https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7101

Ima Hauliers Limited v Otieno (Civil Appeal E026 of 2025) [2026] KEHC 7101 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 7101 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E026 of 2025 A Mabeya, J May 15, 2026 Between Ima Hauliers Limited Appellant and Evance Adoma Otieno Respondent (Being an appeal from the judgment and decree of Hon. D. Ogal SPM delivered on the 20/12/2024 in Winam SPMCC No. E086 of 2021, Evance Adoma Otieno v IMA Hauliers Ltd) Judgment 1.The respondent filed the primary suit before the trial court vide a plaint dated 8/7/2021. He claimed for general damages and costs of the suit for injuries sustained following a road traffic accident. 2.The appellant entered appearance and filed a statement of defence dated 30/7/2021 in which it denied the respondent’s claim and put the respondent to strict proof of the same. 3.The matter proceeded to trial and by a judgment delivered on 20/12/2024, the trial court decreed: -a.Liability at 100% for the respondent against the appellant.b.General damages Kshs. 150,000/-c.Costs of the suit and interest at court rates. 4.Being dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Memorandum of Appeal dated 28/1/2025 and raised seven (7) grounds of appeal which may be summarized as follows: -a.That the trial court erred and itself in finding that the respondent had proved his injuries and therefore erred in awarding damages to him.b.That the trial court erred and misdirected itself by relying on treatment notes from JOOTRH which had not been produced as exhibits but rather remained marked for identification.c.That the trial court erred and misdirected itself by relying on treatment notes from JOOTRH which had been disowned and discredited by Dr. Vincent Otieno Mboha, a clinician at the said hospital.d.That the trial court erred in failing to appreciate and apply existing jurisprudence regarding the award of damages thus arrived at an erroneous determination on merit. 5.The appeal was disposed off by written submissions which have been duly considered. 6.This being a first appeal, the Court is duty bound to evaluate the evidence afresh and come to its own independent findings and conclusions but at all times having in mind that it did not have the advantage of seeing the witnesses testify. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. 7.The case before the trial court was that Pw1, Philip Kilimo, a clinical officer at JOOTRH testified that he filled a P3 form on behalf of the respondent on the 3/6/2021 wherein the respondent had alleged to have been involved in an accident on the 2/6/2021. That the respondent sustained a swelling on the back side of the head as well as tenderness on the neck, right side of the chest, right hand and hip as well as the right ankle which was swollen. He was treated through administration of analgesics and antibiotics and that he classified the degree of injury as harm. 8.In cross-examination, he admitted that he did not treat the respondent but rather relied on treatment notes from JOOTRH wherein the respondent’s injuries were detailed. 9.Pw2, No. 51039 PC F. Ndiema produced the police abstract over an accident that occurred on the 2/6/2021 which was investigated by his colleague PC Susan Chesang Nabei. It was his testimony that the accident involved a motorcycle ridden by the respondent, and on which there was a pillion passenger one Duncan Onyango, and a Mitsubishi Fuso lorry registration number KBM 142 P/ZD 5493. 10.In cross-examination, he reiterated that he was not the investigating officer and as such did not visit the scene. Further, he could not tell how the accident happened or why the investigating officer blamed the driver of the lorry for causing the accident. 11.The respondent testified as Pw3. He adopted his witness statement dated 8/7/2022 as his evidence in chief. It was his testimony that on the 2/6/2021 he was riding his motorcycle along Kondele – Obunga road whilst carrying one pillion passenger when the appellant’s lorry was negligently and carelessly driven and ended up ramming his motorcycle from behind leading to the injuries he sustained. 12.In cross-examination, he stated that both him and the pillion passenger had helmets on as well as reflective jackets. That after the accident, he was treated at the outpatient centre of JOOTRH. That he did not know the doctor who filled his P3 form. 13.On its part, the appellant called one Cpl Gladys Chemtai as Dw1. She produced a police abstract dated 4/8/2021 as DExh1 on the accident that had occurred on 2/6/2021 between the appellant’s lorry and respondent’s motorcycle. It was her testimony that the treatment notes had been damaged by the Police. 14.In cross-examination, she stated that the exhibit she had produced as DExh1 was from Kondele Police Station. That she was not the investigating officer and thus could not verify whether the original documents were availed later on. That from looking at the documents, the same were damaged at and by the hospital. She confirmed that the respondent was involved in an accident. 15.Dw2 Mboha Vincent Otieno, a clinician from JOOTRH produced a letter dated 11/8/2021 as DExh2 that confirmed that the respondent was not a patient at the hospital. He further produced a confirmation sheet dated 2/6/2021 as DExh3 stating that the document relied on by the respondent did not originate from the hospital. That the Out Patient Number (OP No.) relied on by the respondent belonged to one David Onyango Obieko and not the respondent. In cross-examination, he reiterated that the OP No. relied on by the respondent was issued to David and not the respondent. 16.It is based on this evidence that the trial court arrived at its decision. I have carefully considered the grounds of appeal and the evidence on record. The grounds of appeal can be collapsed to one; whether the trial court erred in finding that the respondent had proved that he sustained the injuries claimed and thus merited award of the damages. 17.It is a cardinal principle of the law of evidence as set out in Section 107 to 109 of the Evidence Act that whoever asserts a fact has the burden of proving its existence in order to succeed. In other words, he who alleges must prove. In civil cases, the standard of proof is on a balance of probabilities. 18.In Kenya Airports Authority versus Mitu-Bell Welfare Society & 2 others (2016) eKLR, the Court of Appeal stated as follows: -“In civil cases, a court makes its findings and determinations on a balance of probabilities. This means that it must be established that the fact in issue more likely than not to have happened; that is, that it is 'quite likely' or 'not improbably' though less likely than not that it happened. (See Davies v. Taylor [1974] A.C. 207; see also In In re A (A Minor) (Care Proceedings) [1993] 1 F.L.R. 824). In Re B (2008) UKHL 35, Lord Hoffman expressed the term balance of probability using a mathematical analogy: "If a legal rule requires a fact to be proved (a 'fact in issue'), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened." 19.In the present case, there is no doubt that an accident happened that involved a motorcycle that the respondent was riding and a lorry owned by the appellant. The same is the testimony on record by both the respondent and the appellant’s own Dw1. 20.The appellant’s gripe with the impugned judgment is twofold; one, that the respondent failed to prove the injuries sustained as he failed to avail the original treatment notes and secondly, that in any case, the copy of treatment notes produced by him were a forgery as it was issued to one David Onyango Obieko and not the respondent. This was the uncontroverted evidence of Dw2, a clinician from JOOTRH who testified to be the deputy head of the hospital’s legal department. 21.As regards, the first ground, it is my view that the failure to produce original treatment notes was not fatal in this instant. Dw1 testified that the original treatment notes had been damaged by the Police. In cross-examination she stated that the original notes had been damaged at and by the hospital. What is evident from her testimony is that, in one way or the other, the original treatment notes were not available due to the actions of either the police or the hospital. Therefore, the said documents were not available to the respondent to be able to produce them. 22.On the second issue, in cross examination it emerged that DW1 was not the one who registered patients but rather worked in the legal department. He stated that the OP number in the notes relied on by the respondent was issued to one David. However, he could not produce evidence to show that it did not belong to the respondent. He never produced the treatment notes of the alleged David showing that the OP No. belonged to him and had been treated under that OP no. He admitted that the Hospital had not reported the respondent for the alleged forgery. 23.In Urmilla W/O Mahendra Shah vs. Barclays Bank International Ltd and Another [1979] KLR 76; [1976-80] 1 KLR 1168, it was held by the Court of Appeal that: -“Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. A higher standard of proof is required to establish such findings, proportionate to the gravity of the offence concerned.” 24.In this case, it is clear that DW1’s evidence was simply that from the records in his possession, the OP number belonged to one David Onyango Obieko. However, he could not state positively whether the document was genuine as he was not its author. No hospital register was produced to disprove the respondent’s allegations or to affirm DW1’s contention. 25.The question this court is thus faced with is whether the trial court erred in finding that the respondent was injured in view of the denial by the hospital that the treatment notes originated from there. Further, was failure to produce those notes fatal to the respondent’s claim? 26.In Timsales Limited v Elijah Macharia [2012] eKLR, the Court observed that: -“Even though the respondent presented and the court marked the treatment notes from Elburgon Hospital for identification, it was not produced as an exhibit. It was, as a result argued by the appellant that failure to produce the treatment notes was fatal to the respondent's case. Opinions of the effect of failure to produce treatment notes are diverse and varied. In Timsales Limited v Daniel Karanja Bise, Civil Appeal No. 111 of 2005, Nakuru, Emukule, J. observed that:“Being a public document the production of it in evidence does not require certification by the health facility or the testimony of the health facility, as would ordinarily be required under section 82(d) (i) of the Evidence Act. .......... by excluding the respondent's attendance and treatment card, could I also say that there was no accident and injury to the respondent? To so conclude would render examination of the respondent by Dr. Kiamba and Dr. Malik an exercise in futility and consign their opinion to the waste paper bin. Their notes about the scar on the respondent's thigh 12cm in length would all evaporate and became a figment of imagination. That would be an absurd conclusion.” 27.Similarly, in Comply Industries Limited v Mburu Simon Mburu, Civil Appeal No.121 of 2005, the court observed that failure to produce a treatment card does not always lead to dismissal of injury claims. The court held that: -“Where a doctor who examines him (complainant) several days or months later makes reference to the treatment card, unless otherwise proved, that would suffice and the production of the treatment card is not necessary. Failure to produce treatment cards is fatal only when the plaintiff fails to prove by other evidence that he was indeed injured and doubt is cast on his injury claim.” 28.In the Timsales v Elijah case (supra), the Court further observed as follows: -“The trial court saw and even marked as MFI 1 the treatment notes that Dr. Kiamba relied on in preparing the medical report. The doctor also physically noted the injuries the respondent suffered represented at the time of examination by a scar. The appellant did not allege or prove that the treatment chit to have been a forgery. To dismiss, the respondent’s claim on the basis of the failure to produce the treatment chit would, in my view, be against the spirit of Article 159(2) (d) of the Constitution and Section 1A and 1B of the Civil Procedure Act. (see the decision of this court in Gachagua Sawmills Limited v Ephram M. Omera, Civil Appeal No. 159 of 2005). My conclusion is that the respondent was injured in the course of his employment with the appellant.” [emphasis added] 29.From the defence witness, the appellant did not rebut the evidence of the clinical officer who even said he was registered and that he attended to the respondent at the hospital. 30.This court is unable to find that the hospital treatment notes were fraudulently obtained as no evidence of fraud was adduced. Further, that evidence of treatment notes and injuries sustained by the respondent must be looked at wholesomely with the question of whether or not the respondent was involved in the accident which was reported to the police and a police abstract produced as exhibit. 31.In addition, the P3 form issued by the police was filled at the Kisumu District Hospital the day after the accident. The appellant never challenged the evidence in the P3 form that revealed that the respondent sustained injuries as stated. 32.In Nairobi High Court Civil Case No. 4045 of 1988 Kabugu Mutua vs Kenya Bus Services, Ringera J pronounced himself thus: -“Although I am of the opinion that lack of medical evidence is not fatal to a claim for damages for personal injuries, it is nonetheless manifest that only such evidence can clarify and substantiate the nature and extent as well as the sequels of alleged injuries.” 33.In this case, even in the absence of medical notes, the respondent produced a P3 form which was neither challenged or controverted to be genuinely obtained and the injuries were not different from those listed in the challenged treatment notes. This court therefore finds that the respondent proved on a balance of probabilities that he was injured in the material accident and that he was treated for the said injuries. It further finds that there was no evidence of fraud on the part of the respondent. 34.Having found as such, I turn to whether the trial court erred in awarding the respondent general damages of Kshs. 150,000/-. The record reveals that the respondent sustained injuries in the nature of soft tissue. 35.In Jyoti Structures Limited & another v Truphena Chepkoech Too & another [2020] eKLR, the Court awarded Kshs. 125,000/- for blunt injuries to the head, neck, chest, back and both thighs. In Ochola v Owuor (Civil Appeal E039 of 2022) [2024] KEHC 7689 (KLR), the Court awarded Kshs. 150,000/- for soft tissue injuries of the right shoulder joint and both knee joints and blunt injuries to the anterior chest wall, the neck, and the back leading to soft tissue injuries. 36.Guided by the comparable cases above, I find no reason to interfere with the award of damages by the trial court. 37.The upshot of the above is that the Court finds that the appeal lacks merit and dismisses the same with costs to the respondent.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 15TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE