1.This appeal emanates from the judgment delivered on January 15, 2020 in Nairobi Milimani CMCC No 7124 of 2017 (hereafter the lower court suit). The suit was brought by Stephen Nduwa Kung’u, the plaintiff in the lower court (hereinafter the Respondent) and was commenced by way of a plaint filed on October 3, 2017 (and amended on September 25, 2018). George Kairu Gituku and David Kinyua Waweru were named as the 1st and 2nd defendant/defendants in the lower court (hereinafter the 1st & 2nd Appellant/Appellants). The Respondent’s claim was for damages on account injuries sustained as a result of a road traffic accident that occurred on July 31, 2017.
2.It was averred that at all material times the 1st Respondent was the authorized driver of motor vehicle registration number KCC 246V (hereafter suit motor vehicle) and the 2nd Respondent the registered owner. That the Respondent was lawfully pushing a trolley along River Road in Nairobi when the 1st Respondent with the authority and in the course of his employment with the 2nd Respondent, so negligently, carelessly and or recklessly drove, managed and or controlled the suit motor vehicle that it lost control, veered off the road and violently knocked down the Respondent as a result of which he sustained severe bodily injuries, in respect of which he has suffered loss and damage.
3.The Appellants filed a joint statement of defence on March 15, 2018 denying the key averments in the plaint and liability. On their part they averred strictly without prejudice to the averments in the statement of defence and in the alternative that the occurrence of the accident as maybe proved by the Respondent was caused solely and or substantially contributed to by the Respondent’s own negligence.
4.The suit proceeded to a hearing during which the Respondent was the only party to adduce evidence. In its judgment, the trial court found the Appellants jointly and severally liable and awarded to the Respondent damages as hereunder: -Pain and Suffering – Kshs 800,000.00/-Future Medical – Kshs 200,000.00/-Loss of Earning Capacity – Kshs 250,000.00/-Special Damages – Kshs 103,300.00/-Total Kshs 1,353,300.00/-
5.Aggrieved with the outcome, the Appellants preferred this appeal challenging the judgment based on the following grounds:-1.The learned magistrate erred in fact and in law in finding that the Respondent was entitled to general damages of Kshs 800,000/-.2.The learned magistrate erred in fact and in law in finding that the Respondent was entitled to general damages that were too high in view of the evidence tendered and the injuries she suffered. The award was too high and the same is not justified.3.The learned magistrate erred in fact and in law in finding that the Respondent was entitled to general damages that were too high in view of the evidence tendered and the Respondent did not prove the injuries suffered. The same was too high and the same is not justified.4.The learned magistrate erred in fact and in law in failing to arrive at a just and fair determination on quantum.” (sic)
7.Addressing the award of future medical expenses coupled with loss of earnings and earning capacity, counsel contended that the Respondent did not adduce evidence in support of the claims which ought to be specifically pleaded and proved. Counsel cited the case of Board of Governors Ongata Academy v Gabriel Ngaiyaiya Rumoi  eKLR, and S J v Francesco Di Nello & another  eKLR inter alia urging the court to set aside the said awards and in conclusion, urged the court to allow the appeal with costs.
8.Counsel for the Respondent simultaneously addressed the Appellants grounds of appeal. He too echoed the principles that guide an appellate court on a first appeal. Asserting that the trial court’s exercise of judicial discretion is not to be interfered with unless it is shown the exercise was based on wrong principles. Summarily, submitting on the Appellants grounds of appeal, counsel relied on the decisions in Ratnam v Cumarasamy & another ALL ELR (1964), Samken Limited & Anor v Mercedes Sanchez, Nairobi Civil Application No 21 of 1999, Peter Mburu Echaria v Priscilla Njeri Echaria  eKLR, Mbogo v Shah (1968) EALR and Butt v Khan (1982-88) 1 KAR to contend that the Appellants have failed to demonstrate error on the part of the trial court . The court was urged to dismiss the appeal with costs.
9.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa spelt out the duty of the first appellate court in Selle –vs- Associated Motor Boat Co.  EA 123 in the following terms: -
12.Pertinent to the determination of issues are the pleadings, which form the basis of the parties’ respective cases before the trial court. The Respondent particularized his injuries and loss at paragraph 6, 7 and 7A of the amended plaint as follows: -
13.In its judgment, the trial court after restating and examining the respective parties’ evidence stated as follows: -
14.During the trial, Dr. N.H Bhanji testified as PW1 and the medical report he prepared dated September 6, 2018 was tendered as PExh.1a. The Respondent testified as PW3 and produced the treatment note from Shikamoo Medical Centre and Discharge Summary from St. Teresa’s Hospital, as PExh.5b & PExh.6 respectively. The earliest report, PExh.6, was prepared roughly a week after the accident. It essentially listed the Respondent’s injuries to comprise a fracture of the ankle and foot with management being by way of ORIF. This injury was not challenged at the trial, and neither was the Respondent subjected to a second medical examination to ascertain the degree of the injuries.
15.The medical report PExh.1a was prepared on 06.09.2018, more than a year after the accident and the most recent on the Respondent’s injuries. The report set out in detail the Respondent’s injuries and attendant sequela. PW1’s prognosis on the Respondent was captured in extenso therein as follows;-
16.The above evidence was not put to any serious challenge at the trial save for the issue of future medical expenses resultant from the injuries sustained. Undoubtedly, the injuries suffered by the Respondent herein were relatively severe and must have caused him a great deal of pain and extended periods of morbidity, not to mention subsequent surgical intervention. Equally, from PExh.1a the injuries predisposed him to attendant sequela. Nonetheless, as observed by the English Court in Lim Poh Choo v Health Authority (1978)1 ALL ER 332 and echoed by Potter JA in Tayab v Kinany (1983) KLR 14, quoting dicta by Lord Morris Borth-y-Gest in West (H) v Sheperd (1964) AC 326, at page 345:
17.As important as consistency in awards for similar injuries might be, the court appreciates that it is nigh impossible to find two cases reflecting injuries that are similar in every respect and the court’s duty is to do its best to assess appropriate damages, based on the most reasonably comparable authorities. The trial court restated in detail the evidence and submissions before it in respect of the Respondent’s injuries, primarily PExh.1a. But beyond this, the trial court did not expressly apply the authorities cited to this case.
18.Nevertheless, as observed by the Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No 284 of 2001  eKLR the award of general damages is discretionary andThat said, the Respondent’s injuries, though relatively severe, did not result in any form of permanent incapacitation. It appears from my own review of the material presented before the trial court and comparisons with authorities cited on this appeal that the award for general damages while slightly high is not so excessive as to be an erroneous estimate in the circumstances of this case and the court does not feel justified in interfering.
19.The case of Leornard Kinuthia v William Sirma Kiboros (2000) eKLR cited by the Plaintiff in the lower court appeared to compare reasonably well with the instant one, although the injury of the plaintiff in that case included a fracture of the ankle and comminuted fracture of the malleolus and soft tissue injuries. The injuries were severe, and the plaintiff was awarded Ks.700,000/- in general damages. The Appellant does not seem to have filed submissions in the lower court. None are on the original record or the record of appeal. It is unfair for such a party to cite in arguing the appeal, authorities not presented for the consideration of the trial court. In that regard, this court agrees with similar sentiments by Ochieng J (as he then was) in Silas Tiren & Another v Simon Ombati Omiambo  eKLR.
20.Turning now to the awards of future medical costs, loss of earnings and earning capacity and special damages, these were not specifically challenged in the grounds contained in the memorandum of appeal. It is trite law that issues for determination by a court are derived from the pleadings by parties. It was not open to the Appellants, having eschewed to include a challenge concerning the said awards in their grounds, to surreptitiously canvass them through submissions.
22.The Court proceeded to state that:-
23.The Court concluded by stating that:
24.The Court declines the invitation to determine issues not pleaded and therefore not properly before it. In the end the court finds that the appeal herein is without merit and will dismiss it with costs to the Respondent.