Winnie Chepng’eno v Cosmos Car Limited & 1 other

4. When the Appeal came up for hearing, this Court gave directions to have the appeal disposed of by written submissions. At the time of writing this Judgment, the Appellant was the only party which filed her submissions. 5. It is the submission of the Appellant that the Trial Magistrate erred in law and in fact and misdirected herself and proceeded on wrong principles by holding the Appellant 30% liable without any legal basis. 6. The Appellant argued that the apportionment of liability at 30:70 in favour of the appellant was based on factors the Court ought not to have considered. The Appellant further pointed out that the weather conditions prevailing then ought not to have been the basis of the Court’s finding on liability. 7. It is also the averment of the Appellant that the Respondents did not adduce evidence that the accident was a result of bad weather conditions, therefore the Respondents should have been found wholly to blame for the accident. The Appellant further argued that the Trial Magistrate apportioned liability at 20%:80% in favour of the Plaintiff in Kericho C.M.C.C. No.E015 of 2020 while in Kericho C.M.C.C.C. No.14 of 2020, she apportioned 10%:90% in favour of the Plaintiff. 8. It is pointed that the variance was without proper jurisdiction since the cases arose out of the same accident. I have re-evaluated the evidence that was presented before the Trial Court. The record shows that four witnesses testified in support of the appellant’s case while the Respondent did not summon any witnesses to testify in support of the defence case. 9. Winnie Chepng’eno (PW.1) told the Trial Court that on the material date, she boarded motor vehicle KCV 701Y from Kisumu travelling to Kericho. PW.1 stated that upon reaching Kaitui Area, the Motor Vehicle was involved in a road traffic accident. She pointed out that the vehicle was being driven at high speed thus losing control and as a consequence, it rolled severally. PW.1 said that as a result, she sustained soft tissue injuries on the chest, neck and head. PW.1 wholly blamed the driver for the accident. PW.1 admitted that she did not buckle up that day. 10. Ismael Bishar (PW.2) a traffic Police Officer from Kipsitet Police Station told the Trial Court that the accident occurred at Kaitui Area along Kericho-Kisumu Road involving motor vehicle Registration No.KCV 701 Y, Toyota Matatu. PW.2 said that the Matatu was being driven by one Robert Cheruiyot from Kisumu towards Kericho. PW.2 said it was raining heavily on that material day and that the accident area was hilly. PW.2 further pointed out that the driver while negotiating a sharp bend lost control of the vehicle and veered off the road to left side and rolled severally. PW.2 further stated that there was no indication on the level of speed the driver was driving at and therefore the speed limit was treated as normal in view of the weather. 11. Faced with the above evidence, the Trial Magistrate came to the conclusion the Respondents should bear the larger liability of the accident. 12. The Learned Resident Magistrate stated that the Plaintiff who had not put on her safety belt had no say in the manner the Motor Vehicle was controlled. She also stated that the driver of the motor vehicle failed to appreciate the weather conditions and nature of the road and failed to exercise the skills of a reasonable and competent driver expected considering the circumstances. 13. The Trial Magistrate further stated that all in all, though PW.2 testified that the accident was beyond the control of the driver as the same was occasioned by bad weather, considering the circumstances obtained here, liability is entered in the ration of 30%:70% in favour of the Plaintiff. 14. Though the Trial Magistrate did not expressly state that the Appellant should shoulder 30% contribution, it would appear that was her holding. This is so because the award on damages was https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19032/eng@2025-12-18 2

page 2 of 4

slashed by 30%. The question is whether the Trial Magistrate was justified to hold the Appellant was liable for 30% contribution? 15. The Trial Magistrate expressly stated an rightly so that the Plaintiff (Appellant) who had not put on her safety belt had no say in the manner the motor vehicle was controlled. 16. With respect, it is therefore clear that the Learned Resident Magistrate erred when she held the Appellant 30% liability for the accident. There was clearly no basis for the holding. The Appellant could not have contributed in any way to the accident. 17. It is apparent that the driver of the motor vehicle Registration No. KCV 701 Y was solely to blame for the accident. The driver failed to appreciate the bad weather conditions and take precautionary measures to avoid the accident. To say the least, the driver was careless and drove negligently. The order finding the Plaintiff (Appellant) 30% liable must be set aside and substituted with a finding the Respondents are wholly liable for the accident. 18. On quantum, the Appellant argued that the award of Kshs.150,000/= as general damages inadequate considering the serious injuries the appellant sustained. The Appellant proposed a sum of Kshs.300,000/= to be adequate. 19. I have re-evaluated the evidence tendered at the Trial Court. It is apparent that the appellant is indicated to have sustained the following injuries:i. Blunt injury to the anterior chest wall leading to soft tissue injuries. ii. Blunt injury to the neck leading to soft tissue injuries. iii. Blunt injury to the head leading to soft tissue injuries. 20. The Trial Resident Magistrate did not expressly indicate in her Judgment whether or not the aforesaid injuries were serious. She simply stated that the injuries the Plaintiff sustained were not in any way disputed by the Defendants. She also formed the opinion that the Defendants cited authorities which involved less severe injuries while those cited by the Plaintiff involved multiple soft tissue injuries and went ahead to award Kshs.150,000/= and reduced by 30% contribution. 21. When dealing with an Appeal as against quantum, the Court of appeal in Bashir Ahmed Butt v Uwais Ahmed Khan {1982-88} KAR5 held as follows:“ The Appellate Court will not disturb an award of 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.” 22. In the instant case, it is apparent that the Trial Magistrate considered the authorities cited by both sides. I have also re-examined those authorities and I am satisfied that the Trial Magistrate clearly appreciated that those authorities are relevant and relate to awards comparable to what obtains the case before her. 23. I find the award of Kshs.150,000/= to be reasonable and comparable to other awards made in respect of soft tissue injuries. I find no good reason to disturb the award in the instant case. 24. In the end, this Appeal partially succeeds. The order apportioning liability at 30% to the Plaintiff (Appellant) is set aside and is substituted with an order the Defendants (Respondents) are wholly to blame for the accident. The Appeal as against quantum is dismissed save that the 30% contribution is set aside. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19032/eng@2025-12-18 3

page 3 of 4

25. For the avoidance of doubt, Judgment on Appeal is as follows:i. The Respondents to shoulder 100% liability. ii. The awards of the Trial Resident Magistrate i.e:a. General Damages ………Kshs.150,000/=. b. Special Damages………..Kshs. 10,550/=. Total…………Kshs.160,550/=. c. Costs of the suit. d. The award to attract interest at Court’s rate from the date of Judgment i.e. 15/6/2022. e. Costs of the appeal is awarded to the Appellant. DATED, SIGNED AND DELIVERED AT KERICHO THIS 18TH DAY OF DECEMBER, 2025. .…………………………… J. K. SERGON JUDGE In the Presence of:C/Assistant – Rutoh Mboga for the Appellant Njuguna holding brief for Najira for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19032/eng@2025-12-18 4

page 4 of 4