The Republic of Kenya v Gorrety Beryl Achieng Aloo

right hip joint, and forehead (haematoma). The trial court held the appellants 100% liable and awarded as follows;-: i. General Damages: Kshs. 170,000/= ii. Special Damages: Kshs. 7,550/= iii. Costs and interest from the date of judgment. 4) The appellants now seek to set aside the judgment, arguing that the liability finding was erroneous and that the quantum was inordinately high. 5) As a first appellate court, this court is bound to re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. 6) The locus classicus case of Mbogo & Another v Shah [1968] EA 93 sets out the duty of this court as follows: “...An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must consider 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….” 7) Similarly, in Kiruga v Kiruga & Another [1988] KLR 348, the Court of Appeal held: “...An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no 2|P a g e

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evidence to support the finding or unless the judge can be said to be plainly wrong…” This court will thus not interfere with the trial court’s findings unless they are unsupported by evidence or that the decision is plainly erroneous. 8) The Appellants called a police officer and its driver as their witnesses. 9) DW1 (Police Officer) testified that as per the police records, the matatu driver alleged in his statement that the matatu was traveling from Sondu to Nairobi but on reaching the Jolly Farm, a trailer was reversing and he hit it from behind. That nobody was blamed in the initial police report. 10) DWI further testified that the point of impact was on the left lane (facing Nakuru) and that the matatu stopped 14 meters from the point of impact. 11) DW2 (the Driver) on the other hand testified that he was driving from Sondu to Nairobi but upon teaching Sachangwan, he found a lorry reversing with no rear lights. 12) That he hit the lorry from behind because he could not evade it due to oncoming vehicles and a ditch. Further, that the lorry driver drove off after the accident. To this end, DW1 blamed the lorry driver for reversing and failing to have rear lights on. 13) The respondent’s called the plaintiff as (as PW1) who testified that she was a fare-paying passenger in motor vehicle 3|P a g e

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registration No. KCG 207P and a police officer who produced the police file 14) That the driver was over speeding, frequently overtaking, and appeared sleepy. 15) It was her evidence that she warned the driver about his fatigue, but he responded that he would buy coffee to stay alert. 16) PW1 confirmed that the accident occurred at 11:30 p.m. when the matatu hit a lorry from behind. 17) She sustained injuries to her head, hips, and knees and was treated at Evans Surnise Hospital and Moi Air Base Hospital. 18) To support her above assertion, the Respondent produced medical records, a P3 form, and a police abstract as evidence. 19) The Respondent further called PW2 a Police Constable known as David Ngetich who testified that from the police records, the accident herein involved KCG 207 P and an unknown trailer. 20) That the driver (2nd appellant) reported that he hit the trailer from behind. 21) He further confirmed that nobody was charged for causing the accident. 22) Upon hearing of the various witnesses, the trial court made the following findings:i) Liability:- The appellants were 100% liable because: 23) The driver admitted hitting the trailer from behind. 24) The respondent’s evidence (that the driver was over speeding and sleepy) was undisputed 25) There was no evidence that the respondent, a passenger in the matatu, contributed to the accident. 4|P a g e

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26) The driver failed to maintain a safe distance or control his speed. ii) Quantum: 27) The respondent’s injuries (blunt trauma to the right knee, right hip, and forehead haematoma) were proven by medical evidence and upon consideration of comparable cases, awarded Kshs. 170,000/= in general damages. 28) Special damages of Kshs. 7,550/= pleaded and proved by receipts 29) The appellants, through KRK Advocates LLP filed their submissions dated 10th June, 2026 30) They indicate that they rely on their trial court submissions (pages 1-23 of the Record of Appeal) and cited the case of Kim Pho Choo v Camden & Islington Area Health Authority (1979) 1 All ER 332 (as referred to in Nancy Oseko v Board of Governors Masai Girls High School [2011] eKLR), which states: “In assessing damages, the injured person is only entitled to what is, in compensation, for the circumstances, both the plaintiff a fair and the defendant.” 31) They urge this court to set aside the trial court’s judgment and reassess quantum. The equally pray for costs of this appeal. 32) The respondent, through Gekong’a & Company Advocates filed their submissions dated 2nd June 2026) wherein they submitted that the trial court correctly found the appellants 100% liable based on the Appellant’s driver’s admission under oath that he hit the trailer from behind. 5|P a g e

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33) Further, that the respondent’s evidence (over speeding, sleepy driver) was undisputed and as such, the appellants failed to disprove negligence. 34) On quantum, the respondent relies on various cases and opine that the award of Kshs. 170,000/= and special damages of Kshs 7,550 is reasonable and not inordinately high to warrant any disturbance. 35) The respondent prays for the trial court’s judgment to be upheld with costs. The issues for determination are; i) whether the trial Court’s findings of 100% liability is justified? ii) Whether the award of Kshs. 170,000/= is inordinately high? i) whether the trial Court’s findings of 100% liability is justified? The core issue is whether the trial court erred in attributing 100% liability to the appellants. 36) A perusal of the court record at the trial court confirm that DW2 (the driver) admitted that he hit the trailer from behind. 37) PW1 (respondent) testified that the driver was overspeeding, frequently overtaking, and sleepy. This was not challenged by the said driver. 38) DW1 (police officer) confirmed that the matatu stopped 14 meters from the point of impact, suggesting excessive speed in the circumstances. 39) In the case of Masembe v Sugar Corporation & Another [2002] 2 EA 434, the court held: “When a man drives a motor car along the road, he is bound to anticipate that there may be things and 6|P a g e

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people or animals in the way at any moment, and he is bound not to go faster than will permit his car at any time to avoid anything he sees after he has seen it..” 40) Similarly in Mary Njeri Murigi v Peter Macharia & Another [2016] eKLR, the court stated: “A person who is driving a vehicle is under a duty of care to other road users. The vehicle is a lethal weapon, and due care is expected of the driver who is in control thereof.” 41) Based on the foregoing, I find that indeed, the driver of motor vehicle registration No. KCG 207 P failed in his duty of care by not maintaining a safe distance from the trailer and driving at excessive speed in the circumstances, preventing him from avoiding the collision. 42) The evidence from the witnessed and parties herein confirm that the Respondent was indeed a passenger hence incapable to having contributed the causation of the accident herein. 43) The trial court’s finding of 100% liability against the appellants is supported by evidence and not plainly wrong. This court upholds it. ii) Whether the award of Kshs. 170,000/= is inordinately high? 44) The respondent sustained the following injuries, proven by medical evidence: a) Blunt injury to the right knee joint (soft tissue injuries). b) Blunt injury to the right hip joint (soft tissue injuries). 7|P a g e

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c) Blunt injury to the forehead, leading to haematoma formation. 45) In its judgment herein, the Trial court considered both parties submissions and authorities relied on at arriving its decision. The respondent submitted for Kshs. 500,000/= whilst the Appellants submitted for Kshs. 50,000/=. 46) The trial court considered comparable cases and awarded Kshs. 170,000/=, stating: “Applying all relevant factors into consideration, I am of the view that an award of Kshs. 170,000/= will be reasonable compensation to the Plaintiff.” 47) In the case of Kenya Power Lighting Co. Ltd & Another v Zakayo Saitoti Naingola & Another [2008] eKLR, the court set out the principles for assessing damages: “Damages should not be inordinately too high or too low; past they are meant to compensate, not enrich; awards are mere guides; and inflation and the purchasing power of the Kenyan shilling must be considered.” 48) In A.M. Lubia & Olive Lubia (1982-88) 1 KAR 727, the Court of Appeal held that an appellate court should not disturb an award unless: “The judge in assessing damages took into account an one, irrelevant factor, or left out of account a relevant or that short inordinately low or so erroneous of this, the amount is so high that it must be a wholly estimate of the damages.” 8|P a g e

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49) I find that the award of Kshs. 170,000/= is commensurate with the injuries (multiple blunt trauma injuries), consistent with comparable cases (higher than less severe injuries, lower than more severe ones) and not inordinately high (per A.M. Lubia and Kemfro Africa Ltd principles). This court declines to disturb the award. 50) The question is whether the Award of Kshs. 7,550/= is inordinately high? 51) The respondent pleaded and proved special damages of Kshs. 7,550/= through receipts (Exhibits 5(b) and 6(b)). 52) In Mohammed Ali & Another v Sagoo Radiators Ltd [2013] eKLR, the court held: “Special damages must not only be claimed specifically but proved strictly, for they are not the direct natural or probable may consequences of the act complained of and not be inferred from the act.” 53) Thus, the trial court correctly awarded Kshs. 7,550/= as special damages. This court upholds it. 54) For the reasons set out hereinabove, this court dismisses the appeal in its entirety. Costs is awarded to the Respondent. Dated, signed and delivered at Nakuru this 14 th day of August, 2026. J. K. SERGON JUDGE In the presence of: Ruto C/A Miss Oganga holding brief for Gekonga for Respondent 9|P a g e

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Morara for the Appellant 10 | P a g e

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