China National Aerotechnology International Engineering Corporation v Chemurogo
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the findings on liability were erroneous.
- 2.Whether the award on general damages was inordinately high.
- 3.Whether the special damages, including future medical expenses and the artificial limb, were properly pleaded and proved.
- 4.Whether the award for loss of income/earning capacity was justified.
Key legal issues
#Scope of second appeal jurisdiction
The appeal properly lies under Section 72 as the substantive complaints raise questions of law despite some fact-framed grounds.
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.
Liability and contributory negligence
The 70:30 apportionment was reasonable and not perverse; the appeal on liability fails.
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.
General damages quantum
Kshs 6,000,000.00 for general damages was commensurate with the life-altering injuries; appeal fails.
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.
Special damages and future medical expenses
Items awarded were identifiable and supported by medical evidence, save the unpleaded Kshs 550.00 for the search certificate which was struck out.
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.
Loss of income vs loss of earning capacity
The Kshs 2,000,000.00 award was erroneously entered as special damages but upheld as general damages for loss of earning capacity.
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.
Legal principles established
#- 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
#- 1.The unpleaded award of Kshs 550.00 for the certificate of motor vehicle records is set aside.
- 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.The respondent shall have the costs of this second appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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.
Challenge to artificial limb and further treatment expenses
Estimates sufficiently proved by medical evidence; receipts impossible where treatment not yet undertaken.
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.
Costs
Since the appeal has substantially failed, the respondent shall have the costs of this second appeal.
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.
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.
it is trite law that special damages must be specically pleaded and strictly proved with as much particularity as circumstances permit
a claim for future medical expenses, though within general damages, needs to be specically pleaded and proved.
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)
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
Since the appeal has substantially failed, the respondent shall have the costs of this second appeal.
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.
Issues in the judgment
#Coram lists 'S RADIDO' but signature block reads 'RADIDO S. OKIYO'; same judge rendered inconsistently.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.