Francis Kereyian Morintat v Philip Nyakundi Nyamota

JUDGMENT HCCA E036 OF 2025 Appellant further pleaded that the accident was wholly and/or substantially caused or contributed to by the negligence of the Respondent. 4. During the proceedings before the subordinate court, the parties recorded a consent on liability apportioning liability at 90:10 in favour of the Respondent against the Appellant. Consequently, the matter proceeded solely on the issue of assessment of damages. 5. At the hearing before the subordinate court, the Respondent testified in support of his case and produced several documents including the medical report by Dr. Morebu Peter Momanyi dated 30th April 2021, medical report by Dr. Obed Omuyoma dated 28th May 2021, discharge summary from Kisii Teaching and Referral Hospital, police abstract, P3 form, receipts for medical expenses and a letter from St. Alois Mwangaza College concerning employment and salary. 6. The medical report by Dr. Morebu Peter Momanyi confirmed that the Respondent sustained bilateral femur fractures together with multiple soft tissue injuries. The doctor assessed permanent disability at 40% and recommended future surgery for removal of implants at an estimated cost of KES.200,000. Similarly, the medical report by Dr. Obed Omuyoma classified the injuries as grievous harm and equally assessed permanent disability at 40%. 7. Upon considering the evidence and submissions placed before it, the learned trial magistrate awarded the Respondent KES.1,000,000 as general damages, Page 2 of 12

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JUDGMENT HCCA E036 OF 2025 KES.200,000 for future medical expenses, KES.8,087,375 for loss of earnings and KES.128,320 as special damages. 8. Aggrieved by the said judgment, the Appellant filed the Memorandum of Appeal dated 02nd July 2025 challenging the awards on general damages, loss of earning capacity and special damages as excessive and unsupported by the evidence on record. 9. Subsequently, the Appellant filed the Notice of Motion dated 23rd January 2026 seeking leave to adduce additional evidence comprising the Investigation Report dated 21stJanuary 2026 prepared by Spotlight Loss Assessors together with the letter dated 28th January 2026 from the Technical and Vocational Education and Training Authority (TVETA). The application was allowed through the ruling delivered on 12th February 2026. 10. Pursuant to the said leave, the Appellant filed a Further Supplementary Record of Appeal dated 13th February 2026 containing the Investigation Report dated 21st January 2026 and the TVETA letter dated 28th January 2026. In response, the Respondent filed a Supplementary Record of Appeal dated 26th March 2026 containing a Certificate of Registration of Business Name for St. Alois Mwangaza Training College, letter from St. Alois Mwangaza Training College dated 18th February 2026 indicating that the Respondent had allegedly been employed as a tutor and was earning a monthly salary of KES.45,000 and affidavit sworn by David Mokaya Mogere on 13th March 2026. Page 3 of 12

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JUDGMENT HCCA E036 OF 2025 11. The Investigation Report confirmed that there existed premises associated with St. Alois Mwangaza Training College at Nyansiongo and annexed photographs thereof. However, the TVETA letter indicated that St. Alois Mwangaza College was not registered as a Technical and Vocational Education and Training institution under the Technical and Vocational Education and Training Act. 12. This being a first appeal, this Court is under a duty to reconsider and reevaluate the evidence on record and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify as stated in Selle & Another v Associated Motor Boat Co. Ltd. [1968] EA 123. 13. Having reconsidered the pleadings, evidence, submissions, judgment of the subordinate court, grounds of appeal together with the Appellant’s further submissions dated 16th March 2026 and the Respondent’s further supplementary submissions dated 18th March 2026, the issues arising for determination are: 1) Whether the award of general damages for pain, suffering and loss of amenities was excessive; 2) Whether the Respondent strictly proved the claim for loss of earning capacity; 3) Whether the awards for future medical expenses and special damages were proper; 4) What orders ought to issue. Page 4 of 12

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JUDGMENT HCCA E036 OF 2025 14. On the award for general damages, the Appellant contends that the award of KES.1,000,000 was excessive in view of the injuries sustained and the authorities cited before the subordinate court. 15. I have reconsidered the injuries sustained by the Respondent as captured in the medical report by Dr. Morebu Peter Momanyi and the medical report by Dr. Obed Omuyoma. The Respondent sustained bilateral femur fractures together with multiple soft tissue injuries and permanent disability assessed at 40%. 16. In Mbani v Ogalo [2024] KEHC 689 (KLR)relied upon by the Appellant, the claimant sustained a fracture of the left femur together with blunt injuries and the court upheld an award of KES.350,000 as general damages.In Juliet Kemunto Ondati v Gladys Mwende Mwende [2021] eKLR , the claimant sustained a fracture of the right tibia together with blunt trauma injuries and the trial court awarded KES.350,000 as general damages. 17. In Reamic Investment Limited v Joaz Amenya Samuel, [2021] eKLR the claimant sustained an open femur fracture together with soft tissue injuries and the trial court awarded KES. .600,000 as general damages. And in Simon Kimote v Agro Solutions Limited [2021] eKLR, the claimant sustained femoral fracture, tibia plateau fracture, blunt head injury and blunt neck injury and the trial court awarded KES.350,000 general damages. 18. On the other hand, in Kenya Power & Lighting Co. Ltd v Mathew Kabage Wanyiri [2016] eKLR relied upon by the Respondent, the claimant sustained fracture of the shaft of the left femur and fracture of the neck of the right femur resulting in permanent disability assessed at 20%. In that matter, the Page 5 of 12

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JUDGMENT HCCA E036 OF 2025 trial court awarded KES.1,200,000 as general damages and the High Court upheld the award on appeal. 19. The injuries sustained by the Respondent herein are materially closer to those in Kenya Power & Lighting Co. Ltd v Mathew Kabage Wanyiri (supra) than the authorities relied upon by the Appellant which largely involved single fractures or less severe orthopaedic injuries. 20. The principles governing interference with an award of damages are settled. In Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another [1982–88] 1 KAR 727 the Court held that an appellate court may only interfere where the trial court acted on wrong principles, took into account irrelevant matters, failed to consider relevant matters or where the award is so inordinately high or low as to represent an erroneous estimate. 21. Taking into account the nature of the injuries sustained by the Respondent, the permanent disability assessed at 40%, the comparable authorities cited before the subordinate court and the principles in Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (supra), I am not persuaded that the award of KES.1,000,000 for pain, suffering and loss of amenities was excessive or founded on wrong principles. 22. In my view, the award fell within the range of comparable awards for serious orthopaedic injuries and was adequately supported by the medical evidence on record. Page 6 of 12

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JUDGMENT HCCA E036 OF 2025 23. On the claim for loss of earning capacity, the Respondent pleaded that prior to the accident, he was employed as a tutor at St. Alois Mwangaza College earning KES.45,000 monthly. In support thereof, the Respondent produced a letter from St. Alois Mwangaza College during the trial proceedings. The learned trial magistrate accepted the said evidence and ultimately awarding KES.8,087,375 under this heading. 24. The Appellant challenges that award and submits that the Respondent failed to strictly prove employment, earnings or loss of income 25. Following leave granted by this Court on 12 th February 2026, the Appellant adduced additional evidence comprising the Investigation Report dated 21 st January 2026 prepared by Spotlight Loss Assessors together with the letter dated 28th January 2026 from the Technical and Vocational Education and Training Authority (TVETA).The Investigation Report confirmed that there existed premises associated with St. Alois Mwangaza Training College at Nyansiongo and further disclosed that the business name “St. Alois Mwangaza Training College” had been registered under the Registration of Business Names Act. The report however stated that the premises were found closed during the investigations and that inquiries allegedly made did not yield documentary proof such as payslips or payroll records. 26. The letter dated 28th January 2026 from TVETA further stated that St. Alois Mwangaza College was not registered as a Technical and Vocational Education and Training institution under the Technical and Vocational Education and Training Act. Page 7 of 12

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JUDGMENT HCCA E036 OF 2025 27. In response, the Respondent filed a Supplementary Record of Appeal containing a Certificate of Registration of Business Name for St. Alois Mwangaza Training College, letter from St. Alois Mwangaza Training College dated 18th February 2026 indicating that the Respondent had allegedly been employed as a tutor and affidavit sworn by David Mokaya Mogere on 13th March 2026. The Respondent maintained that the institution existed and that the absence of registration under the TVET Act did not negate the fact of employment. 28. In the Respondent’s Further Submissions, reliance was placed on Chania Shuttle vs. Mary Mumbi [2017] eKLR where the court cited Jacob Ayiga Maruja & Another vs. Simeon Obayo [2005] eKLR and observed that proof of earnings need not only be through documentary evidence such as certificates or payslips. The Respondent therefore relied on the recommendation letter from St. Alois Mwangaza College dated 29 th July 2021 as proof of alleged employment and earnings notwithstanding the absence of payslips or statutory employment records. 29. The Appellant on the other hand relied on Sections 10, 11, 21, 22 and 74 of the Employment Act together with Section 112 of the Evidence Act and submitted that no payslips, payroll records, NHIF records, NSSF statements, bank records or employment contract had been produced. The Appellant further submitted that no evidence of professional qualifications or competence as a tutor had been tendered and that the alleged institution was not registered under the Technical and Vocational Education and Training Act. Page 8 of 12

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JUDGMENT HCCA E036 OF 2025 30. Upon reconsideration of the entire evidence, this Court is satisfied that there existed an establishment operating under the name St. Alois Mwangaza Training College. The Investigation Report dated 21st January 2026 confirmed existence of the premises while the Certificate of Registration of Business Name equally demonstrated registration of the business name. 31. However, the issue before this Court is not merely whether the institution existed, but whether the Respondent strictly proved employment and actual earnings of KES.45,000 monthly sufficient to sustain the substantial award made by the trial court. 32. This Court agrees with the holdings in Chania Shuttle v Mary Mumbi (supra) and Jacob Ayiga Maruja & Another v Simeon Obayo (supra) that proof of earnings is not confined solely to documentary evidence such as payslips or certificates. Nevertheless, the burden still rests upon a claimant to place before the court credible and sufficient evidence from which earnings and income may reasonably be established. 33. In the present case, apart from the recommendation letter from St. Alois Mwangaza College dated 29th July 2021 produced before the subordinate court, no contemporaneous or independent evidence was tendered to demonstrate actual payment of salary to the Respondent. In particular, no payslips, payroll records, bank statements, NHIF statements, NSSF records, tax records or contract of employment were produced. Further, no evidence relating to the Respondent’s professional qualifications, appointment as a Page 9 of 12

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JUDGMENT HCCA E036 OF 2025 tutor or teaching credentials was placed before the court in support of the alleged employment at St. Alois Mwangaza College. 34. More significantly, the learned trial magistrate proceeded to compute statutory deductions including PAYE, SHIF, NSSF and Housing Levy despite no documentary evidence having been produced to demonstrate that such deductions were ever made from the alleged salary. With respect, the court effectively reconstructed a payslip which had not been produced in evidence. 35. Whereas the Court is satisfied that the Respondent sustained serious injuries resulting in permanent disability, the Respondent did not place before the trial court sufficient evidence proving formal employment, stable earnings or actual loss of income capable of sustaining the multiplicand adopted by the learned trial magistrate. In the circumstances, I find that the award of KES.8,087,375 under the head of loss of earning capacity was speculative and unsupported by cogent evidence. 36. The law is settled that although future medical expenses are awarded under general damages, they must nevertheless be specifically pleaded and proved. The Respondent specifically pleaded the claim and relied on the medical reports by Dr. Morebu Peter Momanyi and by Dr. Obed Omuyoma both of which recommended future surgery for removal of implants at an estimated cost of KES.200,000. 37. I therefore find no basis for interfering with the award under this heading. Page 10 of 12

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JUDGMENT HCCA E036 OF 2025 44. On special damages, I have reconsidered the receipts produced before the subordinate court and I am satisfied that the learned trial magistrate properly scrutinized the same and only awarded the sum of KES. 128,320 that had been specifically pleaded and proved. 45. In the result, the appeal partially succeeds and it is hereby ordered as follows: 1) The award of KES.8,087,375 under the head of loss of earning capacity is hereby set aside; 2) The award of KES.1,000,000 as general damages is hereby upheld; 3) The award of KESs.200,000 for future medical expenses is hereby upheld; 4) The award of KES.128,320 as special damages is hereby upheld. 5) The aforesaid awards shall be subject to the agreed contribution of 10%. 6) Each party shall bear its own costs of the appeal while the Respondent shall retain costs before the subordinate court. DELIVERED AT NYAMIRA THIS 2026 14th DAY OF May WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant/Applicant - Mr. Kiplagat for Munene Wambugu & Kiplagat Advocates Page 11 of 12

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JUDGMENT HCCA E036 OF 2025 For Respondent - Mr. Gekongá for Gekongá & Co. Advocates Page 12 of 12

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