[2022] KEHC 1061 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO 32 OF 2020

ANDREW MOMANYI OMWENGA............................................APPELLANT

VERSUS

ERICK SIAMBE MOKAYA.......................................................RESPONDENT

(Appeal from the Judgment of Hon. S.K Onjoro (SRM) dated and delivered on 8th May 2021 in original Kisii CMCC No 552 of 2019)

JUDGMENT

1. The appellant, Andrew Momanyi Omwenga, sued the respondent in the lower court claiming damages for the injuries he allegedly sustained in a road traffic accident along Kisii-Migori road on 22nd February 2019 while he was a passenger in the respondent’s motor vehicle KCP 363H.

2. The respondent filed a statement of defence and denied the claim and urged the court to dismiss the appellant’s suit with costs. The parties subsequently agreed on liability at 70:30 in favour of the appellant against the respondent.

3. At the end of the trial, the magistrate found that the appellant had not proved that he sustained the injuries alleged and dismissed the appellant’s case.

4. The Appellant being dissatisfied with the trial court’s decision preferred this appeal and filed the Memorandum of Appeal dated 15th May 2020 on the following grounds:

1) The Learned Trial Magistrate erred in fact and in law in holding and finding that the appellant herein had not proved that he had sustained the injuries alleged following the suit accident despite liability being entered by consent and an array of medical documents produced evidencing that the appellant indeed sustained the injuries as pleaded in the plaint.

2) The Learned Trial Magistrate misdirected himself in fact and in law, when he failed to properly or at all evaluate and/or analyze the evidence on record cumulatively and/or exhaustively, thus the Learned Trial Magistrate reached an erroneous conclusion insupportable by the evidence on record.

3) The amount of quantum that the Learned Trial Magistrate proposed to award of (sic) Kshs. 180,000/- in the event the suit in the trial court succeeded is inordinately low and not comparable to similar awards sustained by the plaintiff.

4) That the Learned Trial Magistrate misdirected himself in law by dismissing the appellant’s case thus occasioning a miscarriage of justice.

5) That the judgments and/or decision of the Learned Trial Magistrate is contrary to the weight of the evidence on record.

5. When the appeal came up for hearing on 29th June 2021 the court directed that the appeal be disposed by way of written submissions and each party was to file their respective submissions.

6. The nature of injuries sustained by the appellant is contested by both parties, the appellant claiming that he proved he sustained soft tissue injuries on a balance of probabilities while the respondent claims that the injuries sustained were not satisfactorily proved.

7. The Appellant submitted that as per the oral testimony and documentary evidence, the appellant was treated at Iyabe sub-county hospital and bought medication worth Kshs 1,400/-. It was further submitted that a P3 and a medical report were prepared by Dr. Nyameino confirming that the plaintiff did sustain the said injuries. He also argued that the medical report by Dr. Kumenda showed that the appellant had sustained the injuries.

8. The appellant contends that the failure of any injury being indicated in clinic appointment card from Iyabe dispensary was not of his own making and the trial court erred in dismissing the appellant’s case on that basis. He relied on the case of Beth Njeri Koigi v Martin Muraya Rwamba & Another [2019] eKLR where the court stated that the plaintiff had proved his case on a balance of probabilities that he sustained the pleaded injuries where the attendance card did not show the injuries he had sustained.

9. The respondent in opposing the appeal submitted that even where the issue of liability has been amicably resolved by the consent of parties, the plaintiff is still duty bound to prove injuries sustained by calling evidence to prove his case to the required standard. The respondent argues that the appellant did not call any maker of the documents he produced and neither did he give oral evidence before the subordinate court on the injuries he sustained.

10. The respondent argued that the failure to produce original treatment notes coupled with failure to call the maker of medical report is fatal insofar as the initial treatment notes are the primary evidence while the medical report and P3 form filled by a person who has not treated the plaintiff are mere hearsay they cited the case of Fadna Issa Omar v Malne Sirengo Chipo & 3 Others [2016] eKLR where the court observed as follows;

“18. In a situation like this where the doctor or health professional who treated an accident victim or filled the P3 form long after the accident had occurred is not availed as a witness, production of the treatment notes recorded by the doctor who first saw the victim, in this case the appellant when she first sought treatment was critical to prove not only the nature of the injuries sustained if any but also the date they were sustained.

19. It is worth noting that the appellant did not offer any explanation for failure to tender in evidence the treatment notes. In the absence of such primary evidence and considering that the p3 form was filled over a month after the accident, it was impossible for the trial court to make a finding of fact that the injuries noted in the P3 form were indeed sustained in the accident as pleaded and not on any other subsequent date.

20. The significance of production of treatment notes in a case such as the one that was before the trial court was emphasized by Maraga J (as he then was) in Timsales Limited V Wilson Libuywa Nakuru HCCA No. 135 of 2006 who when considering allegations of injuries sustained in

“Dr. Kiamba’s report does not help the Respondent. In any alleged factory accident which is disputed by the employer it is the duty of the employee, as the plaintiff, to prove on a balance of probabilities that he indeed suffered the alleged accident. A medical report by a doctor who examined him much later is of little, if any, help at all. Although it may be based on the doctor’s examination of the plaintiff on whom he may, like in this case, have observed the scars, unless it is supported by initial treatment card it will not prove that the plaintiff indeed suffered an injury on the day and place he claimed he did. The scars observed on such person would very well relate to injuries suffered in another accident altogether”.”

11. This being the first appellate court, its duty is to re-evaluate the evidence and come up with its own conclusions but also bear in mind that it should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See the case of Selle v Associated Motor Boat Company Ltd[1968] E.A. 123, 126).

12. Andrew Momanyi Omwenga (Pw1) adopted his statement as his evidence in chief. It was his evidence that he was taken to Iyabe Sub-County Hospital and his injuries attended to. He reported the accident at OCS Gesonso Police Station and was issued with a P3 form.

13. According to the treatment card from Iyabe sub-county Hospital the appellant went to the hospital on date the accident occurred for treatment. The P3 form and the doctor’s report were sought 17 days after the accident. It was noted that the soft tissue injuries had healed leaving behind scars. According to the medical report by Dr. Daniel Nyameino, upon examining the appellant, he concluded that the appellant sustained severed left small finger extensor tendons with resultant flexion deformity and also suffered multiple soft tissue injuries. According to the medical report, the injuries were managed by cleaning, dressing, tetanus vaccination and by issuance of analgesics and antibiotics.

14. The respondent on the other hand argues that the appellant’s failure to produce treatment notes was fatal. According to the respondent, the treatment notes were essential to contextualize and correctly place the date, time, nature and extent of alleged injuries.

15. The trial magistrate in finding that the appellant had not proved the injuries sustained stated as follows:

“I shall first address the issue of failure to produce any treatment notes.

The record indicates that the plaintiff did not produce any treatment notes……………..it is imperative for the plaintiff to prove that he sustained injuries to which he seeks compensation or injuries which were as a result of the accident. The initial treatments are the ones to show the cause of the injuries.”

16. In the Timsales Limited v Wilson Libuywa (supra)case the court was addressing proof of injuries where an employer disputed the accident. The court in that case proceeded to find that it was the duty of the employee, as the plaintiff, to prove on a balance of probabilities that he indeed suffered the alleged accident in such circumstances.

17. In this case, the respondent had not disputed the fact that an accident occurred. In fact, the respondent accepted that it was 70% liable for the accident. The fact that the accident occurred on 22nd February 2019 had therefore been settled.

18. Although the appellant now challenges the production of the P3 form and the medical report by the appellant, he did not raise an objection when they were produced in the lower court on the basis that he was not the maker. The Court of Appeal in Wellington Nganga Muthiora vs. Akamba Public Road Services Limited & Another [2010] 2 KLR 39 held that:

“The appellant produced a police abstract which stated that the first respondent was the owner of the vehicle and that was prima facie evidence. The first respondent did not challenge the production of the police abstract by the appellant on the basis either that he was not the maker of it or that the contents were not admissible or were not correct. The first respondent let it be produced without raising a finger. In cross-examination by the learned Counsel for the first respondent, the allegation in the police abstract that the first respondent was the owner was not challenged, though the other contents of the abstract such as whether indeed the appellant was a passenger in the same bus were challenged by clear questions as to whether the appellant’s name was in the passenger manifest and whether he had a ticket as evidence that he was in the passenger bus. In such a situation where the police abstract’s contents pertaining to ownership of the vehicle was not challenged, it remained prima facie evidence and when the respondents offered no evidence in their defence, such prima facie evidence was not rebutted and it remained valid, unrebutted evidence before the court.”

19. I therefore find that the medical evidence pertaining to the injuries of the appellant were prima facie evidence. I also note that the respondent also produced his medical by Dr. Kumenda without calling the maker and its production was similarly not opposed.

20. The only issue that was before the court was thus consideration of the extent of the injuries sustained by the appellant. According to the plaint, the appellant claimed to have sustained the following injuries: abrasion and contusion to the left neck; contusion to the left side of the chest; laceration to the left wrist joint; severed left small finger extensor tendons; small laceration on the left small finger; and abrasion left knee and leg anteriorly.

21. In his evidence before court Pw1 testified that his small finger was deformed following the accident, he had pain on his left leg and chest. The report by Dr. Daniel Nyamieno and Dr. Kumenda both confirmed that the appellant had suffered soft tissue injuries.

22. The plaintiff produced a treatment card which revealed that he sustained injuries, went to Iyabe Sub-County Hospital and tetanus vaccine was administered. I therefore find that by virtue of the treatment card, the P3 form, the medical report from Dr. Daniel Nyamieno and Dr. Kumenda as well as the oral testimony from the appellant, he proved that he had sustained soft tissue injuries following the accident.

23. The only issue for determination is now on quantum. I am alive to the well-known principle that for an appellate court to interfere with an award of damages, it must be shown that the trial court, in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5).

24. In awarding damages, the court takes into account the nature and extent of injuries in relation to awards in similar cases to ensure consistency of awards bearing in mind that no two cases are exactly alike as the Court of Appeal observed in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR that:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

25. The trial magistrate in his judgment indicated that he would have made an award of Kshs 180,000/- for the soft tissue injuries.

26. The appellant in his submissions proposed that an award of Kshs 350,000/- was sufficient for general damages. He cited the case of Duncan Mwenda & 2 Others v Silas Kinyua Kitheia [2018] eKLR.

27. The respondent on the other hand supported the trial’s court finding on quantum arguing that the assessment by the magistrate was not inordinately high or inordinately low so as to attract interference by the court.

28. In Duncan Mwenda case &the Plaintiff sustained the following injuries; severe blunt head injury with intracerebral hematoma, damage to the extensor tendon of the left middle finger, soft tissue injuries on the chest wall and was admitted for 5 months and in an unconscious state for that period. The trial court made an award of Kshs 600,000/- which was reduced to Kshs 350,000/- on appeal. In this case, the respondent did not suffer any head injury and was not in a comatose state for 5 months.

29. The respondent on the other hand proposed an award of Kshs. 100,000 – 120,000/-. They relied on the case of Christine Kong’ani Juma v Flexpack International Limited [2017] eKLR where an award of Kshs 200,000/- was made for a plaintiff with soft tissue injuries including deformity of the appellant’s thumb with 5% disability. In Kibos Sugar & Allied Industries Limited v Elly Odhiambo Raburu [2018] eKLR the court awarded Kshs. 250,000/- where the plaintiff sustained multiple soft tissue injuries with fractures of the 3rd and 4th fingers.

30. The authorities by both parties in my view are of injuries that are more severe compared to those that were sustained by the appellant.

31. I therefore find no reason to interfere with the finding of the trial magistrate on his finding on general damages. The appellant was also able to prove special damages of Kshs. 6,500 paid for the preparation of the medical report.

32. In the end, I allow this appeal, set aside the judgment of the learned trial magistrate and substitute therefore an award of Kshs 180,000/- general damages and Kshs 6,500/- special damages making a gross total of Kshs 186,500/-. The appellant shall have the interest on the general damages at court rates from the date of the judgment appealed from till payment in full while interest on special damages will accrue from the date of filing suit at court rates till payment in full.

33. The appellant is awarded costs of the appeal.

DATED, SIGNED AND DELIVERED AT KISII THIS 11TH DAY OF MARCH 2022.

R. E. OUGO

JUDGE

IN THE PRESENCE OF:

MR. OMOTTO FOR THE APPELLANT

RESPONDENT ABSENT

KEVIN COURT ASSISTANT