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ELRCPartially AllowedNairobi High Court Civil Appeal No. 74 of 2017· [2025] KEELRC 1387 (KLR)

Fubeco China Fushun Company v Kimakuti (Appeal 28 of 2016) [2025] KEELRC 1387 (KLR)

High Court of Kenya
30 July 2021
2,265 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court cut a road accident victim's award because he hadn't documented every loss, reducing general damages to Kshs. 400,000 and applying 20% contributory negligence.

What this practically means

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Executive summary

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This was a first appeal against the decision of the Chief Magistrate's Court at Nairobi (Hon. A. M. Shayo, SPM) in CMCC No. 4350 of 2013, in which the appellant had sued the respondent for general and special damages arising from a road traffic accident in which he sustained serious injuries while working as a loader in the course of employment. The trial court entered judgment for the plaintiff at 100% liability against the defendant, awarding Kshs. 500,000/= general damages, Kshs. 105,000/= special damages, Kshs. 321,333/= loss of future earnings and Kshs. 80,000/= for the cost of a checksum operation. The appellant, being aggrieved by the assessment of damages, lodged the present appeal. The respondent, although served, did not participate in the appeal. The court found that the occurrence of the accident was established and that the injuries were consistent with the subject accident notwithstanding the absence of initial treatment notes. On liability, the court found the appellant 20% liable for contributory negligence as a workmate of the driver. On quantum, the court found the award of Kshs. 500,000/= excessive and substituted it with Kshs. 400,000/=. The awards for loss of future earnings and for the checksum operation were set aside for want of specific pleading and proof. Special damages were reduced to the sum strictly proved. The appeal succeeded in part, with costs to the appellant.

Key legal issues

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01

Liability and contributory negligence

Holding

The appellant, who was a lawful passenger in motor vehicle registration number KAU 455L, was not negligent; the driver of the motor vehicle was solely to blame for the accident. However, the respondent was liable at 80% and the appellant at 20% having regard to the fact that the driver of the vehicle and the appellant were workmates.

Reasoning

The court found that the evidence established that the driver of the insured vehicle drove at excessive speed and lost control of the motor vehicle, causing it to roll. The court however found that the appellant, as a workmate of the driver, should have appreciated the risk when the vehicle was being driven in a zigzag manner, and accordingly apportioned liability at 80:20.

02

Whether the accident occurred and the injuries were consistent with the alleged accident

Holding

The court found that although the occurrence of the accident was not seriously contested, the injuries pleaded and proved were consistent with the subject accident notwithstanding the absence of initial treatment notes.

Reasoning

The court was satisfied that the police abstract and the evidence of PW2 established the fact of the accident, and the medical report by Dr. Mwaura linked the injuries to the accident. The absence of treatment notes from the first medical facility was held not to be fatal to the plaintiff's case.

03

Quantum of general damages

Holding

The award of Kshs. 500,000/= general damages by the trial court was found to be excessive and set aside, and substituted with an award of Kshs. 400,000/= general damages.

Reasoning

The court considered comparable awards for similar injuries, taking into account the rate of inflation and the passage of time since the comparable decisions, and found that a substantially lower award than that of the trial court was appropriate.

04

Loss of future earnings

Holding

The claim for loss of future earnings failed because it was not specifically pleaded, and no evidence was led to establish the alleged loss.

Reasoning

The court reiterated that loss of future earnings is a special damage that must be specifically pleaded and proved. The appellant did not plead the same in the plaint, nor did he adduce evidence of his earnings, and the trial magistrate therefore erred in making an award under that head.

Legal principles established

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  • A party alleging negligence must prove the same, and proof of negligence requires cogent evidence; where a plaintiff contributes to the accident, liability is apportioned accordingly.
  • An appellate court will interfere with an award of damages only where the trial court took into account an irrelevant factor, or failed to take into account a relevant factor, or where the award is so inordinately high or low as to be a wholly erroneous estimate.
  • Special damages must be specifically pleaded and strictly proved before they can be awarded.

Court orders

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  1. 1.Judgment entered in favour of the appellant against the respondent in the sum of Kshs. 400,000/= general damages plus Kshs. 7,500/= special damages.
  2. 2.The award of loss of future earnings and the award for the checksum operation set aside.
  3. 3.Interest on general damages from the date of the trial judgment and on special damages from the date of filing suit.
  4. 4.Costs of the appeal and of the suit in the court below awarded to the appellant.
  5. 5.The decretal amount to attract interest at 14% per annum until payment in full, as against the respondent.

Authorities

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Legislation

  • The Constitution of KenyaArticle 165(1) and 165(6)
  • The Civil Procedure ActSections 65 and 78
  • The Traffic ActSection 71
  • The Law Reform ActSection 5
On appeal from
Chief Magistrate's Court at Nairobi
CMCC No. 4350 of 2013
Jurisdiction invoked
Article 165(1) as read with Article 165(6) of the Constitution; sections 65 and 78 of the Civil Procedure Act

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, "Fubeco China Fushun Company v Kimakuti (Appeal 28 of 2016) [2025] KEELRC 1387 (KLR)", Case Analysis (2021). Nairobi High Court Civil Appeal No. 74 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1387/eng@2025-05-09

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