https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10909

Kinyanjui v Azhar & 3 others (Civil Appeal E037 of 2022) [2026] KEHC 10909 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10909 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E037 of 2022 S Mbungi, J July 17, 2026 Between Daniel Kamau Kinyanjui Appellant and Mohammed Azhar 1st Respondent Cornelius Kimunu 2nd Respondent John Mutitu Gatere 3rd Respondent Bernard Kinyanjui Kamau 4th Respondent (Being an appeal from the judgment of Hon. E. Mutunga, Principal Magistrate, delivered on 31st May 2022 in Kandara SPMCC No. 155 of 2018) Judgment Background 1.This appeal arises from the judgment of the learned Principal Magistrate, Hon. E. Mutunga, delivered on 31st May 2022 in Kandara SPMCC No. 155 of 2018. The Appellant, who was the 2nd Plaintiff in the lower court, is aggrieved by the decision of the learned magistrate wherein his claim for personal injuries sustained in a road traffic accident was dismissed on the ground that it ought to have been brought under a different suit. 2.The background facts giving rise to this appeal are largely common ground. On 22nd July 2017 at about 7:40 p.m., along the Thika-Kandara road at Kahaini area, the Appellant was driving motor vehicle registration number KBJ 741B when the 3rd Respondent so negligently and carelessly drove, managed, and/or controlled motor vehicle registration number KAS 123C that he caused and/or permitted the same to lose control and violently collide with motor vehicle registration number KBJ 741B. 3.Consequently, the Appellant sustained severe personal injuries, specifically a left colles fracture. The 4th Respondent, who was the registered owner of motor vehicle KBJ 741B and the Appellant's father, also suffered damage to his motor vehicle. Together, they filed a suit in the lower court being Kandara SPMCC No. 155 of 2018 against the 1st to 3rd Respondents seeking compensation. 4.The Appellant sought compensation for the personal injuries he sustained, whereas the 4th Respondent sought compensation for damage to his motor vehicle. The matter proceeded for full hearing. The Appellant and the 4th Respondent called five witnesses in support of their case. The 1st to 3rd Respondents closed their case without calling any witness. 5.In a judgment delivered on 31st May 2022, the learned magistrate awarded the 4th Respondent Kshs. 394,130/= for loss and damage to his motor vehicle. However, the learned magistrate failed to make any award in respect of the Appellant's claim for personal injuries. In dismissing the Appellant's claim, the learned magistrate held that the Appellant's claim 'ought to have been brought under a different suit thus court would not delve on the same.' 6.Being aggrieved by that decision, the Appellant lodged this appeal vide a Memorandum of Appeal dated 27th June 2022, raising five grounds of appeal. Appellant's Submissions 7.. The Appellant, Daniel Kamau Kinyanjui, appeals the judgment and decree of the Learned Magistrate, Mr. E . Mutunga (PM), delivered at Kandara on 31st May 2022 in Kandara SPMCC No. 155 of 2018, by a Memorandum of Appeal dated 27.06.2022. The Appellant submits that on 22.07.2017 at about 7:40 p.m., along the Thika–Kandara road at Kahaini area, he was driving motor vehicle registration number KBJ 741B when the 3rd Respondent so negligently and carelessly drove, managed, and/or controlled motor vehicle registration number KAS 123C that he caused and/or permitted the same to lose control and violently collide with motor vehicle registration number KBJ 741B; consequently, the Appellant sustained severe personal injuries. Together with the 4th Respondent, they filed a claim against the 1st – 3rd Respondents in the lower court. The Appellant sought compensation for personal injuries, whereas the 4th Respondent sought compensation for damage to his motor vehicle registration number KBJ 741B. At trial, the Appellant and the 4th Respondent called five witnesses in support of their case, while the 1st – 3rd Respondents closed their case without calling a witness. In a judgment delivered on 31.05.2022, the Learned Magistrate awarded the 4th Respondent Kshs. 394,130/= for loss and damage to his motor vehicle, but failed to make an award in respect of the Appellant's claim, holding that the Appellant's claim ought to have been brought under a different suit. The Appellant being aggrieved by this decision lodged this appeal. 8.On the issues for the appeal, the Appellant raises five grounds of appeal which essentially relate to the finding of the trial Court failing to make an award in respect of his claim. The Appellant urges that the Learned Magistrate erred in failing to make an award, bearing in mind the law and the applicable principles. Specifically, the Appellant submits that the Learned Magistrate ought to have considered the provisions of Order 1 Rules 1, 2, and 9 of the Civil Procedure Rules; that a suit cannot be defeated by a misjoinder. Further, the Learned Magistrate erred in failing to appreciate that there is no law requiring the Appellant's claim to be filed in a separate suit. The Appellant further contends that the issue of joinder of the suits was neither pleaded nor left for determination by the Court, and as such, the Learned Magistrate erred in basing his decision on an unpleaded issue. Finally, the Appellant urges that the Learned Magistrate erred in failing to assess damages he would have awarded if the Appellant's claim had been successful. 9.On the duty of the Court in this case, the Appellant submits that this being a first appeal, the role of the Court is to re-evaluate, re-assess, and re-analyze the extracts on the record and then determine whether the conclusions reached by the trial Court are to stand or not, and give reasons either way. This duty was succinctly stated by the Court of Appeal in Selle –Vs- Associated Motor Boat Company Limited [1986] E.A. 123, where it was held that an appeal to the High Court from a trial by the High Court is by way of re-trial and 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 that respect. In particular, the Court is not bound necessarily to follow the trial Judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case general. In a later restatement of these principles, the Court of Appeal in Catholic Diocese Of Kisumu –Vs- Sophia Achieng Tete – Kisumu Civil Appeal No. 284 Of 2001 held that it is trite law that the assessment of general damages is at the discretion of the trial Court and an appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance; the appellate court can justifiably interfere with the quantum of damages awarded by the trial Court only if it is satisfied that the trial Court applied the wrong principles (as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate. 10.On the joinder of claims, the Appellant submits that it is common ground that the Appellant and the 4th Respondent joined two claims in one suit—the Appellant seeking compensation for personal injuries, whereas the 4th Respondent sought compensation for damage to his motor vehicle registration number KBJ 741B—and that the respective claims arose from the accident that occurred on 22.07.2017. In paragraph 5 of the Amended Plaint, it is pleaded, inter alia, that the Appellant sustained injuries, whereas the 4th Respondent's motor vehicle was damaged consequent to the accident. The Appellant submits that the Learned Magistrate failed to appreciate the law on joinder of suits, and thereby made an erroneous decision, specifically failing to consider the provisions of Order 1 rules 1, 2, and 9 of the Civil Procedure Rules. Order 1 rule 1 provides that all persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise. The Appellant argues that even if the Appellant and the 4th Respondent had filed separate suits, there would be common questions of law and fact, such as ownership of the suit motor vehicle, occurrence and liability for the accident; the only divergence in issues is the aspect of reliefs. Consequently, it was not improper for the two claims to be joined, and the difference in reliefs sought is not material since Order 1 rule 1 specifically stipulates that the reliefs may be sought jointly, severally or in the alternative. Even assuming that the Learned Magistrate considered the joinder improper, he then ought to have applied rule 2, which provides that where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may either on the application of any party or of its own motion put the plaintiffs to their election or order separate trials or make such other order as may be expedient. By dint of this provision, the Learned Magistrate ought then to have ordered a separate trial for the Appellant's claim; his decision to fail to address the Appellant's claim was tantamount to denying the Appellant justice, and under the principle of proportionality, the Learned Magistrate ought to have opted for the lesser injustice of ordering a separate trial than the greater injustice of defeating the Appellant's claim. 11.In addressing this principle, Odunga, J. (As He Was Then) In Winnie Wambui Kibinge & 2 Others –Vs- Match Electricals Limited [2012] Eklr stated that in considering the exercise of discretion, the Court must consider the risk of injustice if the court found in favour of the defendant, than if it determined this application in favour of the applicant, and having considered that to opt for the lower rather than the higher risk of injustice; this is the principle of proportionality under the overriding objective. Similarly, the Court of Appeal in D. Chandulal K. Vora & Co. Ltd –vs- Kenya Revenue Authority [2017] Eklr held that to avoid injustice to either party in the circumstances of this case, and to prevent prejudice to one party, justice behooves this Court to allow this appeal. In Essanji & Anothis v Solanki (1968) EA 218, it was observed that "the administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that error and lapses should not necessarily debar a litigant from the pursuit of his rights." The Appellant further relies on Order 1 rule 9, which stipulates that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. The High Court and the Court of Appeal have unanimously affirmed that a suit cannot be defeated because of a misjoinder. Gikonyo, J., In Zephir Holdings Limited –Vs- Mimosa Plantations Limited, Jeremiah Matagaro & Ezekiel Misango Mutisya [2014] Eklr rendered himself that a proper party is one who is impleaded in the suit and qualifies the thresholds of a plaintiff or defendant under Order 1 rule 1 and 2 respectively, and that the court has a wide discretion to even order suo moto for a party to be impleaded whose presence may be necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit; accordingly, a suit cannot be defeated for mis-joinder or non-joinder of parties. Similarly, Nyakundi, J., In Local Building And Construction Limited –Vs- Institute Of The Blessed Virgin Mary Loreto Msongari & 2 Others [2019] Eklr stated that Order 1 rule 9 and Article 159 is intended to ensure that each party is afforded a fair trial guaranteed under Article 50 (1) of the Constitution; when a case is decided in accordance with substantial justice, justice will not only be seen but will be seen to have been done. The Court of Appeal in William Kiprono Towett & 1597 Others –Vs- Farmland Aviation Ltd & 2 Others [2016] Eklr held that most critically, Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. 12.On the un-pleaded issue, the Appellant submits that it is evident from the pleadings that the issue of the misjoinder was not pleaded by any of the parties; it was not framed and/or raised the issue for determination by the Court. From the Defence filed on 14.09.2018, the 1st – 3rd Respondents did not plead the issue of the misjoinder; similarly, in the Statement of issues, the issue was not framed for determination; likewise, throughout the proceedings, none of the parties raised the issue. Consequently, it was wrong for the Learned Magistrate to base his decision on an issue that was not pleaded or raised by the parties. In Galaxy Paints Co. Ltd –Vs- Falcon Guards Ltd [2000] 2 Ea 385 (Cak) 388, the Court of Appeal rendered that it is trite law, and the provisions of Order XIV of the Civil Procedure Rules are clear, that issues for determination in a suit generally flow from the pleadings, and unless pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the court's determination. Earlier, In Vyas Industries –Vs- Diocese Of Meru [1976] Eklr , the Court of Appeal expounding on the decision in Odd Jobs v Mubia [1970] EA 476 stated that a court may base its decision on an unpleaded issue if it appears from the course followed at the trial that the issue had been left to the court for decision, and on the facts the issue had been left for decision by the court as the advocate for the appellant led evidence and addressed the court on it. Similarly, Pacific Frontier Seas Ltd –Vs- Kyengo & Another (Civil Appeal 32 Of 2018) [2022] Keca 396 (Klr) held that as regards unpleaded issues, the principle is well settled that a court, even when it has jurisdiction, will not base its decision on unpleaded issues because the issues determined by the court must flow from pleadings; however, where the parties lead evidence and address the unpleaded issues and from the course adopted at trial it appears that the unpleaded issues have been left for the decision of the court, the court will validly determine the unpleaded issues. In the instant case, the issue of the misjoinder of the Appellant's claim was not pleaded, framed, and or left for determination by the parties; indeed, the issue was not raised at all by any of the parties, and the Learned Magistrate was thus in error in basing his decision on such an issue. 13.On failing to assess damages, the Appellant submits that it is not in dispute that the Learned Magistrate did not assess the damages he would have awarded if the Appellant's claim was successful. Given that one of the Appellant's prayers was for general damages, the trial Court was duty bound to assess damages irrespective of the claim being unsuccessful. Lady Justice Aburuli In Masinga Ndonga Ndonge –Vs- Kualam Limited [2016] eKLR rendered herself that she noted that the trial court did not assess any damages that would have been payable had she found that the appellant proved his case on liability; she agreed that the trial magistrate was in error in failing to assess damages that she would have awarded the appellant had she found in his favour on liability, and was fortified by the decision in Gladys Wanjiru Njaramba –vs- Globe Pharmacy & Another [2014] Eklr, where the Court stated that "it is trite law that the trial Court was under duty to assess the general damages payable to the Plaintiff even after dismissal of the suit." This position is confirmed by the Court of Appeal in Mordekai Mwangi Nandwa V Bhogals Garage Ltd Ca No. 124 OF 1993 [1993] KLR 4448, where the Court held that the practice that damages be assessed even if the case is dismissed does not imply writing an alternative judgment; and in Matiya Byabaloma & Others V Uganda Transport Co. Ltd Uganda Supreme Court Civil Appeal No. 10 Of 1993 Iv Kalr 138, where the Court held that the Judge erred in not assessing the damage he would have awarded had the appellant been successful in her claim. The Court of Appeal in Andrew Mwori Kasaya –Vs- Kenya Bus Service [2016] Eklr stated that the judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he had found for him, and that this was in compliance with the court's then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this court allowing an appeal. In Pamela Misiga Okelo versus Odero O Alfred [2011] eKLR, it was held that although the plaintiff's claim had been dismissed, it was imperative on the trial magistrate to make an assessment of damages the appellant would have been awarded had she succeeded. In Lei Masaku versus Kalpama Builders Ltd [2014] eKLR, it was observed that "there is the issue of failure to assess damages. It has been held time and again by the Court of appeal that the court of first instance assess damages even if it finds that liability has not been established." 14.On apposite orders, the Appellant submits that he has demonstrated that his appeal has merit; therefore, the appropriate order is to set aside the decision of the Learned Magistrate as regards his claim, and allow the appeal. There being no appeal or cross appeal on the finding of liability, the Appellant prays that the Court affirm the finding of the Learned Magistrate. As regards assessment of damages, the Appellant submits that this Court has the jurisdiction to assess damages, in line with section 78 of the Civil Procedure Act as well as Order 42 rules 25 and 32; given that there is sufficient evidence for the Court to assess damages, coupled with the time that has lapsed since the cause of action arose, the Appellant submits that it is just and reasonable for this Court to exercise its jurisdiction. 15.On quantum, the Appellant submits that the injury sustained is a fracture of the left colles, as pleaded in paragraph 6 of the Amended Plaint and set out in the treatment notes (P.Exh.14), the P3 form (P.Exh.6), and the medical report prepared by Dr. Karanja (P.Exh.15). The Appellant confirmed the injury in his testimony; after the accident, he was rushed to Thika Level 5 Hospital, where he was treated and discharged, and he stated that he had fully recovered from the injuries. Dr. Karanja (PW 5) testified that he examined the Appellant on 12.01.2018 and confirmed that the Appellant had sustained a fracture of the left radius ulna bone; he classified the injuries as grievous harm and testified that the Appellant had fully recovered. Consequently, having regard to the injuries and their sequel, the Appellant submits that an award of Kshs. 600,000/= for general damages for pain, suffering, and loss of amenities is reasonable in the circumstances. In support, the Appellant relies on Akamba Public Road Services Limited –vs- Rosemary Amoit [2018] eKLR, where the Respondent sustained a fracture of the right distal radius and soft tissue injuries, and the High Court upheld an award of Kshs. 400,000/= for general damages for pain, suffering, and loss of amenities on 24.07.2018; and Francis Nzivo Munguti & Another –vs- Jotham Wanyonyi Nakasana & Another [2020] eKLR, where the Respondent sustained a fracture of the right radius/ulna and soft tissue injuries to the forehead, right leg, and right foot, and the High Court upheld an award of Kshs. 600,000/= for general damages for pain, suffering, and loss of amenities on 10.03.2020. On special damages, the Appellant pleads Kshs. 4,500/=, comprising receipts for Kshs. 1,500/= for treatment and medical expenses, and a receipt for Kshs. 3,000/= charged by Dr. Karanja for the medical report. In totality, the Appellant submits that his appeal is meritorious, prays that it be allowed, and that damages be awarded as submitted above, together with costs and interest in the lower court as well as in this case. Respondent's Submissions 16.The 1st Respondent, Mohammed Azhar, submits that this appeal arises from the judgment delivered on 20/2/2023 in Kandara SPMCC 155 of 2018 where the Respondent was held liable and judgment entered in favour of the Appellant. Being aggrieved by the said judgment, the Appellant instituted this appeal vide a Memorandum of Appeal dated 27/6/2022, which contains 5 grounds of appeal that can be summed up to one issue of quantum, which the Respondent will endeavour to address. The Respondent wishes to reiterate and rely on his written submissions filed in the trial court and invites the Court to consider them. 17.On quantum, the Respondent submits that on 22/07/2017, the Appellant was driving motor vehicle registration number KBJ 741B along Thika-Kandara road when it was involved in an accident with KAS 123C. According to the Plaint dated 21/5/2018 and statement of claim, the Appellant sustained a left colles fracture. The Respondent relies on the case of Patrisia Adhiambo Omolo v Emily Mandala [2020] eKLR, where the High Court at Siaya in Civil Appeal No. 19 of 2019 considered an award of general damages for pain and suffering. In that case, the appellant had sustained a fracture of the radius and ulna bones, colles fracture of the left forearm, swollen left forearm, and multiple bodily injuries; the trial court had awarded Kshs. 180,000/=, and on appeal, the High Court found that the award was not inordinately low to warrant interference. 18.The Respondent also relies on Philip Musyoka Mutua v Leonard Kyalo Murisya & John Kamau Ngugr [2018] eKLR (Machakos Civil Appeal No. 149 of 2009), where the Court of Appeal considered principles for interference with award of damages, citing Kemfro Africa Limited T/A "Meru Express Services 1976" & Gathogo Kanini v. A.M. Lubia & Olive Lubia [1982-1988] 1 KAR 727, 730, where Kneller J.A stated that the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the award amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. In that case, the Court of Appeal found that an award of Kshs. 300,000/= would be adequate compensation for the injuries sustained, taking into account inflationary trends, where the respondent had sustained bruises on the chest and damage to the left eye with peri-orbital oedema, blunt injury to the head with loss of consciousness for about four hours, and permanent incapacitation of 4% was assessed. 19.The Respondent further relies on the recent decision of the Court of Appeal in Nairobi Civil Appeal No. 178 of 2025(delivered on 23rd January 2025), where the Court considered an appeal on quantum and found that the award of Kshs. 150,000 as general damages was not inordinately low to warrant interference by the Court. In that case, the appellant had relied on judicial authorities that the respondent argued were decided long time ago and therefore not relevant; the Court of Appeal found that the learned trial Judge had not erred in finding that the authorities cited by the respondent were relevant and that the authorities cited by the appellant were not relevant to his case, and that the learned trial Judge had not misdirected himself in awarding general damages. The Court of Appeal dismissed the appeal with costs to the respondent, finding that the appeal lacked merit. 20.The Respondent submits that in view of the foregoing authorities, and considering that the Appellant sustained only a left colles fracture with full recovery, the award of Kshs. 180,000/= or thereabouts would be adequate compensation for the injuries sustained, and the Appellant's claim for Kshs. 600,000/= is excessive and not supported by comparable awards for similar injuries. The Respondent prays that the appeal be dismissed with costs. Issues for Determination 21.Having considered the Memorandum of Appeal, the Record of Appeal, and the submissions filed by both parties, I find the following issues for determination:(a)Whether the learned magistrate erred in law and in fact in dismissing the Appellant's claim on the basis of alleged misjoinder of causes of action;(b)Whether the learned magistrate erred in basing his decision on an unpleaded issue;(c)Whether the learned magistrate erred in failing to assess damages he would have awarded had the Appellant's claim succeeded; and(d)What is the appropriate quantum of damages, if any, payable to the Appellant? Duty of the First Appellate Court 22.Before delving into the substantive issues, it is important to restate the well-settled principles governing first appeals. This being a first appeal, this Court is enjoined to re-evaluate, re-assess and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and therefore must give due allowance for that. 23.In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court of Appeal held:“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this 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 that respect. In particular this Court is not bound necessarily to follow the trial Judge's findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence..." 24.Similarly, in Catholic Diocese of Kisumu v Sophia Achieng Tete, Kisumu Civil Appeal No. 284 of 2001 [2004] eKLR, the Court of Appeal stated:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles... or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate." Analysis and Determination Issue (a): Whether the Learned Magistrate Erred In Dismissing The Appellant's Claim On The Basis Of Alleged Misjoinder 25.The Appellant's primary contention is that the learned magistrate erred in law in dismissing his claim on the basis that it ought to have been brought in a separate suit. The Appellant submits that the joinder of his personal injury claim with the 4th Respondent's property damage claim in the same suit was permissible under the law, and that the learned magistrate misapprehended the provisions of Order I of the Civil Procedure Rules. 26.It is not in dispute that the Appellant and the 4th Respondent joined their respective claims in one suit. The Appellant sought compensation for personal injuries, whereas the 4th Respondent sought compensation for damage to his motor vehicle. Both claims arose from the same accident that occurred on 22nd July 2017. The 1st and 2nd Respondents were the owners of the suit motor vehicle KAS 123C, while the 3rd Respondent was the driver at the material time. 27.Order I Rule 1 of the Civil Procedure Rules provides:“All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits, any common question of law or fact would arise." 28.A plain reading of the above provision makes it abundantly clear that the joinder of plaintiffs is permitted where their respective rights to relief arise out of the same act or transaction or series of acts or transactions, and where common questions of law or fact would arise if separate suits were filed. In the instant case, both the Appellant's claim for personal injuries and the 4th Respondent's claim for property damage arose from the very same road traffic accident. 29.Had the Appellant and the 4th Respondent filed separate suits, there would undoubtedly have been common questions of law and fact in both suits. For instance, in both suits the issues of ownership of the suit motor vehicle KAS 123C, the occurrence of the accident, the liability of the Respondents, and the negligence of the 3rd Respondent would have been identical. The only divergence would have been in the quantum of damages sought. The difference in reliefs sought is not material since Order I Rule 1 specifically stipulates that the reliefs may be sought jointly, severally or in the alternative. 30.Order I Rule 2 of the Civil Procedure Rules further provides:“Where it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may either on the application of any party or of its own motion put the plaintiffs to their election or order separate trials or make such other order as may be expedient." 31.This provision gives the trial court discretion to order separate trials where the joinder may embarrass or delay the trial. However, even assuming that the learned magistrate considered the joinder improper, the appropriate course of action would have been to order separate trials under Order I Rule 2, not to dismiss the Appellant's claim altogether. The drastic step of dismissing the Appellant's claim was tantamount to denying the Appellant justice without any legal basis. 32.Most importantly, Order I Rule 9 of the Civil Procedure Rules categorically provides:“No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it." 33.This provision is clear and unambiguous. A suit cannot be defeated by reason of misjoinder or non-joinder of parties. The High Court and the Court of Appeal have consistently affirmed this position. In William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others [2016] eKLR, the Court of Appeal held:“Most critically Order I Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. We reproduce the same hereunder: 'No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.'" 34.Similarly, in Local Building and Construction Limited v Institute of the Blessed Virgin Mary Loreto Msongari & 2 Others [2019] eKLR, Nyakundi J. held:“Order I Rule 9 and Article 159 is intended to ensure that each party is afforded a fair trial guaranteed under Article 50(1) of the Constitution... justice shall be administered without undue regard to technicalities. When a case is decided in accordance with substantial justice as depicted under the abovementioned article, justice will not only be seen but will be seen to have been done... A misjoinder of parties to a suit cannot defeat the whole case." 35.In Zephir Holdings Limited v Mimosa Plantations Limited & 2 Others [2014] eKLR, Gikonyo J. (as he then was) stated:“A proper party is one who is impleaded in the suit and qualifies the thresholds of a plaintiff or defendant under Order I Rule 1 and 2 respectively... And the court has a wide discretion to even order suo moto for a party to be impleaded whose presence may be necessary to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit. Accordingly, a suit cannot be defeated for mis-joinder or non-joinder of parties." 36.The learned magistrate therefore misapprehended the law and applied wrong principles in dismissing the Appellant's claim on the basis of alleged misjoinder. There is no law requiring that a personal injury claim and a property damage claim arising from the same accident must be filed in separate suits. On the contrary, Order I Rules 1, 2, and 9 of the Civil Procedure Rules expressly permit such joinder and provide mechanisms for dealing with any perceived inconvenience. The learned magistrate's decision to dismiss the Appellant's claim was clearly erroneous in law. 37.The Court of Appeal in D. Chandulal K. Vora & Co. Ltd v Kenya Revenue Authority [2017] eKLR, citing Essanji & Another v Solanki (1968) EA 218, observed:“The administration of justice should normally require that the substance of all disputes should be investigated and decided on their merits and that error and lapses should not necessarily debar a litigant from the pursuit of his rights." Issue (b): Whether the learned magistrate erred in basing his decision on an unpleaded issue 38.The Appellant further contends that the issue of misjoinder was never pleaded by any of the parties, was not framed as an issue for determination, and was not raised at any point during the proceedings. A careful review of the Record of Appeal confirms this contention. 39.The Defence filed on 14th September 2018 did not raise the issue of misjoinder. Similarly, the Statement of Issues did not include this issue for determination. Throughout the proceedings, none of the parties raised the issue of misjoinder. It was an issue that the learned magistrate raised suo moto without giving the parties an opportunity to address it. 40.The law is well settled that a court should base its decision on issues pleaded, framed by the parties, or left for determination by the court. A court is precluded from basing its decision on an issue not pleaded or raised by the parties. In Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] 2 EA 385 (CAK), the Court of Appeal held:“It is trite law, and the provisions of Order XIV of the Civil Procedure Rules are clear, that issues for determination in a suit generally flow from the pleadings, and unless pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court, by dint of the provisions of Order XX, Rule 4 of the aforesaid Rules, may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the court's determination." 41.In Pacific Frontier Seas Ltd v Kyengo & Another (Civil Appeal 32 of 2018) [2022] KECA 396 (KLR), the Court of Appeal held:“As regards unpleaded issues, the principle is well settled that a court, even when it has jurisdiction, will not base its decision on unpleaded issues because the issues determined by the court must flow from pleadings. It is the pleadings which guide the litigation and succinctly inform the parties and the court what is in dispute. However, where the parties lead evidence and address the unpleaded issues and from the course adopted at trial it appears that the unpleaded issues have been left for the decision of the court, the court will validly determine the unpleaded issues." 42.The Court of Appeal further stated:“A court which has jurisdiction in the first sense will still be in error if it determines matters that the parties have not raised. The confusion arises because ordinarily where the court determines unpleaded issues, it is said that it did not have 'jurisdiction' to determine those issues or that it acted 'in excess of jurisdiction'." 43.In the instant case, the issue of misjoinder was not pleaded, framed, or left for determination by the parties. It was not raised at all by any party. The learned magistrate was therefore in grave error in basing his entire decision on such an unpleaded and uncanvassed issue. By so doing, the learned magistrate essentially condemned the Appellant unheard, thereby denying him a fair hearing in contravention of Article 50(1) of the Constitution of Kenya, 2010.Issue (c): Whether the Learned Magistrate Erred in failing to assess damages 44.The Appellant further contends that the learned magistrate erred in failing to assess the damages he would have awarded had the Appellant's claim succeeded. It is trite law that a trial court has a duty to assess damages even where it dismisses the suit. This principle is firmly established in Kenyan jurisprudence. 45.In Mordekai Mwangi Nandwa v Bhogals Garage Ltd, Civil Appeal No. 124 of 1993 [1993] KLR 448, the Court of Appeal held:“The judge was clearly under a legal duty to assess the damage she would have awarded to the appellant if he had found for him. That was in compliance with this court's then repeated directions to trial Judges to proceed in that manner so as to obviate the need for sending back a case to them to assess damages in the event of this court allowing an appeal. The practice of assessing damages by a trial judge irrespective of whatever his findings are does not and cannot mean that such a judge is writing an alternative judgment." 46.In Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR, the Court of Appeal reiterated:“This principle has religiously been followed by the courts below. Both the trial court and this court must assess damages as they are not courts of last resort. Their decisions are appealable and the appellate court needs to know the view by the court of first instance on the issue of quantum. To the extent that the trial court failed to assess damages, its judgment was a serious flaw and cannot stand. It therefore behoves this court to assess quantum." 47.In Masinga Ndonga Ndonge v Kualam Limited [2016] eKLR, Aburili J. (as she then was) stated:“I note that the trial court did not assess any damages that would have been payable had she found that the appellant proved his case on liability. The appellant contended that failure to assess damages was fatal. I agree that the trial magistrate was in error in failing to assess damages that she would have awarded the appellant had she found in his favour on liability." 48.In Lei Masaku v Kalpama Builders Ltd [2014] eKLR, the High Court observed:“It has been held time and again by the Court of Appeal that the court of first instance assesses damages even if it finds that liability has not been established. To have casually dismissed the suit and failed to address the issue of damages in this case is a serious indictment on the part of the trial court... It therefore behoves this court to assess quantum." 49.It is therefore clear that the learned magistrate fell into error in failing to assess the damages he would have awarded the Appellant had he found the claim meritorious. This Court is entitled to interfere with that decision. Issue (d): Appropriate Quantum Of Damages 50.Having found that the learned magistrate erred in dismissing the Appellant's claim, I must now assess the appropriate quantum of damages payable to the Appellant. This Court has jurisdiction to assess damages under Section 78 of the Civil Procedure Act as well as Order 42 Rules 25 and 32 of the Civil Procedure Rules. Given that the accident occurred in July 2017 and considerable time has elapsed, it is in the interest of justice that this Court proceeds to assess damages rather than remand the matter back to the trial court. 51.The injuries sustained by the Appellant are pleaded in paragraph 6 of the Amended Plaint and supported by the treatment notes (P.Exh.14), the P3 form (P.Exh.6), and the medical report prepared by Dr. G.K. Karanja (P.Exh.15). The Appellant sustained a left colles fracture. 52.The Appellant testified that after the accident, he was rushed to Thika Level 5 Hospital where he was treated and discharged. He stated that he had fully recovered from the injuries. Dr. Karanja (PW5) testified that he examined the Appellant on 12th January 2018 and confirmed that the Appellant had sustained a fracture of the left radius ulna bone. He classified the injuries as grievous harm and testified that the Appellant had fully recovered. 53.The Appellant prayed for general damages of Kshs. 600,000/= for pain, suffering and loss of amenities, and special damages of Kshs. 4,500/=. The 1st to 3rd Respondents, through their submissions, proposed an award of Kshs. 250,000/= to Kshs. 300,000/= as general damages. 54.In assessing the appropriate quantum of damages, I am guided by the principle of restitutio in integrum. An award for bodily injuries is intended to be compensatory in nature. The award must be commensurate with the injuries sustained. Previous awards in similar cases are a guide but each case must be treated on its own facts. Inflationary trends must also be taken into account. 55.The Court of Appeal in Charles Oriwo Odeyo v Apollo Justus Andabwa & Another [2017] eKLR noted:“The assessment of damages in personal injury cases by court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The award should be commensurable with the injuries sustained. Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account." 56.The Appellant relied on the following authorities:(i)Akamba Public Road Services Limited v Rosemary Amoit [2018] eKLR - where the respondent sustained a fracture of the right distal radius and soft tissue injuries, and the High Court upheld an award of Kshs. 400,000/=;(ii)Francis Nzivo Munguti & Another v Jotham Wanyonyi Nakasana & Another [2020] eKLR - where the respondent sustained a fracture of the right radius/ulna and soft tissue injuries, and the High Court upheld an award of Kshs. 600,000/=. 57.The Respondents relied on the following authorities:(i)Paul Kirimi Kithinji v Joseph Mutai Kireria [2018] eKLR - where the respondent sustained minor lacerations on the face and segmental fracture of the right ulna, and the Court of Appeal reduced the award from Kshs. 250,000/= to Kshs. 150,000/=;(ii)Philip Musyoka Mutua v Leonard Kyalo Mutisya [2018] eKLR - where the respondent sustained a closed fracture radius bone, bruises and cut wound, and the High Court awarded Kshs. 300,000/=;(iii)Maina v Kung'u [2024] KEHC 10574 (KLR) - where the respondent sustained fracture of the left forearm radius and ulna bones, and the trial court's award of Kshs. 180,000/= was upheld. 58.I have carefully considered the authorities cited by both parties. A colles fracture is a fracture of the distal radius bone in the forearm, typically caused by a fall on an outstretched hand. While the Appellant testified that he has fully recovered, the injury undoubtedly caused significant pain and suffering at the time and during the healing process. 59.Taking into account the nature of the injury (left colles fracture), the fact that the Appellant fully recovered, the principles enunciated above, and the comparable awards in the cited authorities, I find that an award of Kshs. 400,000/= as general damages for pain, suffering and loss of amenities is fair and reasonable in the circumstances. 60.On special damages, the Appellant pleaded and proved special damages of Kshs. 4,500/= comprising Kshs. 1,500/= for treatment and medical expenses and Kshs. 3,000/= for the medical report. The Respondents did not challenge these. I accordingly award the Appellant special damages of Kshs. 4,500/= as pleaded and proved. Conclusion and Orders 61.For the foregoing reasons, I find that the appeal has merit and is hereby allowed. The learned magistrate erred in law and in fact in dismissing the Appellant's claim on the basis of alleged misjoinder. The issue of misjoinder was not pleaded by any party and the learned magistrate further erred in determining the matter on an unpleaded issue. The learned magistrate also erred in failing to assess damages. 62.Accordingly, I make the following orders:(a)The appeal is allowed;(b)The decision of the learned magistrate in Kandara SPMCC No. 155 of 2018 dismissing the Appellant's claim is set aside;(c)Judgment is entered for the Appellant against the 1st, 2nd and 3rd Respondents jointly and severally as follows:(i)General damages for pain, suffering and loss of amenities: Kshs. 400,000/=;(ii)Special damages: Kshs. 4,500/=;(iii)Costs of the suit in the lower court;(iv)Interest on (i) and (iii) at court rates from the date of judgment in the lower court until payment in full;(v)Interest on (ii) at court rates from the date of filing suit until payment in full;(d)The Appellant shall have the costs of this appeal;(e)Right of appeal explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 17TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA:Angog’a/VelmaMr. Mulwa for the Appellant present online.Mr. Morara for the Respondents present online.MR. MORARA- I pray for 30 days stay .MR. MULWA: It is okay.COURT: 3O days stay of execution granted by consent.