Background
1. The respondent instituted Eldoret CMCC No. E514 of 2023 against the appellant seeking general damages, special damages, costs and interest arising from a road traffic accident which occurred on 8 June 2023 along the Eldoret-Mwanzo Road.
2. The respondent pleaded that he was lawfully riding motorcycle registration number KMFU 801Q when the driver of motor vehicle registration number KCM 397C negligently drove, managed or controlled the vehicle, causing it to collide with the motorcycle and occasioning him grievous bodily harm. The respondent attributed the accident to the negligence of the appellant, his driver, servant or employee and pleaded that the appellant was directly and/or vicariously liable.
3. The appellant filed a statement of defence denying ownership of the vehicle, the occurrence of the accident, negligence and liability. In the alternative, he attributed the accident to the respondent, alleging, among other matters, that the respondent rode carelessly, at an excessive speed, without a valid riding licence and while carrying two pillion passengers.
4. At the trial, the respondent testified that the appellant’s motor vehicle encroached onto his lane while being driven at high speed. He stated that he moved towards the pedestrian walkway in an attempt to avoid the vehicle, but it followed him there and knocked him down.
5. The respondent produced medical evidence showing that he sustained a head injury with loss of consciousness and an epidural haematoma, together with a fracture of the right femur. He underwent a craniotomy to evacuate the haematoma and open reduction and internal fixation of the femoral fracture.
6. The appellant did not call the driver of motor vehicle registration number KCM 397C to give evidence concerning the occurrence of the accident. His medical witness, however, produced a report prepared by Dr Steve Ochieng which substantially confirmed the injuries documented by the respondent’s doctor.
7. In the judgment delivered on 27 March 2025, the learned trial magistrate found the appellant wholly liable for the accident and entered judgment as follows:
Head of award
Amount
General damages
KShs. 700,000
Special damages
KShs. 6,780
Total
KShs. 706,780
8. The trial court declined to award KShs. 150,000 claimed as future medical expenses because that claim had not been specifically pleaded. The respondent was also awarded costs and interest.
The appeal
9. Dissatisfied with the judgment, the appellant lodged the present appeal challenging both liability and quantum. The memorandum of appeal raises seven grounds, which may be summarised as follows:
a) The trial court erred by awarding general damages although the respondent had not pleaded and particularised the injuries sustained.
b) The trial court applied inconsistent standards by declining future medical expenses for want of pleading while awarding general damages based on unparticularised injuries.
c) The respondent failed to plead and prove vicarious liability.
d) The driver of the motor vehicle was not joined as a party.
e) The trial court failed to consider the appellant’s submissions and applicable authorities.
f) The award of KShs. 700,000 was manifestly excessive and inconsistent with awards for comparable injuries.
10. The appeal was canvassed through written submissions.
Parties’ submissions
11. The appellant’s submissions concentrated principally on the respondent’s failure to particularise his injuries in the plaint. Counsel submitted that the omission offended Order 2 Rule 10 of the Civil Procedure Rules and was fatal to the claim for general damages. Reliance was placed on Nelson Ole Keiwua v Victoria Limited & another [2015] eKLR; Antony Francis Wareham t/a A.F. Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR; and Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR.
12. It was contended that parties and courts are bound by pleadings and that the medical documents produced during the trial could not cure the omission. The appellant therefore urged the Court to allow the appeal, set aside the judgment and dismiss the respondent’s suit with costs.
13. The respondent submitted that the failure to particularise the injuries was not fatal because the appellant knew the precise injuries forming the claim, did not request particulars and did not object to the medical evidence. Moreover, the medical evidence called by both parties substantially agreed on the injuries.
14. The respondent relied on Kioko v Makau (Civil Appeal No. 88 of 2022) [2024] KEHC 9638 (KLR); Moiz Motors Limited & another v Harun Naethe Wanjiru [2021] KEHC 8702 (KLR); Gachuthi v Karanja & another (Civil Appeal E067 of 2022) [2024] KEHC 10066 (KLR); and Barui v Kenya Wildlife Service (Civil Appeal E088 of 2022) [2023] KEHC 25173 (KLR).
15. On quantum, the respondent submitted that the award of KShs. 700,000 was reasonable considering the head injury, epidural haematoma, fractured femur, craniotomy, internal fixation and the implant left in situ. He urged the Court to dismiss the appeal with costs.
Duty of the first appellate court
16. This being a first appeal, the Court is obliged to reconsider and evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. That duty was stated in Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123 and Peters v Sunday Post Limited [1958] EA 424.
17. An appeal to this Court is therefore by way of retrial. Nevertheless, due allowance must be made for the advantage enjoyed by the trial court in observing the witnesses and assessing their demeanour.
Issues for determination
18. Having considered the record, the grounds of appeal and the parties’ submissions, the following issues arise:
a) Whether failure to particularise the respondent’s injuries was fatal to the claim for general damages.
b) Whether the trial court adopted inconsistent positions on general damages and future medical expenses.
c) Whether liability was proved against the appellant notwithstanding the non-joinder of the driver.
d) Whether the award of KShs. 700,000 was manifestly excessive.
e) Who should bear the costs of the appeal.
Whether failure to particularise the injuries was fatal
19. There is no dispute that the plaint did not set out, under a distinct heading, the precise injuries sustained by the respondent. The plaint nevertheless pleaded that the respondent was involved in the accident and that he sustained grievous bodily harm because of the negligence of the appellant, his driver, servant or employee. General damages were then sought.
20. Order 2 Rule 10(1) of the Civil Procedure Rules requires pleadings to contain the necessary particulars of a claim, defence or other matter pleaded. The purpose of pleadings is to define the dispute, inform the opposing party of the case to be met and prevent trial by ambush.
21. In Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR , the Court of Appeal reiterated that parties are bound by their pleadings and that the pleadings delimit the issues upon which a court may pronounce itself. Similarly, in Antony Francis Wareham t/a A.F. Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR, the Court held that evidence which does not support pleaded facts ordinarily goes to no issue.
22. Those principles remain sound. Their application, however, must take account of the nature of the omission, the manner in which the trial was conducted and whether the opposing party suffered any real prejudice.
23. In this case, the respondent testified concerning the injuries and produced the treatment records, discharge summary, P3 form and medical report. The appellant did not object to their production or contend that he had been taken by surprise. He did not apply for further particulars under the Civil Procedure Rules. More significantly, the appellant arranged an independent medical examination and called medical evidence confirming that the respondent sustained a fracture of the right femur and a head injury with an epidural haematoma.
24. The nature and extent of the injuries were therefore known to both parties before and during the trial. The appellant fully cross-examined the respondent and presented his own medical evidence on those injuries. No additional or materially different injury emerged at judgment. The case was consequently tried by both parties on the common understanding that the respondent sought compensation for the injuries appearing in the medical evidence.
25. In Barui v Kenya Wildlife Service (Civil Appeal E088 of 2022) [2023] KEHC 25173 (KLR), the Court held that failure to particularise injuries was not fatal where the defendant neither sought particulars nor objected to the production of the medical documents and had not demonstrated prejudice.
26. A similar approach was taken in Gachuthi v Karanja & another (Civil Appeal E067 of 2022) [2024] KEHC 10066 (KLR), where the Court found that uncontested medical documents were capable of guiding the trial court in assessing general damages. See also Kioko v Makau (Civil Appeal No. 88 of 2022) [2024] KEHC 9638 (KLR) and Moiz Motors Limited & another v Harun Naethe Wanjiru [2021] KEHC 8702 (KLR).
27. The trial court also referred to Mungai v Texcal House Service Station, where the Court of Appeal rejected the proposition that failure to plead the particulars of injuries necessarily meant that no cause of action had been disclosed.
28. The decision in Nelson Ole Keiwua v Victoria Limited & another [2015] eKLR, upon which the appellant placed considerable reliance, is distinguishable. The question is not merely whether the injuries were omitted from the pleadings, but whether, in the circumstances of the particular trial, the omission deprived the defendant of notice of the case, resulted in the admission of a wholly new case or otherwise occasioned prejudice.
29. Equally, Antony Francis Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] eKLR, Civil Appeals Nos. 5 and 48 of 2002 (consolidated) concerned relief granted on the basis of a materially different and unpleaded contractual transaction, followed by an order that the pleadings be amended after judgment. In the present case, the cause of action remained negligence arising from the pleaded accident. The medical documents merely particularised the bodily harm which the plaint stated resulted from that accident.
30. Pleadings are indispensable to the fair conduct of litigation. A claimant should ordinarily plead every material injury forming the basis of an award. The Court does not approve the omission in the present plaint. However, the rules of pleading exist to promote a fair trial, not to provide a technical escape from a claim whose substance was known, investigated and contested by both parties.
31. Article 159(2)(d) of the Constitution does not permit a court to disregard mandatory rules or determine an unpleaded cause of action. It nevertheless requires the Court to distinguish between an omission that causes substantive prejudice and one that, although procedurally undesirable, did not impair the opposing party’s ability to meet the case.
32. In the circumstances, the appellant had full notice of the injuries, independently examined the respondent, produced corresponding medical evidence and demonstrated no prejudice. I therefore agree with the trial magistrate that the omission did not extinguish the respondent’s claim for general damages.
General damages and future medical expenses
33. The appellant argued that the trial court contradicted itself by awarding general damages notwithstanding the failure to particularise the injuries, while declining to award future medical expenses because they had not been pleaded.
34. The two claims are legally distinct. General damages for pain, suffering and loss of amenities are damages which the law presumes to flow from proved bodily injury. They are assessed by the court after considering the nature of the injuries, their severity, treatment, prognosis and comparable awards.
35. Future medical expenses, although awarded under the broad rubric of general damages, constitute a quantifiable and ascertainable future expenditure. They must therefore be specifically pleaded and proved.
36. In Tracom Limited & another v Hassan Mohamed Adan [2009] eKLR, the Court of Appeal stated that a claim for future medical expenses is a special claim which must be specifically pleaded and proved before it can be awarded.
37. The respondent did not specifically plead the estimated cost of removing the implant. The trial court therefore correctly declined to award KShs. 150,000 under that head. That decision does not conflict with the award of general damages for pain and suffering arising from injuries which were proved and fully contested at the trial.
38. The third ground of appeal therefore fails.
Liability and non-joinder of the driver
39. The respondent testified that the appellant’s vehicle was driven at high speed, entered his lane and continued towards the pedestrian walkway to which he had moved in an effort to avoid the collision. That evidence was not rebutted by the driver of the vehicle.
40. The appellant pleaded several acts of contributory negligence against the respondent but called no evidence to prove them. Pleadings are not evidence. Allegations contained in a defence remain mere assertions unless supported by evidence.
41. The absence of a police sketch plan or a traffic charge against the driver did not, by itself, defeat the respondent’s claim. Civil liability is determined on a balance of probabilities and is not dependent upon a prior criminal prosecution or conviction.
42. The appellant further argued that the suit was defective because the driver was not joined as a defendant. That argument is inconsistent with settled authority.
43. In Lake Flowers v Cila Franklyn Onyango Ngonga & another [2008] eKLR, the Court of Appeal held that failure to join the driver, and omission expressly to describe the owner’s liability as vicarious, are not necessarily fatal where the primary facts from which responsibility may be inferred are pleaded and proved.
44. Similarly, in Doiyo Lessos Creameries Limited v Elizabeth Angira Chaka [2019] eKLR, the Court of Appeal affirmed that the owner of a motor vehicle may be found vicariously liable even where the driver is not joined as a defendant. The decisive question is whether the pleadings and evidence establish the driver’s negligence and the basis upon which the owner bears responsibility.
45. The plaint expressly pleaded that the accident was caused by the negligence of the appellant, his servants and/or employees and that the appellant was directly and/or vicariously liable. Ownership of motor vehicle registration number KCM 397C was proved through the copy of records. The appellant neither called the driver nor produced evidence showing that the vehicle was being driven without his authority or for a purpose unrelated to him.
46. The trial magistrate was therefore entitled to infer that the driver was a person for whose negligence the appellant was responsible. The appellant’s pleaded allegations of contributory negligence were not proved. On the evidence placed before the trial court, I find no basis for interfering with the finding that the appellant was wholly liable.
Whether the award was excessive
47. The principles governing appellate interference with an award of damages are settled. In Butt v Khan [1981] KLR 349 , the Court of Appeal held that an appellate court should not interfere with an award merely because it would have awarded a different sum. Interference is warranted only where the trial court proceeded on a wrong principle, misapprehended the evidence or made an award so inordinately high or low as to represent an entirely erroneous estimate.
48. The same principle was stated in Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini v A.M. Lubia & Olive Lubia [1982–88] 1 KAR 727.
49. Comparable injuries should, as far as possible, attract comparable awards, while allowing for the peculiar circumstances of each case and changes in the value of money. See Stanley Maore v Geoffrey Mwenda [2004] eKLR.
50. The medical evidence established that the respondent sustained:
a) A head injury with loss of consciousness;
b) An epidural haematoma;
c) A fracture of the right femur;
d) Surgical scars on the head and right thigh;
e) A craniotomy to evacuate the haematoma; and
f) Open reduction and internal fixation of the femoral fracture, with an implant remaining in situ.
51. The injuries were therefore not confined to a simple fracture or ordinary soft-tissue trauma. The respondent sustained both a significant head injury requiring neurosurgical intervention and a major long-bone fracture requiring internal fixation.
52. The trial court considered the parties’ respective proposals and the authorities placed before it. It found the respondent’s proposal of KShs. 2,000,000 excessive and the appellant’s proposal of KShs. 350,000 inadequate. It ultimately awarded KShs. 700,000.
53. Although the comparable authorities cited by the trial court largely involved fractures of the tibia and fibula, the court also considered the respondent’s head injury, craniotomy and implant. Viewed against the totality of the injuries and treatment, the award of KShs. 700,000 cannot be described as inordinately high.
54. The appellant’s submissions on appeal did not identify any wrong principle applied by the trial court, any relevant evidence that was disregarded or any comparable decision demonstrating that the award was wholly outside the permissible range. The appeal on quantum therefore fails.
Whether the appellant’s submissions were disregarded
55. The impugned judgment expressly recorded and analysed the appellant’s arguments on the omission of the particulars of injury, non-joinder of the driver, vicarious liability, contributory negligence, future medical expenses and quantum.
56. A court is required to consider the parties’ submissions; it is not bound to accept them. The fact that a court reaches a conclusion contrary to a party’s submissions does not mean those submissions were disregarded.
57. This ground of appeal is accordingly without merit.
Disposition
58. Upon independently reconsidering the pleadings, evidence, judgment and submissions, I find that the learned trial magistrate properly addressed the issues before the court.
59. Although the respondent ought to have expressly particularised his injuries in the plaint, the omission did not, in the particular circumstances, cause the appellant any prejudice. Both parties knew and litigated upon the same injuries, and both produced medical evidence concerning them.
60. The trial court also correctly distinguished the claim for general damages from the specifically ascertainable claim for future medical expenses. Liability was proved on a balance of probabilities, non-joinder of the driver was not fatal, and the award of KShs. 700,000 was not manifestly excessive.
61. Consequently, the appeal lacks merit and the following orders issue:
a) The appeal is hereby dismissed.
b) The judgment and decree of the trial court in Eldoret CMCC No. E514 of 2023 awarding the respondent KShs. 700,000 in general damages and KShs. 6,780 in special damages are hereby upheld.
c) The respondent shall have the costs of this appeal.
d) 30 days stay granted.
62. It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU- JUDGE
In the presence of: -
No appearance for the Appellant.
Mr. Kibaru for the Respondent.
Court Assistant- Mr. Kibet
2 | Page ELDORET HCCA NO.E073 OF 2025
1. The respondent instituted Eldoret CMCC No. E514 of 2023 against the appellant seeking general damages, special damages, costs and interest arising from a road traffic accident which occurred on 8 June 2023 along the Eldoret-Mwanzo Road.
2. The respondent pleaded that he was lawfully riding motorcycle registration number KMFU 801Q when the driver of motor vehicle registration number KCM 397C negligently drove, managed or controlled the vehicle, causing it to collide with the motorcycle and occasioning him grievous bodily harm. The respondent attributed the accident to the negligence of the appellant, his driver, servant or employee and pleaded that the appellant was directly and/or vicariously liable.
3. The appellant filed a statement of defence denying ownership of the vehicle, the occurrence of the accident, negligence and liability. In the alternative, he attributed the accident to the respondent, alleging, among other matters, that the respondent rode carelessly, at an excessive speed, without a valid riding licence and while carrying two pillion passengers.
4. At the trial, the respondent testified that the appellant’s motor vehicle encroached onto his lane while being driven at high speed. He stated that he moved towards the pedestrian walkway in an attempt to avoid the vehicle, but it followed him there and knocked him down.
5. The respondent produced medical evidence showing that he sustained a head injury with loss of consciousness and an epidural haematoma, together with a fracture of the right femur. He underwent a craniotomy to evacuate the haematoma and open reduction and internal fixation of the femoral fracture.
6. The appellant did not call the driver of motor vehicle registration number KCM 397C to give evidence concerning the occurrence of the accident. His medical witness, however, produced a report prepared by Dr Steve Ochieng which substantially confirmed the injuries documented by the respondent’s doctor.
7. In the judgment delivered on 27 March 2025, the learned trial magistrate found the appellant wholly liable for the accident and entered judgment as follows:
Head of award
Amount
General damages
KShs. 700,000
Special damages
KShs. 6,780
Total
KShs. 706,780
8. The trial court declined to award KShs. 150,000 claimed as future medical expenses because that claim had not been specifically pleaded. The respondent was also awarded costs and interest.
The appeal
9. Dissatisfied with the judgment, the appellant lodged the present appeal challenging both liability and quantum. The memorandum of appeal raises seven grounds, which may be summarised as follows:
a) The trial court erred by awarding general damages although the respondent had not pleaded and particularised the injuries sustained.
b) The trial court applied inconsistent standards by declining future medical expenses for want of pleading while awarding general damages based on unparticularised injuries.
c) The respondent failed to plead and prove vicarious liability.
d) The driver of the motor vehicle was not joined as a party.
e) The trial court failed to consider the appellant’s submissions and applicable authorities.
f) The award of KShs. 700,000 was manifestly excessive and inconsistent with awards for comparable injuries.
10. The appeal was canvassed through written submissions.
Parties’ submissions
11. The appellant’s submissions concentrated principally on the respondent’s failure to particularise his injuries in the plaint. Counsel submitted that the omission offended Order 2 Rule 10 of the Civil Procedure Rules and was fatal to the claim for general damages. Reliance was placed on Nelson Ole Keiwua v Victoria Limited & another [2015] eKLR; Antony Francis Wareham t/a A.F. Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR; and Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR.
12. It was contended that parties and courts are bound by pleadings and that the medical documents produced during the trial could not cure the omission. The appellant therefore urged the Court to allow the appeal, set aside the judgment and dismiss the respondent’s suit with costs.
13. The respondent submitted that the failure to particularise the injuries was not fatal because the appellant knew the precise injuries forming the claim, did not request particulars and did not object to the medical evidence. Moreover, the medical evidence called by both parties substantially agreed on the injuries.
14. The respondent relied on Kioko v Makau (Civil Appeal No. 88 of 2022) [2024] KEHC 9638 (KLR); Moiz Motors Limited & another v Harun Naethe Wanjiru [2021] KEHC 8702 (KLR); Gachuthi v Karanja & another (Civil Appeal E067 of 2022) [2024] KEHC 10066 (KLR); and Barui v Kenya Wildlife Service (Civil Appeal E088 of 2022) [2023] KEHC 25173 (KLR).
15. On quantum, the respondent submitted that the award of KShs. 700,000 was reasonable considering the head injury, epidural haematoma, fractured femur, craniotomy, internal fixation and the implant left in situ. He urged the Court to dismiss the appeal with costs.
Duty of the first appellate court
16. This being a first appeal, the Court is obliged to reconsider and evaluate the evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. That duty was stated in Selle & another v Associated Motor Boat Company Limited & others [1968] EA 123 and Peters v Sunday Post Limited [1958] EA 424.
17. An appeal to this Court is therefore by way of retrial. Nevertheless, due allowance must be made for the advantage enjoyed by the trial court in observing the witnesses and assessing their demeanour.
Issues for determination
18. Having considered the record, the grounds of appeal and the parties’ submissions, the following issues arise:
a) Whether failure to particularise the respondent’s injuries was fatal to the claim for general damages.
b) Whether the trial court adopted inconsistent positions on general damages and future medical expenses.
c) Whether liability was proved against the appellant notwithstanding the non-joinder of the driver.
d) Whether the award of KShs. 700,000 was manifestly excessive.
e) Who should bear the costs of the appeal.
Whether failure to particularise the injuries was fatal
19. There is no dispute that the plaint did not set out, under a distinct heading, the precise injuries sustained by the respondent. The plaint nevertheless pleaded that the respondent was involved in the accident and that he sustained grievous bodily harm because of the negligence of the appellant, his driver, servant or employee. General damages were then sought.
20. Order 2 Rule 10(1) of the Civil Procedure Rules requires pleadings to contain the necessary particulars of a claim, defence or other matter pleaded. The purpose of pleadings is to define the dispute, inform the opposing party of the case to be met and prevent trial by ambush.
21. In Independent Electoral and Boundaries Commission & another v Stephen Mutinda Mule & 3 others [2014] eKLR , the Court of Appeal reiterated that parties are bound by their pleadings and that the pleadings delimit the issues upon which a court may pronounce itself. Similarly, in Antony Francis Wareham t/a A.F. Wareham & 2 others v Kenya Post Office Savings Bank [2004] eKLR, the Court held that evidence which does not support pleaded facts ordinarily goes to no issue.
22. Those principles remain sound. Their application, however, must take account of the nature of the omission, the manner in which the trial was conducted and whether the opposing party suffered any real prejudice.
23. In this case, the respondent testified concerning the injuries and produced the treatment records, discharge summary, P3 form and medical report. The appellant did not object to their production or contend that he had been taken by surprise. He did not apply for further particulars under the Civil Procedure Rules. More significantly, the appellant arranged an independent medical examination and called medical evidence confirming that the respondent sustained a fracture of the right femur and a head injury with an epidural haematoma.
24. The nature and extent of the injuries were therefore known to both parties before and during the trial. The appellant fully cross-examined the respondent and presented his own medical evidence on those injuries. No additional or materially different injury emerged at judgment. The case was consequently tried by both parties on the common understanding that the respondent sought compensation for the injuries appearing in the medical evidence.
25. In Barui v Kenya Wildlife Service (Civil Appeal E088 of 2022) [2023] KEHC 25173 (KLR), the Court held that failure to particularise injuries was not fatal where the defendant neither sought particulars nor objected to the production of the medical documents and had not demonstrated prejudice.
26. A similar approach was taken in Gachuthi v Karanja & another (Civil Appeal E067 of 2022) [2024] KEHC 10066 (KLR), where the Court found that uncontested medical documents were capable of guiding the trial court in assessing general damages. See also Kioko v Makau (Civil Appeal No. 88 of 2022) [2024] KEHC 9638 (KLR) and Moiz Motors Limited & another v Harun Naethe Wanjiru [2021] KEHC 8702 (KLR).
27. The trial court also referred to Mungai v Texcal House Service Station, where the Court of Appeal rejected the proposition that failure to plead the particulars of injuries necessarily meant that no cause of action had been disclosed.
28. The decision in Nelson Ole Keiwua v Victoria Limited & another [2015] eKLR, upon which the appellant placed considerable reliance, is distinguishable. The question is not merely whether the injuries were omitted from the pleadings, but whether, in the circumstances of the particular trial, the omission deprived the defendant of notice of the case, resulted in the admission of a wholly new case or otherwise occasioned prejudice.
29. Equally, Antony Francis Wareham t/a A.F. Wareham & 2 Others v Kenya Post Office Savings Bank [2004] eKLR, Civil Appeals Nos. 5 and 48 of 2002 (consolidated) concerned relief granted on the basis of a materially different and unpleaded contractual transaction, followed by an order that the pleadings be amended after judgment. In the present case, the cause of action remained negligence arising from the pleaded accident. The medical documents merely particularised the bodily harm which the plaint stated resulted from that accident.
30. Pleadings are indispensable to the fair conduct of litigation. A claimant should ordinarily plead every material injury forming the basis of an award. The Court does not approve the omission in the present plaint. However, the rules of pleading exist to promote a fair trial, not to provide a technical escape from a claim whose substance was known, investigated and contested by both parties.
31. Article 159(2)(d) of the Constitution does not permit a court to disregard mandatory rules or determine an unpleaded cause of action. It nevertheless requires the Court to distinguish between an omission that causes substantive prejudice and one that, although procedurally undesirable, did not impair the opposing party’s ability to meet the case.
32. In the circumstances, the appellant had full notice of the injuries, independently examined the respondent, produced corresponding medical evidence and demonstrated no prejudice. I therefore agree with the trial magistrate that the omission did not extinguish the respondent’s claim for general damages.
General damages and future medical expenses
33. The appellant argued that the trial court contradicted itself by awarding general damages notwithstanding the failure to particularise the injuries, while declining to award future medical expenses because they had not been pleaded.
34. The two claims are legally distinct. General damages for pain, suffering and loss of amenities are damages which the law presumes to flow from proved bodily injury. They are assessed by the court after considering the nature of the injuries, their severity, treatment, prognosis and comparable awards.
35. Future medical expenses, although awarded under the broad rubric of general damages, constitute a quantifiable and ascertainable future expenditure. They must therefore be specifically pleaded and proved.
36. In Tracom Limited & another v Hassan Mohamed Adan [2009] eKLR, the Court of Appeal stated that a claim for future medical expenses is a special claim which must be specifically pleaded and proved before it can be awarded.
37. The respondent did not specifically plead the estimated cost of removing the implant. The trial court therefore correctly declined to award KShs. 150,000 under that head. That decision does not conflict with the award of general damages for pain and suffering arising from injuries which were proved and fully contested at the trial.
38. The third ground of appeal therefore fails.
Liability and non-joinder of the driver
39. The respondent testified that the appellant’s vehicle was driven at high speed, entered his lane and continued towards the pedestrian walkway to which he had moved in an effort to avoid the collision. That evidence was not rebutted by the driver of the vehicle.
40. The appellant pleaded several acts of contributory negligence against the respondent but called no evidence to prove them. Pleadings are not evidence. Allegations contained in a defence remain mere assertions unless supported by evidence.
41. The absence of a police sketch plan or a traffic charge against the driver did not, by itself, defeat the respondent’s claim. Civil liability is determined on a balance of probabilities and is not dependent upon a prior criminal prosecution or conviction.
42. The appellant further argued that the suit was defective because the driver was not joined as a defendant. That argument is inconsistent with settled authority.
43. In Lake Flowers v Cila Franklyn Onyango Ngonga & another [2008] eKLR, the Court of Appeal held that failure to join the driver, and omission expressly to describe the owner’s liability as vicarious, are not necessarily fatal where the primary facts from which responsibility may be inferred are pleaded and proved.
44. Similarly, in Doiyo Lessos Creameries Limited v Elizabeth Angira Chaka [2019] eKLR, the Court of Appeal affirmed that the owner of a motor vehicle may be found vicariously liable even where the driver is not joined as a defendant. The decisive question is whether the pleadings and evidence establish the driver’s negligence and the basis upon which the owner bears responsibility.
45. The plaint expressly pleaded that the accident was caused by the negligence of the appellant, his servants and/or employees and that the appellant was directly and/or vicariously liable. Ownership of motor vehicle registration number KCM 397C was proved through the copy of records. The appellant neither called the driver nor produced evidence showing that the vehicle was being driven without his authority or for a purpose unrelated to him.
46. The trial magistrate was therefore entitled to infer that the driver was a person for whose negligence the appellant was responsible. The appellant’s pleaded allegations of contributory negligence were not proved. On the evidence placed before the trial court, I find no basis for interfering with the finding that the appellant was wholly liable.
Whether the award was excessive
47. The principles governing appellate interference with an award of damages are settled. In Butt v Khan [1981] KLR 349 , the Court of Appeal held that an appellate court should not interfere with an award merely because it would have awarded a different sum. Interference is warranted only where the trial court proceeded on a wrong principle, misapprehended the evidence or made an award so inordinately high or low as to represent an entirely erroneous estimate.
48. The same principle was stated in Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini v A.M. Lubia & Olive Lubia [1982–88] 1 KAR 727.
49. Comparable injuries should, as far as possible, attract comparable awards, while allowing for the peculiar circumstances of each case and changes in the value of money. See Stanley Maore v Geoffrey Mwenda [2004] eKLR.
50. The medical evidence established that the respondent sustained:
a) A head injury with loss of consciousness;
b) An epidural haematoma;
c) A fracture of the right femur;
d) Surgical scars on the head and right thigh;
e) A craniotomy to evacuate the haematoma; and
f) Open reduction and internal fixation of the femoral fracture, with an implant remaining in situ.
51. The injuries were therefore not confined to a simple fracture or ordinary soft-tissue trauma. The respondent sustained both a significant head injury requiring neurosurgical intervention and a major long-bone fracture requiring internal fixation.
52. The trial court considered the parties’ respective proposals and the authorities placed before it. It found the respondent’s proposal of KShs. 2,000,000 excessive and the appellant’s proposal of KShs. 350,000 inadequate. It ultimately awarded KShs. 700,000.
53. Although the comparable authorities cited by the trial court largely involved fractures of the tibia and fibula, the court also considered the respondent’s head injury, craniotomy and implant. Viewed against the totality of the injuries and treatment, the award of KShs. 700,000 cannot be described as inordinately high.
54. The appellant’s submissions on appeal did not identify any wrong principle applied by the trial court, any relevant evidence that was disregarded or any comparable decision demonstrating that the award was wholly outside the permissible range. The appeal on quantum therefore fails.
Whether the appellant’s submissions were disregarded
55. The impugned judgment expressly recorded and analysed the appellant’s arguments on the omission of the particulars of injury, non-joinder of the driver, vicarious liability, contributory negligence, future medical expenses and quantum.
56. A court is required to consider the parties’ submissions; it is not bound to accept them. The fact that a court reaches a conclusion contrary to a party’s submissions does not mean those submissions were disregarded.
57. This ground of appeal is accordingly without merit.
Disposition
58. Upon independently reconsidering the pleadings, evidence, judgment and submissions, I find that the learned trial magistrate properly addressed the issues before the court.
59. Although the respondent ought to have expressly particularised his injuries in the plaint, the omission did not, in the particular circumstances, cause the appellant any prejudice. Both parties knew and litigated upon the same injuries, and both produced medical evidence concerning them.
60. The trial court also correctly distinguished the claim for general damages from the specifically ascertainable claim for future medical expenses. Liability was proved on a balance of probabilities, non-joinder of the driver was not fatal, and the award of KShs. 700,000 was not manifestly excessive.
61. Consequently, the appeal lacks merit and the following orders issue:
a) The appeal is hereby dismissed.
b) The judgment and decree of the trial court in Eldoret CMCC No. E514 of 2023 awarding the respondent KShs. 700,000 in general damages and KShs. 6,780 in special damages are hereby upheld.
c) The respondent shall have the costs of this appeal.
d) 30 days stay granted.
62. It is so ordered.
DELIVERED, DATED, AND SIGNED ON THIS 17 TH DAY OF SEPTEMBER, 2026.
JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU- JUDGE
In the presence of: -
No appearance for the Appellant.
Mr. Kibaru for the Respondent.
Court Assistant- Mr. Kibet
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