Real Insurance Company Limited & 1 other v Monicah Wanjiru Maina

4. In response, the Appellants entered appearance and filed a joint statement of defence dated 23rd March, 2021. In their defence, the Appellants denied the contents of the Plaint in toto as pleaded. The Appellants pleaded negligence on the part of the Respondent such as distracting the driver of the motor vehicle, failing to wear a safety belt and failing to have due regard to her own safety. The Appellants asked the Court to dismiss the suit with costs. 5. By consent of the parties on 7th December, 2023, the Respondent’s statement dated 10th September, 2020 was adopted as evidence in chief, the list of documents of even date and a further list dated 16th July, 2021 were admitted as evidence marked as PExhibits 1 to 13 without calling the makers and the Appellants’ second medical report dated 7th May, 2021 was admitted as defence Exhibit 1. 6. Parties were directed to file written submissions in urging their respective cases and upon considering the evidence and the submissions, the court delivered its Judgment on 4th July, 2024 whereby the trial Court entered Judgment in favour of the Respondent and awarded general damages of Kshs. 500,000/ = and special damages of Kshs. 29,690/=. 7. Being aggrieved by the Judgment and Decree of the trial Court, the Appellants lodged the present appeal vide a Memorandum of Appeal dated 29th July, 2024 in which they set out the following Grounds of Appeal:a. That the learned Magistrate erred in law and fact in failing to consider and find that the 1st & 2nd Appellants had shown a prima facie case with a high probability of success. b. That the learned Magistrate erred in law and fact in failing to consider and find that there was no concrete evidence placed before the court to determine who was to blame for the accident between the Plaintiff and the 1st & 2nd Appellants. c. That the learned Magistrate erred in law and fact in failing to consider and find that the contents of a police abstract as extracted from the records held by the police is merely evidence that a report of an accident was made and not that an accident occurred. d. That the learned Magistrate erred in law and fact in failing to consider and find that a police abstract is not conclusive proof of liability. e. That the learned Magistrate erred in law and fact in failing to consider and find that where there is no concrete evidence to determine how the accident occurred and who is to blame for causing an accident, both parties should be held equally liable. f. That the learned Magistrate erred in law and fact in failing to consider and find that in assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike. g. That the learned Magistrate erred in law and fact in failing to consider and find that in assessing compensatory damages, the law seeks to indemnify the victim for the loss suffered and not to mulct the tortfeasor for the injury he has caused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2340/eng@2026-01-16 2

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h. That the learned Magistrate erred in law and fact in failing to judiciously analyze the evidence on record thereby arriving at quantum that was erroneous, untenable, unfair and unjust to the Appellants. 8. The Appellants seek this Court to allow the appeal, set aside the Judgment of the Honourable Court in Limuru CMCC No. 258 of 2020 delivered on 4th July, 2024 by Honourable Jared O. Magori (SPM) and for costs and interest of this Appeal to be borne by the Respondent. 9. This appeal was admitted for hearing and parties directed to canvass it through written submissions. The Appellants’ filed their submissions dated 17th February, 2025 whereas the Respondent’s submissions are dated 21st March, 2025. Analysis and Determination 10. To determine this appeal, this Court has carefully considered the grounds cited in the Memorandum of Appeal, the rival submissions alongside the cited authorities and finds the issue for determination being whether the trial court erred in its finding as liability and quantum of damages. 11. This being a first appeal, this Court is guided by the principles that were set out in the case of Selle & Another –vs- Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the court stated as follows:“ This Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 12. In the case of Mbogo & Another –vs- Shah [1968] E.A. 93, the Court laid down the principle that an appellate court should not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision was clearly wrong because it had misdirected itself or because it had acted on wrong principles. 13. On the issue of liability, the Respondent’s evidence, as contained in the witness statement adopted as her evidence in chief which was inter alia that on 5th May, 2019 while travelling from Nairobi to Nakuru aboard Motor Vehicle Registration Number KBX 309 T at Ndemi area, while giving way to Motor Vehicle Registration Number KCJ 042H which was coming from the opposite direction, the driver lost control, ran off the road and rolled several times. The Respondent was taken to Limuru Sub County hospital in Kiambu where she was treated and discharged. She was later admitted from 30th May, 2019 to 7th June, 2019 due to the wound on the right thigh. She stated that she sustained injuries on the hands, right thigh, forehead and fracture on the right radius. The Respondent produced evidence marked as PExhibit 1 to 13 without calling the makers. The Police abstract indicates that the Respondent was a passenger and the case was pending under investigations. 14. From the aforesaid, it is clear that the Respondent was a passenger aboard Motor Vehicle Registration Number KBX 309T and therefore cannot be blamed for the occurrence of the accident. There was no evidence adduced by the Appellants faulting the Respondent for the accident. 15. In the case of Mwangi & Another –vs- Olum (Suing as the Legal Admin of the Estate of the Late Alice Akoth Okeyo - Deceased), (Civil Appeal 089 of 2023) [2025] KEHC 7945 (KLR) (13 February, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2340/eng@2026-01-16 3

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2025) (Judgment) the Court while citing the case of West Kenya Sugar Co. LTD –vs- Lilian Auma Saya (2020) eKLR, held that:“ The Respondent is only a passenger on the motorcycle. A passenger cannot be held liable when a vehicle he/she is traveling in is involved in an accident.” 16. In this Court’s view the Respondent cannot be faulted for the accident as she was just a passenger aboard the motor vehicle which was involved in an accident. 17. On the issue of quantum of damages, it is trite that an Appellate Court must be careful not to interfere with the trial Court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited T/A “Meru Express Services (1976)” & Another –vs- Lubia & Another (No. 2) Civil Appeal No. 21 of 1984 [1985] eKLR where it was held thus:“ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the 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. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards.” 18. This Court has had the opportunity of considering the authorities cited by the parties herein. The Appellant cited the case of Jane Warugurumiano –vs- Jotham Nguri Magondu & Another [2018] KEHC 6902 (KLR), where the Judge upheld an award of Kshs. 250,000/- that had been awarded by the trial Magistrate where the Appellant sustained huge haemotoma, scapular fracture with tenderness, fracture of the 8th rib with tenderness, dislocation of the right shoulder joint, neck pain, lumbar spine pain and bruises of the lower limbs. 19. In the case of Njane & Another –vs- Warui (Civil Appeal E467 of 2021) [2024] KEHC 9096 (KLR) (Civ) (19 July, 2024) (Judgment), the Judge set aside an award of Kshs. 320,000/- and substituted it with Kshs. 120,000/- where the Respondent sustained a fracture of the distal end of the right radius. 20. On the other hand, the Respondent relied on the authority of Francis Nzivo Munguti & Another – vs- Jotham Wanyonyi Nakasana & Anor. (2020) eKLR, where the Appellate Court gave an award of Kshs. 600,000/= where the Respondent had sustained a fractured right radius/ulna and had multiple cuts on the forehead, right leg and foot which had been stitched. 21. In the case of Mary Akinyi Atella –vs- Omondi Beatrice Monica (2021) eKLR, the Appellate Court gave an award of Kshs. 500,000/= for pain and suffering where the Appellant had sustained comminuted fracture of the left radius and dislocated ulna joint, facial bruises, blunt injury to the forearm, blunt temporal injury with swelling. 22. In this appeal, the Respondent suffered a displaced fracture of the right radius, soft tissue injuries of the hand, haemotoma on the right thigh with other soft tissue injuries and soft tissue injuries of the forehead. The trial Court awarded the Respondent general damages of Kshs. 500,000/= and special damages of Kshs. 29,690/=. 23. It is trite law that comparable injuries ought to attract a comparable award of damages. This was the position stated by the Court of Appeal in the case of Odinga Jacktone Ouma –vs- Moureen Achieng Odera (2016) eKLR, where the court stated that “comparable injuries should attract comparable awards.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2340/eng@2026-01-16 4

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24. This Court has also considered the decision in the case of Albanos –vs- Captain Motor Cycle Manufacturing Limited & Another (Civil Appeal E002 of 2021) [2023] KEHC 26944 (KLR) (14th December, 2023) (Judgment), where the trial Court awarded the Appellant Kshs. 500,000 as General damages for displaced fracture of the right radius, displaced fractures of the left radius and ulna, soft tissue injuries of the face and soft tissue injuries of the left hip joint. On appeal, the court enhanced the award to Kshs. 1,000,000/=. 25. Based on the foregoing reasons, bearing in mind the injuries that the Respondent herein sustained, the Court finds the award of Kshs.500,000/= reasonable and proceeds to uphold the trial court’s decision on the same. 26. As regards the award on special damages, the same was pleaded and proved, hence this Court finds no reason to interfere with it. 27. In the premises, this Court finds no merit in this appeal and the same is hereby dismissed and the Judgment of the trial Court is upheld in the following terms:a. Liability at 100% b. General damages – Kshs.500,000/= c. Special damages – Kshs. 29,690/= Total - Kshs.529,690/= d. Each party to bear its own costs. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 16TH DAY OF JANUARY , 2026. D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2340/eng@2026-01-16 5

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