1.This appeal is against the decision of the Hon. S.N. Lutta delivered on 30th March 2021. The respondent sued the appellant on allegation that the appellant’s Tuktuk, Registration No KTWB 917, was driven in a reckless manner that it collided with motor cycle registration mark KMEJ 155W in which the respondent was a pillion passenger. The accident occurred on 9th December 2018 and as a result, the respondent sustained the following injuries: degloving injury on the frontal region; blunt trauma to the left elbow; blunt inta-abdominal injury with ruptured spleen; deep cut wound on the leg and left knee dislocation.
2.The appellant, in response to the suit filed its written statement of defence denying liability. It denied any negligence on its part and averred that the doctrine of res ipsa loquitor had no applicability to the facts before the subordinate court. It averred that if the respondent was injured then it as a result of his outright negligence for which the appellant cannot be blamed.
3.At the hearing Naom Kemuma Nyaboro testified as Pw1 while the appellant did not call any witnesses. By consent, the appellant to produce into evidence Dex1, 2 and 3 in support of its case.
4.The trial magistrate at the close of the hearing arrived at the following finding in favour of the respondent:a)Liability against the appellant was set at 100%b)General damages for pain, suffering and loss of amenities set at 800,000/-c)An award of Kshs 200,000/- was made for loss of amenitiesd)Respondent was awarded Kshs 500,000/- for loss of future earning capacity.e)The respondent was further awarded Kshs 5,000/- as special damages.
5.The appellant dissatisfied with the finding of the subordinate court has preferred this instant appeal on the following grounds:
6.When the appeal came up for hearing, I directed the parties to file written submissions for and against the appeal and both parties have complied.
7.The appeal is challenging both liability and quantum. This being the first Appellate Court there is need to look at the evidence adduced before the lower court afresh bearing in mind that I had no benefit of seeing or hearing the witnesses as they testified. (See Selle v Associated Motor Boat Company Ltd  E.A. 123, 126).
8.The appellant in its submissions argued that the respondent herein was a pillion passenger together with Doris Kemunto Ogari on the motor cycle registration number KMEJ 155W. A motor cycle is allowed to only carry one passenger at a time and therefore the respondent contributed to the accident as she knowingly boarded an overloaded motorcycle. It cited the case of Rosemary Kaari Murithi v Benson Njeru Muthitu & 3 others  eKLR where the court stated:
9.The respondent in her submissions argued that the issue of liability was determined in the sister file which had been constituted as test suit on liability in KISII CMCC No 487 OF 2019. In the test suit, liability against the appellant was determined at 100%.
11.Looking at the proceedings before the trial court, on 15th September 2020, the respondent’s counsel informed court that there was a test suit that was pending for judgment and the appellant’s counsel confirmed the position. Although the proceedings did not capture the finding of the test suit, the appellant in its submissions before the subordinate court recognized that liability was already determined in the test suit, KISII CMCC NO 487 OF 2019, where the appellant was held 100% liable. Therefore the trial magistrate in his judgment found that the only issue for determination was on quantum as liability had been settled in the test suit.
12.The appellant now argues that the respondent was liable for reasons that the motor cycle carried excess passengers [see Rosemary Kaari Murithi v Benson Njeru Muthitu (supra)]. In my view, I agree with the decision of Viviane Anyango Onyango & another v Charity Wanjiku  eKLR that held that passengers cannot be held liable for accidents. The court stated:
13.I have also considered the evidence adduced before the trial court. Pw1 testified that she was a pillion passenger when she saw the appellant’s Tuktuk registration No KTWB 917 lose control and collided with the motor cycle. In her witness statement, it is clear that the motor cycle had two pillion passengers. However, there was no evidence led to show how the two pillion passengers on the motorcycle would have contributed to the occurrence of the accident. As a pillion passenger, the respondent had no control of the motor cycle and could not have done anything to cause or avoid the accident.
15.The appellant was therefore required to include the proceedings from the test suit in its record of appeal as without the same it would not possible to re-appraise the evidence arising from the test suit. The evidence before the court is the acknowledgment that liability of 100% was applied against the appellant and the evidence of Pw1 who testified that the Tuktuk was driven in a reckless manner causing it to lose control and cause the accident. In my view therefore, the trial magistrate correctly held that the appellant was 100% liable for the accident and I find no reason to disturb the finding of the trial magistrate.
16.I now turn to the damages awarded by the trial court and whether the damages awarded was inordinately high. The parameters under which an appellate court will interfere with an award in general damages were stated by the Court of Appeal in Bashir Ahmed Butt vs. Uwais Ahmed Khan [1982-88] KAR as follows:‘An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low...’
17.The appellant argued that the trial magistrate ought to have awarded the respondent Kshs 500,000/- for general damages. It relied on the case of Arrow Car Limited v Elijah Shamalla Bimomo & 2 Others  eKLR where the plaintiff suffered a ruptured spleen and was awarded Kshs 500,000/-. The respondent on the other hand argued that Kshs 500,000/- proposed by the appellant was way too low as the decision in the Arrow Car Limited case (supra) was made in 2004 and considering the rate of inflation, Kshs 800,000/- was sufficient.
18.I am inclined to agree with the arguments put forth by the respondent that the Arrow Car Limited case (supra) which the appellant placed reliance on is outdated.Although the injuries are similar, the decision in Arrow Car Limited case (supra) caseis over 10 years. According to the medical report by Dr. Morebu, because of spleenectomy, the respondent would be immunized against pneumococcal meningococcal and haemophilus influenza. He was of the opinion that recovery was to take a long time and permanent disability was anticipated. The medical report by the appellant’s doctor, Dr James Obondi Otieno, gave a prognosis that the respondent would require lifelong vaccination having lost her spleen and assessed permanent disability at 50%. Having considered the rate of inflation and the serious injuries sustained by the respondent, Kshs 800,000/- awarded by the trial magistrate cannot be said to be excessive.
19.In regard to the award of loss of amenities, the appellant argued that there was no evidence showing that the respondent was employed and that as a result of the accident she will be prevented from getting a job. It cited the case of Nakuru High Court Suit No 189 of 2009 Muriri v Suera Flowers Ltd.
21.It is not in dispute that respondent’s permanent disability was assessed at 50%. Her quality of life was therefore reduced as she now requires lifelong vaccination for capsule forming bacteria. The award of Kshs 200,000/- is not massively excessive.
22.On loss of future earning capacity, the appellant submitted that there was no proof of the respondent’s job or how much she earned and the award ought to be set aside. The respondent on the other hand submitted that the respondent was a nurse and following the accident her performance would be diminished as she cannot compete at equal levels with fellow nurses in a competitive job market. According to the record, Pw1 testified before the subordinate court that she is a nurse and the same was not challenged on cross examination.The reasoning behind award of loss of earning capacity while the respondent is employed is to compensate her for the risk that the disability has exposed her to, which includes the possibility of losing her job in the future or, in the event that she loses her job, the reduction of her chances of finding an alternative job on the job market. This was echoed by the Court of Appeal in the case of Mumias Sugar Company Limited v Francis Wanalo eKLR where it stated that:
23.It is not clear how much the respondent earned as a nurse; however, there isno formula for assessing loss of earning capacity. The trial magistrate Kshs.500,000/- as a global sum under this head, the said award is not excessive.
24.The upshot of this is that this appeal is dismissed with costs to the Respondent.