Barasa v Wamalwa (Civil Case E261 of 2025) [2026] KEMC 560 (KLR)

4. The Plaintifi added that the accident led to the amputation of his left leg above the knee thus denying him his monthly income of Kshs. 15,000/= he used to earn as a security guard. 5. The Defendant entered appearance and filed a Statement of Defence dated 23rd October 2025 denying all the averments in the Plaintifi’s Amended Plaint save for the averment that this court had the requisite jurisdiction to hear and determine this suit. 6. In the alternative, the Defendant pleaded that if the accident occurred then the same was caused by the Plaintifi’s negligent acts and omissions enumerated in paragraph 5 of his Amended Statement of Defence herein. 7. The Defendant urged this court to dismiss this suit with costs. 8. It is against this backdrop that this matter was set down for hearing for the parties herein to prove the averments in their respective pleadings on a balance of probabilities. Evidence Plaintifi ’s Case 9. PW1 Godfrey Maende Barasa adopted his witness statements on record as his evidence in chief. He also produced all the documents in his lists of documents herein as exhibits, save for the police abstract. 10. He reiterated that the accident occurred when the motor vehicle, which was coming from the opposite direction, encroached into his lane and rammed into his motorcycle. 11. He also stated that the amputation of his left leg had caused him to lose his security guard job at Shelemia Eldoret, rendering him unable to fend for his family. He added that he underwent an abdominal surgical operation after the accident and that the accident afiected him psychologically. 12. In cross-examination, he stated that he tried to swerve to prevent the accident, but the motor vehicle was speeding and going too fast, thus the accident was sudden. 13. PW2 No. 7xxx5 PC Isaac Kimani Njuguna of Bungoma Police Station stated that he was the accident’s investigation’s oficer. He produced the accident’s police abstract dated 23rd May 2025. He confirmed that the accident occurred involving the motorcycle and the motor vehicle herein, and that the Plaintifi was injured as a result. 14. He testified that the accident occurred while the motor vehicle was headed to Kimwanga general direction only for it to lose control and knock the motorcycle which was coming from the opposite direction. He added that he visited the scene. 15. He reiterated in cross–examination that he visited the scene on the date of the accident when he interviewed the motor vehicle driver and other members of the public. He blamed the motor vehicle driver for the accident. 16. He further stated that the accident occurred on a narrow murram road when the motor vehicle moved from the left side to the right side and hit the motorcycle, which was in its rightful lane. Defendant’s Case 17. DW1 Abiud Wamalwa adopted his witness statement dated 04th August 2025 as his evidence in chief. His testimony was that the accident occurred when the motorcycle collided with the motor vehicle https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 2

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after the motorcycle had encroached into his lane. He added that police oficers from Bungoma Police Station visited the scene on the date of the accident. 18. During cross-examination, he admitted that the motorcycle’s lights were functional at the time of the accident Additional Evidence 19. The parties herein recorded a consent on 09th April 2026 admitting Dr. Daniel Osiro’s medical report dated 31st October 2025 as an exhibit. Analysis & Determination 20. This court has given due regard to the pleadings, the evidence on record, the written submissions, as well as the authorities cited by the parties herein. 21. It is common ground that the accident herein occurred, and that it involved the motorcycle and the motor vehicle. The Plaintifi and the Defendant are also in agreement that the accident caused bodily injuries, loss, and damage to the Plaintifi. 22. The foregoing inclines this court to find and hold that the issues for determination is liability and quantum. Liability 23. The Plaintifi relied on his testimony and PW2’s testimony who investigated the accident in blaming the Defendant for the accident. 24. The Plaintifi’s case is that the accident occurred when the motor vehicle encroached into the motorcycle’s lane. The Plaintifi also stated that, whereas he tried swerving to prevent the accident, the motor vehicle was too fast for him to complete the swerving. 25. The Defendant, on his part, blamed the Plaintifi for encroaching on his lane. 26. It was submitted by the Defendant that the evidence led by the Plaintifi had not proved a case of negligence against him to the required standards. The Defendant also stated that in the absence of sketch maps, scene photos, and inspection reports, liability herein ought to be shared equally between the Plaintifi and the Defendant in the event this court finds the parties herein to blame for the accident. 27. The Defendant also dismissed PW2’s testimony on the circumstances under which the accident occurred in his written submissions on the ground that PW2 was not the accident’s investigations oficer. 28. On the Defendant’s submission that PW2 was not the accident’s investigations oficer, paragraph 6 of the police abstract on record indicates that PW2 investigated the accident. It is also noteworthy that the Defendant admitted that police oficers from Bungoma Police Station visited the scene of the accident on the date of the accident. PW2 is a police oficer attached to Bungoma Police Station trafic base. In the circumstances, PW2’s testimony on the circumstances under which the accident occurred cannot be wished away as suggested by the Defendant. 29. An analysis of PW1 and PW2’s testimony on the circumstances under which the accident occurred reveals that the accident occurred along a narrow murram road when the motor vehicle encroached into the motorcycle’s lane. The Plaintifi was forthright that, whereas he tried to swerve to prevent the https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 3

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accident, the motor vehicle was too fast for him to swerve completely. This shows that the Plaintifi tried to prevent the occurrence of the accident without success. 30. Whereas it was desirable, as suggested by the Defendant, that the Plaintifi needed to produce the accident’s sketch map, scene photos, and the inspection reports for this court to fully appreciate the circumstances of the accident, this court is of the considered view that PW1’s testimony, being direct evidence on the circumstances of the accident, was suficiently corroborated by PW2’s testimony who visited the scene on the date of the accident and interviewed witnesses. 31. This court had the benefit of observing PW2’s demeanour when he testified before this court. He was a credible and trustworthy witness. This court finds no reason to disbelieve his testimony on the circumstances under which the accident occurred. 32. It is against this backdrop that this court finds and holds that the evidence on record proved on a balance of probabilities that the accident occurred when the motor vehicle encroached into the motorcycle’s lane. Given that, the murram road, where the accident occurred, was narrow, there was nothing much the Plaintifi could do to prevent the occurrence of the accident. 33. Given the reasons above, this court finds the Defendant 100% liable for the occurrence of the accident. Quantum of Damages a. General Damages for pain and sufiering 34. The Plaintifi pleaded in his Amended Plaint that the accident caused him to sufier soft tissue injuries, compound fractures of the left leg leading to the amputation of the left leg above the knee, and psychological trauma. He added that the said injuries caused him to undergo abdominal surgery to correct intestinal obstruction. 35. The medical report dated 22nd September 2025 by Dr. Ekesa, and the medical report dated 31st October 2025 by Dr. Osuri were all in agreement that the Plaintifi sustained the injuries pleaded in his Amended Plaint. 36. However, whereas Dr. Ekesa assessed the Plaintifi’s permanent incapacity at 40%, Dr. Osuri did not make any comment about the Plaintifi’s degree of incapacity. Be that as it may, it is a no-brainer that an amputation of the leg causes permanent incapacity. Therefore, this court has no reason to fault Dr. Ekesa’s assessment of the Plaintifi’s permanent incapacity at 40%. 37. The foregoing inclines this court to find and hold that the Plaintifi proved on a balance of probabilities that the accident caused him to sufier soft tissue injuries, compound fractures of the left leg leading to the amputation of the left leg above the knee, psychological trauma, and that the said injuries caused him to undergo abdominal surgery to correct intestinal obstruction. 38. The Plaintifi also proved on a balance of probabilities that the said injuries caused him 40% permanent incapacity. 39. In determining the quantum of damages herein, this court is guided by the holding in Stanley Maore vs Geofirey Mwenda [2004] eKLR, where the Court of Appeal stated as follows: “ 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.” https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 4

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40. This court has given due regard to the parties’ written submissions and authorities on quantum. 41. The Plaintifi prayed for an award of Kshs. 2,500,000/= under this head by relying on an authority where a Plaintifi was awarded Kshs. 2,000,000/= for multiple fractures. The injuries sufiered by the Plaintifi in that case are not related to the injuries sustained by the Plaintifi in this case. Clearly, that authority is not applicable in this case. 42. It was the Defendant’s submission that an award of Kshs. 800,000/= was suficient under this head. The Defendant relied on authorities where awards of between Kshs. 1,300,000/= and Kshs. 800,000/ = were made way back in 2014 – 2017 for Plaintifis who sustained injuries almost similar to the injuries sustained by the Plaintifi in this case. 43. This court wonders why the Defendant ignored the authority where the Plaintifi was awarded Kshs. 1,300,000/= in favour of the one where an award of Kshs. 800,000/=. In any event, the Defendant’s submission on the award of Kshs. 800,000/= under this head did not take into account the passage of time from the time the authorities he relied on were rendered, and infiation trends in this country. For these reasons, those authorities are not applicable in this case. 44. The injuries sustained by the Plaintifi herein are almost similar to the injuries sustained by the Plaintifi in the cases below. 45. In Daniel Kosgei Ngelechei v Catholic Diocese Registered Trustees Of Eldoret & another [2016] KECA 489 (KLR), where the Court of Appeal [Maraga, Musinga & Gatembu, JJ.A] upheld an award of Kshs. 2,100,000/= general damages for pain, sufiering, and loss of amenities where the Claimant had sufiered a traumatic amputation of his left lower limb above the knee. 46. In C M (a minor suing through mother and next friend M N v Joseph Mwangangi Maina [2018] KEHC 4815 (KLR), the court awarded Ksh 2,000,000/= for an amputation of the leg, which led to 40% permanent incapacity. The injuries afiected the appellant’s pre-existing medical condition. 47. In John Kipkemboi & another v Morris Kedolo [2019] KEHC 8736 (KLR), Musyoka, J awarded general damages of Kshs 2,500,000/= for amputation of the left leg below the knee, chest injury, bruises on the shoulder, back injury, and crush injury. 48. Lastly, in Ruth v Makau (Civil Appeal E441 of 2021) [2024] KEHC 1411 (KLR), the court awarded Ksh.2,000,000 in general damages where the Respondent sustained severe crush injuries to the right leg, which amounted to a permanent disability of 50%. 49. In the circumstances, taking cue from the authorities above and more particularly the CM case (supra), this court makes an award of Kshs. 2000,000/= under this head. b. General damages for diminished earning capacity, and loss of earnings 50. The Plaintifi pleaded for an award of general damages for loss of earning capacity. He pleaded in his Amended Plaint that he used to earn a monthly income of Kshs. 15,000/= as a security guard at Shelemiah Irine Security. 51. He testified before this court that amputation of his leg caused him to lose his monthly security guard income of Kshs. 16,000/=. He produced a receipt from Shelemiah Irine Security to corroborate his testimony on his monthly income before the accident. 52. The Defendant submitted that the Plaintifi had not laid any basis for a separate award of loss of earning capacity. He urged this court to distinguish between loss of earnings and loss of earning capacity. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 5

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53. Indeed, there is a distinction between a claim for loss of earning capacity and loss of earnings. This was well enunciated by the Court of Appeal in S J v Francesco Di Nello & another [2015] KECA 606 (KLR) stated as follows on these claims: “ Claims under the heads of loss of future earnings and loss of earning capacity are distinctively difierent. Loss of income, which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss, which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in FAIRLEY V JOHN THOMSON LTD [1973] 2 LLYOD’S LAW REPORTS 40 at pg. 14 wherein Lord Denning M.R. said as follows: “It is important to realize that there is a difierence between an award for loss of earnings 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.” 54. A reading of the Amended Plaint shows that, whereas the Plaintifi prayed for an award of general damages for loss of earning capacity, he intended to claim damages for loss of earnings. This is very clear from the Plaintifi’s averment that amputation of his leg caused him to lose his monthly income of Kshs. 15,000/=. 55. The claim for loss of earning capacity must have been a question of poor draftsmanship on the part of the Plaintifi’s counsel. 56. A purposive reading of the Plaintifi’s Amended Plaint shows that the Plaintifi gave the Defendant suficient notice that he would be claiming the monthly income of Kshs. 15,000/= he lost as a result of the amputation of his leg. 57. The Plaintifi, having given the Defendant suficient notice in his Amended Plaint that he was claiming loss of earnings, this court will not deny the Plaintifi’s lawful claim for loss of earnings just because his counsel mischaracterized that claim as a claim for general damages for loss of earning capacity. 58. Equity does not sufier a wrong without a remedy. The circumstances of this case demand that this court invoke equity and award the Plaintifi an award for loss of earnings, which is supported by the evidence on record, and which the Defendant had an opportunity to impeach. 59. Indeed, this is a court of justice and equity. Article 10 of the Constitution elevates equity to a constitutional imperative. Therefore, this court’s decision to invoke equity in making an award of loss of earnings is well-founded in law. To this end, this court places reliance on Ongeta v Abudo (Civil Appeal E858 of 2023) [2025] KEHC 2723 (KLR), where Mrima, J stated: “ Since 2010, the maxims of equity are constitutional values such that, for instance, whoever is guilty of laches is not in consonance with the Constitution . (See the Court of Appeal in Willy Kimutai Kitilit v Michael Kibet [2018] eKLR).” 60. Turning to the facts of this case, amputation of the Plaintifi’s leg caused him to lose his monthly income of Kshs. 15,000/= as pleaded in his Amended Plaint and supported by the evidence on record. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 6

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61. Guidance on how to award loss of earnings was given in Alpharama Ltd v Joseph Kariuki Cebron [2017] eKLR, where the court stated as follows; ‘...To assess loss of earning capacity in the future, the court must consider to what extent the claimant’s ability to earn income will be afiected in the future and for how long this restriction will continue. The traditional approach adopted by the courts when calculating a claim for future loss is to assess what lump sum is needed to compensate the claimant for the future loss. The starting point in this calculation will be to determine what annual net loss the claimant will incur in the future (the "multiplicand"), which is the annual loss of earnings. The multiplicand will then be multiplied by a “multiplier". The multiplier is assessed having regard to the number of years between the date of the settlement and the date when the loss stops. In a claim for future loss of earnings, this may be the date when the claimant would, but for the injury, have retired”. According to the bank statements produced, the plaintifi indeed had money fiow into her account. The fiow showed a steady growth. While taking an average for the entire period of banking shown in the bank statements may not be the most accurate formula to determine the monthly income that alone should not be the basis to conclude that ascertaining a monthly income is dificult and therefore the court is unable to assess the damage. On the same vein the multiplier approach is just but one aid the court applies in assessment of damages. It is not the only one. The court would be properly entitled to make a global award because there is a general agreement in decisions rendered by courts that there is no formula for assessing damages for lost or diminished earning capacity provided the judge takes into account relevant factors…”(Emphasis added) 62. Guided by the above authority, it is evident that a court can either adopt the multiplier approach or the global award approach in making an award for loss of earnings. 63. The evidence on record shows that the Plaintifi used to earn a monthly income of Kshs. 15,000/= as pleaded in the Amended Plaint. The Medical report on record by Dr. Ekesa shows that the Plaintifi was 59 years old at the time of the accident. This means that the multiplier and the multiplicand can be ascertained in this case. 64. In the circumstances, this court will adopt the multiplier approach in making an award of loss of earnings in this case. 65. Security guards, generally, do not have a retirement age. However, the ability to work efiectively as a security guard diminishes with time. According to the United Nations Population Fund (UNFPA) and the Kenya National Bureau of Statistics, projections for 2025, the life expectancy at birth for males in Kenya was approximately 64 years. 66. All factors holding constant, the Plaintifi would have worked for five more years as a security guard but for the accident. Taking into consideration the vagaries and vicissitudes of life, this court will adopt a multiplier of four years in working out an award for loss of income. 67. The award for loss of income will thus work out as follows: Kshs. 15,000/= x 12 x 4 = Kshs. 720,000/= c. Future medical expenses 68. The Plaintifi pleaded for an award of Kshs. 500,000/= for rehabilitation and fixing of the artificial leg. Dr. Ekesa stated in his medical report on record that a prosthesis would cost between Kshs. 50,000/= and Kshs. 500,000/= depending on its type and functionality. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 7

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69. There is no dispute that the Plaintifi will need a prosthesis to aid in his mobility. Therefore, the claim for future medical expenses is well-founded. 70. Prostheses vary in types. There are temporary and permanent ones. Temporary prothesis require to be replaced after a period of time. These are costly in the long run. 71. Dr. Ekesa did not testify before this court to provide clarity on the type of prosthesis the Plaintifi would require, and the cost of each type of prosthesis. This court was thus left at sea on the sum of money to award under this head. However, the Plaintifi still needs money for rehabilitation and fixation of a prosthesis to aid in his mobility. 72. Taking the totality of the circumstances of this case into consideration, this court makes an award of Kshs. 200,000/= under this head. d. Special Damages 73. The Plaintifi pleaded for special damages of Kshs. 57,725/=. 74. Dr. Ekesa’s receipts for the medical reports proved special damages of Kshs. 8,000/= while the NTSA receipt proved special damages of Kshs. 550/=. 75. The Plaintifi relied on an invoice for Kshs. 39,175/= from Bungoma County Referral Hospital to claim for treatment expenses of Kshs. 39,175/=. In Total Kenya Ltd formerly Caltex Oil (K) Ltd v Janevams Ltd (2015) eKLR, the court cited Great Lakes Transport Co (U) Ltd v Kenya Revenue Authority (2000) eKLR 720 on the production of proforma invoices to prove an expenditure, where the court stated thus: “ What we mean is that, in case the goods for which an invoice is issued have been paid for, one would normally expect endorsements such as the word “paid” on the invoice and that would turn the status of the invoice into a receipt. Otherwise, in our minds, a proforma invoice is given in respect of an advice sought from a supplier as to what the cost of goods sought and an invoice is given in cases where an order for supply of goods has been made but payment is not yet made. In either case non of the two documents would amount to a receipt.” 76. The authority above is instructive that an authority without a corresponding receipt or without an endorsement of the word ‘paid’ cannot be used to prove an expenditure. 77. The invoice produced by the Plaintifi to support the claim for medical expenses was not endorsed with the word ‘paid’. It was also not produced with a corresponding receipt. Therefore, the invoice on record cannot be used to claim treatment expenses. 78. The other claims by the Plaintifi for witnesses' expenses are costs of the suit, which are assessed during the assessment of costs. Those expenses cannot be claimed under the rubric of special damages. 79. The foregoing inclines this court to award the Plaintifi special damages of Kshs. 8,550/=. DETERMINATION 80. The upshot of the foregoing is that judgment is entered against the Defendant in the following terms:a. Liability…………………………………….100% b. General damages…………………………Kshs. 2000,000/= c. Loss of income……………………………Kshs. 720,000/= https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 8

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d. Future medical expenses……………….Kshs. 200,000/= e. Special Damages………………………….Kshs. 8,550/= Total Award………………………..Kshs. 2,928,550/= 81. The general damages will accrue interest at court rate from the date of this judgment till payment in full, while special damages will accrue interest at court rate from the date of filing this suit till payment in full. 82. The Plaintifi will have the costs of this suit. 83. Judgment accordingly. READ, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA, THIS 30TH DAY OF APRIL 2026 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Mr. Kang’ethe for the Plaintifi Mr. Charo for the Defendant C/A: Mr. Rioba https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/560/eng@2026-04-30 9

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