https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8430

Moenga v Ondari (Civil Appeal E074 of 2023) [2026] KEHC 8430 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 8430 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E074 of 2023 AM Okutoyi, J May 29, 2026 Between Samsom Ombogo Moenga Appellant and Henry Mokaya Ondari Respondent (Being an appeal against the Judgement in CMCC No. E149 of 2022 by Hon. D.O. Mac’andere (SRM) delivered on 29th June 2023 in Kisii) Judgment Background of the appeal 1.This appeal emanates from a road accident that occurred on 29th January 2022 between two vehicles KBV980Y driven by the respondent and KAW529W belonging to the appellant. The respondent who was the plaintiff in the trial court attributed the accident to reckless driving and negligence by the appellant and claimed to have sustained injuries. 2.To support his claim, the respondent at the trial court produced three witnesses; PW1 a police officer, PW2 the respondent and PW3 a doctor who elaborated the injuries and assessed disability at 2%. He concluded that the injuries were soft tissue in nature. The respondent claimed judgement against the appellant for special damages of Ksh.9,550, general damages, cost and interest. 3.The appellant who has the defendant in the trial court denied all the averments and invited the plaintiff to strict proof thereof. He attributed the accident to the negligence on the part of the respondent. The appellant relied on two witnesses including DW1 -Dr. Malik who had re-examined the plaintiff on 27th of August 2022 and arrived at the conclusion that he had sustained soft tissue injuries with a total incapacity of one week and that there was no permanent disability. The appellant DW2 adopted his statement dated 26th September 2022 as his evidence in chief. 4.The trial court in its judgement attributed liability at the ration 50: 50, awarded general damages of Kshs. 350,000/=, special damages of Kshs. 9,550/= together with interest and plaintiff costs to the suit. 5.The appellant aggrieved with this decision filed an appeal dated 25th July 2023 on the following summarized grounds; Thata.The learned Trial Magistrate erred in fact and law by awarding general damages which were excessive in the circumstances.b.The learned Trial Magistrate erred in Law and Principle by adopting the wrong approach in the computation of the general damages.c.The learned Trial Magistrate based her judgement on extraneous issues which were never pleaded nor proved to award 350,000 as general damages.d.The learned Trial Magistrate erred in law and fact in disregarding and/or failing to take into account the appellant written submissions and evidence adduced that guided on quantum. 6.The appellant therefore prays for the following orders; Thata.This appeal be allowed with costsb.This Honorable Court do set aside the Learned Trail Magistrates Judgement dated 29th June 2023 on quantum and re-place with its own assessmentc.Costs of the appeal herein and those incurred in the subordinate court to be done the Respondent.d.Such further orders that the Honorable Court shall deem just and expedient 7.The appeal was admitted and canvassed by way of written submissions Appellant’s submissions 8.The appellant in their written submissions dated 17th November 2025 argued on the issue of liability by stating that the plaintiff did not prove the accident was caused by the appellant thereby calling the court to dismiss the claim in toto. The respondent based their argument on section 107(1) and (2) of the Evidence Act, Cap 80 and supporting authorities that he who alleges must prove. 9.On the issue of quantum, the respondent submitted that the injuries sustained were soft tissue in nature. The appellant gave the two comparative authorities of multiple soft tissue injuries; Adembesa & another v Gweno (2024) KEHC 5379 where an award of Kshs. 120,000 was given and National Industrial Credit Ltd & others v. MNO (2024) KEHC 3824 where an award of Kshs. 250,000 was awarded. The appellant subsequently urged the court to find that the award of Kshs. 100,000 to be reasonable for the general damages. Respondent’s submissions 10.The respondent on their part in their written submissions dated 16th of December 2025 raised an objection on the introduction of liability at the submission stage but went ahead to argue that since there was no conclusive evidence on who caused the accident and that the appellant had equally not proved their claim that the respondent had caused the accident, then the trial magistrate was right to apportion liability at 50:50. 11.On the issue of quantum, the respondent submitted that the award of Kshs. 350,000/= as general damages for the pain, suffering and loss of amenities was fair and reasonable and founded on legal principles. This was backed by the following authorities which the respondent avers are of comparable awards for multiple soft tissue injuries; National Industrial Credit Ltd & others v. MNO (2024) KEHC 3824 where an award of Ksh. 300,000 was given and Francis Ochieng’& Another v. Alice Kajimba (2015) that awarded Kshs. 350,000/=. Analysis 12.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. ( See Selle V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I) 13.I will first dispense with the issue of liability which was not expressly pleaded in the appeal but argued substantially in the appellants written submissions. This was challenged by the respondent who stated that it is trite law that parties are bound by their pleadings and on appeal the issues for determination are strictly those set out in the memorandum of appeal. I agree with the respondent that the issue of liability not having been pleaded in the memorandum of appeal cannot be properly introduced through submissions. Submission cannot substitute pleadings. 14.This position was highlighted in the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Another v. Stephen Mutinda Mule and 3 others (2014) eKLR who agreed with the observations of Sir Jack Jacob in “The Present Importance of Pleadings” (1960) 13 Current Legal problems at page 174 that states;“As the parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings for the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty of the Court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation”. 15.Consequently, this court shall not disturb the finding by the trial court on liability. 16.The main issue for the determination of this court therefore is whether the trial magistrate erred in law and fact on assessment of quantum. In coming to this determination, I will first evaluate the injuries sustained; A bruise and tender swelling on the right temporal region of the head; Chest contusion; Dislocation of the left elbow joint; Bruises on the right forearm; Left knee bruises medially and right knee deep cut wounds and bruises. 17.The medical evidence by both doctors at the trial came to the conclusion that the respondent incurred multiple soft tissue injuries. The departure was that the respondent doctor PW2 assessed the disability at 2% due to the dislocation and that he experiences difficulty using the left hand while the appellant’s doctor DW1 indicated the injuries were exaggerated and concluded that other than partial incapacity for one week, there was no permanent disability. 18.I have perused the trial record and treatment notes and note that the respondent suffered a dislocation that was redacted and that there was no hospitalization or disability. What therefore is not in dispute are the multiple soft tissue injuries sustained by the respondent as a result of the accident. The question therefore would be what is the appropriate quantum taking note of the principles of fair compensation commensurable with the injuries. 19.In the case of West (H) & Son Ltd v Shepherd [1964] AC. 326,345, the courts stated that:“………..money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…………” 20.I have undertaken an analysis of recent authorities of comparable soft tissue injuries as follows: In the case of Omondi v. Anzofu (2024 KEHC 2675 (KLR), an accident involving a pedestrian and a motor vehicle, that resulted in multiple soft tissue injuries, the courts awarded Ksh. 300,000/=. In the case of Thuo & another v. Nanzala (2024) KEHC 2978 (KLR), the courts awarded a sum of Kshs. 400,000/= for multiple soft tissue injuries including dislocation of the right elbow joint. In Kalei & Another v. Mooke and Another (2026) (KEHC 4259, the court declined to interfere with the trial court award of Kshs. 400,000/= for soft tissue injuries including chest contusion, bruises and deep cut wounds. 21.In the case quoted by both the appellant and respondent of National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’’Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR) the courts observed that the range for non-permanent soft tissue injuries is between Kshs. 250,000/= to Kshs. 300,000/=. This range is also captured in the authorities that I have analyzed above. 22.To guide my determination therefore, this court is alive to the principle espoused in the case of Butt v Khan 1982 -1988 1 KAR the court pronounced itself as follows“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. 23.I am further guided by the principles guiding interference of quantum awards by the trial courts which are well settled, that, this court as an appellate court, does not interfere merely because it would have awarded a different figure but may only interfere where the trial court applied the wrong principles, considered irrelevant matters, failed to consider relevant matters, or where the award is so inordinately high or low as to amount to an erroneous award ( See Kemfro Africa Ltd. t/a Meru Express Services, Bashir Ahmed Buttv Uwais Ahmed Khan ( 1982-88) KAR 5.) 24.The court therefore finds that the award for general damages of the trial court of Kshs. 350,000/= is not inordinately far from the quantum in other comparative cases. I therefore see no reason to interfere with the trial courts discretion. Dispositiona.The appeal is hereby dismissed with costs to the respondent.b.The award of general damages of Kshs. 350,000/= on the apportioned liability at the ration of 50: 50 is upheld. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF MAY 2026A.M. OKUTOYIJUDGEIn the presence of:Ms. Arianda holding brief for Ms. Anyango for the appellantMs. Omusi for the respondentCourt Assistant-Ruth Mokeira