Bore v Board of Trustees Meru Diocese Kirimari Parish

4. In a judgment dated 19th October 2017, the learned Magistrate (Hon. L.A. Mumassabba, RM) entered judgment in favour of the appellant in the following terms: liability at 100%; special damages at Kshs. 3,500/= and a global sum of Kshs. 1,400,000/-that was described to be “for pain, suering and loss of amenities”. 5. The respondent was aggrieved by the decision of the trial court, prompting it to le an appeal in the High Court at Chuka. It raised 7 grounds of appeal challenging both liability and quantum. 6. The learned Judge (Lucy Gitari, J.) in her judgment delivered on 17th December 2020 held that the trial Magistrate did not err in apportioning 100% liability on the respondent. The learned Judge however allowed the appeal on general damages. As we earlier mentioned, she set aside the award of Kshs. 1,400,000/- and substituted it with an award of Kshs. 800,000/-. 7. Being aggrieved by the said judgment the appellant lodged this 2nd appeal vide the Memorandum of Appeal dated 23rd August 2021 in which he raised the following grounds of appeal; i. The High Court erred in law in setting aside the trial Court’s judgment on quantum stating that it was too high based on matters which were not proved. ii. The High Court erred in law in nding that the trial Court erred in awarding damages for loss of amenities and loss of future earning capacity when the trial Court granted no such orders. 8. The appellant prayed for the appeal to be allowed, the judgment of the High Court on quantum be overturned and that of the trial Court be reinstated. In addition, she prayed that the respondent bears the costs of the High Court Appeal and this Appeal. 9. When the appeal came up for hearing before us on 22nd April 2026, learned counsel, Mr. Ogweno appeared for the appellant while learned counsel Mr. Amwayi appeared for the respondent. Both counsel relied on their respective written submissions and made brief oral highlights at the plenary session. 10. The appellant’s submissions are dated 24th January 2024 and were led through the rm of Khan & Associates. Learned counsel for the appellant cited the case of Kemfro Africa Ltd t/a Meru Express Service, Gathogo Kanini Vs. A. M. Lubia & Another (1982–1988) KLR and submitted that the principles governing when an appellate court may interfere with an award of damages are well settled. 11. He further cited the case of Michael K. Kimaru v Margaret Waithera Maina [2015] eKLR and submitted that there is no concurrence of ndings of fact by the two courts below. That as a result, this appeal raises a point of law as to whether in re-evaluation of the evidence the High Court took into account matters it ought not to have considered or otherwise arrived at a decision that is plainly wrong or perverse. He argued that the High Court erred in nding that the trial court awarded damages for loss of earnings or loss of future earning capacity, as it never did. He referred the Court to page 54 of the record of appeal. He added that loss of amenities is not determined by a plainti's age, income, or profession. While referring to the case of Mwaura Muiruru vs Suera Flowers Limited & Another (2014) Eklr, counsel submitted that damages for loss of amenities are awarded to compensate for the objective deprivation of the ordinary pleasures and conveniences of life resulting from the injuries sustained. 12. Learned counsel contended that the High Court erred both in law and in fact by interfering with the trial court's award of general damages. He submitted that the High Court took into account irrelevant considerations and/or failed to consider relevant matters that were clearly borne out by the pleadings, documentary exhibits, and uncontroverted oral evidence. He added that the evidence https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1761/eng@2026-09-25 2

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relating to the nature and extent of the appellant's injuries was neither challenged in cross-examination nor contradicted by any contrary medical evidence. 13. He further submitted that the injuries sustained by the appellant are comparable to those considered in Elizabeth Wamuyu Wanjohi v John Murithi & Others [2013] eKLR and Joseph Musee Mua v Julius Mbogo Mugi & 3 Others [2013] eKLR, where the courts awarded Kshs. 1,500,000/= and Kshs. 1,300,000/=, respectively. He asserted that the High Court did not interfere with the trial Court's award on the basis that the trial Court did not rely on the said authorities, rather, that the High Court substituted its own assessment merely because it considered that the trial Court damages for loss of earnings, which in the opinion of the Judge were not proved. 14. In conclusion, learned counsel submitted that this Appeal is meritorious and ought to be allowed. He urged the Court to set aside the judgment of the High court, insofar as it interfered with the trial Court's award of general damages and the award of the trial Court be reinstated in its entirety. He further urged the Court to award the costs of this Appeal, together with the costs of the Appeal before the High Court to the appellant. 15. The respondent’s submissions are dated 10th May 2024 and were led through the rm of J.K. Kibicho & Company Advocates. Learned counsel for the respondent identied one issue for determination; whether the High Court erred in setting aside the trial Court’s award on general damages. 16. He submitted that the Court of Appeal in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR rearmed the settled principle governing appellate interference with awards of damages. It was held that interference is warranted only in exceptional circumstances, namely where the trial Court acted on a wrong principle of law, took into account irrelevant considerations, failed to consider relevant factors, or where the award is so inordinately high or so manifestly low that it amounts to an entirely erroneous estimate of the damages to which the plainti is entitled. 17. Learned counsel further submitted that the appellant’s argument that the High Court in arriving at its decision failed to consider or considered matters it ought not to have considered, was not well founded. He asserted that the High Court expressly found that the trial Court had established that the appellant failed to prove her alleged occupation as a farmer and did not adduce any evidence of income. That as a result, those unproved claims ought to have precluded any award for loss of amenities and loss of future earning capacity. He added that the High Court was justied to interfere with the "unsubstantiated ndings" of the trial Court. 18. Learned counsel asserted that the argument by the appellant that her evidence together with the doctor's evidence were uncontroverted was disproved by the High Court when it placed reliance on the ndings of Justice Mwongo in Peter Ngigi & Anor (suing as legal representative of the Estate of Joan Wambui Ngigi) Vs. Thomas Ondieki Oduor & Another [2019] eKLR. He submitted that the learned judge in her judgment noted that from the testimony of the doctor, PW2, the appellant sustained largely soft tissue injuries in the forehead, left hand and right ankle joint as well as fracture to the right patella bone and femur. He further submitted that the assessment of damages must be governed by the fundamental principle that comparable injuries should, as far as possible, be compensated by comparable awards 19. Learned counsel contended that the High Court acted correctly and within its mandate by interfering with the trial Court's decision to ensure the award aligned with this established standard of consistency. He placed reliance on the Court of Appeal decision in Stanley Maore Vs. Georey Mwenda, NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR, cited with approval in Alphonce Odero Augo Vs. Sinohydro Corporation Limited [2017] eKLR where it was emphasized that, in assessing damages, the award must be commensurate with the nature and extent of the injuries sustained. That the Court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1761/eng@2026-09-25 3

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reiterated the settled principle that, as far as practicable, similar injuries should attract similar levels of compensation, while ensuring that the awards remain consistent with the prevailing range of awards in comparable cases. 20. Learned counsel submitted that in the case of Kemfro Africa Ltd t/a Meru Express Service, Gathogo Kanini Vs. A.M. Lubia & Olive Lubia (1982–88) 1 KAR 727, a principle later rearmed by the Court of Appeal in Arrow Car Ltd Vs. Elijah Shamalla Bimomo & 2 Others [2004] eKLR, the Court held that an appellate court may only interfere with an award of damages where it is shown that the trial Court considered irrelevant factors, failed to consider relevant factors, or made an award that is so inordinately high or so manifestly low as to constitute a wholly erroneous estimate of the loss or damage suered. He concluded by urging the Court to uphold the decision of the High Court and thereafter dismiss the Appeal with costs to the respondent. 21. This being a second appeal, the Court’s mandate is limited to matters of law only. As a second appellate Court, this Court cannot interfere with the concurrent nding of fact by the two courts. In Kenya Breweries Ltd Vs. Godfrey Odoyo [2010] 1 KLR 176 Onyango Otieno JA expressed himself as follows: “In a second appeal however such as this one before us, we have to resist the temptation of delving into matters of facts. The Court, on second appeal, connes itself to matters of law unless it is shown that the two courts below considered matters, they should not have considered or failed to consider matters they should have considered, or looking at the entire decision, it is perverse. In the case of Stephen Muriungi and another vs Republic (1982-88) 1 KAR 360, Chesoni Acting JA (as he then was) said at page 366:“We would agree with the view expressed in the English case of Martin vs Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 that where a right of appeal is conned to questions of law only, an appellate court has loyalty to accept the ndings of fact of the lower court(s) and resist the temptation to treat ndings of fact as holdings of law or mixed ndings of fact and law and it should not interfere with the decisions of the trial or rst appellate .court unless it is apparent that , on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law.” 22. In the instant case, the learned Judge interfered with the award of damages made by the trial Court and revised it downwards, holding that: “ In this case, the trial Magistrate in this judgment stated that the plainti did not prove her claimed occupation of farming and did not prove any income. This ought to have aected the claim for loss amenities (sic) and loss of future earning capacity. The trial Magistrate despite nding that the damages were not proved ended up holding that she should be awarded the same as part of the damages. It follows that some of the damages awarded were not deserved as they were not proved. The decision by the trial magistrate was unsubstantiated. The respondent was 66 years. The trial magistrate erred in principle as part of the damages awarded in the global sum was without basis. I therefore nd that I have reasons to interfere with the award of damages by the trial Magistrate. On quantum, the award was too high and based on matters which were not proved. The appellant has urged this Court to nd that an award of Kshs. 800,000/- would be reasonable. I nd that considering the injuries sustained, I nd that an award of Kshs. 800,000/- in general damages is reasonable……” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1761/eng@2026-09-25 4

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23. In light of the ndings by the High Court, it is our view that the issue for determination is whether the learned Judge had a basis to substitute the award of Kshs. 1,400,000/- in general damages with the sum of Kshs. 800,000/-. 24. Learned counsel for the appellant argued that the High Court erred both in law and in fact by interfering with the trial Court's award of general damages yet the evidence relating to the nature and extent of the appellant's injuries was neither challenged in cross-examination nor contradicted by any contrary medical evidence. He argued that the injuries sustained by the appellant were comparable to those considered in Elizabeth Wamuyu Wanjohi Vs. John Murithi & Others [2013] eKLR and Joseph Musee Mua Vs. Julius Mbogo Mugi & 3 Others [2013] eKLR, where the Courts awarded Kshs. 1,500,000/= and Kshs. 1,300,000/=, respectively. 25. He further argued that the High Court did not interfere with the trial Court's award on the basis that the said Court did not rely on the said authorities. Rather, it substituted its own assessment merely because it considered that the trial Court made an award of loss of earnings and loss of future earnings capacity, yet the same was not proved. He added that the High Court erred in nding that the trial Court awarded damages for loss of earnings or loss of future earning capacity, as it never did. 26. It is trite that assessment of damages are matters that are within the discretion of the trial Court and the appellate Court ought to respect that discretion if properly exercised. This was aptly expressed in Catholic Diocese of Kisumu Vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 where this Court set out the circumstances under which an appellate Court can interfere with an award of damages in the following terms: “ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justied in substituting a gure of its own for that awarded by the Court below simply because it would have awarded a dierence (sic) gure if it had tried the case at rst instance. The appellate court can justiably interfere with the quantum of damages awarded by the trial court only if it is satised that the trial court applied the wrong principles, (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a gure so inordinately high or low as to represent an entirely erroneous estimate.” 27. In the present case, the argument advanced by the appellant’s counsel is that the learned Judge improperly substituted the trial Court's award with her own assessment despite the absence of any challenge to the evidence on the nature and extent of the injuries sustained. Upon our own reevaluation of the record, we note that the learned Judge in determining the quantum of damages adopted the common principle that comparable injuries should attract comparable damages. She noted that it is good practice to consider the award of damages by courts for comparable injuries. Based on the injuries sustained by the appellant and the decisions in Hashim Mohamed Said & Another Vs. Lawrence Kibor Tuwei [2018] eKLR, Elizabeth Wamuyu Wanjohi Vs. John Murithi Mbanya & 2 Others [2015] eKLR and Continental Hauliers Ltd & 2 Others Vs. Isack Kipkemei Bitok [2018] eKLR, the learned Judge set aside the global award of Kshs. 1,400,000/= and substituted it with the sum of Kshs. 800,000/=. She further noted that the trial Magistrate’s nding was unsubstantiated since in her judgment she held that the appellant did not prove her claim for loss of amenities and loss of future earning capacity, yet she went ahead to hold that the appellant should be awarded the same as part of general damages. The appellant contends that in the assessment by the trial court, the learned Magistrate did not actually make any award for loss of earning capacity, contrary to the Judge’s opinion. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1761/eng@2026-09-25 5

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28. In light of the foregoing ,it is important that we set out the trial Magistrate’s view on this issue, which is as follows: “ ….Loss of earnings is a special damage claim. It must be specically pleaded and strictly proved. The damages under the head of “loss of earning capacity” can be classied as general damages but those have also to be proved on a balance of probability. No evidence was led or adduced to prove that the plainti was a farmer. Loss of earning capacity can be claimed or awarded as part of general damages for pain, suering and loss of amenities or separate head of damages. In cross-examination the plainti said that she used to earn Kshs. 5000/= but there was no evidence adduced to prove the same. In the instant case even though the same was not proved, it can be awarded as part of general damages for pain, suering and loss of………………………………….. Regard being had to the nature and eect of the injuries sustained by the plainti herein and considering the above authorities and doing the best I can, I think an award of Kshs. 1, 400, 000/= for pain suering and loss of amenities commends itself to me as reasonable compensation.” 29. The record reveals that the trial Magistrate expressly found that the appellant had failed to prove her alleged occupation as a farmer, her income, and consequently her claim for loss of earnings and loss of earning capacity, was not proved. The trial Court correctly appreciated the legal position that loss of earnings is a claim in special damages which must be specically pleaded and strictly proved, while damages for loss of earning capacity though awarded under general damages, must nevertheless be established on a balance of probabilities. Having reached those ndings, the trial Magistrate unreasonably proceeded to state that notwithstanding the absence of proof, the same could nevertheless be awarded as part of general damages for pain, suering and loss of amenities. 30. On the one hand, the trial Court correctly held that the claim had not been proved, while on the other hand it eectively compensated the appellant for that very claim by incorporating it into the global award for pain suering, and loss of amenities. The law does not permit a court to circumvent the requirement of proof of loss of earning capacity by subsuming it into the award for pain, suering and loss of amenities. . It is our view that the award of pain and suering and loss of amenities compensates for the physical and psychological consequences of the injuries sustained, while damages for loss of earning capacity compensates for the diminution of a claimant's ability to earn income in future. The said awards are distinct heads of damage and each governed by its own evidentiary requirements. 31. Having found that the trial Court acted on a wrong principle, the learned Judge was entitled to reassess the award. In doing so, she relied on the settled principle that comparable injuries should attract comparable awards and considered the relevant authorities cited before her. She evaluated the nature of the appellant's injuries and compared them with awards made in Hashim Mohamed Said & Another Vs. Lawrence Kibor Tuwei [2018] eKLR, Elizabeth Wamuyu Wanjohi Vs. John Murithi Mbanya & 2 Others [2015] eKLR, and Continental Hauliers Ltd & 2 Others Vs. Isack Kipkemei Bitok [2018] eKLR before arriving at an award of Kshs. 800,000/=. We opine that although the trial Court did not make a separate award under the heads of loss of earnings or loss of earning capacity, its own reasoning unmistakably demonstrates that those unproven claims inuenced the ultimate global award. 32. Further in our view, the trial Magistrate's ndings were self- contradictory and consequently amounted to a misdirection in law warranting appellate intervention. This is precisely the kind of error contemplated in Catholic Diocese of Kisumu Vs. Sophia Achieng Tete (supra), where this Court held that an appellate court may interfere with an award of damages where the trial Court has taken into https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1761/eng@2026-09-25 6

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account an irrelevant consideration, failed to take into account a relevant one, or proceeded on a wrong principle. Additionally, even though the medical evidence regarding the appellant's injuries was uncontested, that fact alone did not shield the trial Court's award from appellate interference once it was demonstrated that the said award had been arrived at on an erroneous principle. 33. In the circumstances, we cannot say that the award of Kshs. 800,000/= was so inordinately low as to represent an entirely erroneous estimate of the general damages payable. Therefore, the learned Judge neither misdirected herself nor substituted the award merely because she would have reached a dierent gure. Rather, she corrected an award that had been arrived at through an error of principle. 34. Accordingly, we nd no basis upon which to interfere with the judgment of the High Court. The appeal on quantum lacks merit and is hereby dismissed with costs to the respondent. Orders accordingly. DATED AND DELIVERED AT MERU THIS 25THDAY OF SEPTEMBER, 2026. S. GATEMBU. KAIRU FCIArb, C.Arb .................. JUDGE OF APPEAL H. I. ONG’UDI .................. JUDGE OF APPEAL SILA MUNYAO .................. JUDGE OF APPEAL I certify that this is the true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1761/eng@2026-09-25 7

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