China National Aerotechnology International Engineering Corporation v Chemurogo

that awarding costs for both an articial limb and a motorized wheelchair would amount to unjust enrichment, directing the respondent to elect one. The respondent elected the articial limb. 5. Consequently, the High Court (S.N. Riechi J.) entered judgment as follows:Liability: 70:30 in favor of the respondentGeneral damages: Kshs 6,000,000.00Loss of income: Kshs 2,000,000.00Special Damages: i. Treatment chits: Kshs 150,000.00 ii. Articial limb: Kshs 1,000,000.00 iii. Further treatment expenses: Kshs 200,000.00 iv. Doctor's attendance: Kshs 20,000.00 v. Medical report: Kshs 6,000.00 vi. Search certicate: Kshs 550.00 Total Special Damages: Kshs 1,376,550/=Total award less 30% liability: Kshs 6,563,585/= 6. Still dissatised, the appellant led this second appeal raising six (6) grounds of appeal that: i. The learned judge erred in law and fact in failing to nd that the award on quantum was excessive and unsupported by law. ii. The judge erred in failing to nd that the respondent was the sole author of the accident and further erred in conrming the apportionment of liability, occasioning a miscarriage of justice. iii. The judge erred in awarding Kshs 1,000,000/= for an articial limb without basis or a report from a prosthesis specialist. iv. The judge erred in law in awarding special damages of Kshs 1,376,550/= without any basis, as the same were not specically pleaded and proved. v. The judge erred in awarding loss of income without proof of earnings. vi. The judgment is poorly reasoned and sets a bad precedent. 7. We note that the memorandum of appeal refers to a judgment dated 4th August 2021. However, the judgment on record is dated 30th July 2021, with 4th August 2021 being the date of the certicate of delivery issued by the Deputy Registrar. This discrepancy is curable under Article 159 of the Constitution and does not prejudice either party. The appeal is properly anchored on the judgment dated 30th July 2021. 8. When the appeal came up for hearing on 18th May 2026, the appellant was represented by Mr. Bw’Onchiri, learned counsel. The rm of Komm Advocates representing the respondent had been duly served and had led written submissions dated 29th October 2025, but did not appear at the hearing. The Court therefore proceeded to hear the appeal on the basis of the appellant's written submissions dated 14th May 2025 and oral highlights, and the respondent's written submissions on record. 9. The appellant submitted that the award on general damages for pain and suering was inordinately high, warranting this Court's intervention. It was contended that the respondent was not permitted to be in the eld while the appellant's vehicle was lawfully grading it. Further, the appellant argued that the court failed to nd that the respondent was drunk, a claim allegedly supported by the testimony of https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2077/eng@2026-09-25 2

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the rst examining doctor (DW1) and the treatment chit produced as Defence Exhibit 1. The appellant proposed an apportionment of liability at 80:20. 10. On special damages, the appellant submitted that the pleaded amount was Kshs 175,000/= which was not backed by receipts, yet the court awarded Kshs 1,376,550/= which was unpleaded. The appellant complained that the superior court "ramped together" various items, including doctor's fees and income, into the special damages award without proper basis. The appellant further challenged the award of Kshs 1,000,000/= for the articial limb, arguing that there was no report by an orthopaedic surgeon or prosthesis specialist, as the doctor who testied was not qualied in that line. Lastly, the appellant argued that the claim for loss of income was neither pleaded nor proved, failing to distinguish it from loss of earning capacity. 11. The respondent opposed the appeal, submitting that the appeal delves into matters of fact rather than pure points of law, thereby failing to comply with Section 72 of the Civil Procedure Act. Defending the quantum of damages, the respondent stated that the superior court relied on decided cases with similar injuries. The injuries were grievous, leaving the respondent with 100% permanent disability and completely shattering his life. 12. On liability, the respondent contended that it was incumbent upon the driver to conrm the respondent was no longer under the lorry before driving away. The claim that the respondent was drunk was unproved and fell short of Sections 107 and 108 of the Evidence Act. Regarding special damages, the respondent submitted that he had pleaded Kshs 150,000/= for medical expenses, Kshs 25,000/= for a medical report, and a motorized wheelchair. On loss of income, the respondent relied on Paul Ouma v Rosemary Atieno Onyango & Another [2018] eKLR, arguing that as a 35-year-old farmer with unxed income, requiring strict documentary proof would be unjust and leave him destitute. 13. Being a second appeal, this Court's jurisdiction is circumscribed by Section 64(1) of the Civil Procedure Act. The Court's jurisdiction is limited to matters of law. Concurrent ndings 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. This principle was armed in John Onyango & Another v Samson Luwayi [1986] eKLR and John Mbuta v Bosky Industries [2019] KECA 44 (KLR). 14. The respondent contended that this appeal does not comply with the provisions of Section 72 of the Civil Procedure Act, as it delves into matters of fact rather than pure points of law. We have carefully considered this objection. While some grounds of appeal are framed in a manner that touches on facts, the substantive complaints, namely, failure to re- evaluate evidence on liability, failure to distinguish between loss of income and loss of earning capacity, and awarding unpleaded special damages—raise questions of law. The appeal therefore properly lies before this Court under Section 72. 15. The substantive questions for determination in this appeal are: 16. a. Whether the ndings on liability were erroneous. b. Whether the award on general damages was inordinately high. c. Whether the special damages, including future medical expenses and the articial limb, were properly pleaded and proved. d. Whether the award for loss of income/earning capacity was justied. The two courts below concurrently found that the respondent was coaching and playing volleyball at Toroso Primary School while the appellant's motor vehicle was in the playing eld carrying out ground leveling. The respondent's ball went under the lorry, and he was crushed while attempting to retrieve it after allegedly receiving a "nod" from the driver. The subordinate court found that the driver owed https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2077/eng@2026-09-25 3

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a duty of care to the respondent, which was breached, but also attributed contributory negligence to the respondent for going under the lorry. 17. The principles of tort of negligence are settled in Donoghue v Stevenson [1932] A.C. 562. The claimant must establish a duty of care, a breach of that duty, and resultant loss. In Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2KAR 258, this Court reiterated that a plainti must prove negligence against the defendant. 18. The appellant contests liability, arguing that the respondent was unlawfully in the eld and was drunk. The issue of drunkenness was an issue of fact that was negatively determined by the superior court. This Court cannot re- appraise this factual issue independently, as doing so would turn this into a third trial. The determination of liability is not a scientic aair but must be guided by common sense, as noted in Gideon Ndungu Nguribu & another v Michael Njagi Karimi [2017] eKLR. 19. We nd that the apportionment of liability at 70:30 was reasonable, based on the evidence adduced, and was not perverse. The driver was aware of the respondent's presence and allowed him to retrieve the ball, yet moved the vehicle without ensuring it was safe to do so. The appeal on liability fails. 20. The injuries sustained by the respondent were grievous, resulting in bilateral above-knee amputations and 100% permanent disability. The principles guiding the assessment of damages in personal injury cases, as set out in Charles Oriwo Odeyo v Apollo Justus Andabwa & Another [2017] eKLR, require that awards be commensurate with the injuries sustained, taking into account previous comparable awards and ination. 21. 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 see Kenya Bus Services Limited v Jane Karambu Gituma, Civil Appeal No. 241 of 2000; Catholic Diocese of Kisumu v Tete [2004] eKLR). 22. The appellant argued that the decisions relied upon by the two lower courts involved injuries that were not comparable, as they included brain damage which the respondent did not suer. While this distinction is noted, the Court is satised that the bilateral above-knee amputations and 100% permanent disability suered by the respondent are grievous injuries that warrant the award made. The authorities cited by the lower courts, while perhaps involving additional injuries, were used as guides and not as exact templates. Both lower courts considered comparable awards, including Frida Mercy Chebii Kiplagat v Kipcumba Chelimo Chebet & Another [2007] eKLR. The award of Kshs 6,000,000/= for general damages was commensurate with the life-altering injuries suered. The appeal on general damages fails. 23. On Special Damages and Future Medical Expenses, it is trite law that special damages must be specically pleaded and strictly proved with as much particularity as circumstances permit. See Capital Fish Kenya Limited v The Kenya Power & Lighting Company Limited [2016] KECA 56 (KLR) and Provincial Insurance Co. EA Ltd v Mordekai Mwanga Nandwa, KSM CACA 179 of 1995. The respondent pleaded Kshs 150,000.00 for medical expenses and Kshs 25,000.00 for a medical report. The superior court awarded a total of Kshs 1,376,550.00 in special damages. The appellant complained that the superior court "ramped together" various items, including doctor's fees and income, into the special damages award without proper basis. Having reviewed the record, we nd that the items awarded under special damages were distinctly identiable and supported by the medical evidence. 24. However, a perusal of the record indicates that the award of Kshs 550.00 for the certicate of motor vehicle records was not pleaded. Consequently, this amount must be struck out. 25. Regarding the articial limb (Kshs 1,000,000.00) and further treatment expenses (Kshs 200,000.00), the Court of Appeal in Tracom Limited & Another v Hassan Mohammed Adan [2009] eKLR stated https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2077/eng@2026-09-25 4

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that a claim for future medical expenses, though within general damages, needs to be specically pleaded and proved. In this case, these expenses were supported by the medical evidence and the report produced by Dr. Sokobe. 26. The appellant further contended that the doctor who produced the medical report was not qualied as an orthopaedic surgeon or prosthesis specialist, and therefore his estimates lacked probative value. However, it is noted that the appellant did not object to the production of the medical report at the trial, nor did they call a contrary expert. Dr. Sokobe's qualications were not challenged during cross-examination. In the absence of any rebuttal expert evidence, the court was entitled to rely on the medical report. The evidence indicated that the articial limb would require replacement every 20 years, and given the respondent's age (35 years), one replacement was factored in. The further treatment related to the correction of a colostomy. The estimated costs were not contested by the appellant. Given that the treatment and purchase had not yet been undertaken, the production of receipts was impossible, but the estimates were suciently proved by medical evidence. The awards under this head were therefore justied, save for the unpleaded Kshs 550.00. 27. On Loss of Income vs. Loss of Earning Capacity, the two courts below awarded Kshs 2,000,000/= for "loss of income." The respondent pleaded an income of Kshs 20,000/= as a farmer. However, 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). See S J v Francesco Di Nello & Another [2015] eKLR, Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR, and Kibet v Alunda [2024] KECA 64 (KLR). 28. The award for "loss of income" was erroneously entered as a special damages claim without strict proof of the pleaded Kshs 20,000/= monthly income. However, the respondent's claim for loss of earning capacity is supported by the evidence. He suered 100% permanent disability and, as a farmer, fully relied on his physical stature and limbs. 29. In Alpharama Limited v Joseph Kariuki Cebron [2017] eKLR, this Court held that while the multiplier approach is one aid, the court is also entitled to make a global award for diminished earning capacity, provided relevant factors are considered. In Paul Ouma v Rosemary Atieno Onyango & Another [2018] eKLR, the High Court held that proof of income for persons in the informal sector is not always necessary, and a global sum can be awarded. 30. Considering the respondent's age, permanent disability, and nature of work, the global sum of Kshs 2,000,000/= was commensurate with the long-term impact on his earning capacity. Comparable awards include Nyatogo v Mini Bakeries Limited [2023] eKLR (Kshs 800,000/=) and Solomon Muriithi Manyarah v SMK [2021] KEHC 5874 (KLR) (Kshs 1,500,000/=). Therefore, the award is upheld, though properly reclassied as general damages for loss of earning capacity. 31. From the foregoing, the appeal partially succeeds to the extent that the unpleaded award of Kshs 550.00 for the certicate of motor vehicle records is set aside. The adjusted special damages award therefore is Kshs 1,376,000.00 (comprising treatment chits of Kshs 150,000.00, articial limb of Kshs 1,000,000.00, further treatment of Kshs 200,000.00, Doctor's attendance of Kshs 20,000.00 and medical report of Kshs 6,000.00). The appeal on liability, general damages, future medical expenses, articial limb, and loss of earning capacity is devoid of merit and is hereby dismissed. 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. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2077/eng@2026-09-25 5

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32. Regarding costs, under Section 27 of the Civil Procedure Act, costs follow the event and are at the Court's discretion. Since the appeal has substantially failed, the respondent shall have the costs of this second appeal. 33. It is so ordered. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026. P. NYAMWEYA .............................. JUDGE OF APPEAL R. NGETICH .............................. JUDGE OF APPEAL RADIDO S. OKIYO .............................. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2077/eng@2026-09-25 6

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