Ndiso v Wahome & 2 others (Civil Appeal E001 of 2023) [2026] KECA 1499 (KLR)
The bottom line
#Kenya's Court of Appeal raised a road accident victim's compensation to Kshs. 3.5 million but confirmed that unpleaded claims and unstated losses won't be awarded.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned trial Judge was in error in his determination of liability
- 2.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
- 3.Whether the learned trial Judge rightly declined to award adequate damages for loss of earning capacity
- 4.Whether the award for future medical expenses, including the cost of prosthesis and maintenance, was sufficient
Key legal issues
#Liability for the road traffic accident
The trial Judge correctly held that the driver of KAL 022H was wholly and solely liable; the 3rd Respondent bore no liability, and no apportionment was warranted as between an innocent passenger and the owners of the vehicles
The Court re-evaluated the evidence of PW1 and DW1, both of which placed the matatu KAL 022H on the wrong side of the road at the point of collision. Applying the common-sense approach of Stapley v Gypsum Mines and the passenger-apportionment rule in David Onchangu Orioki, the Court found no evidence of wrongdoing by the driver of KAA 584G. The 1st and 2nd Respondents did not adduce evidence, so their defences remained mere allegations.
Adequacy of general damages for pain, suffering and loss of amenities
The award of Kshs. 2,500,000 was inordinately low for traumatic amputation of the left leg, multiple fractures, blunt trauma and 50% permanent disability; enhanced to Kshs. 3,500,000
Guided by the principles in Catholic Diocese of Kisumu v Sophia Achieng Tete and Bashir Ahmed Butt v Uwais Ahmed Khan, and benchmarking against comparable awards including James Maina Muriithi, Elgon Kenya Ltd v Peter Musyoka Kamuya, and Kenya Agricultural Research Institute v Nickson Muthoka Mutava, the Court considered the Appellant's age, 50% disability and prevailing economic conditions, and fixed Kshs. 3,500,000 as fair and consistent with current judicial awards.
Loss of earning capacity
The trial Judge rightly declined a separate award; the claim was not specifically pleaded or proved, and the lump sum general damages award already incorporated loss of earning capacity
Applying the Mumias Sugar Company v Francis Wanalo principles, the Court held loss of earning capacity can be a separate head or part of general damages. Here the claim was omitted from the Amended Plaint and the Appellant produced no books of account or council papers evidencing earnings. The Judge had properly factored it into the lump sum, which the Court increased to Kshs. 3,500,000, rendering a separate award unnecessary.
Future medical expenses (prosthesis and maintenance)
The award of Kshs. 550,000 was proper; it exceeded the amounts specified in the uncontroverted medical evidence and reflected a reasonable judicial discretion
PW2 had assessed the prosthesis at approximately Kshs. 370,000 with annual reviews of Kshs. 10,000, and noted rising costs. The trial court's global award of Kshs. 550,000 accounted for the initial prosthesis, future reviews and maintenance. The appellate court found no basis to interfere with that exercise of discretion.
Legal principles established
#- On a first appeal, the Court of Appeal must re-analyse and re-assess the evidence and reach its own independent conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses
- As between a passenger and the owners/drivers of two colliding vehicles, the owners' liability is 100% joint and several and no apportionment arises unless the passenger was negligent
- An appellate court may interfere with quantum only where the trial court applied wrong principles, misapprehended the evidence, or arrived at a figure so inordinately high or low as to be an entirely erroneous estimate
- Loss of earning capacity may be awarded as part of general damages for pain, suffering and loss of amenities or as a separate head, with no fixed formula, provided correct principles and relevant factors are applied; a claim not pleaded or unsupported by evidence cannot ground a separate award
Court orders
#- 1.Appeal allowed in part only as regards the award of general damages
- 2.General damages for pain, suffering and loss of amenities increased from Kshs. 2,500,000 to Kshs. 3,500,000
- 3.All other grounds of appeal dismissed, including the finding on liability, the refusal of a separate award for loss of earning capacity, and the award of Kshs. 550,000 for future medical expenses
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Mombasa)
- Not stated in the judgment
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (statutory first appeal from the High Court); no specific provision quoted
Relief refused
#Apportionment of liability at 30% against the 1st and 2nd Respondents and 70% against the 3rd Respondent
Both accounts of the evidence showed the driver of KAL 022H drove onto the wrong side of the road; the 3rd Respondent contributed nothing to the accident, and as an innocent passenger the Appellant could not seek apportionment between the owners
A separate award for loss of earning capacity
The claim was not specifically pleaded and no credible evidence of earnings was led; the Judge had already factored loss of earning capacity into the lump sum award for general damages
Enhancement of the award of Kshs. 550,000 for future medical expenses (prosthesis and maintenance)
The award was over and above the amounts specified in the uncontroverted medical evidence and was a reasonable exercise of judicial discretion
Costs
Each party to bear their own costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In sum, the appeal succeeds in part and fails in part. In efiect, 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.
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.
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.
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.
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 sufiered that was assessed at 50%, as well as the prevailing economic conditions, an award of Kshs. 3,500,000 for pain, sufiering and loss of amenities is fair, reasonable and consistent with current judicial awards.
Issues in the judgment
#The judgment text does not state the case number or neutral citation of this appeal, nor the case number and date of the High Court decision appealed from
The delivery clause lists only two judges by name and appends an unlabelled third line ('JUDGE OF APPEAL') followed by the names A. K. MURGOR and P. NYAMWEYA, making the coram slightly irregular in formatting; the three-judge bench is nonetheless discernible
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndiso v Wahome & 2 others (Civil Appeal E001 of 2023) [2026] KECA 1499 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1499/eng@2026-07-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.