https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7167

Ena Investments Ltd v Obunge (Civil Appeal E092 of 2025) [2026] KEHC 7167 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 7167 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E092 of 2025 A Mabeya, J May 15, 2026 Between Ena Investments Ltd Appellant and Pius Ogindo Obunge Respondent Judgment 1.The respondent filed the primary suit before the trial court vide a plaint dated 10/03/2023 seeking general and special damages for injuries sustained following a road traffic accident that occurred on or about the 24/12/2021. 2.The appellant entered appearance and filed a statement of defence dated 6/3/2023 in which it denied the respondent’s claim and pleaded contributory negligence on the part of the respondent. 3.The matter proceeded to trial and by a judgment delivered on 26/03/2025, the trial court decreed: -a.Liability 100% against the appellant.b.General damages Kshs. 300,000/-.c.Special damages Kshs. 17,998/-d.Total award Kshs. 317,998/-.e.Costs and interest at court rates. 4.Being dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 10/4/2025 and raised five (5) grounds of appeal as follows: -a.That the learned trial magistrate erred in law and in fact in assessment of quantum by awarding Kshs. 300,000/- for general damages an award which was excessive and an erroneous estimate of the damages awardable.b.That learned trial magistrate erred in fact and in law in failing to consider the defendant’s submissions and authorities on quantum.c.That the learned trial magistrate erred in fact and in law in failing to consider the evidence that was tendered on quantum during the hearing of the suit.d.That the learned trial magistrate erred in law and in fact in failing to pay regard to authorities in the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was deciding.e.That the learned trial magistrate’s exercise of discretion in assessment of quantum was injudicious. 5.The appeal was disposed of by way of written submissions. The appellant submitted that an award of Kshs. 60,000/- would fairly and adequately compensate the respondent considering the nature of injuries. Reliance was placed on the following cases;a.Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 Others where Majanja J set aside the lower court’s award of Kshs. 55,000/- for a deep cut on the scalp extending to the maxillary area, blunt injury to the left side of the chest, contusion on the back and contusion on both legs and substituted it with an award of Kshs. 90,000/-.b.LNK (a minor suing through CNK as next of friend & 2 Others v Simon Gatuni Njukia [2022] eKLR, where the court awarded each appellant Kshs. 80,000/- for cut wound to the occipital region, neck, right ankle and foot in the first case and soft tissue injuries to the occipital region, forehead, left cheek, lower limb, chest and shoulder with similar injuries in the third case. 6.This being a first appeal, the Court is duty bound to evaluate the evidence before the trial court afresh and come to its own independent findings and conclusions. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. 7.Before the trial court, the respondent testified as Pw1. He adopted his statement dated 10/3/2023 as his evidence in chief and his list of documents as PExh1 - 10. He reiterated the averments in his plaint regarding the occurrence of the accident to wit; that on the material date, he was riding his motor cycle along Ahero – Kisumu road when the appellant’s driver drove his motor vehicle carelessly causing it to hit him. 8.In cross-examination, he told the court that the appellant’s driver hit him from behind. That he had been riding for about 5 years and that his licence was in court. That the injuries he sustained were minor. 9.The appellant closed its case without calling any witness only producing the medical report dated 15/11/2023 by Dr. Steve Ochieng as DExh 1. 10.From the foregoing, the grounds of appeal may be summarized into one, viz, ‘that the trial court misdirected itself in ignoring the evidence, submissions, authorities and principles applicable on quantum and consequently came to a wrong conclusion on damages which were too high’. 11.The appellant’s appeal is basically on quantum, which it deems to be inordinately high. The general rule is that assessment of damages lies in the discretion of the trial court and an appellate court will only interfere with an award of damages where it is inordinately high or low as to represent an erroneous estimate. 12.In Butt v Khan (1977) I KAR, the Court of Appeal held that: -“An appellate court will not disturb an award for damages unless it is inordinately high or low as to entirely represent an 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.” 13.The appellant pleaded that he had sustained blunt injuries to the head, lower back, shoulder joint as well as a deep cut wound to the right knee joint and a cut wound on the right big toe. 14.The said injuries were set out in the P3 form dated 6/1/2022, treatment notes from Korowe Medical Centre and a medical report by Dr. Obed Omuyoma dated 29/9/2022 all produced as exhibits by the respondent. 15.The appellant impugned the judgment on the grounds that the award of Kshs. 300,000/- was too high. It did not dispute the injuries sustained by the respondent. In Moltex Knitwear limited v Gopitex Knitwear Mills limited Nairobi (Milimani) HCCC No., 834 of 2002, Lessit, J (as she was then) citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC No. 548 of 1998 appreciated that: -“Although the defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.” 16.In this case, the injuries pleaded were not disputed. They were proved through the respondent’s oral testimony, the P3 form and other medical records produced in court. 17.In Dakianga Distributors (K) Ltd v Kenya Seed Company Limited [2015] eKLR, the Court of Appeal stated: -“Since the plaintiff did not object to that evidence being adduced and allowed the said cheques to be introduced in evidence and are therefore on record, this court cannot simply ignore or overlook them.” 18.In this regard, a look at the medical record presented by the respondent revealed that the respondent sustained soft tissue injuries. 19.This Court has considered the submissions and authorities relied on by appellant on the award for damages. The Court considers the following cases as being comparable to the instant suit: -a.In Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichuri [2005] eKLR, the 3rd plaintiff suffered multiple soft tissue injuries on the left elbow frame and injuries on both ankles and was awarded Kshs. 350,000/- as general damages.b.In Ogembo & Anor v Maisa (2023) KEHC 436(KLR), the injuries consisted of soft tissue injuries and two degloving injuries. The Court awarded Kshs. 300,000/-.c.In Khetia Draper Ltd v Chesoli [2025] KEHC 3718 (KLR) the plaintiff sustained minor to moderate soft tissue injuries and the High Court upheld an award of Kshs. 250,000/- as general damages. 20.From the foregoing, it is not correct to term the award made by the trial court as excessive. In light of injuries suffered, the award of Kshs. 300,000/- cannot be said to be excessive and is comparable with the awards given in the cases referred to above. 21.The appeal therefore lacks merit and is hereby dismissed with costs. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE