Colleta Moraa Kemoni v Richard Momanyi & 1 other

swerve or avoid the accident, drove without due care, failed to keep a proper lookout and failed to exercise good judgment. The appellant further averred she suffered the following injuries: cut wounds on the left knee, swollen and bruised right thigh, swollen and bruised left foot and a blunt injury on the right shoulder, for which she held the respondents liable. 4. The respondents filed a defence dated 21st June 2024 denying the claim. They, instead, blamed the accident on the appellant for failing to keep to the sidewalk, failing to avoid the accident, failing to walk with due care and attention, failing to have regard to other road users and walking carelessly on the road. 5. The matter proceeded under Section 30 of the Small Claims Court Act. The appellant filed several documents including the police abstract, motor vehicle copy of records and treatment notes while the respondents did not file any documents. 6. By a Judgment delivered on 13th February 2025, the trial court held that the appellant respondents’ negligence that Accordingly, it to declined failed led to to apportion prove the liability the accident. to the respondents. On the issue of quantum, the trial Magistrate stated that had the appellant established negligence, it would have awarded the appellant Kshs. 170,000/- for the injuries and special damages of Kshs. 5,500/-. The Appeal THIKA HCCA NO. E189 OF 2025 Page 2

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7. Disgruntled, the appellant filed a Memorandum of Appeal dated 29th May 2025 raising the following grounds of appeal, that the Learned Trial Magistrate erred in law and fact: 8. i. ii. In failing to consider the appellant’s submissions. In holding that the appellant failed to prove negligence on the part of the respondents. iii. By holding that the evidence tendered by the appellant never explained how the accident happened. iv. By failing to consider documents filed by the appellant. v. By holding that liability has not been proven against the respondent. vi. In not exercising her discretion judiciously. Accordingly, the appellant prayed for the appeal to be allowed, the impugned Judgment be set aside, for her documents to be considered, the suit to be reinstated and judgment be delivered in her favour and costs of the appeal. 9. Despite service, the respondents did not participate in the appeal. Analysis and Determination 10. As this is a first appeal, this Court is obligated to reevaluate and re-analyze the evidence on record and arrive THIKA HCCA NO. E189 OF 2025 Page 3

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at its own conclusions in the matter, as put more succinctly in Selle v. Associated Motor Boat Co. [1968] EA 123. 11. I have considered the appeal and appellant’s. In dismissing the appellant’s case, the trial court held that the appellant failed to prove how the accident occurred and the manner in which the respondents were negligent. I am unable to agree with the trial court’s finding. The suit proceeded under Section 30 of the Small Claims Court Act which provides thus: 30. Proceeding by documents only Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court. 12. In this regard, the appellant provided a police abstract confirming that the accident was reported. She further stated she was walking along Thika Road at Clayworks service lane when the motor vehicle was driven negligently, resulting in the accident. She particularized the respondents’ negligence in paragraph 4 of the statement of claim and her witness statement as follows: driving and/ or causing motor vehicle to be driven at an excessive speed, failing to stop, swerve or brake to avoid the said accident, driving without due care and attention, failing to keep a proper lookout, among others. THIKA HCCA NO. E189 OF 2025 Page 4

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13. In my view, the appellant placed before the trial court uncontroverted evidence as to how the accident occurred and attributed negligence to the respondents. While the legal burden of proof remained with the appellant, the respondents did not adduce any evidence to rebut her account. In the absence of such rebuttal, and there being no basis on the record to discredit her testimony, I find that the trial court erred in concluding that negligence had not been proved. Accordingly, I find the respondents 100% liable. 14. Although the trial court dismissed the suit on the issue of liability, it proceeded to assess damages in the alternative and indicated it would have awarded Kshs.170,000/-. The appellant sustained the following injuries: cut wounds on the left knee, swollen and bruised right thigh, swollen and bruised left foot and a blunt injury on the right shoulder. I have considered the nature of injuries and comparable awards. a. In George Kinyanjui T/A Climax Coaches & Another vs Hussein Mahad Kuyale [2016] KEHC 7251 (KLR) the court awarded Kshs. 120,000/- for tenderness in the neck, chest, lumbosacral spine, left shoulder and knee. b. In Pascal vs Kassim (Civil Appeal E014 of 2021) [2025] KEHC 46 (KLR), the court awarded Kshs. 200,000/- for a deep cut wound on the left parietal region, chest contusion, blunt trauma to the left knee, blunt trauma to the left elbow, bruises on the left parietal region and blunt trauma to the left arm, which are THIKA HCCA NO. E189 OF 2025 Page 5

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comparable in nature though slightly less severe than those sustained by the appellant. c. In Auto Selection (K) Ltd. & Another vs Raibu (Civil Appeal E049 of 2022) [2023] KEHC 25170 (KLR), the court awarded Kshs. 150,000/- for a 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. 15. In the circumstances, and in view of the foregoing awards, I am satisfied that the award of Kshs.170,000/- was reasonable for the soft tissue injuries sustained. It is neither so inordinately high nor so low as to represent an erroneous estimate of the damages payable. I therefore uphold the trial court's assessment of quantum. 16. With respect to special damages, it is trite law that they must be specifically pleaded and proved. While the appellant has proved the special damages of Kshs.5,000/for the medical report, I find that she has not proved the claim for Kshs.550/- for motor vehicle search. This is because, while the motor vehicle involved in the accident was pleaded to be KDL 231G, the appellant attached a search for KDL 374F. Accordingly, I award Kshs.5,000/- as special damages. ORDERS 17. The upshot of the foregoing is: a. The Judgment dated 13th February 2025 is hereby set aside. THIKA HCCA NO. E189 OF 2025 Page 6

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b. The respondents are hereby found 100% liable for the accident and subsequent injuries and pain to the appellant. c. The appellant is awarded Kshs.170,000/- in general damages and Kshs.5,000/- in special damages. d. Interest shall accrue on the general damages from the date of the trial court’s Judgment while the special damages shall accrue interest from the date of filing the suit. e. The appellant shall have costs of the appeal and suit at the trial court. It is so ordered. Dated, Signed and Delivered at Nairobi this 30th day of July 2026. DAVID MBURU JUDGE In the presence of: M/s Spencer holding brief for Mr. Njagi for the Appellant No appearance for the Respondents Kalondu - Court Assistant THIKA HCCA NO. E189 OF 2025 Page 7

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