[2022] KEHC 3226 (KLR)

Eldoret Express Company Limited v Nandabelwa (Civil Appeal 120 of 2017) [2022] KEHC 3226 (KLR) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 3226 (KLR)

Republic of Kenya

In the High Court at Nakuru

Civil Appeal 120 of 2017

JM Ngugi, J

May 5, 2022

Between

Eldoret Express Company Limited

Appellant

and

Florence Nasambu Nandabelwa

Respondent

(Being an Appeal for the Judgment/Decree of Hon. F. Munyi, Senior Resident Magistrate delivered on 18/08/2017 in Nakuru CMCC No. 458 of 2013)

Judgment

1. Through a Plaint filed in the Nakuru Chief Magistrate’s Court in CMCC No. 458 of 2013, the Respondent filed a personal injury claim sounding in negligence against the Appellant. The Respondent was involved in a road traffic accident on 03/05/2013 while travelling as a fare paying passenger in a motor vehicle belonging to the Appellant. The motor vehicle registration number KBE 211E Isuzu, a passenger bus, rolled after hitting a buffalo along the Gilgil-Naivasha Road. The accident resulted in a series of other suits, with CMCC No. 632 of 2013 being the test suit.

2. According to the Plaint dated 03/06/2013, the Plaintiff’s injuries were particularised as a deep cut wound on the periorbital and temporal region, soft tissues injuries of the left clavicular region, soft tissue injuries on the left shoulder joint, soft tissue injuries on the left forearm and abrasions on the right knee and leg.

3. The Respondent sought general damages for pain, suffering and loss of amenities, special damages of Kshs. 6,500/-, costs of the suit and interest on all the above at court rates.

4. The Appellant filed its Defence dated 06/07/2013 in which it pleaded contributory negligence on the Respondent’s part and the Kenya Wildlife Service. The Respondent also filed a Reply to Defence dated 22/07/2013.

5. On 15/02/2017, the parties recorded a consent as to liability. The terms of the consent were inter alia:1. Judgment on liability in the test suit CMCC No. 632/13 in the ratio of 90:10 in favour of the Plaintiff be adopted to apply in this matter.2. Matter do proceed for assessment of damages3. Matter be mentioned on 15/3/2015 to record a consent on quantum or production of document.

6. When the matter came up on 15/03/2015, the parties recorded another consent as to the production of documents as follows:1. The following documents be produced without calling the makers to enable the court assess damages.1. P3 Form (Exh. 1)2. Police Abstract (Exh. 2)3. Medical Report by Dr. Kiamba (Exh. 3a)4. Receipt of Kshs. 3,000/= each (Exh. 3b & c)5. Demand Letter (Exh. 4)6. Statutory notice of Cosntitution of suit (Exh. 5a)7. Certificate of postage for the notice – (Exh.5b)8. Motor vehicle search certificate (Exh. 6)

7. Subsequently, at the hearing, and again by consent, the Respondent dispensed with the production of a treatment card -PMFI 1 and closed her case. The Defence produced one document, D Exh. 1, a medical report by Dr. Sophia Opiyo and closed its case.

8. Parties then filed their submissions; the Respondent’s submissions were dated 26/04/2017 and the Appellant’s dated 05/07/2017. Having seemingly, reached a consensus on liability and production of documents, the only issue left for determination by the Trial Court was quantum. Still, the parties submitted before the Trial Court on the issue of proof of injuries, in addition to quantum.

9. Counsel for the Respondent submitted that the failure to produce the Initial Treatment Card was not fatal to the Respondent’s case for four reasons: failure to produce the said document had been done by consent, the doctors by both parties had confirmed that the injuries were sustained from the subject accident, both doctors had viewed the said Initial Treatment Card while preparing their reports and that no allegations of fraud or forgery had been pleaded in the Appellant’s defence. The Respondent relied on the case ofTimsales Limited v Stanley Njihia Macharia [2016] eKLR.

10. On the issue of General Damages, the Respondent suggested the sum of Kshs. 220,000 and relied on the cases of Kithoka Youth Polytechnic v Lucy Kithira Riungu [2008] eKLR and Patrick Mwiti Imanene & Another v Kevin Mugambi Nkunja [2013] eKLR.

11. Conversely, the Appellant submitted that the Respondent had not proved injuries because she failed to produce the initial treatment notes and as such, did not prove whether the injuries caused were a result of the subject accident. The Appellant argued that the Medical Report made by Dr. Kiamba indicated that he had relied on a P3 Form filled on 09/05/2013, seven days after the accident and not treatment notes from the hospitals at which the Respondent was first treated. The Appellant relied on the case of Timsales Ltd v Wilson Libuywa [2008] eKLR.

12. The Appellant also submitted that in the absence of the Doctor who had filled the P3 Form, the Court could not ascertain what he had relied on in filling the P3 Form. The Appellant cited the case of Fadna Issa Omar v Malne Sirengo Chipo & 3 Other[2016] eKLR.

13. The Learned Magistrate sided with the Respondent. She opined that having knowingly conceded 90% liability for the accident with the knowledge that the Respondent did not have treatment notes, the Appellant was bound by the doctrine of estoppel. In her own words:I noted that the Defendant's learned Counsel conceded 90% liability knowing that the Plaintiff did not have the initial treatment notes. It is also clear that the documents were produced by consent without the need to call makers thereof. I have read the report of Dr. Kiamba and noted that it clearly shows that he relied on the P3 form and treatment notes of 3rd May 2013 and X-rays taken on 3 May 2013. Liability in this sense means that the Defendant was 90% to blame for the accident and the injuries sustained by Plaintiff. He is bound by the doctrine of estoppel, that he cannot deny a position that which he has made another person to believe and rely on. This case is different from the one where the Defendant denied liability entirely.

14. The Learned Magistrate proceeded to award the Respondent general damages of Kshs. 200,000 and special damages Kshs 6,000, costs and interest of the suit.

15. Aggrieved by the Judgment and Decree of the Trial Court the Appellant preferred the instant appeal vide its Memorandum of Appeal dated 18/09/2017, seeking the following orders:1. This Appeal be allowed with costs2. The Judgment on Liability and subsequently on quantum by the Honourable F. Munyi (Senior Resident Magistrate) in Nakuru CMCC No. 458 of 2013 read on the 18th day of August, 2017 be set aside and this Honourable Court be pleased to make a fair judgment.3. The Costs of the Appel be borne by the Respondent

16. The Appeal is premised on the following grounds1. That the Learned Trial Magistrate erred in fact and in law by stating that the defendants had entered into a consent on liability knowing that the plaintiff did not have her initial treatment notes while the same had been filed as a document to be relied on and served upon the defendants. There was therefore an alive expectation and a founded assumption of the existence of this treatment notes.2. That the Learned Magistrate erred and misapprehended the law by stating that by virtue of the parties entering into a consent on liability, the defendants could not defend the matter otherwise than on liability.3. That the Learned Magistrate erred in law and in fact by stating that Dr. Kiamba's report was prepared with reliance on treatment notes and x-ray report dated 3rd May, 2013 when the report contains no such assertions.4. That the Learned Magistrate erred in law and fact by misconstruing the doctrine of estoppel to mean that a consent on liability binds any other defence the defendant may advances.5. That the Learned Magistrate erred in law and fact by misinterpreting a consent on liability whose only extent is now denial by defence that the accident happened and not that the plaintiff suffered injuries as a result or the extent of those injuries if any.

17. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 17/09/2021. The Appellant maintains its position at the Trial Court; that the Respondent did not prove that the injuries sustained were as a result of the subject accident. It relies on the cases of Jeremiah Wachira Ichaura & 8 Others v Nation Media Group [2005], Anthony Francis Wareham t/a AF Wareham & 2 Others v Kenya Post Office Savings Bank [2004] eKLR and Sections 107-109 of the Evidence Act. It argues that the consent on liability only covered the first two ingredients of the tort of negligence.

18. The Appellant also submits that by informing the Trial Court on 15/03/2017 that they were unable to agree on the production of the treatment notes is a clear indication that the Respondent was aware of her duty to prove her injuries. The Appellant cites various authorities on the production of initial treatment notes including Timsales Ltd v Wilson Libuywa [2008] eKLR, Fadna Issa Omar v Malne Sirengo Chipo & 3 Other [2016] eKLR and Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR.

19. Lastly, the Appellant cites Section 27(1) of the Civil Procedure Act and prays for cost.

20. The Respondent’s submissions are dated 30/10/2021. The Respondent invites the Court to rely on the case of Peters v Sunday Post Limited [1958] EA 424 and the explanation in Judicial hints on Civil Procedure by R. Kuloba at Page 256 on the role of the first Appellate Court

21. The Respondent submits that the Respondent’s case does not meet the threshold for the interference with the Trial Court’s Judgment. First, the Respondent contends that the Appellant is estopped from challenging the Trial Court’s award based on the consent to dispense with the production of the initial treatment note. In explaining the legal doctrine of estoppel Appellant relies on an excerpt of Broom’s Legal Maxims 10th Edition at Page 191 and the case of Serah Njeri Mwobi v John Kimani Njoroge.

22. Secondly, the Respondent argues that all documents by both parties were produced without calling their makers and the Appellant is also estopped from challenging the Medical Report by Dr. Kiamba. The Respondent relies on various cases on the applicability of estoppel where a party has consented to the production of documents including Kenya Power & Lighting Co. Ltd v John Makori [2016] eKLR, David Chege Ndungu v Robert Macharia & 2 Others[2015] eKLR and Benedeta Wanjiku Kimani v Changwon Cheboi & another [2013] eKLR.

23. Thirdly, the Respondent submits that that the Appellant’s Doctor Sophia also submitted a report in which she referred the initial treatment card and confirmed the injuries sustained by the Respondent. The Respondent relies on the case of H. Young Construction Company Ltd v Richard Kyule Ndolo [2014] eKLR. The Respondent also urges the Court to find that her case did not wholly depend on the production of the initial treatment card, in view of the medical reports of the two doctors being in agreement on the injuries sustained. She cites the case of Mercy Njoki Kamau v Tiny M. Royal Company & Another [2016] eKLR.

24. Fourthly the Respondent denies that Dr. Kiamba’s report was based solely on the P3 Form. The Respondent urges the Court to distinguish the authorities cited by the Appellant from the present case in view of the consensus between the two doctors’ reports. The Respondent contends that there is no legal requirement that injuries in a road traffic accident can only be proved through a treatment card, but rather, the totality of the evidence in each case. The Respondent cites the case of Henry Binya Oyala v Sabera O. Itira [2011] eKLR and Timsales Limited v Stanley Njihia Macharia [2016] eKLR.

25. The Respondent contends that the appellant has also made prayers touching on liability and asks that any such prayer be disregarded since no submissions were made on the same and liability was entered by consent. The Appellant relies in the cases of Kathini Trust v Almicdad Parcel Services Limited & Another [2014] eKLR and Section 67(2) of the Civil Procedure Act.

26. The Respondent asks that the Court relies on the meaning of ‘balance of probability’ given in the case of Susan Kanini Mwangi & Another v Patrick Mbithi Kavita [2019] eKLR and the threshold for interference with the Trial Court’s Judgment described at Paragraph 19-004 of Kemp and Kemp, the Quantum of Damages Volume 1. She prays for costs

27. As the first Appellate Court, I am required to re-evaluate, re-assess, and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned Trial Court are to stand or not and give reasons either way. SeeAbok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.

28. In allowing the Respondent’s case, the Learned Magistrate reasoned that the Appellant had conceded liability knowing that the Respondent did not have the initial treatment notes. This is, however, not the chronology of events from the record. The record shows that when the matter came up on 15/03/2017, the parties did not agree on the production of the treatment notes. It is on 19/04/2017 that the parties agreed to ‘dispense’ with the production of the treatment notes. The same is designated as ‘PMFI’.

29. The effect of the ‘dispensation’ of the document meant that parties agreed the same would not be produced as evidence and as such would not form part of the record. The document would have formed part of the Respondent’s case and there was no effect of the Appellant agreeing to its dispensation since it was not admitted as evidence anyway. Consequently, the only evidence available for interrogation by the Appellant are the documents listed under Paragraph 6 of this Judgment, and which were admitted by consent. The Appellant did not, however, interrogate that evidence. Instead, the parties agreed to produce the same by consent.

30. Where there are laid down procedures in the taking of evidence and manner of conducting trial, a trial court is to adhere to the procedure, unless parties consent to variation of that procedure. The Court of Appeal in Lehmann’s (East Africa) Ltd vs. R Lehmann & Co. Ltd [1973] EA 167 cautioned against these variations as follows:The supposed short-cuts in procedure almost always confuse and obscure the true issues and almost always result in prolonged litigation and unsatisfactory decision. However, if the parties to a civil suit agree to adopt a certain procedure and the judge, however, wrongly permits such a course, then there is little that a Court of Appeal can do other than seek to make the best of an unsatisfactory position.

31. The Appellant having consented to the production of the only evidence on record cannot at the appellate stage, seek to impugn its authenticity. In particular, the Appellant consented to the production of Plaintiff’s Exhibit 3A – a Medical Report by Dr. Kiamba. That report described the injuries which the Respondent allegedly sustained from the road traffic accident which was the subject of the trial. By accepting its production as evidence and producing no alternative version, it was left to the Learned Trial Magistrate to assign probative value to the Report. It was permissible for the Court to conclude, on the basis of that report, that the alleged injuries by the Respondent were, indeed, sustained as a result of the accident. Having consented to the production of the Report, the Appellant cannot go behind it to request the Court not take it into consideration because some background documents used in the preparation of the report had not been made available to Dr. Kiamba. If the Appellant impugned the authenticity of the Report, he should have insisted that the author appears for cross-examination.

32. The Appellant agrees that indeed the Respondent was involved in the subject accident and that she sustained injuries. The Appellant’s point of difference is that the Respondent did not prove that the injuries were caused by the subject accident and not any other. Even if I was to accept the Appellant’s argument that a consent on liability did not translate in to a consent on the injuries, the Respondent was only required to prove on a balance of probability that she sustained the injuries from the subject accident. From the totality of the evidence admitted by consent, the Respondent discharged this duty. There was enough material presented for a reasonable tribunal to conclude that the Respondent sustained the injuries during the subject accident.

33. The Appellant does not contest the reasonableness of the assessment of damages – and I find the awarded damages eminently reasonable.

34. In the end, therefore, I hold that the appeal lacks merit and the same is hereby dismissed in its entirety.

35. The Appellant shall pay the costs of this appeal.

36. Orders accordingly.

DATED AND DELIVERED AT NAKURU THIS 5TH DAY OF MAY, 2022. ...............................JOEL NGUGIJUDGE