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MagistratePartially AllowedCivil Case No E134 of 2023· [2025] KEMC 4 (KLR)

Kyule v Prince Bus Services (Civil Case E134 of 2023) [2025] KEMC 4 (KLR)

Magistrates' Court
28 January 2025
1,437 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court awarded an accident victim only what was pleaded in the suit, refusing KES 1 million claimed late in submissions because pleadings bind the parties.

What this practically means

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Executive summary

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The plaintiff sued the defendant for injuries sustained as a lawful passenger in a road traffic accident on or about 4th December 2021 along the Nakuru–Eldoret Road at Kaptembwa, involving motor vehicle KBK 299J Isuzu Bus, alleging reckless and negligent driving. The plaint sought general damages of Kshs. 114,160/-, special damages, costs and interest. The defendant was served but did not enter appearance or file a defence, and interlocutory judgment in default was entered on 20th March 2024. The suit proceeded to formal proof for assessment of damages. The court held that the pleaded demand of Kshs. 114,160/- was liquidated and required no formal proof, and entered judgment for that sum. At formal proof, PW1 adopted his pleadings and statements, and counsel's submissions sought Kshs. 1,000,000/- general damages plus future medical costs - a departure from the pleadings. Applying Migore, the IEBC v Mutinda Mule line of authority, and Tanzanian and Kenyan decisions on pleadings, the court held that parties are bound by their pleadings, that submissions are not evidence, and that evidence at variance with pleadings must be disregarded. Although the evidence proved the injuries and comparable awards (Kyoga Hauliers) would have justified Kshs. 1,000,000/-, the court was constrained by the pleaded prayers. It entered judgment for the plaintiff for general damages of KES 114,160/- and special damages of KES 114,160/-, totalling KES 228,320/-, with costs and interest, and refused the claims for higher general damages and future medical expenses as unpleaded.

Key legal issues

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01

Effect of defendant's failure to enter appearance or file defence

Holding

Judgment in default was entered on 20th March 2024; the pleaded liquidated demand of Kshs. 114,160/- required no formal proof

Reasoning

The return of service shows the defendant was served but neither entered appearance nor filed a defence. Interlocutory judgment was accordingly entered. The court treated the pleaded general damages figure of Kshs. 114,160/- as a liquidated demand, holding it was recoverable as pleaded without formal proof, leaving formal proof only for assessing any unliquidated general damages.

p. 1
02

Whether the plaintiff could be awarded Kshs. 1,000,000/- general damages and future medical costs advanced only in submissions and evidence

Holding

No - parties are bound by their pleadings; only the pleaded claim of Kshs. 114,160/- was awardable

Reasoning

Counsel sought Kshs. 1,000,000/- in submissions, a departure from the plaint. Relying on Migore, Mtomekela and Kathathu, the court held submissions are not evidence and evidence at variance with pleadings must be rejected. Although the injuries proved would have justified Kshs. 1,000,000/- by comparison with Kyoga Hauliers, the restrictive prayers in the plaint confined the award to Kshs. 114,160/-.

p. 3
03

Whether the plaintiff proved the injuries pleaded

Holding

Yes - the exhibits and evidence on record proved the injuries pleaded, supporting an award of general damages

Reasoning

PW1 adopted his pleadings and statements as evidence in chief and produced documents. The court found the exhibits proved the injuries pleaded, and would have awarded Kshs. 1,000,000/- by comparison with Kyoga Hauliers were it not for the pleaded prayers limiting recovery to Kshs. 114,160/-.

p. 3

Legal principles established

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  • Parties are bound by their pleadings and evidence or submissions at variance with the pleadings must be disregarded
  • Submissions do not amount to evidence unless expressly adopted as such
  • A liquidated demand pleaded and undefended needs no formal proof and judgment may be entered for the pleaded amount
  • In assessing general damages, comparable injuries should attract comparable awards

Court orders

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  1. 1.Judgment entered in favour of the plaintiff for general damages of KES 114,160/-
  2. 2.Judgment entered for special damages of KES 114,160/-, total KES 228,320/=
  3. 3.Costs of the suit to the plaintiff
  4. 4.Interest on the awarded sums

Authorities

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Cases cited (8)

  • Nyambati Nyaswabu Erick Vrs Toyota Kenya Ltd & 2 Others
    (2019) eKLR
  • Daniel Otieno Migore Vrs South Nyanza Sugar Co. Ltd
    [2018] eKLR
  • Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others
    (2014) eKLR
  • Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC
    SC 91/2002
  • Salim Said Mtomekela Vrs Mohamed Abdallah Mohamed
    Dar-es-salaam Court Of Appeal Civil Appeal No. 149 of 2019
  • Barclays Bank (T) Vs Jacob Muro
    Civil Appeal No. 357 of 2018
  • Robert Ngande Kathathu Vrs Francis Kivuva Kitonde
    [2020] eKLR
  • Kyoga Hauliers (k) & Another Vrs Philip Mahiu Nyingi
    [2017] eKLR
Jurisdiction invoked
Original civil jurisdiction of the magistrates' court over a negligence claim arising from a road traffic accident

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kyule v Prince Bus Services (Civil Case E134 of 2023) [2025] KEMC 4 (KLR)", Case Analysis (2025). Civil Case No E134 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/4/eng@2025-01-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.