Jepkemboi v Mwaura & another (Civil Appeal E135 of 2023) [2026] KEHC 8979 (KLR) (24 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAKURU** **CIVIL APPEAL NO. E135 OF 2023** **VALENTINE JEPKEMBOI……………………………….APPELLANT** **VERSUS** **STANLEY MWANIKI MWAURA ………………………1ST RESPONDENT** **JOHN MAINA NJUGUNA .................................................2ND RESPONDENT** ***(Being an Appeal from the judgment and orders of the Honourable Resident Magistrate /Adjudicator Dominic Macharia delivered on 29th May 2023 in the Small Claims Court at Nakuru in Small Claims Court Civil Case No. E004of 2023* )** **JUDGMENT** 1. The background of this matter is that the Appellant herein sued Respondents before the trial court seeking judgment against the Respondents for: - 2. ***General damages for pain and suffering.*** 3. ***Special damages of Kshs. 50,180/-.*** 4. ***Future medical expenses in the sum of Kshs. 200,000/-.*** 5. ***Interest on (a) and (b) above at court rates.*** 6. ***Costs of the claim.*** 7. ***Interest at court rates and any other remedy the court may deem fit.*** 8. The claim was that on 4th September , 2022, the Appellant was a lawful passenger motor vehicle registration number KCX 733Z along Show Ground Road when the 1st Respondent while in the case of his duty and under the instructions of instruction of the 2nd Respondent so negligently , carelessly and /or recklessly drove , controlled and/or managed by the said motor vehicle that he caused it to lose control and case the road traffic accident thus occasioning the Appellant grievous bodily injuries, loss and damage. He solely blamed the Respondents for the accident. 9. In response to that claim, the 1st Respondent denied being the driver of the said motor vehicle or causing, and that the Appellant sustained injuries in the alleged accident. 10. In the alternative and without prejudice, he stated that if it was proved that the accident occurred, which he denied, then the accident was caused solely and/or or substantially caused by the Appellant’s own negligence and 3rd Party motor cyclist who encroached the driver’s rightful. He then proceeded to list the particulars of negligence of the Appellant herein. 11. After hearing the case, the trial court entered judgment in favour of the Appellant as follows:- 12. ***Liability- 50 %*** 13. ***General damages Kshs. 350,000/-*** 14. ***Special damages Kshs. 50,480/-*** 15. ***Future Medical expenses Kshs. 150,000/-*** 16. ***Total upon contribution- Kshs. 275,240*** 17. ***Costs of the claim*** 18. ***Interest on (b) , (c) and (d) above at court rates until payment in full.*** 19. Aggrieved by that decision, the Appellant filed the Memorandum Appeal dated 16thJune 2023 and Amended on 14th August 2023on the following grounds:- 20. ***The learned magistrate erred in law and in fact in finding that the Appellant was partially liable and apportioning liability at 50/50 yet the Appellant was a passage and had no control of the motor vehicle registration number KCX 733Z and could not have done anything to case the accident.*** 21. ***The learned magistrate erred in law and in fact by holding that since the motor cycle emerged from behind the oncoming vehicle, he could not hold the 1st Respondentv100 % liable and relied on the said facts in apportioning liability on the Appellant herein.*** 22. ***The learned magistrate erred in law and in fact by awarding Kshs. 350,000 as general damages which sum was inordinately low*** 23. He therefore urged this Court to make the following orders:- 24. ***The appeal be allowed.*** 25. ***The honourable court reviews the judgment on liability and hold the Respondents 100& liable.*** 26. ***This Award of Kshs. 350,000/= as general damages be set aside and the court re-assess the same at a reasonable figure.*** 27. ***Without prejudice to ( c) above, the re be an order substituting the decree of the subordinate court with an odder holding the Respondents 100% liable for the accident and award to Appellant Kshs. 550,480 /- as damages.*** 28. ***Costs of the Appeal be awarded to the Appellant.*** 29. In his submissions dated 18th July 2025, the Appellant submits that liability at 50:50 is unfair and therefore maintains that 100% liability against the Respondents should be awarded. 30. He submits that though the Respondent to the claim pleaded that the Claimant and a third-party Motor Cyclist were to blame for causing the accident, he never called any witness no witnesses during trial. No evidence was presented to prove that the Claimant in any way contributed to the accident. It is her submissions that as a passenger, the Claimant could prevent or contribute to the occurrence accident. However, she submits that a sum of Kshs. 350,000 is fair and reasonable as damages for pain and suffering. Lastly he submits that upon the appeal being allowed, then costs be awarded to the Appellant. **Determination** 1. Despite being served, there was no response filed by the Respondents. Nevertheless, this being a first appeal, this Court is obligated to re-evaluate and re-appraise the evidence adduced before the trial court in order to arrive at its own independent conclusion, taking into account that it did not have the advantage of seeing and hearing the witnesses as they testified. [***Selle vs. Associated Motor Boat Company Ltd [1968] EA 123*.**] 2. This Court has considered the Memorandum of Appeal and the submissions by the Appellant. 3. On liability, On liability, a perusal of the trial court record shows that indeed, the Appellant’s evidence that she was a passenger in Motor Vehicle Registration No. KCX733Z on the material date and sat at the back. That the said vehicle was owned by John Maina Njuguna ( 2nd Respondent) asper the copy of records produce as exhibit and driven by the 1st Appellant. 4. While acknowledging that the driver of the subject motor vehicle lost control of the and the vehicle landed in the ditch, the trial court went on say:- ***“ It is however evident that the there was an oncoming motor cycle that emerged from behind the oncoming vehicle hence he cannot be 100 % liable.”*** 5. There was no evidence as to how the Appellant contributed to the accident. The rider of the alleged motor cycle mentioned by the Respondent, is a third party. He was not a witness, an in any case, if there was any liability, it would have been an issue between the motor cycle and the Respondents not between the Appellant and the Respondents. 6. There were no third-party proceedings either in that case and therefore, the trial court erred in apportioning liability been the Appellant and the Respondents. In this case, the undisputed evidence was that the Appellant sustained Fracture of the distal end of the right humerus ; severe soft tissue injuries on the right hand and blunt injury on the right eye leading to traumatic conjunctivitis of the right eye. 7. From the submissions contained in the Record of Appeal , the Appellant had proposed the sum of Kshs. 800,000/- while relying on the case of:- * ***Joseph Musee Mua v Julias Mbogo Mugi and 3 others [2013]eKLR*** where the Plaintiff had sustained, injuries to the left leg, head, and face, fractures of the left leg tibia and fibula two broken upper jaw teeth, a chest injury , right shoulder injury, and bruises on the left elbow and the court awarded Kshs. 1,300,000/=. * ***Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018]eKLR*** who was awarded Kshs. 700,000/= for compound fracture of the right distal tibia /fibular , cut wound on the scalp , cut wound on the chest and cut on the lower lip. * ***Alphonce Muli Nzuki v Brian Charles Ochuodho [2014]eKLR*** who was awarded Kshs. 800,000/= for comminuted fracture of the right tibia and fibula. 1. Though it is apparent that the trail court did not mention the Appellant’s submissions, the injuries cited by the Appellant above injuries are not comparable to those sustained by the Appellant herein. Conversely, the trial court noted the Respondents’ proposal of Kshs. 250,000/- while citing the case of ***Maina Onesmus v Charles Wanjohi Githome [2019]eKLR*** and ***Said Abdullahi & another v Alice Wanjira [2016] eKLR*** , noting that the Appellant suffered 20% permanent disability as noted in the medical reports produced by parties before arriving at the sum of Kshs.350,000/= as general damages. 2. Regarding interference with the award of damages, the Court of Appeal held case of ***Kemfro Africa Ltd t/a Meru Express Services [1976] & Another -VS- Lubia & Another (No.2)*** that:-“***The principles to be observed by the appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held to be that; it must be satisfied that either that Judge in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.''*** 3. In this case, however, this court notes the line of submissions in this appeal in regard to damages which is the opposite of what was stated in the Memorandum of appeal. The award of Kshs. 350, 000 has been admitted as fair. Indeed, and in the circumstances herein, this court finds no reason to interfere with the ward by the trial court. That award is upheld. Lastly, and as the Appellant has correctly stated, the costs follow the events. 4. In the conclusion, the following Orders are issued :- 5. **The trial court’s Judgment on liability at 100% against the Appellant be and is hereby set aside and substituted with Judgment on liability at 100% in favour of the Appellant against the Respondents.** 6. **The Award of Kshs. 350,000/- as general damages is upheld.** 7. **The award of Kshs. 50,480/- as special damages and the award of Kshs. 150,000/- for future medical expenses were not disputed and therefore upheld.** 8. **The Appellant is awared costs of this Appeal.** **Dated and signed at Nairobi this 19th Day of June, 2026.**  **PATRICIA GICHOH** **JUDGE** **Delivered at Nakuru this 24th Day of June, 2026.** **………………………** **DR. JOSEPH SERGON** **JUDGE**