(Being an Appeal against the Judgment by Hon. K. MUGO in Chief Magistrate’s Court at Molo CMCC No. E133 of 2024, Delivered on 14 th November, 2025).
1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight . Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together. Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Rook Vs Rairrie [1941] 1 ALL E.R. 297 , the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low 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.
4. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider 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.
5. In the primary suit, Ivy Wachuka Maina(PW1) adopted her witness statement dated 9 th August, 2024 as her testimony in chief. Equally, the witness produced a list of documents dated 9 th August, 2024 as Exhibit. However, the treatment note and police Abstract were marked for identification. Under cross examination, the witness said he was seated behind the driver and the accident Motor vehicle was doing at 100Km/hr. She has not healed well. In re-examination, the witness said that he paid Kshs30,000/ for the medical report.
6. David Kamanja (PW2) also adopted his witness statement dated 9 th August, 2024 as his testimony together with a bundle of documents as Exhibits save for treatment notes and police abstract which were marked as MFI 1 and 6. Under cross examination, the witness said that he sat behind the driver on the left side next to the door and that he has not sued the driver. Notwithstanding the accident, he has gone back to his calling, as a mason and a peasant. He was treated at Thika Hospital on the same and discharged. Under re-examination, the witness said that he was a passenger in the accident Motor Vehicle and was issued with P3 Form and Police Abstract.
7. Beatrice Wanjiku (PW4 ) adopted her witness statement dated 9 th August, 2024 as her evidence in chief together with the list of documents in bundle as exhibits save treatment notes and Police Abstract marked as MFI 6 and MFI 2. Further, the witness said that they were travelling in the accident Motor Vehicle Registration number KCT 379W. She used Kshs100/ for treatment and paid out Kshs30,000/ for Medical Report. The witness further said that in the accident Motor Vehicle, he was travelling with Blessings Wanjiku, Charles, Ivy Wachuka and David Kamanja. Under cross examination, the witness said that she is a student at Maseno University and that Ivy Wachuka and Blessings are students at Maseno university. The witness said that the deep injuries have healed and the sift tissue have not healed.
8. Blessings Wanjiku Wairigu(PW5 ) adopted her witness statement dated 9 th August, 2024 as her evidence in chief and equally her list of documents of even date and whereas the P3 Form was produced as exhibit 1, police abstract, Demand notice, search certificate, medical receipt, treatment notes, medical report, receipt for medical report and legal notice were marked as MFI 2 to MFI 9. The witness sustained injuries to the knees and chest.
9. Charles Waciuri Kiiru (PW5) adopted his witness statement dated 9 th August, 2024 as his evidence in chief, as well as, his list of documents which he produced as Exhibits 1 to 9 respectively. He said he was a passenger in the accident Motor Vehicle. Under cross examination, the witness said that he was in the accident Motor Vehicle KCT 379W and sustained injuries to the back, head and leg. He is yet to heal.
10. Beatrice Waithera (PW6) told court that she is attached to Salgaa Traffic Base performing traffic duties and she produced P3 Forms for the witnesses in this case. The witness confirmed that indeed the witnesses were involved in a slight road accident in December, 2023 at around 12:30pm at Delber-Eldoret -Nakuru road which involved a Motor vehicle registration number KCT 379W Matatu Hiace . The driver of the accident Motor vehicle was to blame for veering off then road and landing in a drainage. Under cross examination the witness said that Corporal Mageto was the Investigation Officer but has gone on transfer and that she neither attended the scene nor witnessed the accident. Indeed, in the occurrence book, the names of witnesses in this case are enlisted as part of those involved in the accident. Upon inspection, the Motor vehicle was found to be faulty, hence the reason for veering off the road and causing an accident. Delbar area is a flat road and straight without bends. Thereafter, the appellants closed their case, as well as, the defence without calling any defence witness.
11. In the Judgement delivered by the Learned Magistrate, the Appellants were aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, I find that all the 19 grounds overlap one another and to my understanding, I shall collapse them into 8 grounds;
a. That the learned Trial Magistrate erred in law and fact failing to deliver substantive justice as envisaged by the constitution and laws of Kenya.
b. That the learned Trial Magistrate erred in law and fact in failing to appreciate the plaintiff’s case.
c. That the learned Trial Magistrate erred in law and fact by failing to consider the appellants’ testimony submissions and documents.
d. That the learned Trial Magistrate erred in law and fact by failing to uphold a doctrine that substance prevails over form.
e. That the learned Trial Magistrate erred in law and fact in omitting reliefs pleaded and proved.
f. That the learned Trial Magistrate erred in law and fact by rejecting the Respondent award of Kshs150,000/.
g. That the learned Trial Magistrate erred in law and fact rigidly interpreting article 159(2)(d) which allows court to grant reliefs supported by evidence even if not specifically prayed for.
h. That the learned Trial Magistrate erred in law and fact in failing to look at the totality of the pleadings and evidence.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. This court notes that the appellant settled on 19 grounds for determination. However, looking at the totality of the grounds, I note that liability and special damages are not disputed. The only ground in dispute is assessment of general damages for pain and suffering. I opine to collapse these grounds into one; whether or not the appellants were entitled to damages for pain and suffering .
14. Under paragraph 10 of the Judgement of the trial court, it is recorded “this court finds that there is no congruence in the injuries pleaded and the prayers sought herein. It has now become a principle of law that parties are bound by their pleadings. The court has further perused the record and noted that, there is no amended plaint on record and therefore the plaintiff is seeking for compensation for general damages under Law Reform Act and Fatal Accidents Act which are general damages for pain and suffering, loss of expectation of life and loss of dependency under prayer (a) of paragraph 9 of his plaint dated 20 th March, 2024. In paragraph 11, the learned Magistrate had this to say; “The court is guided by the case of Kihoro Vs Akiinama Limited & Another (2025) where the court held that “it is imperative to point out that parties are bound by their pleadings. Parties must plead their case before proceeding to proof ( prove, I suppose ) them. In Daniel Otieno Migore Vs South Nyanza Sugar Co. Ltd(2018)eKLR, Justice A.C. Mrima stated as doth: It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the 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 consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) Vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded. In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
15. To these decisions, I wish to add one more for purposes of having a handle and their context. In the case of Malawi Railways Limited Versus Nyasulu [1998] MWSC, the Court stated as follows in relation to pleadings: - “ As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rule of pleadings …… for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he had to meet and cannot be taken by surprise at the trial. The court itself is bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so, would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called ‘Any Other Business’ in the sense that points other than those specific may be raised without notice.”
16. It must be recalled that enactment of 3A and 3B of the Civil Procedure Act Cap 21 Laws of Kenya in 2010, was an antidote against technicalities. So that in evaluating the evidence on record, this Court is mandated not to give undue regard to technicalities through the overriding objectives. In Douglas Mbugua Mungai Vs Harrison Munyi – Civil Application No. Nai. 167 of 2010 : - We are as a matter of statute law required to take a broad view of justice and take into account all the necessary circumstances, factors, and principles and be satisfied at the end of the exercise that we have acted justly” As was stated in Stephen Boro Gitiha Vs Family Finance Building Society & 3 Others, Civil Application No. Nai. 263 of 2009 . “The overriding objective overshadows all technicalities, precedents, rules and actions … and whatever is in conflict with it, must give way”
17. The big question is; What prejudice did the Respondent suffer in these proceedings? It is now trite law that each case is decided on its own circumstances, context and touch. The pleadings here are pellucid. The appellants were involved in slight accident at Belbur Area along Nakuru-Eldoret Road consequent to which the they sustained soft tissue injuries. These injuries are catalogued in the plaint. The Respondent on the other side filed a defence denied all the contents, thereof. Additionally, the Respondent attributed negligence on the part of the appellants and set out particularities of negligence under paragraph 6. Differently put. The Respondent filed pleadings in respect to the bodily injuries sustained by the appellants and not in respect to a deceased body.
18. Intriguingly, the Respondent and Appellants have one common purpose in their submissions. They submit on the injuries sustained by the appellants as demonstrated by the appellant under paragraph 50 and the Respondent under sub heading on quantum, of their respective submissions. Undoubtedly, every spirit and intent of both parties are in unison as to what claim they were addressing. No prejudice was caused to the respondent. Prayer (a) under paragraph 9 was a genuine mistake.
19. In event, one is in doubt with my reasoning, I do not know how to help him. Probably, I may with expansion of reasoning, refer to a criminal matter, which of course, has a higher threshold in terms of compliance than in civil matter, where, the trial magistrate in error, failed to comply with section 211 of the CPC but instead, continued with the defence case, after the accused took oath. The Court of Appeal in Chome Vs Republic (Criminal Appeal 92 of 2022) [2023] KECA 69 (KLR) had the following to say; “The record of proceedings did not show that there was compliance with that section 211 of the Criminal Procedure Code. It was incumbent upon the trial court to comply with the command of section 211 and the omission to do so was irregular. However, the record showed that throughout the trial including when the matter was called out for defence hearing on July 11, 2011, the appellant was represented by an advocate. On that date, counsel for the appellant was recorded as having stated that “the accused will adduce sworn evidence. We intend to call three witnesses. We are ready to proceed.” The appellant thereafter proceeded to give evidence on oath, was cross-examined and re-examined. His three witnesses also gave evidence on oath and were also cross-examined. In effect, the appellant duly and fully exercised his rights notwithstanding the omission by the court to explain as required by section 211. The omission by the court to comply with section 211 did not in any way prejudice the appellant or otherwise occasioned a failure of justice”
20. I have nothing more to add.
21. The purpose for award of General Damages is stated in the following passage in the case of West H. & Son Ltd. Vs Shephard (1964) AC 326: “But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”
22. Lord Denning MR in Lim Poh Choo Vs Camden and Islington Area Health Authority [1978] 3 WLR 895, at page 909) said: “I may add, too, that if these sums get too large, we are in danger of injuring the body politic: just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and these are passed to the public in the shape of higher and higher fees for medical attention.”
23. Concerning assessment on quantum, I must register my deep respect to the jurists, who have set the law, as it ought to be. I will forever be grateful to them till, the end of age. What is more, these decisions can be heard in the corridors of our courts, in every corner of the year. It sets continuity of the law. Departing from it, I, in doubt becomes, a prodigal son. Economics has been challenging in every single day that we wake up. Consequently, courts must keep very close to their hearts, that inflation, keeps rising and whatever consideration that may be, prices of fuel must be the center-piece for quantification of damages in every personal injury claim. However, the figures need not increase in every turn of the inflationary screw, and that is to say, figures ought not be affected every time of fuel price change. A trend has to be substantive. I note from the catalogue of injuries suffered by the Appellant, the case laws, comparable awards and the proposal on quantum, demonstrate the true method of approach of the injuries sustained by the Appellant.
24. Putting all these together, I make a finding;
a. The Appeal is meritorious and the same is upheld.
b. Damages are assessed as hereunder for each appellant;
Beatrice Wanjiku Irungu:
• General damages Kshs400,000/=
• Costs of the appeal.
Blessings Wanjiku Wairagu:
• General damages Kshs400,000/=
• Costs of the appeal.
Ivy Wachuka
• General damages Kshs200,000/=
• Costs of the appeal.
David Kamanja:
• General damages Kshs150,000/=
• Costs of the appeal.
Charles Wachiuri Kiiru:
• General damages Kshs500,000/=
• Costs of the appeal.
25. A copy of this judgement to be filed in Civil Appeal Numbers 317/2025, 318/2025, 319/2025 and 320/2025.
Orders Accordingly.
Judgement delivered in Court virtually in the presence of the Court Assistant this 21 st July, 2026.
Hon. R.K. Ondieki, Judge.
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1. Many are the decisions which set the duties and the tempo of the appellate court, and whereas I may not be able to exhaust them in this Judgement, I must remark from the outset, that an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. However, the difficult of upsetting the finding of the lower court arises, where, the conclusion has been arrived at on conflicting testimony by a trial court which saw and heard the witnesses. Consequently, the appellate court must keep close to its mind, that it has not enjoyed this opportunity and that the view of the trial court, as to where credibility lies, is entitled to great weight . Put differently, the appellate court has to tip-toe, cautiously. To tip-toe cautiously, does not however, mean that the court is infertile to disturb the conclusion arrived by the trial court, where, demeanor and credibility of a witness, cannot be traced in the proceedings. Thus, logic and common sense, put together. Hereunder, I submit toward the most eloquent jurisprudential decisions, so often repeated, and yet bear repetition from the same family, on the duties of an appellate Court.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.
3. In Rook Vs Rairrie [1941] 1 ALL E.R. 297 , the principles which guide an appellate court, were echoed with approval by the Court of Appeal in Butt Vs Khan [1981] KLR 349 when it held as per Law, J.A that an appellate court will not disturb an award of damages unless it is so inordinately high or low 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.
4. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123 it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider 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.
5. In the primary suit, Ivy Wachuka Maina(PW1) adopted her witness statement dated 9 th August, 2024 as her testimony in chief. Equally, the witness produced a list of documents dated 9 th August, 2024 as Exhibit. However, the treatment note and police Abstract were marked for identification. Under cross examination, the witness said he was seated behind the driver and the accident Motor vehicle was doing at 100Km/hr. She has not healed well. In re-examination, the witness said that he paid Kshs30,000/ for the medical report.
6. David Kamanja (PW2) also adopted his witness statement dated 9 th August, 2024 as his testimony together with a bundle of documents as Exhibits save for treatment notes and police abstract which were marked as MFI 1 and 6. Under cross examination, the witness said that he sat behind the driver on the left side next to the door and that he has not sued the driver. Notwithstanding the accident, he has gone back to his calling, as a mason and a peasant. He was treated at Thika Hospital on the same and discharged. Under re-examination, the witness said that he was a passenger in the accident Motor Vehicle and was issued with P3 Form and Police Abstract.
7. Beatrice Wanjiku (PW4 ) adopted her witness statement dated 9 th August, 2024 as her evidence in chief together with the list of documents in bundle as exhibits save treatment notes and Police Abstract marked as MFI 6 and MFI 2. Further, the witness said that they were travelling in the accident Motor Vehicle Registration number KCT 379W. She used Kshs100/ for treatment and paid out Kshs30,000/ for Medical Report. The witness further said that in the accident Motor Vehicle, he was travelling with Blessings Wanjiku, Charles, Ivy Wachuka and David Kamanja. Under cross examination, the witness said that she is a student at Maseno University and that Ivy Wachuka and Blessings are students at Maseno university. The witness said that the deep injuries have healed and the sift tissue have not healed.
8. Blessings Wanjiku Wairigu(PW5 ) adopted her witness statement dated 9 th August, 2024 as her evidence in chief and equally her list of documents of even date and whereas the P3 Form was produced as exhibit 1, police abstract, Demand notice, search certificate, medical receipt, treatment notes, medical report, receipt for medical report and legal notice were marked as MFI 2 to MFI 9. The witness sustained injuries to the knees and chest.
9. Charles Waciuri Kiiru (PW5) adopted his witness statement dated 9 th August, 2024 as his evidence in chief, as well as, his list of documents which he produced as Exhibits 1 to 9 respectively. He said he was a passenger in the accident Motor Vehicle. Under cross examination, the witness said that he was in the accident Motor Vehicle KCT 379W and sustained injuries to the back, head and leg. He is yet to heal.
10. Beatrice Waithera (PW6) told court that she is attached to Salgaa Traffic Base performing traffic duties and she produced P3 Forms for the witnesses in this case. The witness confirmed that indeed the witnesses were involved in a slight road accident in December, 2023 at around 12:30pm at Delber-Eldoret -Nakuru road which involved a Motor vehicle registration number KCT 379W Matatu Hiace . The driver of the accident Motor vehicle was to blame for veering off then road and landing in a drainage. Under cross examination the witness said that Corporal Mageto was the Investigation Officer but has gone on transfer and that she neither attended the scene nor witnessed the accident. Indeed, in the occurrence book, the names of witnesses in this case are enlisted as part of those involved in the accident. Upon inspection, the Motor vehicle was found to be faulty, hence the reason for veering off the road and causing an accident. Delbar area is a flat road and straight without bends. Thereafter, the appellants closed their case, as well as, the defence without calling any defence witness.
11. In the Judgement delivered by the Learned Magistrate, the Appellants were aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, I find that all the 19 grounds overlap one another and to my understanding, I shall collapse them into 8 grounds;
a. That the learned Trial Magistrate erred in law and fact failing to deliver substantive justice as envisaged by the constitution and laws of Kenya.
b. That the learned Trial Magistrate erred in law and fact in failing to appreciate the plaintiff’s case.
c. That the learned Trial Magistrate erred in law and fact by failing to consider the appellants’ testimony submissions and documents.
d. That the learned Trial Magistrate erred in law and fact by failing to uphold a doctrine that substance prevails over form.
e. That the learned Trial Magistrate erred in law and fact in omitting reliefs pleaded and proved.
f. That the learned Trial Magistrate erred in law and fact by rejecting the Respondent award of Kshs150,000/.
g. That the learned Trial Magistrate erred in law and fact rigidly interpreting article 159(2)(d) which allows court to grant reliefs supported by evidence even if not specifically prayed for.
h. That the learned Trial Magistrate erred in law and fact in failing to look at the totality of the pleadings and evidence.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. This court notes that the appellant settled on 19 grounds for determination. However, looking at the totality of the grounds, I note that liability and special damages are not disputed. The only ground in dispute is assessment of general damages for pain and suffering. I opine to collapse these grounds into one; whether or not the appellants were entitled to damages for pain and suffering .
14. Under paragraph 10 of the Judgement of the trial court, it is recorded “this court finds that there is no congruence in the injuries pleaded and the prayers sought herein. It has now become a principle of law that parties are bound by their pleadings. The court has further perused the record and noted that, there is no amended plaint on record and therefore the plaintiff is seeking for compensation for general damages under Law Reform Act and Fatal Accidents Act which are general damages for pain and suffering, loss of expectation of life and loss of dependency under prayer (a) of paragraph 9 of his plaint dated 20 th March, 2024. In paragraph 11, the learned Magistrate had this to say; “The court is guided by the case of Kihoro Vs Akiinama Limited & Another (2025) where the court held that “it is imperative to point out that parties are bound by their pleadings. Parties must plead their case before proceeding to proof ( prove, I suppose ) them. In Daniel Otieno Migore Vs South Nyanza Sugar Co. Ltd(2018)eKLR, Justice A.C. Mrima stated as doth: It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the 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 consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) Vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -“…..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded. In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
15. To these decisions, I wish to add one more for purposes of having a handle and their context. In the case of Malawi Railways Limited Versus Nyasulu [1998] MWSC, the Court stated as follows in relation to pleadings: - “ As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rule of pleadings …… for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he had to meet and cannot be taken by surprise at the trial. The court itself is bound by the pleadings of the parties as they are themselves. It is not part of the duty of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so, would be to enter upon the realm of speculation. Moreover, in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called ‘Any Other Business’ in the sense that points other than those specific may be raised without notice.”
16. It must be recalled that enactment of 3A and 3B of the Civil Procedure Act Cap 21 Laws of Kenya in 2010, was an antidote against technicalities. So that in evaluating the evidence on record, this Court is mandated not to give undue regard to technicalities through the overriding objectives. In Douglas Mbugua Mungai Vs Harrison Munyi – Civil Application No. Nai. 167 of 2010 : - We are as a matter of statute law required to take a broad view of justice and take into account all the necessary circumstances, factors, and principles and be satisfied at the end of the exercise that we have acted justly” As was stated in Stephen Boro Gitiha Vs Family Finance Building Society & 3 Others, Civil Application No. Nai. 263 of 2009 . “The overriding objective overshadows all technicalities, precedents, rules and actions … and whatever is in conflict with it, must give way”
17. The big question is; What prejudice did the Respondent suffer in these proceedings? It is now trite law that each case is decided on its own circumstances, context and touch. The pleadings here are pellucid. The appellants were involved in slight accident at Belbur Area along Nakuru-Eldoret Road consequent to which the they sustained soft tissue injuries. These injuries are catalogued in the plaint. The Respondent on the other side filed a defence denied all the contents, thereof. Additionally, the Respondent attributed negligence on the part of the appellants and set out particularities of negligence under paragraph 6. Differently put. The Respondent filed pleadings in respect to the bodily injuries sustained by the appellants and not in respect to a deceased body.
18. Intriguingly, the Respondent and Appellants have one common purpose in their submissions. They submit on the injuries sustained by the appellants as demonstrated by the appellant under paragraph 50 and the Respondent under sub heading on quantum, of their respective submissions. Undoubtedly, every spirit and intent of both parties are in unison as to what claim they were addressing. No prejudice was caused to the respondent. Prayer (a) under paragraph 9 was a genuine mistake.
19. In event, one is in doubt with my reasoning, I do not know how to help him. Probably, I may with expansion of reasoning, refer to a criminal matter, which of course, has a higher threshold in terms of compliance than in civil matter, where, the trial magistrate in error, failed to comply with section 211 of the CPC but instead, continued with the defence case, after the accused took oath. The Court of Appeal in Chome Vs Republic (Criminal Appeal 92 of 2022) [2023] KECA 69 (KLR) had the following to say; “The record of proceedings did not show that there was compliance with that section 211 of the Criminal Procedure Code. It was incumbent upon the trial court to comply with the command of section 211 and the omission to do so was irregular. However, the record showed that throughout the trial including when the matter was called out for defence hearing on July 11, 2011, the appellant was represented by an advocate. On that date, counsel for the appellant was recorded as having stated that “the accused will adduce sworn evidence. We intend to call three witnesses. We are ready to proceed.” The appellant thereafter proceeded to give evidence on oath, was cross-examined and re-examined. His three witnesses also gave evidence on oath and were also cross-examined. In effect, the appellant duly and fully exercised his rights notwithstanding the omission by the court to explain as required by section 211. The omission by the court to comply with section 211 did not in any way prejudice the appellant or otherwise occasioned a failure of justice”
20. I have nothing more to add.
21. The purpose for award of General Damages is stated in the following passage in the case of West H. & Son Ltd. Vs Shephard (1964) AC 326: “But money cannot renew a physical frame that has been battered and shattered. All that Judges and courts can do is award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”
22. Lord Denning MR in Lim Poh Choo Vs Camden and Islington Area Health Authority [1978] 3 WLR 895, at page 909) said: “I may add, too, that if these sums get too large, we are in danger of injuring the body politic: just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and these are passed to the public in the shape of higher and higher fees for medical attention.”
23. Concerning assessment on quantum, I must register my deep respect to the jurists, who have set the law, as it ought to be. I will forever be grateful to them till, the end of age. What is more, these decisions can be heard in the corridors of our courts, in every corner of the year. It sets continuity of the law. Departing from it, I, in doubt becomes, a prodigal son. Economics has been challenging in every single day that we wake up. Consequently, courts must keep very close to their hearts, that inflation, keeps rising and whatever consideration that may be, prices of fuel must be the center-piece for quantification of damages in every personal injury claim. However, the figures need not increase in every turn of the inflationary screw, and that is to say, figures ought not be affected every time of fuel price change. A trend has to be substantive. I note from the catalogue of injuries suffered by the Appellant, the case laws, comparable awards and the proposal on quantum, demonstrate the true method of approach of the injuries sustained by the Appellant.
24. Putting all these together, I make a finding;
a. The Appeal is meritorious and the same is upheld.
b. Damages are assessed as hereunder for each appellant;
Beatrice Wanjiku Irungu:
• General damages Kshs400,000/=
• Costs of the appeal.
Blessings Wanjiku Wairagu:
• General damages Kshs400,000/=
• Costs of the appeal.
Ivy Wachuka
• General damages Kshs200,000/=
• Costs of the appeal.
David Kamanja:
• General damages Kshs150,000/=
• Costs of the appeal.
Charles Wachiuri Kiiru:
• General damages Kshs500,000/=
• Costs of the appeal.
25. A copy of this judgement to be filed in Civil Appeal Numbers 317/2025, 318/2025, 319/2025 and 320/2025.
Orders Accordingly.
Judgement delivered in Court virtually in the presence of the Court Assistant this 21 st July, 2026.
Hon. R.K. Ondieki, Judge.
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