[2022] KEHC 12893 (KLR)

Dennis & another v Kihara (Civil Appeal 410 of 2018) [2022] KEHC 12893 (KLR) (Civ) (14 September 2022) (Judgment)

Neutral citation: [2022] KEHC 12893 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 410 of 2018

DAS Majanja, J

September 14, 2022

Between

Njiru Dennis

1st Appellant

Citi Hoppa Bus Company

2nd Appellant

and

Jane Wanjiku Kihara

Respondent

(Being an appeal from the Judgment and Decree of Hon. D.O Mbeja, PM dated 7th August 2018 at the Nairobi Magistrates Court, Milimani in Civil Case No. 1232 of 2016)

Judgment

1. This is an appeal against the judgment and decree of the subordinate court finding the appellants liable for an accident involving the appellants and the respondent and awarding the respondent KES 1,500,000. 00 and KES 6,000. 00 as general damages for pain and suffering and special damages respectively, costs and interest. The respondent’s case before the subordinate court was that when the accident took place on September 30, 2015, he was a passenger in the appellants’ motor vehicle registration number KAT 216C when it lost control, veered off the road and overturned causing him to suffer severe injuries.

2. The appellants’ appeal is grounded on the memorandum of appeal dated September 2, 2018. Both parties have filed submissions in support of their respective position. In their submissions, the appellants challenge the subordinate court’s decision on the ground that the respondent failed to prove the injuries sustained after the accident and that the award of damages was inordinately high so as to present an entirely erroneous estimate of the compensation in the circumstances.

3. On the first issue, the appellants’ question the finding that the respondent suffered injuries. Before I resolve this issue, it is necessary to outline the facts as they were before the trial court. According to the plaint, the respondent pleaded that she suffered blunt injuries on the face, bruises on the right hand and blunt injuries on both knees. In her testimony, she reiterated that on the material day she was injured on both knees, the right hand elbow and the right side of the face. She stated that she was taken to Kenyatta National Hospital by ambulance but she was not admitted. She was only injected. At the time of hearing, she stated that her knees ache and she experiences pain. In cross-examination, she re-affirmed that she was treated at KNH and was given a treatment card and receipts and issued with an outpatient card but admitted that she did not have any document from KNH.

4. Dr Okoth Okere (PW 1) testified on the respondent’s behalf. He produced his report dated November 18, 2015. The report noted that she was involved in a road accident and sustained the pleaded injuries. At the time of examination, the respondent did not have any complaints and from the physical examination he observed a bruised scar on the hand. He opined that that the respondent sustained bruises on the right hand and a blunt injury to the face and on both knees which injuries he classified as harm. In the report he referred to the P3 medical form. In cross-examination, PW 1 accepted that he did not treat the respondent and that he relied on the P3 medical form but he did not see treatment notes.

5. PC Wisdom Wayaa (PW 3) produced the P3 medical form dated October 5, 2015 and police abstract which were issued to the respondent after the accident. He confirmed that the respondent’s name appeared in the occurrence book (‘’OB’’).

6. On the issue of quantum, the respondent submitted a sum of Kshs 300,000. 00 was sufficient to compensate her. The appellants, on the other hand, submitted that in the absence of treatment notes from KNH, the respondent’s case that she sustained injuries following the accident could not be supported and thus the court could not make an award for damages. In the event the court found that respondent sustained injuries, the appellants submitted that a sum of Kshs 60,000. 00 was sufficient to compensate the respondent.

7. Whether the plaintiff sustained any injuries is a question of fact. In any case, damage or injury is an essential ingredient of the tort of negligence. Where the plaintiff fails to prove injury or damage, a claim for negligence must fail (see Eric Omuodo Ounga v Kenya Commercial Bank LimitedKSM HCCC No 42A of 2015 [2017]eKLR). Finally, the burden to prove negligence rests on the plaintiff and is discharged on a balance of probabilities. In resolving the appeal, this court as the first appellate court, is enjoined to reconsider the facts on record, reach its own independent conclusion bearing in mind that it never saw or heard the witnesses in order to make a judgment on their demeanour (see Selle v Associates Motor Boat & Co [1968] EA 123).

8. Turning to the appellants’ case, it contends that failure by the respondent to produce the treatment notes from KNH is decisive on the issue whether she sustained any injuries. The appellant cited several decisions: Timsales v Wilson Libuywa NKU HCCA No 135 of 2006 [2008] eKLR, Eastern Produce K Limited v James Kipketer Ngetali [2005] eKLR, Fadna Issa Omar v Malne Sirengo Chipo and 3 Others ELD HCCA No 126 of 2013 [2016] eKLR and Peter Migiro v Valley Bakery Limited NKU HCCA No 5 of 2011 [2015] eKLR.

9. On her part, the respondent submits that she produced sufficient medical evidence that remained unchallenged including the report by PW 1 and the P3 medical form. She contends that the appellants did not produce any documents to counter her case. Further, that despite calling the respondent for a further medical examination, they did not produce their medical report and as such her testimony remained unchallenged.

10. I have considered the submissions and the decisions cited by the parties particularly the appellants. I reiterate the position that whether a party was involved in an accident is a question of fact and in coming to any conclusion the court must consider the entirety of the facts. In Timsales v Wilson Libuywa (Supra), the court dismissed the case after concluding that the plaintiff attempted to produce a forged card belonging to a different person. Maraga J (as he then was) expressed his view on the facts as follows:From these submissions and the evidence on record it is clear to me that the respondent was not treated at Elburgon Nyayo Hospital on the November 6, 1999. From the evidence of DW2 it is abundantly clear that the treatment card bearing serial No 4667 which the respondent had unsuccessfully attempted to produce was issued on May 23, 1999 to one Alice Abisa. That card was therefore a forgery. This being my view of the matter, 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 examines 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. In Fadna Issa Omar v Malne Sirengo Chipo and Others (Supra), the court considered the position where the plaintiff produced a prescription note issued three days after the accident which prescribed medication but did not indicate the nature of the ailment and P3 medical report. The appellate court upheld the trial court’s decision where Githua J, 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.

12. Finally, in Peter Migiro v Valley Bakery Limited (Supra), the court held as follows:(11)It is not in doubt that the respondent was an employee of the appellant at the material time of the accident. Both parties have admitted that fact though denied in the statement of defence. As to the alleged injury, the court has carefully analysed the evidence and the trial court's finding on the same. This court is not convinced that the respondent was injured on the December 27, 2002 as no proof of whatever nature was produced. The respondent failed to call witnesses to confirm the same yet he stated that he was working with other employees. He too failed to discharge his burden to prove that he was treated at the company’s clinic on the day of the alleged injury before going to St Peters Clinic next day. Even then, he failed to produce the treatment notes from the said clinic. As I have stated above, the alleged treatment notes were marked for identification and are not filed in the court record. I have not seen them at all. These are the same notes that informed the preparation of the medical report by dr Obed Omuyoma, and upon which the trial court based its assessment of damages. It has been held in different courts that initial treatment notes are so important that without their production, it would be difficult for a court to ascertain if indeed a claimant was indeed injured.

13. What then was the evidence in this case? It is not disputed that the respondent was involved in the accident that took place on September 30, 2015. Although she recalled that she went for treatment at KNH, she did not produce treatment notes or any other evidence of treatment. This is despite the fact that the appellants’ counsel called for the treatment notes during pre-trial directions on February 6, 2017. When cross-examined, the respondent reiterated that she was treated at KNH and was issued with a treatment card, receipts and outpatient cards but once again did not produce the documents or even explain why she could not produce them. The doctors who examined the respondent did not have access to or sight of the treatment notes in order to assess the respondent’s condition.

14. The trial magistrate did not examine or interrogate these facts in detail order to ascertain whether the respondent sustained any injuries or the nature and extent of injuries she alleged to have sustained. Having considered the evidence as the first appellate court, I find that the while it is true that the respondent was involved in the accident, I am unable to ascertain whether she suffered any injuries as alleged. While I hold that failure to produce treatment notes does not necessarily mean that a victim did not suffer injuries, in this case I am constrained to find that she was not injured as alleged. Given the somewhat serious nature of the injuries sustained, it is surprising that she did not produce the initial treatment notes and despite adequate notice, she failed to explain why she did not produce them. Without them, the court places very little weight on the P3 medical form and medical report prepared by PW 1 as the injuries could have been sustained elsewhere.

15. Having reached the above conclusions, I allow the appeal with the result that the judgment of the subordinate court is substituted with a decree dismissing the suit before the subordinate court with costs to the appellants. The appellants shall have the costs of this appeal.

DATED AND DELIVERED AT NAIROBI THIS 14TH DAY OF SEPTEMBER 2022. D.S. MAJANJAJUDGEMr Chichi instructed by Kimondo Gachoka and Company Advocates for the Appellants.Mr Mbiti instructed by Musili Mbiti and Associates Advocates for the Respondent.