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Mikua v Nthiga (Civil Appeal E001 of 2023) [2025] KEHC 12439 (KLR) (4 September 2025) (Judgment)

Mikua v Nthiga (Civil Appeal E001 of 2023) [2025] KEHC 12439 (KLR) (4 September 2025) (Judgment)
Citation
Mikua v Nthiga [2025] KEHC 12439 (KLR)
Media Neutral Citation
[2025] KEHC 12439 (KLR)
Court
High Court
Court station
High Court at Meru
Outcome
Dismissed
Case number
Civil Appeal E001 of 2023
Judges
HM Nyaga
Judgment date
4 September 2025
Language
English
Type
Judgment
Original source file
Download DOCX (80.2 KB)
Collections
Date published
10 September 2025
Case action
Judgment
Court division
Civil
Filing county
Meru
Order
In light of the above analysis, I find that the Appeal is devoid of merit. It is hereby dismissed with costs to the respondent.
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1.By a Plaint dated 9th June, 2021, the Appellant herein (the Plaintiff before the trial court) instituted a suit against the Respondent herein (the Defendant before the trial court) in Meru CMCC No. 263 of 2021. In the said suit, the Appellant sought judgment for general damages, special damages, loss of earning and costs of the suit.
2.The Appellant’s claim arose from a road traffic accident that occurred on or about 10th December,2020 along Meru-Mitunguu Road involving motorcycle registration number KMDN 253T Captain and motor vehicle registration number KCD 251 B. The Appellant was a pillion passenger aboard the said Motor Cycle while the Respondent was the owner of the said Motor Vehicle.
3.The Appellant blamed the Respondent’s driver for driving the said motor vehicle so carelessly and negligently that it knocked him down and thereby occasioning him multiple injuries.
4.After full trial, the learned magistrate entered judgment for the Appellant against the Respondents in the following terms: -a.Liability 100%b.General Damages Ksh.800,000/=c.Special Damages Ksh.10,000/=d.Costs and Interests.
5.Aggrieved by the aforesaid decision of the trial court, the Appellant lodged this appeal vide the Memorandum of Appeal dated 28th November,2022 raising the following grounds: -a.That the trial Magistrate erred in law and in fact by awarding the Appellant an award that was way below the mark compared to the nature of injuries the Appellant sustained.b.That the trial Magistrate erred in law and in fact by failing to consider the degree of injuries that the Appellant sustained.c.That the trial Magistrate erred in law and in fact by failing to consider the evidence of loss of earnings, the permanent incapacitation and the costs of future medical expenses despite having been pleaded and proved.d.That the trial Magistrate erred in law and in fact by failing to award special damages despite having been pleaded and proved by documentary evidence.e.That the trial court erred in law and in fact by failing to consider the Appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.f.That the trial Magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is very low.g.That the trial Magistrate erred in law and in fact when making his award by failing to consider passage of time and incidence of inflation.
6.The Appellant is thus seeking that the trial court’s Judgement be set aside and this court be pleased to reassess the special and general damages payable to him.
7.The Appeal was canvassed by way of written submissions.
Appellant’s submissions
8.The Appellant submitted that the trial court failed to consider the pleadings and the evidence presented before it thereby arriving at awards that were inordinately low.
9.He thus urged this court to consider the authorities relied on before the trial court and adjudge this matter accordingly.
10.The Appellant referred this court to cases of Shah v Mbogo [1967] EA 116 and In Re Global Tours & Travel Ltd HCWC No. 43 of 2000 in support of his submissions.
11.The Appellant also prayed to be awarded costs of this Appeal.
Respondent’s Submissions
12.On general damages for pain, suffering and loss of amenities, the Respondent submitted that an award of ksh.800.000/= was fair, reasonable and based on correct principles. He argued that the authorities relied on by the trial court in making this award were applicable.
13.On future medical expenses, the respondent submitted that the same was neither pleaded nor proved.
14.With respect to loss earning, the respondent argued that this is a special claim which was not proved and therefore trial court rightly dismissed it.
15.The respondent thus submitted that the appeal is devoid of merit and urged this Court to dismiss it with costs.
Analysis & Determination
16.I have considered the grounds of appeal, the record of appeal and the submissions of the parties. It is patent that this Appeal is only against the quantum of damages awarded by the trial court. As such, the main issues that arise for determination are: -a.Whether the award of general and special damages by trial court was erroneous or unjustified and/or low in the circumstances of this case.b.Whether the court erred in failing to award the appellant loss of future medical expenses.c.Whether the court erred in failing to award the appellant loss of earning.
17.This is a first appeal. As a first appellate court, this Court has a duty to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing a conclusion from that analysis but bearing in mind the fact that this court did not have an opportunity to see and hear the witnesses first hand. This is captured by Section 78 of the Civil Procedure Act which espouses the role of a first appellate court which is to: ‘…… re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.’
18.This position was also buttressed by the Court of Appeal in the case of Peter M. Kariuki v Attorney General [2014] eKLR where it was held that:“We have also, as we are duty bound to do, as a first appellate court, to reconsider the evidence adduced before the trial court and revaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence.”[See also: Selle v. Associated Motor Boat Co. Ltd [1968] EA]
19.The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. This position finds support in the case of Stanley Maore v. Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR where the Court of Appeal held:“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
20.The same court, in Catholic Diocese of Kisumu V. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 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 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.”
21.The same court in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”.
22.I am to therefore determine whether the award of general damages of Kshs. 800,000/= in light of the injuries sustained by the Appellant was inordinately low to persuade this court to interfere with it.
23.It is not in dispute that the Appellant sustained the following injuries: -a.Compound tibia fibula fracture of the right lower limb.b.Degloving injuries to the distal third of the right leg and ankle.c.Extensive tissue injuries to the right lower limb.
24.During hearing, the Appellant adopted his written statement wherein he had stated that following the accident he was admitted at Consolata Hospital Nkubu for 21 days. The medical notes from the said hospital indeed confirm that the Appellant was admitted on 10th December,2020 and discharged on 31st December,2020.
25.Before the trial court, the Appellant proposed a sum of Ksh. 4,500,000/= citing the case of Guardial Singh Ghataurhae v Parminder Singh Manku & 3 others [2018] eKLR where the claimant sustained; Comminuted intra articular fracture of the right tibial plateau and metaphysic; Fracture right patella; Comminuted fracture of right distal radius; Osteoarthritis of right knee; Fracture of four ribs on right side & Severe lacerations, bruising and scarring and the Appellate court affirmed an award of Kshs. 2,500,000/= as general damages for pain, suffering and loss of amenities.
26.The Respondent on his part proposed a sum of Ksh.500,000/= under this head. He relied on the case of Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR, where R. E. Aburili J reduced an award of Kshs. 600,000/= to Kshs. 400,000/= on 29/5/2024 for head injuries with cut wounds, chest injuries, injuries on the left thigh, injuries to the right leg with cut wounds and a fracture and injuries on the left lower ankle joint.
27.In the impugned judgment, the learned trial magistrate was guided by his own chosen authorities of: -a.Francis Ndungu Wambui & 2 others V VK (a minor suing through next friend and mother MCWK) [2019] eKLR where the appellate court upheld the trial court award of Kshs.1,000,000/- as general damages for a claimant who suffered soft tissue injuries to the upper limbs, compound fracture of distal tibia fibula shaft as well as loss of consciousness for more 30 minutes after the accident and it was also noted due to the severity of the fracture he was at risk of secondary stress fractures on the same site.b.Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] eKLR where the Respondent sustained compound comminuted fracture of right tibia and fibula and degloving injury medial aspect of right leg and foot and was awarded Kshs. 800,000 general damages.c.Motrex Co. Limited & Another v Fidelis Njoki Gachoka H.C.C.A No. 205 of 2011, Mbogholi Msagha J. (as he then was) upheld the award of Kshs 800,000/= as General Damages for the Respondent who had sustained Open fracture of tibia and fibula of right leg and non-displaced fracture of right jaw. when surgery was done the open fracture was fixed with external fixators. The Respondent was hospitalized for three weeks. When the fracture head healed, she was put on plaster of Paris to strengthen the bone further which plaster was removed after three months. She had to endure a long course of painful treatment up till 8th August 2007.
28.I have considered the injuries sustained by the appellant, the submission of the parties and the cited authority therein. In my view, the injuries sustained by the plaintiff therein were much more severe compared to those sustained by the Appellant. The trial court correctly considered the evidence that was placed before it as well as the precedents cited by the parties in support of their proposals. I do not find any ground to find that the trial court erred in its assessment. I therefore uphold the lower court award of Ksh.800,000/= as general damages for pain and suffering.
29.With respect to Special Damages, it is trite law that special damages must be both pleaded and proved before they can be awarded. In the case of Hahn v. Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716, the Court of Appeal held as follows:“Special damages must not only be specifically claimed (pleaded) but also strictly proved …. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
30.In this case, The Appellant pleaded for Kshs. 97,398/= as special damages but only produced a receipt for Kshs. 10,000/= in respect of the medical report. The trial magistrate therefore rightly awarded him Kshs. 10,000/= as special damages being the only amount specifically pleaded and strictly proved.
31.The costs of future medical expenses is a special claim which needs to be specifically pleaded and proved before a court of law can award it. However, the same need not be specifically captured in terms of the exact costing.
32.The Court of Appeal in Tracom Limited & another V. Hassan Mohamed Adan [2009] eKLR extensively discussed this award and held as follows: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd v Gituma (2004) 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.” We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”
33.The Appellant neither pleaded nor prayed for the costs of future medical expenses. I have also perused the medical report dated 2nd February,2021 that was produced in evidence and it has no recommendation for any future medical treatment. The award was correctly rejected by the trial court.
34.On loss of earning, the Appellant pleaded for the same. During hearing he testified that prior the accident he could walk engage in farming but currently he was using crutch and thus is no longer able to do so. The trial court declined to make an award under this head for reason that the Appellant did not strictly prove loss of earning.
35.In S J V Francesco Di Nello & Another [2015] eKLR the Court of Appeal propounded the position enunciated in Fairley v John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40 at page 14 wherein Lord Denning M. R. said in part as follows:“It is important to realize that there is a difference between an award for loss of earning as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages”
36.In William J Butler v Maura Kathleen Butler [1984] eKLR [1984] KLR 225 at 232 Kneller JA defined loss of earning capacity and stated:“45.Loss of earning capacity is a different head of damages from an actual loss of future earnings which can readily be proved at the time of the trial. The difference was explained by Lord Denning M.R. in Fairely V John Thompson (Design & Contracting Division) Ltd [1973] 2 Lloyd’s Rep 40,42(CA)…...Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution of earning capacity is awarded as part of the general damages.”
37.From the foregoing, damages under the head of loss of earning is the income the Appellant lost during the recovery period as a result of the accident and is therefore a special damage claim. Being a special damage claim the same has to be proved. The Appellant did not tender any cogent proof and therefore the trial court was right in not granting the same.
38.In light of the above analysis, I find that the Appeal is devoid of merit. It is hereby dismissed with costs to the respondent.
39.It is so ordered.
DATED, SIGNED AND DELIVERED AT MERU THIS 4TH DAY OF SEPTEMBER 2025.H. M. NYAGAJUDGE.
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Date Case Court Judges Outcome Appeal outcome
4 September 2025 Mikua v Nthiga (Civil Appeal E001 of 2023) [2025] KEHC 12439 (KLR) (4 September 2025) (Judgment) This judgment High Court HM Nyaga  
16 November 2022 ↳ CMCC No. 263 of 2021 Magistrate's Court John M. Njoroge Dismissed