https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7492

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CIVIL APPEAL NO. E059 OF 2023** **VERONICA KEMUNTO ALIAS** **VERONICA NYANGAU ……………………………..…… APPELLANT** **VERSUS** **ISAAC NJENGA NDUNGU ………………………..….... RESPONDENT** *(Being an Appeal from the Judgment of Resident Magistrate, Michuki M.**at the Magistrate’s Court at Bomet, Civil Suit Number 74 of 2019)* **JUDGEMENT** 1. The Appellant (then Plaintiff) sued the Respondent (then Defendant) for general and special damages that arose from a road traffic accident which occurred on 29th December 2015. In its Judgement delivered on 2nd November 2023, the trial court dismissed the suit. 2. Being aggrieved with the Judgment of the trial court, the Appellant filed her Memorandum of Appeal dated 28th November 2023 appealing against the whole Judgement. 3. My duty as the 1st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 4. I hereby proceed to summarise the case in the trial court and the parties’ respective submissions in the present Appeal. **The Plaintiff’s/Appellant’s case.** 1. Through her Plaint dated 8th May 2019, the Appellant stated that she was a passenger in motor vehicle registration number KCB 916R when it overturned thereby occasioning her injuries. The Appellant further stated that the Respondent was the registered owner of motor vehicle registration number KCB 916R 2. It was the Appellant’s case that the Respondent was negligent in causing the accident. The particulars of the negligence were stated in paragraph 4 of the Plaint. That as a result of the accident, the Appellant suffered the following injuries: - * 1. Deep cuts on the face 2. Lacerated wounds on the left arm. 3. Lacerated scars on the face with cosmetic significance. 4. Lacerated scars on the left arm. 3. The Appellant prayed for special and general Damages against the Respondent. 4. Through her written submissions dated 27th October 2025, the Appellant submitted that she had *locus standi* to institute the suit. That she filed the primary suit under the name of Veronica Machoche alias Veronica Nyangau and the name referred to one person. The Appellant further submitted that the trial court misdirected itself as it was not an issue for litigation. 5. It was the Appellant’s submission proposed that an award of Kshs 380,000/= as general damages would be reasonable. She relied on **Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] KEELRC 2012 (KLR).** **The Defendants’/Respondents’ case.** 1. Through his Amended Statement of Defence dated 4th May 2022, the Respondent denied the occurrence of the accident on 29th December 2015 and further denied being the registered owner of motor vehicle registration number KCB 916R. 2. It was the Respondent’s case that if the accident occurred then it was caused by the negligence of the Appellant. The particulars of negligence were contained in paragraph 5 of the Defence. 3. At the time of writing this Judgement, the Respondent had not filed his written submissions despite being directed to so on 22nd October 2025. 4. I have gone through and carefully considered the Record of Appeal dated 10th September 2024 and the Appellant’s written submissions dated 27th October 2025. The only issue that I have sieved for my determination was whether the trial court erred when it dismissed the suit. **Liability.** 1. In regards to liability, Veronica Kemunto Machoche (PW1) testified that she was a passenger in motor vehicle registration number KCB 916R when it was involved in a road traffic accident thereby occasioning her injuries. PW1 further testified that he blamed the driver of motor vehicle registration number KCB 916R for causing the accident through careless driving. PW1 produced a copy of the motor vehicle records as **P. Exh 3**. I have looked at the exhibit and I have confirmed that the Respondent was the registered owner of motor vehicle registration number KCB 916R. PW1’s cross examination focused on her names but her testimony regarding the accident remained uncontroverted upon cross examination. 2. No. 90817 PC Edwin Ratemo (PW2) testified that the accident occurred on 29th December 2015. A police abstract was produced as **P. Exh 2.** I have looked at the exhibit and it confirmed the occurrence of the accident involving the subject motor vehicle. 3. The Respondent did not call any witness or present any contrary evidence. 4. Flowing from the above, I am satisfied that the Appellant proved his case against the Respondent. She was able to prove that the accident occurred on the material day involving the subject motor vehicle and further, was able to establish that the subject motor vehicle was owned by the Respondent. With respect to the trial court, the issue of the Appellant’s *locus standi* did not arise. As correctly pointed out by the Appellant, she filed the primary suit using the names Veronica Kemunto Machoche alias Veronica Nyangau. This name referred to one and the same person who in this case was the Appellant. 5. Additionally, PW1 having proven that she was a passenger in the subject motor vehicle could not be held liable for causing the accident as she did not have control over the motor vehicle. In **Ndatho v Chebet [2022] KEHC 346 (KLR),** the court held: - ***“In a road traffic accident involving a collition between two motor vehicles, the court apportions liability depending on blameworthiness of the drivers. Other parties like passengers who cannot be held liable will have liability attach to them as apportioned to the drivers.”*** 1. Similarly, in **West Kenya Sugar Co Limited v Lilian Auma Saya [2020] KEHC 7585 (KLR),** the court held: - ***“The respondent was only a passenger on the motor cycle. A passenger cannot be held liable when a vehicle he/she is travelling in is involved in accident…..”*** 1. Flowing from the above, it is my finding that the Respondent was 100% liable for causing the accident. **Quantum** 1. For this court to interfere with an award, it must be satisfied that the trial magistrate misdirected itself in some manner and as a result arrived at a wrong decision, or that it was clear from the case as a whole that the trial magistrate was clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of justice. 2. The Appellant suffered the following injuries: - * 1. Deep cuts on the face 2. Lacerated wounds on the left arm. 3. Lacerated scars on the face with cosmetic significance. 4. Lacerated scars on the left arm. 3. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. I have found the following cases quite helpful in terms of comparison: - 4. In **Auto Selection (K) Ltd & another v Raibu [2023] KEHC 25170 (KLR**) the court set aside the award of Kshs 300,000/= and substituted it with an award of Kshs 150,000/= for blunt neck injury, blunt injuries both shoulders, blunt lower back injury, bruises on the right elbow, laceration on the right thigh with cosmetic significance, re-current backaches, re-current shoulder pains and bruised scar on the right elbow. 5. In **Jubilee Hauliers Ltd & another v Mary Waithera Wanja [2019] KEHC 9345 (KLR**) where the High Court upheld an award of Kshs. 200,000/= for degloving injuries to elbow, multiple lacerations on the right arm and soft tissue injuries on the chest, cut on the tongue and bruises on the forehead 6. In **Ayoro v Freight World Logistics Limited & another [2023] KEHC 22489 (KLR),** the court substituted an award of Kshs 90,000/= for an award of Kshs 150,000/= for blunt injury to the neck leading to soft tissue injuries, blunt injury to the thoraco-lumber spine leading to soft tissue injuries, blunt injury to the left hip joint leading to soft tissue injuries and blunt injuries to the left knee joint leading to soft tissue injuries. 7. I have considered the authorities above and the nature of the injuries suffered by the Respondent. I have also considered that the trial court would have awarded the Appellant Kshs 140,000/= as general damages had he been successful at the trial court. The Appellant having been successful on Appeal, it is my finding that the award of Kshs 140,000/= was just, fair and was commensurate to the injuries suffered by the Appellant. 8. In regards to the special damages, the Appellant pleaded Kshs 550/= for the motor vehicle search, Kshs 3,000/= for the Medical Report and Kshs 53,000/= for the medical expenses. I have seen the receipts all produced as **P. Exh 9** totaling to Kshs 56,550/=. The same is awarded. 9. In the end, the Appeal dated 28th November 2023 is allowed as follows: 10. Liability 100% against the respondent. 11. General damages kshs. 140,000. 12. Special damages kshs.56,550. 13. Each party to bear its own costs for the appeal. 14. The appellant shall have costs of the lower court. 15. 30 days stay of execution is granted. **Judgement delivered, dated and signed at Bomet this 2nd day of June, 2026.** **.................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Judgement delivered in the presence of:** **Katheni holding brief for the Appellant** **Chemutai holding brief for the Respondent** **Siele/Susan (Court Assistants)**