https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9753

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CIVI APPEAL NO. E014 OF 2025** **EUNICE KAHUNDA NGOKA & KAHINDI** **KENGA CHARO (Suing as the administrators** **of the Estate of JUMAA** **KENGA CHARO (Deceased)……………………...…...............APPELLANTS** **VERSUS** **THIRD ENGINEERING BUREAU OF CHINA CITY** **CONSTRUCTION GROUP COMPANY LIMITED…….…...RESPONDENT** *(Being an Appeal from the Judgment and Decree of* ***Honourable D.K Wasike Principal Magistrate*** *delivered in Kilifi Chief Magistrate Court in* ***Civil Suit No. E181 of 2023*** *on 16th January, 2025)* **JUDGMENT** 1. This is an Appeal on liability and quantum. It is in respect of a running down accident. It lies against the Judgment of **Honourable D.K Wasike Principal Magistrate** delivered on 16/01/2025. It is in respect to **Kilifi Chief Magistrate’s Court Civil Suit No. E181 of 2023**. **Background Facts** 1. The Appellants are the unsuccessful Plaintiffs before the lower Court while the Respondent was the Defendant. The Appellants sued as the **Administrators of the Estate of Jumaa Kenga Charo.** The deceased was a passenger in a Motor Vehicle KBD 377T. On 23/9/2022 that Motor Vehicle was involved in an accident with another vehicle KCL 173B. it was owned by the Defendant and said to be driven by its driver, sent as an agent. 2. The deceased sustained fatal injuries. The Appellants as the Administrators of the Estate blamed the Respondent’s driver for negligence. They pleaded vicarious liability against the Respondent as the owner as employer of the said driver. *The particulars of negligence pleaded are as follows;* 1. *Driving at excessive speed without any regard to the nature of the road and available traffic.* 2. *Failing to steer along proper course while driving.* 3. *Failing to exercise due care and skills in managing motor vehicle Registration Number KCL 173B.* 4. *Failing to apply brakes in sufficient time or at all to avoid the said accident.* 5. *Ramming onto Motor Vehicle Registration KBD 377T.* 6. *Failing to keep proper and safe distance.* 7. *Driving recklessly and causing motor vehicle registration KCL 173B to ram onto Motor Vehicle Registration No. KBD 377T to be involved in the said accident.* 8. *Failing to observe the Highway Code and other traffic regulations.* 9. The claim was brought on behalf of the 1st Appellant as a wife and other Dependants of the deceased. They claimed damages under the Law Reform Act and under the Fatal Accidents Act of the Laws of Kenya. 10. Special damages were also pleaded as arising out of the Fatal Accidents Act as follows 11. *Letters of Administration (AdLitem) Kshs 40,000/=* 12. *Letters of Administration (Full Grant) Kshs 50,000/=* 13. *Funeral Expenses Kshs 100,000/=* *Total Kshs 190,000/=* 1. The Respondent entered an appearance and filed a Defence. It denied ownership of the Motor Vehicle in question or that an accident happened/alleged. In the alternative, it pleaded that the accident was entirely caused by and or substantially contributed to by the negligence of the driver of Motor Vehicle **KBD 377** *(in which the deceased was travelling)*. It pleaded the following particulars of negligence against the driver of the Motor vehicle **KBD 377T** 2. *Overtaking another motor vehicle without any or any due regard to oncoming traffic.* 3. *Parking and/or stopping motor vehicle registration No. KBD 377T on the road or sufficiently on the road without alerting the motor vehicle behind him.* 4. *Veering off onto the land of motor vehicle Registration No. KCL 173B thereby causing the accident.* 5. *Driving without any or any due regard to other road users and in particular motor vehicle Registration No. KCL 173B.* 6. *Driving at excessive speed in the circumstances.* 7. *Driving without due care or attention.* 8. *Failing to see motor vehicle Registration No. KCL 173B in sufficient time or at all to avoid the accident.* 9. *Failing to swerve, break or control the said motor vehicle Registration No. KBD 377T so as to avoid the collision.* 10. *Driving a defective motor vehicle.* 11. *Driving into the path of motor vehicle Registration No. KCL 173B.* 12. *Permitting himself to lose control of motor vehicle Registration No. KBD 377T negligently drove the said motor vehicle causing the accident.* 13. The suit proceeded for hearing whereby the second Appellant testified and called a witness. 14. The Defendant did not call any witnesses. 15. The Trial Court delivered a Judgement on 16/01/2025. The Court in its findings stated as follows *“****Finding*** *From the foregoing, the Plaintiff having failed to establish that the deceased died from a road accident that occurred along Witu-Mokoye Highway at Witu junction on 23/9/2024, the suit stands dismissed. Each party to bear their own costs.@* 1. It is this dismissal of the suit that has triggered this Appeal. In its Amended Memorandum of Appeal amended on 22/4/2023, the Appellant relied on the following grounds of Appeal. 2. ***THAT*** *the Learned Magistrate erred in Law and in fact by completely by failing to make a finding or determination on Appellant’s case.* 3. ***THAT*** *the Learned Honourable Magistrate erred in law and in fact in dismissing the Appellant’s case.* 4. ***THAT*** *the Learned Honourable Magistrate exercised her discretion wrongly by failing to appreciate that averment in the Plaint with regard to the scene of accident was a typographic mistake.* 5. ***THAT*** *the Learned Honourable Magistrate erroneously made a finding that the Plaintiffs Statement Plaint indicated that the location of the accident was Witu-Mokowe road which was not the case.* 6. ***THAT*** *the Learned Honourable Magistrate erred in Law and in fact by failing to pay regard to substance over form.* 7. ***THAT*** *the Learned Honourable Magistrate failing to properly analyse the evidence tendered in the matter.* 8. ***THAT*** *the Learned Honourable Magistrate failed to exercise her discretion in a manner that served justice to the parties thus arrived at an erroneous finding.* 9. ***THAT*** *the Learned Honourable Magistrate erred in law and in fact when she failed to hold that the description of the place of accident as Witu-Mokowe Highway at Witu Junction area instead of Mombasa-Malindi road at Mombasa Cement area as indicated in the Paintiff’s Witness Statement, Police Abstract, Instruction note, Post Mortem Form and Demand Letter was a misnomer and substantive justice as dictated under Article 159 (2) (a) of the Constitution enjoined the Trial Court to administer the same without due regard to the procedural technicalities.* 10. The Appellant purpose to seek the following reliefs in this Appeal; 11. *The Appeal be allowed.* 12. *That the Honourable Court be pleased to set aside the Trial Court’s determination on liability and quantum and substitute the same with a determination of its own.* 13. *The Appellant be awarded the costs of this Appeal and those of the Lower Court.* **Issues for Determination** 1. Having considered the Record of Appeal, the Amended Memorandum of Appeal and the submissions filed herein by the Counsel, the Court frames three (3) issues for determination. 2. *Whether the description of the place of accident as Witu-Mokowe Highway at Witu Junction area instead of Mombasa-Malindi Road at Mombasa Cement was a misnomer or a substantive error that could lead to the dismissal of the suit.* 3. *Whether the Appellant proved the case at the Trial Court.* 4. *What reliefs follow from this Appeal?* **Analysis** 1. This is a first Appeal. The Court is reminded of the duty to re-look, re-analyse and re-consider the evidence produced before the Trial Court. The Court should evaluate the evidence and draw on its own conclusion. This is all the while bearing in mind that it did not see any for the witness. **Selle & another -vs- Associated Motor Boat Co. Ltd [1968] 123 E.A** applies. **(a) *Whether the description of the place of accident as Witu-Mokowe Highway at Witu Junction area instead of Mombasa-Malindi Road at Mombasa Cement was a misnomer or a substantive error that could lead to the dismissal of the suit.*** 1. This appeal turns on the effect of the variance between the particulars pleaded in the Plaint and the evidence tendered at trial regarding the place of the accident. In the Plaint, the Appellants pleaded that the accident occurred along the **Witu–Mokowe highway at Witu junction**. However, the evidence adduced, particularly through the police witness, placed the accident on the **Mombasa–Malindi/Kilifi Road near Mombasa Cement**. 2. The question is whether that discrepancy was a mere technicality capable of being overlooked in the interests of substantive justice, or whether it went to the root of the claim. 3. The law is well settled that parties are bound by their pleadings. That evidence which departs materially from the pleaded case cannot ordinarily found judgment. In **Galaxy Paints Company Ltd v Falcon Guards Ltd [2000] KECA 215 (KLR)**, the Court of Appeal held that issues for determination flow from the pleadings. That, unless the pleadings are amended, the Court may only pronounce judgment on the issues arising therefrom. *“It is trite law, and the provisions of O.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 O.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.”* 1. The same principle was reaffirmed in **Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR)** and **Ayub v Ngure & another [2024] KEHC 812 (KLR)**. 2. That said, not every variance between pleadings and evidence is fatal. In **Fondo & another (Suing as administrators of the Estate of the Estate Alfred Ndegwa Fondo) v Hakima Transporters Limited & 2 others [2023] KECA 1087 (KLR)**, the Court of Appeal held that a variance between the pleaded manner of occurrence of the accident and the oral evidence was not fatal. This is where the accident itself was not in doubt, the issue had been fully tried, and no prejudice was occasioned to the Respondents. The Court, relying on the principle in **Odd Jobs v Mubia [1970] EA 476**, recognised that an unpleaded issue may in a proper case be determined. This is where it is clear from the conduct of the trial that the parties left the matter for the Court’s decision. 3. The present case is, however, of a different character. The discrepancy here did not concern a mere detail in the mechanics of the collision. It concerned the **locus of the accident itself**. The pleaded scene**—Witu–Mokowe highway at Witu junction**—and the proved scene**—Mombasa–Malindi/Kilifi Road near Mombasa Cement**. These were, on the evidence before the Trial Court, distinct geographical locations. The variance therefore went to the identity of the accident sued upon. The *locus in quo* so to speak. This was not a case of two witnesses describing the same place with minor imprecision. It was more of a case in which the place pleaded and the place proved could not readily be reconciled. 4. That distinction is critical. The Respondent was entitled to meet the case as pleaded. It was also entitled to raise, as indeed it did, the defence that no accident occurred at the place alleged in the Plaint. This was a live issue before the Trail Court. Where the accident occurred was the subject of determination by the Trial Court. The Trail Court was being invited to overlook the discrepancy. It was being called upon to proceed to determine liability on the basis of a different accident scene. This would have been to substitute for the pleaded case, another case not brought before the Court by amendment. In those circumstances, the Trial Court was entitled to insist that the Appellants prove the accident as pleaded or seek amendment of the Plaint. 5. The power of amendment under **Section 100 of the Civil Procedure Act** and **Order 8 of the Civil Procedure Rules** exists precisely to cure such defects. This is to enable the Court to determine the real question in controversy. Had the Appellants moved the Court to amend the Plaint so as to reflect the correct *locus of the accident*, the Court would then have considered whether the amendment could be allowed without prejudice to the Respondent. But no such amendment was sought. The Appellants instead invited the Court to ignore the variance altogether. That invitation could not properly be accepted where the variance went to the root of the cause of action and prejudiced the Respondent’s right to defend the case it had been called upon to meet. 6. The Court therefore agrees with the Trial Court. That the discrepancy in the place of accident was not a mere technicality curable by invocation of **Article 159 of the Constitution**. **Article 159** is not a panacea for all errors and mistakes. It was never intended to abolish the law of pleadings or to permit a Court to rewrite or reframe a party’s case. Substantive justice is not served by disregarding particulars that identify the very accident in issue. In doing so this Court would be depriving the opposing party of the defence available to it on the pleadings. 7. Accordingly, while a variance in date or place may in some cases be immaterial, the test is whether the discrepancy is minor and non-prejudicial, or whether it changes the identity of the accident and the case to be met. On the facts of this case, the variance was material; it was not cured by amendment; and it rendered the Appellants’ evidence inconsistent with their pleaded case. The Trial Court cannot therefore be faulted for declining to find liability on that inconsistent evidentiary footing. (**b) *Whether the Appellant proved the case at the Trial Court.*** 1. On the basis that the facts of the case as pleaded were so much in variance with the testimonies and the evidence provided, liability was not proved. ***(c) What reliefs follow from this Appeal?*** 1. The Court is not persuaded that this Appeal is merited. The Court is unable to fault the Trial Court and finds that it made the right judgement call in the circumstances. The Appellants’ case cannot be saved in this Appeal, much as the Court sympathises with their plight and circumstances. 2. On the cost, the same ordinarily follow the event. The Court is of the view that the Respondent is entitled to the costs of this Appeal. **Determination** 1. The Appellants’ Appeal is HEREBY dismissed for lack of merits. 2. The costs of the Appeal are awarded to the Respondent. 3. It is so ordered. **DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026.** **NJOROGE BENJAMIN K.** **JUDGE** In the presence of: Mr. Muchiri holding brief for Kariuki Gathuthi for the Appellants. Miss Mulwa for the Respondent Mr. John Paul - Court Assistant