Omondi v Ochieng (Civil Appeal E102 of 2025) [2026] KEHC 11158 (KLR) (17 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT KISUMU** **CIVIL APPEAL NO. E102 OF 2025** **JUDITH ATIENO OMONDI ….………………..…………………………………. APPELLANT** **-VERSUS-** **JUDITH KEMUMA OCHIENG’ …………………………………….……… RESPONDENT** *(Being an appeal from the judgment/decree of the Honourable F. Rashid (PM) delivered on 26/11/2024 in Kisumu CMCC No. E219 of 2021)* **JUDGMENT** **Background** 1. This appeal arises from the Judgment and Decree of Hon. F. Rashid (Principal Magistrate) delivered on 26th November 2024 in Kisumu CMCC No. E219 of 2021. The suit was instituted by the Respondent against the Appellant seeking general damages, special damages, costs and interest arising from injuries sustained in a road traffic accident that occurred on 25th January 2021. 2. Vide the Plaint dated 31st May 2021, the Respondent pleaded that on 25th January 2021 at about 4.30 p.m., she was lawfully travelling as a pillion passenger on a bicycle along the Manyatta Transformer area in Kisumu when motor vehicle registration number KBK 718C Toyota Hiace Matatu, allegedly owned by the Appellant and driven by her servant and/or agent, was negligently driven, thereby knocking her down and occasioning bodily injuries. She attributed the accident to the negligence of the driver of the said motor vehicle and particularized the alleged negligence in the plaint. She pleaded that she sustained bruises to both knees and elbows, bruised palms, blunt injury to the right hand, among other soft tissue injuries, and further pleaded special damages in the sum of Kshs. 16,850. 3. The Appellant entered appearance and filed a Statement of Defence dated 4th May 2023, denying the occurrence of the accident as pleaded, ownership of the motor vehicle, negligence and the injuries alleged. Without prejudice to the foregoing, the Appellant stated that if the accident occurred, the same was wholly caused and/or substantially contributed to by the negligence of the Respondent and the cyclist upon whom she was travelling as a pillion passenger. The Appellant particularized the alleged negligence against the cyclist and the Respondent, including dangerous overtaking, failure to keep a proper lookout, failure to give way and failure to observe traffic rules, and further pleaded inevitable accident and volenti non fit injuria. 4. The matter proceeded for hearing before the trial court on 28th February 2024. The Respondent testified as the sole witness in support of her case. She adopted her witness statement and produced documents in her list of documents dated 31st May 2021. The Respondent testified that she was travelling home aboard a bicycle when the subject motor vehicle, which had stopped to pick passengers, suddenly moved as the cyclist attempted to overtake it, thereby knocking them down. She testified that she lost consciousness and later regained it at Jaramogi Oginga Odinga Teaching and Referral Hospital where she was treated. She produced documentary evidence including treatment notes, P3 Form, Police Abstract, motor vehicle records, receipts in support of special damages and a medical report. During cross-examination, she testified that she had since recovered from the injuries sustained although she maintained that the accident occurred due to the negligence of the Appellant's driver. The plaintiff closed her case. 5. The matter proceeded for defence hearing on 6th August 2024 where one Duncan Oketch Osir testified as DW1. He adopted his witness statement dated 28th February 2021 as his evidence in chief and produced copies of his driving licence and an NTSA search in support of his driving licence status. His evidence was that on the material day he was driving the suit motor vehicle when the cyclist attempted to overtake carelessly and collided with the vehicle. He blamed the cyclist for the accident, stating that he had been over speeding and overtook without due care. He further testified that he had never been charged before a traffic court in relation to the accident. The defence closed their case. 6. Upon considering the evidence and the parties' written submissions, the learned trial magistrate found that the Appellant was wholly liable for the occurrence of the accident. The court reasoned that although the Appellant blamed the cyclist, no third-party proceedings had been instituted against him and that, in any event, the driver of a motor vehicle, being in control of a more lethal machine, owed a higher duty of care to other road users. On quantum, the court awarded the Respondent general damages of Kshs.300,000 and special damages of Kshs.16,850 together with costs and interest. **The Appeal** 1. Being dissatisfied with the award on quantum, the Appellant lodged the present appeal pursuant to leave granted by this Court. Notably, liability is not challenged, the appeal being confined solely to the assessment of general damages. The Memorandum of Appeal raises three grounds, namely: 2. the learned trial magistrate erred in law and fact in awarding general damages for pain and suffering of Kshs. 300,000/- which award was excessive and not commensurate to the nature of injuries sustained by the plaintiff. 3. The learned trial magistrate erred in law and in fact in relying on authorities in her decision wherein the injuries sustained by the plaintiff are not similar to the ones sustained by the plaintiff/respondent herein. 4. The learned trial magistrate erred in law and in fact in failing to consider the Appellant’s submissions on the legal authorities that were guiding on the appropriate award on quantum. **Submissions** 1. The appeal was canvassed by way of written submissions. On behalf of the Appellant, it was submitted that this Court, as a first appellate court, is under a duty to re-evaluate the evidence afresh while bearing in mind that it neither saw nor heard the witnesses testify. Reliance was placed on **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123** and **Peters v Sunday Post Ltd [1958] EA 424.** 2. Counsel for the Appellant submitted that the Respondent sustained only soft tissue injuries which were classified as "harm" in the P3 Form and that during cross-examination she admitted having fully recovered from those injuries. It was argued that the learned trial magistrate consequently erred in awarding Kshs.300,000 as general damages, the award being inordinately high in the circumstances. Counsel invoked the principle in **West (H) & Son Ltd v Shephard [1964] AC 326** that damages for personal injuries should amount to reasonable compensation and that comparable injuries ought to attract comparable awards. 3. It was further submitted that the authorities relied upon by the trial court were not comparable to the injuries sustained by the Respondent and that the court failed to adequately consider the Appellant's authorities, including **Otieno & Another v Odhiambo (Civil Appeal E027 of 2024) [2024] KEHC 7688 (KLR)** and **FM (Minor suing through Mother and Next Friend MWM) v NM & Another [2020] KEHC 557 (KLR),** in which substantially lower awards were made for comparable or more severe soft tissue injuries. Counsel therefore urged this Court to interfere with the award and substitute it with an award of Kshs. 100,000. 4. The Respondent opposed the appeal and submitted that the trial court properly appreciated both the evidence and the applicable legal principles in assessing damages. It was contended that the Respondent proved the injuries sustained through medical evidence, treatment records and the P3 Form, and that the Appellant did not tender any contrary medical evidence to challenge the nature or extent of those injuries. 5. The Respondent further submitted that an appellate court should exercise restraint before interfering with an award of damages unless it is demonstrated that the trial court acted on a wrong principle of law or made an award that is so inordinately high or low as to represent an erroneous estimate of the damages payable. Reliance was placed on **Butt v Khan [1981] KLR 349, Stanley Maore v Geoffrey Mwenda [2004] eKLR** and **Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55**. It was maintained that the award of Kshs.300,000 was consistent with comparable awards for similar injuries and that the appeal should therefore be dismissed with costs. **Analysis and Determination** 1. This being a first appeal, this Court is required to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and should therefore give due allowance for that disadvantage. In **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the Court of Appeal held that a first appellate court is obliged to reconsider the evidence, evaluate it itself and draw its own conclusions, though bearing in mind that it has neither seen nor heard the witnesses. Similarly, in **Peters v Sunday Post Ltd [1958] EA 424**, it was held that although an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions reached by the trial court should stand, that jurisdiction should be exercised with caution. 2. Having carefully considered the record of appeal, the memorandum of appeal, the judgment of the trial court and the rival submissions, it is evident that the appeal is confined solely to the award of general damages. Liability having not been challenged, the only question for determination is whether the learned trial magistrate properly exercised her discretion in assessing general damages payable to the Respondent. 3. It is now settled law that the assessment of damages is an exercise of judicial discretion and an appellate court will only interfere with that discretion in limited circumstances. In **Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A. M. Lubia & Another (No. 2) [1987] KLR 30**, the Court of Appeal held that interference is only justified where the trial court took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended the evidence, applied the wrong principles of law or where the award is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. The same principle was reiterated in **Butt v Khan [1981] KLR 349** and later affirmed in **Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55.** 4. The Appellant's complaint is threefold. First, that the award of Kshs.300,000 was excessive having regard to the injuries sustained. Secondly, that the learned trial magistrate relied on authorities whose injuries were not comparable to those suffered by the Respondent. Thirdly, that the learned trial magistrate failed to consider the Appellant's submissions and authorities proposing a lower award. 5. The Respondent testified in support of her claim and adopted her witness statement as her evidence in chief. She testified that as a result of the accident she sustained the injuries pleaded in the plaint, namely tender neck, tender chest, tender right ribs, swollen right leg, swollen left leg and thigh, bruised left leg, bruised knees, bruised elbows, bruised palms and blunt injury to the right hand. She produced the treatment notes, P3 Form and medical report in support of her claim. During cross-examination, she testified that she had substantially recovered from the injuries sustained. The Appellant did not tender any contrary medical evidence challenging either the nature or extent of those injuries. 6. I have also considered the medical evidence that was produced before the trial court. The P3 Form substantially reflects the injuries pleaded in the plaint, namely tender neck, tender chest, tender right ribs, swollen right leg, swollen left leg and thigh, bruised left leg, bruised knees, bruised elbows, bruised palms and blunt injury to the right hand. The medical report dated 26th October 2023 from Jaramogi Oginga Odinga Teaching and Referral Hospital further records that upon examination the Respondent had sustained a swollen right knee with abrasions, a swollen left knee with multiple bruises, reduced range of motion of the left knee and a dislocated left knee. 7. It is evident that while the injuries particularised in the P3 Form mirror those pleaded in the plaint, the specific finding of a dislocated left knee appears only in the subsequent medical report and was not expressly pleaded. The question for determination is therefore whether the learned trial magistrate was entitled to take that medical finding into account in assessing damages. 8. The law is settled that parties are bound by their pleadings and that a court should not determine a dispute on the basis of an unpleaded issue. In **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR**, the Court of Appeal held that the parties are bound by their pleadings and that a court itself is equally bound by those pleadings since they define the issues falling for determination. Likewise, in **Adetoun Oladeji (Nig.) Ltd v Nigeria Breweries PLC (2007) LPELR-160 (SC)**, the Supreme Court of Nigeria, a decision frequently cited with approval by Kenyan courts, observed that a court has no jurisdiction to make a case for the parties different from that pleaded. 9. The foregoing principle does not, however, prevent a court from considering evidence admitted without objection where the parties have fully canvassed the issue during trial and no prejudice is occasioned. In **Odd Jobs v Mubia [1970] EA 476**, the former East African Court of Appeal held that although generally parties are bound by their pleadings, a court may determine an unpleaded issue where it appears from the course followed at the trial that the issue was left to the court for determination. The Court of Appeal adopted the same approach in **Independent Electoral and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR**. 10. In the present case, the Respondent pleaded injuries affecting both lower limbs, including swollen legs, swollen knees and bruises to the knees. The subsequent medical report did not introduce an entirely different anatomical region or an unrelated injury but furnished a clinical assessment of the condition of the left knee, including reduced range of motion and a dislocation. There is no indication from the record that the Appellant objected to the production of the medical report, sought to exclude the evidence or tendered a contrary medical opinion. Equally, no complaint was raised before the trial court that the report introduced a wholly new injury outside the pleadings. In those circumstances, I find no basis for faulting the learned trial magistrate for considering the medical report as part of the evidence in evaluating the nature and extent of the Respondent's injuries. 11. That said, I am mindful that the award of damages ought not to be predicated solely upon an injury that was not expressly pleaded. In my view, the reference to a dislocated left knee should not be viewed in isolation but as part of the overall medical assessment of the injuries sustained to the Respondent's lower limbs. Viewed holistically, the pleaded injuries, the P3 Form and the medical evidence disclosed multiple injuries involving the Respondent's upper and lower limbs. I am therefore not persuaded that the reference to a dislocated left knee materially affected the assessment of damages or rendered the award erroneous. 12. Having independently reconsidered the evidence on record, the judgment of the trial court and the submissions by counsel, I am not persuaded that the Appellant has demonstrated any basis upon which this Court may interfere with the award of general damages. The principles governing appellate interference with an award of damages are well settled. See **Kemfro Africa Ltd t/a Meru Express Services** (Supra). 13. In the present appeal, the Respondent proved that she sustained multiple soft tissue injuries affecting different parts of her body. The medical report further evaluated the injuries affecting the left knee. Although the report records a dislocated left knee, that finding was not treated by this Court as an independent injury forming the basis of the award. Rather, it was considered as part of the overall medical assessment of the injuries affecting the Respondent's lower limbs. Having considered the evidence in its entirety, I am satisfied that the award of Kshs.300,000 was justified by the injuries proved before the trial court and did not depend solely upon the diagnosis of a dislocated left knee. 14. I have also considered the Appellant's contention that the learned trial magistrate relied on incomparable authorities and failed to consider the Appellant's submissions. The assessment of damages is not an exact science. Comparable authorities serve only as guides, and each case must ultimately be determined on its own facts, taking into account the nature and extent of the injuries proved, the prevailing economic conditions and the need to maintain a measure of consistency in awards for comparable injuries. I have considered the decisions relied upon by the Appellant, including **Otieno & Another v Odhiambo (Civil Appeal E027 of 2024) [2024] KEHC 7688 (KLR)** and **FM (Minor suing through Mother and Next Friend MWM) v JNM & Another [2020] eKLR**. As regards Otieno (Supra), the High Court reduced the award after finding that the claimant had failed to prove the most serious injuries pleaded, leaving only uncomplicated soft tissue injuries. The factual basis for interference in that case is therefore distinguishable from the present appeal. 15. With respect to FM (Supra), while the decision correctly reiterates that comparable injuries should attract comparable awards and that courts should take into account the passage of time and inflation in assessing damages, the award therein was made in 2020 in respect of comparatively less extensive soft tissue injuries sustained by the minor, who had fully healed without permanent disability. Since then, courts have progressively adjusted awards to reflect prevailing economic realities while maintaining consistency with comparable injuries. See **Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR** 16. Consequently, FM cannot be applied mechanically to the present case. Having considered the authorities cited by the parties together with the trend in more recent comparable decisions, I am satisfied that the award of Kshs.300,000 made by the learned trial magistrate falls within the range of reasonable awards for the injuries proved and cannot be said to be so inordinately high as to warrant interference by this Court. 17. Ultimately, the Appellant has failed to demonstrate that the learned trial magistrate took into account an irrelevant consideration, omitted a relevant consideration, misapprehended the evidence or exercised her discretion on wrong principles. I am therefore not satisfied that the award of Kshs.300,000 in general damages represents an erroneous estimate of the loss suffered by the Respondent or that this is a proper case for appellate interference. 18. The upshot is that the appeal lacks merit and is hereby dismissed. Consequently, the judgment of the learned trial magistrate dated 26th November 2024 are hereby upheld. 19. As costs ordinarily follow the event, the Respondent shall have the costs of this appeal. **Dated, Signed and Delivered at Kisumu this……17TH .…. day of……July….2026** **ALEX K. ITHUKU.** **JUDGE** **DELIVERED ELECTRONICALY** **…………...............................................APPELLANT** **…………..................................................RESPONDENT** **....................................................... Court Assistant** **ALEX K. ITHUKU** **JUDGE**