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Court of AppealPartially AllowedCivil Appeal E066 of 2026

China National Aerotechnology International Engineering Corporation v Chemurogo

Court of Appeal
25 September 2026
2,739 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal upheld a Kshs 6.56 million award to a man who lost both legs after a lorry crushed him, confirming courts can compensate future medical costs and lost earning capacity.

What this practically means

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Executive summary

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This was a second appeal against the High Court's decision on a first appeal arising from a road traffic accident in which the respondent, a 35-year-old farmer, suffered bilateral above-knee amputations and 100% permanent disability when crushed by the appellant's lorry while retrieving a volleyball from a playing field being graded. The subordinate court had apportioned liability 70:30 in the respondent's favour and awarded Kshs 9,559,200 after contributory negligence; the High Court upheld liability but reduced quantum to Kshs 6,563,585 after striking out the unproved domestic worker claim and requiring an election between an artificial limb and a motorized wheelchair. The Court of Appeal, comprising Nyamweya, Ngetich and Radido JJA, held that its jurisdiction was confined to matters of law under Section 64(1) of the Civil Procedure Act, and that the substantive grounds raised questions of law despite some fact-framed grounds. It upheld the 70:30 apportionment as reasonable and not perverse, declined to interfere with the Kshs 6,000,000 general damages award for the grievous injuries, and upheld the artificial limb and future treatment awards as sufficiently proved by unchallenged medical evidence. It struck out only the unpleaded Kshs 550 for the search certificate, and reclassified the Kshs 2,000,000 'loss of income' award as general damages for loss of earning capacity, upholding the sum. Final judgment was entered at Kshs 6,563,200 after 30% contributory negligence, with costs of the appeal to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the findings on liability were erroneous.
  2. 2.Whether the award on general damages was inordinately high.
  3. 3.Whether the special damages, including future medical expenses and the artificial limb, were properly pleaded and proved.
  4. 4.Whether the award for loss of income/earning capacity was justified.

Key legal issues

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01

Scope of second appeal jurisdiction

Holding

The appeal properly lies under Section 72 as the substantive complaints raise questions of law despite some fact-framed grounds.

Reasoning

The respondent objected that the appeal was factual. The Court held that while some grounds touch facts, the substantive complaints - re-evaluation of evidence on liability, distinction between loss of income and earning capacity, and unpleaded special damages - raise questions of law, so the appeal properly lies before it.

p. 3
02

Liability and contributory negligence

Holding

The 70:30 apportionment was reasonable and not perverse; the appeal on liability fails.

Reasoning

Concurrent findings were that the respondent was playing volleyball in the field being graded, his ball went under the lorry, and he was crushed retrieving it after a 'nod' from the driver. The driver knew of his presence yet moved the vehicle without ensuring safety; drunkenness was a factual issue negatively determined below and cannot be re-appraised.

p. 4
03

General damages quantum

Holding

Kshs 6,000,000.00 for general damages was commensurate with the life-altering injuries; appeal fails.

Reasoning

Bilateral above-knee amputations with 100% permanent disability are grievous. Comparable awards are guides, not exact templates; the lower courts properly considered comparable awards including inflation. The absence of brain damage in comparables did not render the award excessive.

p. 4
04

Special damages and future medical expenses

Holding

Items awarded were identifiable and supported by medical evidence, save the unpleaded Kshs 550.00 for the search certificate which was struck out.

Reasoning

Special damages must be specifically pleaded and strictly proved. The respondent pleaded Kshs 150,000 medical expenses and Kshs 25,000 medical report. The Kshs 550 search certificate was unpleaded and struck out. Future expenses were proved by Dr. Sokobe's unchallenged medical evidence; no rebuttal expert was called and qualifications were not challenged in cross-examination.

p. 4
05

Loss of income vs loss of earning capacity

Holding

The Kshs 2,000,000.00 award was erroneously entered as special damages but upheld as general damages for loss of earning capacity.

Reasoning

Loss of earnings requires strict proof as special damage; loss of earning capacity falls under general damages. The pleaded Kshs 20,000 monthly income was not strictly proved, but the 100% permanent disability of a 35-year-old farmer justified a global award, supported by comparable awards.

p. 5

Legal principles established

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  • On a second appeal, the Court of Appeal's jurisdiction is confined to matters of law and concurrent findings of fact will not be disturbed unless based on no evidence or a misapprehension of the evidence.
  • Special damages must be specifically pleaded and strictly proved with as much particularity as circumstances permit.
  • Future medical expenses, though within general damages, must be specifically pleaded and proved.
  • The law distinguishes loss of earnings (special damage requiring strict proof) from loss of earning capacity (compensated under general damages).
  • An appellate court interferes with damages only where the award is inordinately high or low as to be a wholly erroneous estimate or based on a wrong principle.

Court orders

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  1. 1.The unpleaded award of Kshs 550.00 for the certificate of motor vehicle records is set aside.
  2. 2.Final judgment entered: General Damages Kshs 6,000,000.00; Loss of Earning Capacity Kshs 2,000,000.00; Special Damages Kshs 1,376,000.00; Total Kshs 9,376,000.00 less 30% contributory negligence (Kshs 2,812,800.00) = Kshs 6,563,200.00.
  3. 3.The respondent shall have the costs of this second appeal.

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court at Bungoma
BUNGOMA HCCA NO. 80 OF 2020
Jurisdiction invoked
Section 64(1) of the Civil Procedure Act (second appeal limited to matters of law); Section 72 of the Civil Procedure Act

Relief refused

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Challenge to apportionment of liability at 70:30

Apportionment was reasonable and not perverse; concurrent findings of fact not interfered with.

Challenge to general damages award of Kshs 6,000,000.00

Award commensurate with grievous bilateral above-knee amputations and 100% permanent disability.

p. 4

Challenge to artificial limb and further treatment expenses

Estimates sufficiently proved by medical evidence; receipts impossible where treatment not yet undertaken.

p. 5

Setting aside the Kshs 2,000,000.00 award for loss of income

Award upheld but reclassified as general damages for loss of earning capacity.

p. 5

Costs

Since the appeal has substantially failed, the respondent shall have the costs of this second appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Concurrent findings of fact by the two courts below shall not be interfered with unless they are based on no evidence or resulted from a misapprehension of the evidence.
Second appeal - concurrent findings of fact
it is trite law that special damages must be specically pleaded and strictly proved with as much particularity as circumstances permit
p. 4Special damages - pleading and proof
a claim for future medical expenses, though within general damages, needs to be specically pleaded and proved.
p. 5Future medical expenses
the law distinguishes between "loss of earnings" (actual loss, which is a special damage requiring strict proof) and "loss of earning capacity" (diminution in earning capacity, compensated under general damages)
p. 5Loss of earnings vs earning capacity
This Court will only interfere with an award of damages if it is inordinately high or low as to represent a wholly erroneous estimate, or if it was based on a wrong principle
p. 4Interference with quantum
Since the appeal has substantially failed, the respondent shall have the costs of this second appeal.
p. 6Costs - final orders
The nal judgment is entered as follows: General Damages: Kshs 6,000,000.00Loss of Earning Capacity: Kshs 2,000,000.00Special Damages: Kshs 1,376,000.00Total: Kshs 9,376,000.00 Less 30% contributory negligence (Kshs 2,812,800.00) = Kshs 6,563,200.00.
p. 5Final orders - adjusted judgment

Issues in the judgment

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minor

Coram lists 'S RADIDO' but signature block reads 'RADIDO S. OKIYO'; same judge rendered inconsistently.

minor

Judgment states total award less 30% as Kshs 6,563,585 in the High Court figures, but arithmetic on the listed figures yields a different sum.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "China National Aerotechnology International Engineering Corporation v Chemurogo", Case Analysis (2026). Civil Appeal E066 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2077/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.