Background:
1. The Appellants here instituted a suit seeking orders against the Respondents jointly and severally as per the plaint dated 30th April 2018. It was their case that the 1st Appellant was lawfully travelling from Nairobi to Kagundo town in the motor vehicle registration KCB 531S driven by the 1st Respondent as a fare paying passenger when it collided with the motor vehicle registration KBX 005J which was being driven by 3rd Respondent
2. It was the 1st Appellant’s case that the 1st and 3rd Respondent were contributory negligent in that they acted without reasonable care of other road users, drove the car in an aggressive, reckless and careless manner and or at an excessive speed among other wrong doings and as a result the 1st Appellant suffered injuries.
3. The 1st Appellant suffered injuries to the upper and lower limbs, deep cut wound on the left leg, fracture of the radius and the ulna bone, dislocation of the hip region and neurological impairment.
4. The 1st Appellant pleaded that he suffered loss and damage and claim general and special damages. The special damages were Kshs.420,535/=. He further pleaded in his plaint that he has hospitalized for different and long periods and undergone several surgeries and medical procedures. He pleaded that he continues to receive medical treatment and will require continuous medical attention the rest of his life.
5. The 2nd Appellant case was that she had a healthy active conjugal relationship before the accident and that the accident caused injuries, medical procedures and hospitalizations rendered such conjugal rights impossible. She claimed damages as a result and blamed the Respondents.
6. The Respondents herein filed a statement of defence dated 26th June 2018 denying any wrongdoing and blamed the 1st Appellant for negligence.
7. In their submissions dated 18th August 2021, the Appellants prayed for a total compensation of Kshs.12,521,955.00/=. He made reference to the evidence availed during trial and various case laws to support their case.
8. Upon hearing the matter, the learned Magistrate apportioned liability at 100% against the Respondents. The Court assessed general damages of Kshs.2,500,000/= and kshs.273,819.66 as special damages.
9. It is that judgment that is subject of this decision. The appeal was heard by way of written submissions.
The Appeal:
10. Aggrieved by the Judgement delivered on 30th September 2021, the Appellant filed a Memorandum of Appeal dated 22nd October 2021. The Appeal is premised on nine (9) grounds. The grounds fault the Trial Courts determination. The Appellants faulted the trial Court for failing to consider the evidence and law. The Appellants invited this Court to vary or set aside the Judgement of the Trial Court.
The Appellant’s Appeal:
11. The Appellants filed their written submissions dated 13th August 2025 faulting the Trial Court on the following grounds;
12. That the Trial Court erred in failing to consider the uncontroverted evidence tendered by the 1st Appellant on the loss of earning and amenities occasioned by the accident. In ignoring the uncontroverted evidence, the learned magistrate failed to apply proper assessment principles and arrived at an erroneous dismissal of the claim for loss of earnings and amenities.
13. The 1st Appellant faulted the Trial Court for awarding him Kshs.2,500,000/= in general damages which is manifestly low and failed to reflect the gravity of injuries, the degree of permanent incapacity and the extensive period of hospitalization and medical treatment endured by the 1st Appellant.
14. The Appellants seek prays that this Court enhance the award issued by the Trial Court to adequately compensate for the pain, suffering and loss of amenities occasioned by the injuries.
15. The Appellant submits that the Trial Court erred by failing to award damages for future medical expenses despite uncontroverted evidence that the 1st Appellant would require continuous medical care due to 65% permanent disability. The Appellants invite this Court to interfere with the Trial Courts findings and award reasonable damages for future medica expenses commensurate to the ongoing medical expenses.
16. The Appellants submits further that Trial Court misdirected itself on the applicable law regarding award of damages for the loss of consortium without evaluating the evidence of the 2nd Appellant who testified on the loss of companionship, assistance and the marital strain cause by the 1st Appellant’s prolonged disability.
17. They submit that the evidence of the prolonged hospitalization, inability of the 1st Appellant to resume normal marital life was uncontroverted therefore the Trial Court misapplied the law and failed to exercise judicial discretion to award damages under this head.
18. The Appellants further faulted the Trial Court for failing to take into consideration that their case was largely uncontroverted by the Respondents who never called any witness to testify in Court.
19. The Appellants lastly faulted the Trial Court for misdirecting itself on the award of the pleaded and proved special damages leading to underassessment. The Appellants therefore invited this Court to set aside or vary the judgment and decree of the lower court.
The Respondent’s case:
20. Despite the various directions, the Respondents did not file any submissions in the appeal. Nevertheless, this Court will proceed to determine the appeal on its merit.
Analysis and Determination:
21. Before dealing with the above issues, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms:
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212.
The Court will now interrogate the issues raised by the Appeal sequentially as follows:
Whether the trial court erred in failing to award special damages as pleaded and proved.
22. The evidential burden of proof initially rests on the Claimant, but may shift to the other party depending on the weight of evidence adduced. A detailed discussion on this aspect was undertaken by the Supreme Court in Raila Amolo Odinga & another v IEBC & 2 others {2017} eKLR and the Court of Appeal in Mbuthia Macharia -vs- Annah Mutua Ndwiga & another [2017] eKLR.
23. In this case the 1st Appellant went to great lengths to discharge the burden of proof, in his bundle of documents dated 30th April 2028 he annexed sick off, discharge summary forms among others. He further annexed receipts of KNH Hospital evidencing the treatment received and the admissions he underwent during the period.
24. The Appellants filed additional bindle of documents dated 3rd May 2019 and annexed various receipts and medical reports in support of his claim. He further filed at the Trial Court supplementary list of documents dated 14th January 2021 containing medical reports, Doctors’ invoices, admission forms from KNH with a view to support his claim.
25. On the ground for award of Special damages the Trial Court awarded Kshs. 273,819.66/= and not Kshs.420,535.00/= pleaded on the grounds that the amount pleaded was not proved. I note that Trial Court did not demonstrate how the amount was arrived at and how the remaining portion was not proved.
26. This Court having perused the record of appeal and in lieu of the above analysis of the evidence presented by the Appellants I am of the considered view that the Appellants were able to prove the amount as pleaded. Therefore, the amount is enhanced to Kshs.420,535.00/=
Whether the trial court’s award of Kshs.2,500,000/= as general damages is inordinately low given the disability of 65%.
27. The Appellant sought damages for pain and suffering and was awarded Kshs.2,500,000/= and is seeking to have it enhanced by this Court. This Court has analyzed the Record of appeal and on page 199, the Appellants herein sought Kshs.3,000,000/= as compensation for pain and suffering. The Trial Court rightfully took note of all that pertained the circumstances of the and proceeded to award Kshs.2,500,000/=This Court finds no need to disturb that finding of the Trial Court. The amount remains unchanged.
Whether the trial court erred in failing to award damages for future medical expenses despite being specifically pleaded and proved.
28. In the plaint dated 30th April 2018, the Appellants sought general damages for future medical expenses. The Trial Court disallowed the same on the grounds that such damages are special and must be pleaded. A look at the Plaint indeed confirms that there was no specific amount pleaded. A look at the submissions filed by the Appellant’s at the Trial Court dated 18th August 2021 show that the Appellants prayed for Khs.1,500,000 as future medical expenses. The Trial court disallowed this figure on grounds that it was wrongly pleaded further the same was not supported by a medical report of Dr.Michelle Muhanda, the court observed that the Doctor had testified that 1st Plaintiff needed Kshs.200,000 for purposes of plastic surgery in a public hospital. The Court declined to award the same as it was not pleaded.
29. It has been numerously held by this Court that parties are bound by their pleadings. The Appellant ought to have pleaded the same. The Court of Appeal has on numerous occasions held that those future medical expenses must be pleaded. This Court is of the view that the Trial Court rightfully dismissed the prayer for future medical expenses. This prayer is equally declined.
Whether the trial court erred in failing to award damages on loss of consortium.
30. The 2nd Appellant sought the above damages on grounds that as a couple they had an active conjugal relationship before the accident and that the injuries and medical procedures have rendered such conjugal rights impossible.
31. She submitted that the Trial Court failed to evaluate the evidence of the 2nd Appellant who testified on the loss of companionship, assistance and the marital strained caused by the 1st Appellant’s prolonged disability.
32. The 2nd Appellant cited various authorities supporting her case and urged this Court to interfere with the trial court’s finding and award general damages for loss of consortium. The 2nd Appellant earlier signed a witness statement dated 3rd April 2018 supporting her prayers. The Trial Court rejected this prayer on the grounds that its only awarded in fatal accidents where loss of life has occurred
33. It’s not in dispute that the 1st Appellant suffered great injuries as a result of the accident and the impact of the same was confirmed by the Medical Doctor who testified in the case. The Respondents did not dispute whether the Appellants are a couple and, in their defence, they made a general denial. During the hearing at the Trial Court, the Doctor testified that the 1st Appellant will suffer 40% disability due to the injury on the right hand and 65% disability for shortening of the leg. The testified that he personally examined him. The Respondents did not cross examine him on his testimony. Therefore, the injuries suffered by the 1st Appellant are not disputed.
34. This Court has evaluated the ground on loss of consortium and the exist current case laws from the Court of Appeal where consortium was awarded even though the cases not involving the instant case was not a fatal accident.I rely on the Court of Appeal case of Mbaaru & another v Kenya Bus Services Limited also known as Stage Coach Bus International & another [2024] KECA 432 (KLR)
‘…The instant case was not a fatal accident. It is nevertheless an appropriate case for such an award. The principles to be considered include proof that the appellant loved the spouse before the accident. Loss of consortium means loss of any or all of the following; companionship, love and affection, comfort, mutual services and sexual intercourse’’
35. This Court is satisfied that the 2nd Plaintiff is entitled to such damages. The Respondent has not demonstrated any opposition to the evidence supporting her claim. Therefore, I award her Kshs.200,000/=
Whether the trial court erred in failing to properly evaluate evidence adduced by the Appellants on loss of earnings and loss of amenities and consequently failed to award damages for earnings and amenities.
36. The Appellants fault the Trial Court in failing to award loss of earnings. The Trial Court did not award on the grounds that the same was not pleaded and proved. The Trial Court held that having not pleaded the same could not be awarded at submissions. The Trial Court held that the Law requires both the prayer and amount to be pleaded and failure to do so is fatal since parties are bound by their pleadings.
37. This Court is inclined to agree with the Trial Court that indeed the same ought to have been pleaded and strictly proved. The Appellant did not plead and prove as required. There exists myriad of authorities on this issue. This prayer is hereby declined.
38. On the award for damages for loss of earnings and amenities, this Court finds the finding of the Trial Court sound. This prayer is equally declined.
Disposition:
39. Judgment of the Appeal partially succeeds. Judgement is entered for the Appellants against the Respondents jointly and severally as follows: -
[a] The apportionment of liability at 100% is upheld.
[b] General Damages of Kshs. 2,500,000/= is upheld.
[c] The award of Special damages has been enhanced to Kshs.420,535.00/=
[e] Future Medical expenses of Kshs. 200,000/= is declined.
[f] The loss of consortium of Kshs.200,000/= is awarded.
[g] The other prayers not expressly granted are disallowed.
[h] The Appellant is awarded costs of the appeal.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance for the Appellants.
No appearance for the Respondents.
Michael Court Assistant.
1. The Appellants here instituted a suit seeking orders against the Respondents jointly and severally as per the plaint dated 30th April 2018. It was their case that the 1st Appellant was lawfully travelling from Nairobi to Kagundo town in the motor vehicle registration KCB 531S driven by the 1st Respondent as a fare paying passenger when it collided with the motor vehicle registration KBX 005J which was being driven by 3rd Respondent
2. It was the 1st Appellant’s case that the 1st and 3rd Respondent were contributory negligent in that they acted without reasonable care of other road users, drove the car in an aggressive, reckless and careless manner and or at an excessive speed among other wrong doings and as a result the 1st Appellant suffered injuries.
3. The 1st Appellant suffered injuries to the upper and lower limbs, deep cut wound on the left leg, fracture of the radius and the ulna bone, dislocation of the hip region and neurological impairment.
4. The 1st Appellant pleaded that he suffered loss and damage and claim general and special damages. The special damages were Kshs.420,535/=. He further pleaded in his plaint that he has hospitalized for different and long periods and undergone several surgeries and medical procedures. He pleaded that he continues to receive medical treatment and will require continuous medical attention the rest of his life.
5. The 2nd Appellant case was that she had a healthy active conjugal relationship before the accident and that the accident caused injuries, medical procedures and hospitalizations rendered such conjugal rights impossible. She claimed damages as a result and blamed the Respondents.
6. The Respondents herein filed a statement of defence dated 26th June 2018 denying any wrongdoing and blamed the 1st Appellant for negligence.
7. In their submissions dated 18th August 2021, the Appellants prayed for a total compensation of Kshs.12,521,955.00/=. He made reference to the evidence availed during trial and various case laws to support their case.
8. Upon hearing the matter, the learned Magistrate apportioned liability at 100% against the Respondents. The Court assessed general damages of Kshs.2,500,000/= and kshs.273,819.66 as special damages.
9. It is that judgment that is subject of this decision. The appeal was heard by way of written submissions.
The Appeal:
10. Aggrieved by the Judgement delivered on 30th September 2021, the Appellant filed a Memorandum of Appeal dated 22nd October 2021. The Appeal is premised on nine (9) grounds. The grounds fault the Trial Courts determination. The Appellants faulted the trial Court for failing to consider the evidence and law. The Appellants invited this Court to vary or set aside the Judgement of the Trial Court.
The Appellant’s Appeal:
11. The Appellants filed their written submissions dated 13th August 2025 faulting the Trial Court on the following grounds;
12. That the Trial Court erred in failing to consider the uncontroverted evidence tendered by the 1st Appellant on the loss of earning and amenities occasioned by the accident. In ignoring the uncontroverted evidence, the learned magistrate failed to apply proper assessment principles and arrived at an erroneous dismissal of the claim for loss of earnings and amenities.
13. The 1st Appellant faulted the Trial Court for awarding him Kshs.2,500,000/= in general damages which is manifestly low and failed to reflect the gravity of injuries, the degree of permanent incapacity and the extensive period of hospitalization and medical treatment endured by the 1st Appellant.
14. The Appellants seek prays that this Court enhance the award issued by the Trial Court to adequately compensate for the pain, suffering and loss of amenities occasioned by the injuries.
15. The Appellant submits that the Trial Court erred by failing to award damages for future medical expenses despite uncontroverted evidence that the 1st Appellant would require continuous medical care due to 65% permanent disability. The Appellants invite this Court to interfere with the Trial Courts findings and award reasonable damages for future medica expenses commensurate to the ongoing medical expenses.
16. The Appellants submits further that Trial Court misdirected itself on the applicable law regarding award of damages for the loss of consortium without evaluating the evidence of the 2nd Appellant who testified on the loss of companionship, assistance and the marital strain cause by the 1st Appellant’s prolonged disability.
17. They submit that the evidence of the prolonged hospitalization, inability of the 1st Appellant to resume normal marital life was uncontroverted therefore the Trial Court misapplied the law and failed to exercise judicial discretion to award damages under this head.
18. The Appellants further faulted the Trial Court for failing to take into consideration that their case was largely uncontroverted by the Respondents who never called any witness to testify in Court.
19. The Appellants lastly faulted the Trial Court for misdirecting itself on the award of the pleaded and proved special damages leading to underassessment. The Appellants therefore invited this Court to set aside or vary the judgment and decree of the lower court.
The Respondent’s case:
20. Despite the various directions, the Respondents did not file any submissions in the appeal. Nevertheless, this Court will proceed to determine the appeal on its merit.
Analysis and Determination:
21. Before dealing with the above issues, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms:
… This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority vs Kustron (Kenya) Limited 2000 2EA 212.
The Court will now interrogate the issues raised by the Appeal sequentially as follows:
Whether the trial court erred in failing to award special damages as pleaded and proved.
22. The evidential burden of proof initially rests on the Claimant, but may shift to the other party depending on the weight of evidence adduced. A detailed discussion on this aspect was undertaken by the Supreme Court in Raila Amolo Odinga & another v IEBC & 2 others {2017} eKLR and the Court of Appeal in Mbuthia Macharia -vs- Annah Mutua Ndwiga & another [2017] eKLR.
23. In this case the 1st Appellant went to great lengths to discharge the burden of proof, in his bundle of documents dated 30th April 2028 he annexed sick off, discharge summary forms among others. He further annexed receipts of KNH Hospital evidencing the treatment received and the admissions he underwent during the period.
24. The Appellants filed additional bindle of documents dated 3rd May 2019 and annexed various receipts and medical reports in support of his claim. He further filed at the Trial Court supplementary list of documents dated 14th January 2021 containing medical reports, Doctors’ invoices, admission forms from KNH with a view to support his claim.
25. On the ground for award of Special damages the Trial Court awarded Kshs. 273,819.66/= and not Kshs.420,535.00/= pleaded on the grounds that the amount pleaded was not proved. I note that Trial Court did not demonstrate how the amount was arrived at and how the remaining portion was not proved.
26. This Court having perused the record of appeal and in lieu of the above analysis of the evidence presented by the Appellants I am of the considered view that the Appellants were able to prove the amount as pleaded. Therefore, the amount is enhanced to Kshs.420,535.00/=
Whether the trial court’s award of Kshs.2,500,000/= as general damages is inordinately low given the disability of 65%.
27. The Appellant sought damages for pain and suffering and was awarded Kshs.2,500,000/= and is seeking to have it enhanced by this Court. This Court has analyzed the Record of appeal and on page 199, the Appellants herein sought Kshs.3,000,000/= as compensation for pain and suffering. The Trial Court rightfully took note of all that pertained the circumstances of the and proceeded to award Kshs.2,500,000/=This Court finds no need to disturb that finding of the Trial Court. The amount remains unchanged.
Whether the trial court erred in failing to award damages for future medical expenses despite being specifically pleaded and proved.
28. In the plaint dated 30th April 2018, the Appellants sought general damages for future medical expenses. The Trial Court disallowed the same on the grounds that such damages are special and must be pleaded. A look at the Plaint indeed confirms that there was no specific amount pleaded. A look at the submissions filed by the Appellant’s at the Trial Court dated 18th August 2021 show that the Appellants prayed for Khs.1,500,000 as future medical expenses. The Trial court disallowed this figure on grounds that it was wrongly pleaded further the same was not supported by a medical report of Dr.Michelle Muhanda, the court observed that the Doctor had testified that 1st Plaintiff needed Kshs.200,000 for purposes of plastic surgery in a public hospital. The Court declined to award the same as it was not pleaded.
29. It has been numerously held by this Court that parties are bound by their pleadings. The Appellant ought to have pleaded the same. The Court of Appeal has on numerous occasions held that those future medical expenses must be pleaded. This Court is of the view that the Trial Court rightfully dismissed the prayer for future medical expenses. This prayer is equally declined.
Whether the trial court erred in failing to award damages on loss of consortium.
30. The 2nd Appellant sought the above damages on grounds that as a couple they had an active conjugal relationship before the accident and that the injuries and medical procedures have rendered such conjugal rights impossible.
31. She submitted that the Trial Court failed to evaluate the evidence of the 2nd Appellant who testified on the loss of companionship, assistance and the marital strained caused by the 1st Appellant’s prolonged disability.
32. The 2nd Appellant cited various authorities supporting her case and urged this Court to interfere with the trial court’s finding and award general damages for loss of consortium. The 2nd Appellant earlier signed a witness statement dated 3rd April 2018 supporting her prayers. The Trial Court rejected this prayer on the grounds that its only awarded in fatal accidents where loss of life has occurred
33. It’s not in dispute that the 1st Appellant suffered great injuries as a result of the accident and the impact of the same was confirmed by the Medical Doctor who testified in the case. The Respondents did not dispute whether the Appellants are a couple and, in their defence, they made a general denial. During the hearing at the Trial Court, the Doctor testified that the 1st Appellant will suffer 40% disability due to the injury on the right hand and 65% disability for shortening of the leg. The testified that he personally examined him. The Respondents did not cross examine him on his testimony. Therefore, the injuries suffered by the 1st Appellant are not disputed.
34. This Court has evaluated the ground on loss of consortium and the exist current case laws from the Court of Appeal where consortium was awarded even though the cases not involving the instant case was not a fatal accident.I rely on the Court of Appeal case of Mbaaru & another v Kenya Bus Services Limited also known as Stage Coach Bus International & another [2024] KECA 432 (KLR)
‘…The instant case was not a fatal accident. It is nevertheless an appropriate case for such an award. The principles to be considered include proof that the appellant loved the spouse before the accident. Loss of consortium means loss of any or all of the following; companionship, love and affection, comfort, mutual services and sexual intercourse’’
35. This Court is satisfied that the 2nd Plaintiff is entitled to such damages. The Respondent has not demonstrated any opposition to the evidence supporting her claim. Therefore, I award her Kshs.200,000/=
Whether the trial court erred in failing to properly evaluate evidence adduced by the Appellants on loss of earnings and loss of amenities and consequently failed to award damages for earnings and amenities.
36. The Appellants fault the Trial Court in failing to award loss of earnings. The Trial Court did not award on the grounds that the same was not pleaded and proved. The Trial Court held that having not pleaded the same could not be awarded at submissions. The Trial Court held that the Law requires both the prayer and amount to be pleaded and failure to do so is fatal since parties are bound by their pleadings.
37. This Court is inclined to agree with the Trial Court that indeed the same ought to have been pleaded and strictly proved. The Appellant did not plead and prove as required. There exists myriad of authorities on this issue. This prayer is hereby declined.
38. On the award for damages for loss of earnings and amenities, this Court finds the finding of the Trial Court sound. This prayer is equally declined.
Disposition:
39. Judgment of the Appeal partially succeeds. Judgement is entered for the Appellants against the Respondents jointly and severally as follows: -
[a] The apportionment of liability at 100% is upheld.
[b] General Damages of Kshs. 2,500,000/= is upheld.
[c] The award of Special damages has been enhanced to Kshs.420,535.00/=
[e] Future Medical expenses of Kshs. 200,000/= is declined.
[f] The loss of consortium of Kshs.200,000/= is awarded.
[g] The other prayers not expressly granted are disallowed.
[h] The Appellant is awarded costs of the appeal.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 26th day of June 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
No appearance for the Appellants.
No appearance for the Respondents.
Michael Court Assistant.