capacity, he had to prove that he was no longer in employment or that the chances of him gaining employment in the future were diminished as a result of the injuries that he sustained following the accident.

107. The Respondent was a turnboy/loader, from the evidence adduced by him and PW 2. The medical report produced as an exhibit as well as the hospital treatment notes show that he sustained injuries involving burns by water from the radiator when the vehicle rolled. The burns were on the chest, abdomen, his private parts, thighs and back and the penis. He stated that he cannot stand for long and he could not bear children due to the burns as he could not erect. He was admitted in hospital on the same day of the accident and discharged the following day on his own accord although he had not improved, from the remarks given by the discharging hospital. The burns were said to be 10% according to the medical evidence adduced. He stated that he was now jobless.

108. Throughout that evidence by the Respondent, there is no mention that the Respondent suffered injuries which made it impossible for him to work as a casual labourer. The fact that the Respondent lost his job with the Appellant and was not in employment at the time that he was testifying in court was not evidence of loss of earning capacity. It was upon him to prove that the injuries he had suffered were of such magnitude that he suffered incapacity of working then or in future so that the court would calculate that loss.

109. The Respondent never stated how his capacity to work and eke a living as a turnboy or loader or any other casual job was affected.

110. For the above reasons, I find and hold that the learned trial magistrate erred in law and fact in awarding the Respondent damages for loss of earning capacity in the absence of evidence that the Respondent’s earning capacity had been diminished. Accordingly, the award is hereby set aside.

111. On whether the general damages for pain and suffering as awarded was excessive in the circumstances, it was not in dispute that following the accident in issue, the Respondent sustained injuries involving burns as stated in the discharge summary and medical report. The Respondent testified that he was burnt with water from the radiator. The Discharge Summary shows general body burns and chest pain, loss of consciousness during the accident, 10% body burns involving genitalia and that all other systems were normal. Treatment received involved open dressing, tetanus toxoid, injection, amoxil, brufen, topical silver sulphadiazi, diclofenac and cloxacilline. The Respondent requested to be discharged from hospital although he had not improved at the time that he was being discharged.

112. The respondent never produced any other medical documents to show that he went to another hospital for medical attention meaning, he got well with the medication that he was given at the Kendubay District Hospital.

113. As at 23rd March 2013 when Dr. Okombo examined him which was 4 months later, he complained of chest pain, pain on the abdomen, pain on the scrotum, pain on the back and loss of libido, pain in the left thigh and buttocks. His general condition was said to be good.

114. According to Dr. Okombo, the scars left needed reconstruction surgery while loss of libido needed further investigation with consequent and appropriate treatment. He also needed physiotherapy and analgesics.

115. When the respondent testified in court, there was no evidence that he had seen another doctor or gone to another hospital for further treatment and indeed he conceded that he had no record that he was undergoing any treatment and this was in 2017, 5 years after the accident.

116. In Simon Taveta v Mercy Mutitu Njeru Civil Appeal No 26 of 2013 [2014] eKLR, the Court of Appeal stated that:“The context in which the compensation for the Respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.” In the instant case, the Appellant proposed Kshs.100,000 general damages. The Respondent proposed Kshs.3,000,000 general damages.

117. In Rashid Ali Faki v A.O Said Transporters [2016] eKLR Rika J awarded Kshs. 600,000 general damages to the Appellant turnboy who suffered 30% surface burns during welding. In this case, the trial magistrate awarded the Respondent Kshs.1,200,000 General damages for pain and suffering.

118. I have considered the authorities relied on by the Respondent’s counsel and those of the Appellant’s counsel. I find that those relied on by the Respondent’s counsel had more serious injuries while those relied on by the Appellant’s counsel had less serious injuries.

119. In this case, apart from the 10% burns on the body, the Respondent also lost libido albeit there was no evidence that he had sought for treatment as advised by Dr. Okombo meaning had he gone for treatment, most likely, he could have been assisted and the situation rectified.

120. In John Machoka v Kenya Power and Lightening Company Limited [2004] eKLR where the Plaintiff suffered intense inflammation of the testicular tissue and penile shaft, deep burns on the right side of the tongue and right leg exposing the tibia bone with multiple inflamed tissue of right hand and both thighs, loss of libido at 95%, he was awarded Kshs.800,000 on 6th March 2004. The other body injuries were more serious.

121. In a much earlier case of Simon Nganga Kibunja vs James Kihara Wambugu, Nairobi HCCC No. 2214 of 1984 the plaintiff who suffered impotence and paralysis from the waist and permanent incapacity was assessed at 100% was awarded Kshs.600,000 general damages.

122. In Master Peter v Attorney General & Municipal Council of Mombasa HCCC No. 2670 of 1986, the Plaintiff was awarded Kshs.180,000 for 2nd degree burns on both legs and feet.

123. In Lilian Otieno v Joseph Kimani HCCC No. 2670 of 1988, the Plaintiff was awarded Kshs.150,000 for extensive burns on both legs following electrocution while working for the defendant.

124. In this case, the Respondent according to the Medical Report, was also unable to erect. However, the doctor recommended further investigations and treatment which the Respondent had not adhered to, to mitigate the damage as there could have been likelihood that the loss of libido was not permanent, with medical intervention and only if the Respondent had adhered to the Doctor’s advise and acted early enough.

125. The injuries sustained by the Respondent were classified as maim but were soft tissue injuries, according to Dr. Okombo. The scars needed reconstructive surgery but there is no evidence that the Respondent was keen on having the said surgery done since 2013. If that were to be the case, he would also have sought for damages for future medical expenses.

126. Taking into account the injuries sustained and the authorities cited above, and doing all I can as no two injuries can be the same, having regard to inflationary trends and time lapse since the awards in those cases cited above were made, I find that the trial magistrate awarded the Respondent damages that were manifestly excessive. I set it aside the award of kshs 1,200,000 general damages for pain and suffering and substitute the award with an award of kshs 600,000.

127. The general damages awarded shall earn interest at court rates from the date of judgment in the lower court until payment in full.

128. Each party to bear their own costs of this appeal as the appellant has not succeeded on all fours. It has only succeeded on quantum and not on liability.

129. This file is closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 3RD DAY OF OCTOBER, 2023R.E. ABURILIJUDGE