(Being an appeal from the judgment of Hon. R.L. Musiega in Milimani CMCC No. E5339 of 2024)
The respondent (plaintiff in the lower court), vide a plaint dated 1.10.24, filed suit against the appellants (defendants in the lower court) seeking general and special damages for injuries sustained in a road traffic accident that occurred on 27.5.24 along Carmax Garage-Gikomba area. The plaint indicates that the accident involved motor vehicle reg No. KBQ 075V, allegedly owned by the 1 st defendant and managed by the 2 nd defendant.
The respondent in his plaint contended that the accident was caused by the negligence of the 2 nd appellant for whose acts the 1 st appellant is vicariously liable, being the registered owner.
The appellants filed a joint statement of defence denying liability and put the respondent to strict proof. In the alternative and without prejudice, the respondent averred that if an accident occurred, then it was solely caused by the plaintiff’s own negligence. In paragraph 5 of the statement defence, the appellants pleaded as follows:
‘5. For avoidance of doubt, the 1 st and 2 nd defendants aver that motor vehicle registration No. KBQ 075V-UD bus did not get into an accident as alleged in the plaint and any allegations thereto should be put to strict proof thereof (sic)’
During the hearing before the trial court, the respondent testified and called two witnesses. His evidence was that on the 29.5.24, he was a lawful pedestrian along Carmax Garage-Gikomba going about his duties when the appellants’ motor vehicle reg No. KBQ 075V hit him as a result of which he sustained bodily injuries. His evidence was that motor vehicle reg. No. KBQ 075V was owned by the 1 st appellant and managed by the 2 nd appellant. His witness police officer No. 72776 Sgt. Julius testified that an accident did occur along Carmax Garage-Gikomba area, involving m/v KBQ 675U and the respondent. The respondent also called as PW1, Dr. C. Okoth Okere, who examined him and prepared a medical report.
The 1 st appellant in his evidence testified that he owns m/v KBQ 675U. That on the 27.5.24, the bus in question was at a garage called Carmax undergoing repair by the plaintiff who is a mechanic when the jack supporting the bus slipped and the bus fell on the respondent. The 1 st appellant denied that the respondent was a pedestrian.
The 2 nd appellant in his evidence corroborated the evidence of the 1 st appellant and in particular that the accident involved m/v reg No. KBQ 675U.
The trial magistrate in his judgment found the appellants culpable in negligence and assessed damages in favour of the respondent. He assessed liability at 100% against the appellants, awarded general damages of Kshs. 750,000, special damages of Kshs. 25,822, costs of the suit and interest.
Aggrieved by the judgment, the appellant appealed to the court on the following grounds:
a) The learned magistrate erred in law and in fact in failing to appreciate the value of pleadings.
b) The learned magistrate erred in law and in fact in failing to appreciate the burden of proof thus shifting the same to the appellant
c) The learned magistrate failed to consider the whole pleadings and evidence in the suit thus arriving at a wrong decision
d) The learned magistrate erred in law and in fact in failing to find that the claim was not proved to the required standard
e) The learned magistrate erred in award of damages which was inordinately high
The appellant submitted that the trial court failed to appreciate that parties are bound by pleadings. In particular, the appellants submitted that the respondent had pleaded that he was hit by a motor vehicle reg No. KBQ 075V and not KBQ 675U. That the evidence presented by the respondent was at variance with the pleadings. The appellant cited the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) eKLR.
On quantum, the appellants submitted on a without prejudice that an award of Kshs. 300,000 would have been sufficient as general damages for pain and suffering.
The respondent submitted that the evidence presented to court including the police report showed that the appellants were liable in negligence.
The respondent while admitting that the plaint had mentioned a different registration number of the accident motor vehicle, submitted that the police abstract indicated the correct registration number. The respondent submitted that there was no error in the assessment of damages.
ANALYSIS AND DETERMINATION
This being a first appeal, the court is under a duty to reevaluate and reanalyze the evidence before the trial court and make its own conclusions. The court must however bear in mind that unlike the trial court, this court did not have the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the court of appeal in the case of Selle & Another v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited (1985) EA 424.
I have carefully considered the pleadings, the evidence and the record before the trial court.
The respondent’s suit before the trial court was based on a plaint dated 1 st October 2024, his witness statement and list of documents all of even date. His case in summary is that he was involved in a road traffic accident on 27 th May 2024 while walking along Carmax Garage when a motor vehicle registration number KBQ 075V hit him. I note that the respondent’s statement, just like the plaint, mentioned motor vehicle registration number KBQ 075V.
The documentary evidence including the police abstract, however reveals a totally different motor vehicle, bearing registration number KBQ 675U. There was no amendment of the plaint and no explanation given during the hearing for the obvious discrepancy. There was a clear contradiction between what was pleaded and what was sought to be proved before the trial court.
It is trite law that parties are bound by their pleadings and any evidence which does not support the pleadings must be disregarded. This was clearly put by my brother A.C. Mrima J. in Daniel Otieno Migore v South Nyanza Sugar Co. Ltd when he stated as follows:
“It is now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in concurrence with the pleadings. Any evidence however strong, that tends to be at variance with the pleadings must be disregarded .”
The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another v IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition:
“In absence of pleadings, evidence if any produced by parties, cannot be considered. It is also settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.”
Looking keenly at the case before the trial court, there is no dispute that the evidence tendered by the respondent did not support the pleadings. The respondent pleaded that he was a lawful pedestrian walking along Carmax Garage-Gikomba going about his duties when he was hit by the 1 st defendant’s motor vehicle registration number KBQ 075V. Other than the obvious contradictions in his evidence, there is no evidence to support the plea that the 1 st defendant owned motor vehicle registration number KBQ 075V. The documents relied on by the respondent, including copy of records from NTSA and police abstract all referred to motor vehicle KBQ 675U. The trial magistrate failed to address his mind to this anomaly and thereby acted on wrong principles in arriving at his decision.
Aside from ignoring the pleadings, the trial magistrate misdirected himself when he shifted the burden of proof to the appellants by stating thus:
“In this case the parties did not call independent witnesses now that the manner in which the accident happened is in dispute. However, the court notes that the defendant aver that after the motor vehicle fell on the plaintiff, it was lifted and removed above him by over 50 people and that he was taken to hospital by 6 people. I fail to understand why the defendants failed to call any of this (sic) people as a witness in this case, to controvert the testimony of the plaintiff that he was a pedestrian, the testimony that was corroborated by the police abstract that has not been challenged by conflicting evidence…The court therefore finds that the accident occurred in the manner substantially described by the plaintiff i.e., the vehicle moved unexpectedly and struck him”
The appellants testified and corroborated the evidence of each other on circumstances under which an accident involving motor vehicle reg No. KBQ 675V had occurred. Their evidence was not impeached during cross examination and it totally displaced the plaintiff’s case as pleaded. The burden of proof was on the respondent to prove that he was hit by m/v reg No. KBQ 075V, owned by the 1 st appellant and driven by the 2 nd appellant. The respondent failed to satisfy the burden under section 107 (1), 109 and 112 of Evidence Act. In Evans Nyakwara v Cleophas Bwana Ongaro (2015) eKLR t he court in setting out the legal burden of proof in civil cases stated as follows:
“As a general proposition the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given by either side”
From the foregoing analysis, it is my finding that the trial court erred in law and in fact at arriving at a conclusion that was not based on evidence and pleadings before him and acted on wrong principles in reaching his findings on liability.
As regards quantum, the court of appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR set out the parameters under which an appellate court will interfere with an award in general damages when it held:
“An appellate court will not disturb an award of general damages unless it is so inordinately high or low so as to represent an entirely 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…”
In the suit before the trial court the learned magistrate awarded Kshs. 750,000 as general damages. The respondent had suffered a right distal femur fracture. The doctor who examined him assessed permanent disability at 40%.
I have considered the case law cited by the learned magistrate including the case of Stanley Maore v Geoffrey Mwenda (2004) eKLR, Jackson Mbaluka Mwangangi v Onesmus Nzioka & Another (2021) eKLR and Mutuku v Mwangi & 2 others (2023) KEHC 24468 KLR where awards of Kshs. 600,000 was made for similar injuries.
Having considered the age of the cited cases and the inflation trend in our country, I do not find the sum awarded to be inordinately high. I would have no reason to disturb the same.
Following the foregoing discourse on liability, the upshot is that the appeal herein succeeds. The judgment of the trial magistrate dated 11.12.25 on liability is set aside and substituted with one dismissing the suit in the lower court with costs. The appellant shall also have costs of this appeal.
DATED, SIGNED AND DELIVERED THIS14th JULY 2026
D.O. ONYANGO.
JUDGE
1
The respondent (plaintiff in the lower court), vide a plaint dated 1.10.24, filed suit against the appellants (defendants in the lower court) seeking general and special damages for injuries sustained in a road traffic accident that occurred on 27.5.24 along Carmax Garage-Gikomba area. The plaint indicates that the accident involved motor vehicle reg No. KBQ 075V, allegedly owned by the 1 st defendant and managed by the 2 nd defendant.
The respondent in his plaint contended that the accident was caused by the negligence of the 2 nd appellant for whose acts the 1 st appellant is vicariously liable, being the registered owner.
The appellants filed a joint statement of defence denying liability and put the respondent to strict proof. In the alternative and without prejudice, the respondent averred that if an accident occurred, then it was solely caused by the plaintiff’s own negligence. In paragraph 5 of the statement defence, the appellants pleaded as follows:
‘5. For avoidance of doubt, the 1 st and 2 nd defendants aver that motor vehicle registration No. KBQ 075V-UD bus did not get into an accident as alleged in the plaint and any allegations thereto should be put to strict proof thereof (sic)’
During the hearing before the trial court, the respondent testified and called two witnesses. His evidence was that on the 29.5.24, he was a lawful pedestrian along Carmax Garage-Gikomba going about his duties when the appellants’ motor vehicle reg No. KBQ 075V hit him as a result of which he sustained bodily injuries. His evidence was that motor vehicle reg. No. KBQ 075V was owned by the 1 st appellant and managed by the 2 nd appellant. His witness police officer No. 72776 Sgt. Julius testified that an accident did occur along Carmax Garage-Gikomba area, involving m/v KBQ 675U and the respondent. The respondent also called as PW1, Dr. C. Okoth Okere, who examined him and prepared a medical report.
The 1 st appellant in his evidence testified that he owns m/v KBQ 675U. That on the 27.5.24, the bus in question was at a garage called Carmax undergoing repair by the plaintiff who is a mechanic when the jack supporting the bus slipped and the bus fell on the respondent. The 1 st appellant denied that the respondent was a pedestrian.
The 2 nd appellant in his evidence corroborated the evidence of the 1 st appellant and in particular that the accident involved m/v reg No. KBQ 675U.
The trial magistrate in his judgment found the appellants culpable in negligence and assessed damages in favour of the respondent. He assessed liability at 100% against the appellants, awarded general damages of Kshs. 750,000, special damages of Kshs. 25,822, costs of the suit and interest.
Aggrieved by the judgment, the appellant appealed to the court on the following grounds:
a) The learned magistrate erred in law and in fact in failing to appreciate the value of pleadings.
b) The learned magistrate erred in law and in fact in failing to appreciate the burden of proof thus shifting the same to the appellant
c) The learned magistrate failed to consider the whole pleadings and evidence in the suit thus arriving at a wrong decision
d) The learned magistrate erred in law and in fact in failing to find that the claim was not proved to the required standard
e) The learned magistrate erred in award of damages which was inordinately high
The appellant submitted that the trial court failed to appreciate that parties are bound by pleadings. In particular, the appellants submitted that the respondent had pleaded that he was hit by a motor vehicle reg No. KBQ 075V and not KBQ 675U. That the evidence presented by the respondent was at variance with the pleadings. The appellant cited the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd (2018) eKLR.
On quantum, the appellants submitted on a without prejudice that an award of Kshs. 300,000 would have been sufficient as general damages for pain and suffering.
The respondent submitted that the evidence presented to court including the police report showed that the appellants were liable in negligence.
The respondent while admitting that the plaint had mentioned a different registration number of the accident motor vehicle, submitted that the police abstract indicated the correct registration number. The respondent submitted that there was no error in the assessment of damages.
ANALYSIS AND DETERMINATION
This being a first appeal, the court is under a duty to reevaluate and reanalyze the evidence before the trial court and make its own conclusions. The court must however bear in mind that unlike the trial court, this court did not have the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. The foregoing duty was succinctly stated by the court of appeal in the case of Selle & Another v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited (1985) EA 424.
I have carefully considered the pleadings, the evidence and the record before the trial court.
The respondent’s suit before the trial court was based on a plaint dated 1 st October 2024, his witness statement and list of documents all of even date. His case in summary is that he was involved in a road traffic accident on 27 th May 2024 while walking along Carmax Garage when a motor vehicle registration number KBQ 075V hit him. I note that the respondent’s statement, just like the plaint, mentioned motor vehicle registration number KBQ 075V.
The documentary evidence including the police abstract, however reveals a totally different motor vehicle, bearing registration number KBQ 675U. There was no amendment of the plaint and no explanation given during the hearing for the obvious discrepancy. There was a clear contradiction between what was pleaded and what was sought to be proved before the trial court.
It is trite law that parties are bound by their pleadings and any evidence which does not support the pleadings must be disregarded. This was clearly put by my brother A.C. Mrima J. in Daniel Otieno Migore v South Nyanza Sugar Co. Ltd when he stated as follows:
“It is now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in concurrence with the pleadings. Any evidence however strong, that tends to be at variance with the pleadings must be disregarded .”
The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another v IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition:
“In absence of pleadings, evidence if any produced by parties, cannot be considered. It is also settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings.”
Looking keenly at the case before the trial court, there is no dispute that the evidence tendered by the respondent did not support the pleadings. The respondent pleaded that he was a lawful pedestrian walking along Carmax Garage-Gikomba going about his duties when he was hit by the 1 st defendant’s motor vehicle registration number KBQ 075V. Other than the obvious contradictions in his evidence, there is no evidence to support the plea that the 1 st defendant owned motor vehicle registration number KBQ 075V. The documents relied on by the respondent, including copy of records from NTSA and police abstract all referred to motor vehicle KBQ 675U. The trial magistrate failed to address his mind to this anomaly and thereby acted on wrong principles in arriving at his decision.
Aside from ignoring the pleadings, the trial magistrate misdirected himself when he shifted the burden of proof to the appellants by stating thus:
“In this case the parties did not call independent witnesses now that the manner in which the accident happened is in dispute. However, the court notes that the defendant aver that after the motor vehicle fell on the plaintiff, it was lifted and removed above him by over 50 people and that he was taken to hospital by 6 people. I fail to understand why the defendants failed to call any of this (sic) people as a witness in this case, to controvert the testimony of the plaintiff that he was a pedestrian, the testimony that was corroborated by the police abstract that has not been challenged by conflicting evidence…The court therefore finds that the accident occurred in the manner substantially described by the plaintiff i.e., the vehicle moved unexpectedly and struck him”
The appellants testified and corroborated the evidence of each other on circumstances under which an accident involving motor vehicle reg No. KBQ 675V had occurred. Their evidence was not impeached during cross examination and it totally displaced the plaintiff’s case as pleaded. The burden of proof was on the respondent to prove that he was hit by m/v reg No. KBQ 075V, owned by the 1 st appellant and driven by the 2 nd appellant. The respondent failed to satisfy the burden under section 107 (1), 109 and 112 of Evidence Act. In Evans Nyakwara v Cleophas Bwana Ongaro (2015) eKLR t he court in setting out the legal burden of proof in civil cases stated as follows:
“As a general proposition the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya. Furthermore, the evidential burden is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of the law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given by either side”
From the foregoing analysis, it is my finding that the trial court erred in law and in fact at arriving at a conclusion that was not based on evidence and pleadings before him and acted on wrong principles in reaching his findings on liability.
As regards quantum, the court of appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR set out the parameters under which an appellate court will interfere with an award in general damages when it held:
“An appellate court will not disturb an award of general damages unless it is so inordinately high or low so as to represent an entirely 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…”
In the suit before the trial court the learned magistrate awarded Kshs. 750,000 as general damages. The respondent had suffered a right distal femur fracture. The doctor who examined him assessed permanent disability at 40%.
I have considered the case law cited by the learned magistrate including the case of Stanley Maore v Geoffrey Mwenda (2004) eKLR, Jackson Mbaluka Mwangangi v Onesmus Nzioka & Another (2021) eKLR and Mutuku v Mwangi & 2 others (2023) KEHC 24468 KLR where awards of Kshs. 600,000 was made for similar injuries.
Having considered the age of the cited cases and the inflation trend in our country, I do not find the sum awarded to be inordinately high. I would have no reason to disturb the same.
Following the foregoing discourse on liability, the upshot is that the appeal herein succeeds. The judgment of the trial magistrate dated 11.12.25 on liability is set aside and substituted with one dismissing the suit in the lower court with costs. The appellant shall also have costs of this appeal.
DATED, SIGNED AND DELIVERED THIS14th JULY 2026
D.O. ONYANGO.
JUDGE
1