https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8057

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO. E004 OF 2024** **JOAN LUHONGO……………………………………………………..APPELLANT** **-VERSUS-** **TITUS IMBAKA alias TITUS IMBWAKA…………………………..RESPONDENT** **JUDGMENT** 1. This is an appeal arising from the judgment of the trial court delivered on 14th December 2023 in which liability was found in favour of the Respondent and general damages assessed at Kshs. 400,000/= were awarded for injuries sustained in a road traffic accident. 2. The Appellant is dissatisfied with the award on quantum only and has challenged the same on the grounds that the trial court misapprehended the evidence, failed to properly evaluate comparable awards, and consequently arrived at an excessive award not supported by law or fact. 3. The Respondent, on the other hand, has supported the decision of the trial court and contends that the award was fair, reasonable, and in line with established judicial precedent for similar injuries. 4. The appeal was canvassed by way of written submissions duly filed by both parties, which this Court has carefully considered together with the entire record of appeal. 5. The Respondent’s claim before the trial court arose from a road traffic accident in which he sustained bodily injuries. The accident was not disputed in terms of occurrence, and liability was resolved in favour of the Respondent. 6. The pleadings and medical evidence placed before the trial court indicated that the Respondent sustained multiple soft tissue injuries, including cut wound on the forehead, bruises on the occiput , bruises on both lips, blunt injury to the right hip, bruises on the left hand fingers and bruises on the right forearm. 7. The injuries were confirmed by the P3 form and medical report produced by Dr. Andambi, which formed part of the evidential record before the trial court. 8. After considering the evidence and submissions, the trial court awarded Kshs. 400,000/= as general damages. 9. The Appellant now seeks to have this Court interfere with that award on the basis that it was excessive and not in accord with comparable awards. **ISSUES FOR DETERMINATION** 1. From the memorandum of appeal and submissions, the sole issue for determination is whether the trial court erred in law and fact in awarding Kshs. 400,000/= as general damages for the injuries sustained by the Respondent. **ANALYSIS AND DETERMINATION** 1. This being a first appeal, this Court is under a duty to re-evaluate, re-analyse, and re-assess the evidence on record and arrive at its own independent conclusion while bearing in mind that it did not see or hear the witnesses testify. 2. The principle was restated in **Selle v Associated Motor Boat Co. [1968] EA 123**where the Court held that an appellate court is obliged to reconsider the evidence afresh and draw its own conclusions. 3. However, in so doing, the Court must bear in mind that it should not ordinarily interfere with findings of fact by the trial court unless those findings are based on no evidence, are based on a misapprehension of evidence, or are plainly wrong. 4. The law on interference with an award of damages is well settled in **Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 (2004) 2 KLR 55** and an appellate court will only interfere if it is demonstrated that: 5. The trial court took into account irrelevant factors; or 6. Failed to take into account relevant factors; or 7. That the award is so inordinately high or low as to represent an erroneous estimate. 8. Further, in **Kemfro Africa Ltd t/a Meru Express Services v A.M. Lubia & Another [1982–88] 1 KAR 727**, the Court of Appeal emphasized that an appellate court must exercise restraint and must not simply substitute its own award for that of the trial court. 9. The Court in **Stanley Maore v Geoffrey Mwenda Nyeri CA Civil Appeal No. 147 of 2002 [2004] eKLR** further reiterated that comparable injuries should attract comparable awards, taking into account inflation and passage of time. 10. The Appellant contends that the award of Kshs. 400,000/= was excessive and not supported by comparable authorities. It is argued that the injuries were minor soft tissue injuries that ought to have attracted a lower award. 11. The Respondent maintains that the injuries were not trivial, as they involved multiple body parts including the head, face, limbs, and hip region, and caused significant pain and suffering. 12. I have carefully considered the medical evidence on record. The injuries sustained were indeed soft tissue in nature but were multiple and affected sensitive areas including the head and facial region. 13. The trial court was alive to the nature of injuries and specifically considered the medical report, the P3 form, and submissions by both counsel before arriving at the award. 14. The Respondent relied on several authorities including **Marube & Another v Nyamboga (Civil Appeal E011 of 2023) [2024] KEHC**where the court upheld an award of Kshs. 400,000/= for injuries involving head cuts, blunt trauma, and multiple bruises. 15. The Court also **considered Blue Horizon Travel Co. Ltd v Kenneth Njoroge [2020] eKLR** 16. It is trite that assessment of damages is a matter of judicial discretion. An appellate court should be slow to interfere unless such discretion was exercised injudiciously. 17. **In Butt v Khan [1977] 1 KAR*,*** the Court of Appeal held that: “An appellate court will not disturb an award unless it is so inordinately high or low as to represent an entirely erroneous estimate.” **CONCLUSION** 1. Having carefully re-evaluated the evidence, the grounds of appeal, the submissions by both parties, and the applicable law, I am not persuaded that the Appellant has established a valid basis for interference with the trial court’s award for the injuries sustained by the Plaintiff/Respondent were merely soft tissues therefore not comparable to the injuries sustained by the Plaintiffs in the authorities the lower court relied on. 2. I find that an award of Ksh. 250,000/= will fairly compensate the Respondent for the injuries sustained. Therefore the award of Ksh. 400,000/= is set aside and replaced by the award of Ksh. 250,000/=. 3. The Appellant shall have the costs of the appeal. 4. Right of appeal 30 days. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 4TH DAY OF JUNE, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/Velma Mr. Mulama for the Respondent present online. KK for the Appellant present online.