https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7352

Gakuo v Mwanzia (Civil Appeal E112 of 2025) [2026] KEHC 7352 (KLR) (Civ) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7352 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E112 of 2025 BW Murunga, J May 28, 2026 Between Jacob Muthee Gakuo Appellant and Anthony Ndunda Mwanzia Respondent (Being an appeal from the Judgment and Decree of the Senior Principal Magistrate's Court at Nairobi (Hon. P.K. Rotich, SPM) delivered on 14th March 2023 in CMCC No. 5288 of 2017) Judgment 1.“What is the co-efficient of the expansion of brass?”When Sir Norman Birkett KC asked Arthur Isaacs, the so-called fire expert, this question circa 1931 in cross-examination during the defense of Alfred Rouse, it set in motion the conundrum that attempted to frame the delineation of the expertise of a witness to tender evidence in a case whilst holding himself out and being clothed with the tag of an expert. It was a classic peritus test if there ever was one. 2.This appeal arises from the judgment and decree of the Magistrate’s Court at Nairobi by Hon. P.K. Rotich, Senior Principal Magistrate (as he then was) delivered on 14th March 2023 in Civil Case No. 5288 of 2017. The genesis of the underlying dispute was a road traffic accident that occurred on or about 4th December 2016 along the Ruiru-Embakasi Bypass. 3.The plaintiff, Jacob Muthee Gakuo (now the Appellant), averred that he was driving his motor vehicle, registration number KBV 181H, when motor vehicle registration number KCF 031A, owned by Varniraj Hardware and Tools Limited and Vishnu Enterprises (the 1st and 2nd Respondents) and driven by Anthony Ndunda Mwanzia (the 3rd Respondent), suddenly entered the highway, obstructing his path and causing a severe collision. 4.In his amended Plaint dated 22nd August 2017, the Appellant intimated that as a direct consequence of the Respondents’ driver’s absolute negligence, he sustained serious bodily injuries, including a bruise on the posterior scalp, a blunt injury to the right chest wall with a fracture, bruises on the arm, and multiple bruises on his lower limbs, skin, and thighs. 5.The Respondents robustly defended the suit via a Statement of Defence dated 19th March 2018, wherein they denied all allegations of negligence and alternatively sought to cast the entirety of the blame upon the Appellant. 6.During the trial, the Appellant testified and led oral evidence, including the testimony of Patrick Mwangi, a clinical officer who produced a Medical Report detailing the injuries, while the Respondents elected to close their case on 23rd November 2022 without tendering any oral evidence in rebuttal. 7.In evaluating the matter, the learned trial Magistrate, whom I have recently had the distinct honour to share the entry with to the superior court Bench, delivered a terse judgment wherein he found that in the total absence of evidence by the defence, the Appellant’s narrative regarding the cause of the accident was completely unchallenged, thereby holding the respondents 100% liable for the collision. 8.The presiding judicial officer went on to hold as follows:“I agree that [the Clinical Office] is not competent to give a professional [opinion] on the injuries suffered by the Plaintiff because he is not a qualified medical Doctor registered by the Medical Practitioners and Dentists Board. The court may, therefore, not rely on his evidence. Having arrived at this position, it follows that there is no proof from a medical expert that the plaintiff suffered injuries alleged herein.” 9.In so holding, the trial court rejected the medical report produced by Patrick Mwangi, holding that as a clinical officer, he was legally incompetent to render a professional opinion on injuries because he was not a qualified medical doctor registered by the Medical Practitioners and Dentists Board. Finding that there was no proof from a qualified medical expert and that the claims on quantum were unsupported, the learned magistrate proceeded to dismiss the Appellant’s entire suit on quantum and made no orders as to costs, a determination that aggrieved the Appellant and prompted the filing of this appeal following a successful application for leave to appeal out of time. 10.The Appellant’s case on appeal is anchored on four primary grounds articulated in his Memorandum of Appeal and expanded upon in his written submissions dated 18th November 2025. The Appellant strenuously contends that the learned trial Magistrate fell into grave error both in law and fact by completely dismissing the suit on the premise that a clinical officer lacks the competence or qualification to tender expert medical evidence. It is submitted that the trial court completely ignored the distinct legislative framework governing clinical officers, thereby unjustifiably disregarding a material report that explicitly outlined the physical trauma endured by the Appellant. 11.To reinforce this argument, the Appellant places reliance on Sections 1, 2, and 13 of the Clinical Officers (Training, Registration and Licensing) Act, Chapter 260 of the Laws of Kenya, arguing that the law explicitly permits registered clinical officers to engage in private practice and does not bar them from rendering medico-legal opinions in courts of law. 12.The Appellant further cites the Court of Appeal decision in Raphael Kavoi Kiilu v Republic [2010] KECA 386 (KLR), where the apex court recognized the statutory authority of clinical officers to testify within their areas of medical competence. The Appellant notes that the clinical officer testified as PW1 and confirmed his valid practicing certificate, and since his qualifications were never challenged during cross-examination, the trial court had no basis to strip him of his expert status. 13.Furthermore, the Appellant takes great umbrage with the trial court’s total failure to quantify general and special damages, asserting that it is a trite principle of judicial practice that a trial court must assess and compute damages regardless of whether the claim succeeds or fails. The Appellant invokes the case of Wamae Njenga & Another v Embu Gaturi Housing Co-operative Society Ltd, Civil Appeal No. 22 of 2014, where the High Court held that a magistrate is duty-bound to assess damages even when a suit does not terminate in the plaintiff's favor, as this preserves the record and facilitates the work of an appellate court in the event of a successful appeal. Based on the material placed before the lower court, the Appellant had sought an award of Kshs. 1,800,000/= for general damages and Kshs. 4,720/= for special damages. 14.The Appellant argues that even if the court were minded to reject the clinical officer’s medical report, the learned magistrate seriously misdirected himself by failing to consider the alternative, independent medical evidence that had been properly admitted into the record. Specifically, the Appellant points out that the lower court record contained a duly filled P3 form, a clinical summary, and extensive initial treatment notes detailing his post-accident medical management. 15.Citing the precedent in Iddi Omollo Sat & Another v George Otieno Odera [2011] eKLR, the Appellant emphasizes that the failure to produce a formal medical report cannot render a personal injury claim invalid where other foundational treatment records and police medical forms independently corroborate the factum of injury. 16.Finally, in response to the Respondents’ attempts to re-open the question of liability, the Appellant filed what they called an Answer to the Respondents’ Submissions on Point of Law dated 19th January 2026. The Appellant asserts that the issue of liability was firmly and conclusively settled by the trial court, which found the respondents 100% to blame, and since the respondents never filed an appeal or a cross-appeal against that specific finding, this Court is entirely drained of jurisdiction to entertain any arguments regarding the apportionment of blame. 17.The Appellant concludes by praying that this appeal be allowed in its entirety, the trial court's dismissal be set aside, and the damages be awarded as prayed with costs both in this Court and the court below. 18.The Respondents opposed the appeal through their written submissions dated 15th January 2026, imploring this Court to uphold the trial court’s dismissal of the suit. The Respondents maintain that the learned trial magistrate was perfectly justified in excluding the testimony and report of the clinical officer on the ground of professional incompetence. 19.They argue that under Section 48 of the Evidence Act, Chapter 80 of the Laws of Kenya, expert evidence is strictly confined to persons who are specially skilled in a specific science or art, and a clinical officer does not possess the requisite expert standing to tender a professional opinion on complex medical injuries. 20.To fortify their position on expert evidence, the Respondents place heavy reliance on the High Court decision in Stephen Kanini Wang'ondu v The Ark Limited [2016] eKLR, where the court emphasized that for expert opinion evidence to be of probative value, it must provide deep analytical detail to enable the court to verify that the opinions are well-founded and come from an appropriately qualified professional. They also cite the Court of Appeal case of Dhalay v Republic (1995-1998) EA 29, which establishes that a court is under a mandatory duty to reject an expert opinion if it is satisfied on good and cogent grounds that the opinion is not soundly based. 21.The Respondents submit that since the Appellant failed to call the actual medical doctor who attended to him, the clinical officer’s report was nothing more than unreliable hearsay. 22.The Respondents further make reference to the Law Reform Commission Consultation Paper on Expert Evidence (LRC CP 52-2008) to support their proposition that ordinary or under-qualified witnesses must not be permitted to give opinion evidence, as their conclusions may be based on mere hunches rather than specialized scientific knowledge. 23.They assert that personal injury claims require strict medical proof from a registered medical practitioner under the Medical Practitioners and Dentists Act. Therefore, in the absence of a report signed by a fully qualified medical doctor, the trial court faced a complete lacuna of competent evidence, leaving it with no option but to dismiss the claim for quantum for a lack of proof. 24.In a portion of their submissions, the Respondents take issue with the trial court’s finding on liability, inviting this Court to look at the overall context of the accident and redistribute the blame. They draw the Court’s attention to the decision in Moiz Motor Limited & Another v Jacob Kioki Muthoka & 2 Others, Civil Appeal E079 of 2022 [2023] KEHC 26428 (KLR), where the High Court at Machakos upheld an equal apportionment of liability in a rear- end collision because of conflicting factual accounts. 25.The Respondents argue that the police abstract in this matter showed that no traffic charges were preferred against the 3rd Respondent, and the investigative report indicated that the Appellant was actually to blame for hitting the respondents' vehicle from behind. 26.Invoking the landmark case of Welch v Standard Bank Limited [1970] EA 115, the respondents submit that where a collision is a verified fact but the evidence creates a state of uncertainty as to the precise individual blame, it is consonant with justice and equity to hold both drivers equally liable. They argue that because accidents are caused rather than merely happening, and given the conflicting accounts between the parties and the investigative officer, an impartial approach requires an equal split of blame. The respondents therefore urge this Court to find that the trial magistrate erred in placing 100% liability on them and pray that liability be re-apportioned at 50:50, ultimately requesting that the appeal be dismissed with costs. Issues for Determination 27.The following two issues arise for determination before this Court:i.Whether this Court has the jurisdiction to re-evaluate and vary the trial court’s finding on liability in the absence of a cross- appeal or independent appeal by the Respondents.ii.Whether the learned trial magistrate erred in law and fact by dismissing the Appellant's claim on quantum for lack of evidence, and whether a clinical officer is competent to tender expert medical evidence regarding injuries in a personal injury claim. Analysis and Determination 28.As a first appellate court, this Court is guided by the well-settled principle articulated in Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123 and re-affirmed in Kenya Ports Authority v Kuston (Kenya) Limited [2009] 2 EA 212. Effectively, it is the mandatory duty of the appellate court to subject the entire lower court record to a fresh and independent evaluation, to re-examine the oral and documentary evidence, and to draw the appellate court’s own conclusions. In doing so, the appellate court remains cognizant of the fact that the appellate court neither saw nor heard the witnesses first-hand, and must make due allowance for the trial court’s observations on demeanor, unless the record reveals an error in principle or a clear misapprehension of the probabilities of the case. 29.So begins the inquiry by addressing the first issue for determination, which touches upon the proper scope of the appellate jurisdiction in light of the Respondents’ extensive submissions on the question of liability. 30.The Respondents have strenuously urged this Court to upset the trial magistrate’s finding that placed 100% blame on their driver, pointing to the case of Welch v Standard Bank Limited [1970] EA 115 to support an equal apportionment of fault. They contend that rear-end collisions are inherently complex and that the presence of conflicting investigative reports should compel an appellate court to intervene and fashion a more equitable distribution of blame between the two motorists. 31.However, the procedural architecture of civil appeals in this jurisdiction is rigid, governed strictly by the Civil Procedure Act and the Rules made thereunder. A party who is dissatisfied with a specific finding or decree of a subordinate court is required by law to formally voice that grievance through an independent appeal or by lodging a cross-appeal within prescribed timelines. The rationale prevents ambush, ensures that the opposing party is fully aware of the case they must meet on appeal, and draws the precise boundaries of the appellate court’s mandate. 32.The record before the court reveals that while the Appellant filed a Memorandum of Appeal challenging the wholesale dismissal of his claim on quantum, the Respondents did not file any cross-appeal contesting the 100% liability entered against them on 14th March 2023. This omission brings into sharp focus that boundary of jurisdiction when a successful party at the trial level seeks to protect their judgment while the unsuccessful party tries to vary a fundamental finding merely through written submissions. In the absence of a formal cross-appeal, an appellate court must tread very carefully to avoid expanding its inquiry into territories that the parties themselves did not procedurally open. 33.The dangers of permitting a party to 'sneak in' a cross-appeal at the submission stage were rightly, in my humble view, condemned by the High Court in Wamae Njenga & Another v Embu Gaturi Housing Co-operative Society Ltd (Civil Appeal No. 22 of 2014), where a Respondent tried to invalidate a prior grant of leave through closing submissions without filing a cross-appeal. The court in that matter emphatically struck out the respondent's arguments, holding that such an unprocedural maneuver constitutes an abuse of the court's due process and severely prejudices the appellant, who is left without an explicit opportunity to meet that specific challenge through a formal response. Consequently, since the Respondents herein chose to rest easy on their rights and failed to lodge a cross-appeal on liability, the trial court's finding that the respondents were 100% to blame stands as an immutable fact, and this Court has no jurisdiction to disturb it; the first issue is thus answered in the negative. 34.We now turn to the second and core issue of this appeal, which calls upon this Court to examine the competence of a clinical officer to render expert medical evidence and the consequences of excluding such evidence from a personal injury claim. The learned trial magistrate took a definitive and uncompromising stance, agreeing with the Respondents' counsel that because Patrick Mwangi was a clinical officer and not a qualified medical doctor registered by the Medical Practitioners and Dentists Board, his entire testimony and report were worthless. 35.The lower court reasoned that medical expertise is an exclusive domain reserved solely for medical doctors, and that any medical report signed by a clinical officer is legally incapable of proving the existence or extent of injuries. 36.To evaluate the correctness of the trial court’s holding, this court must examine the intersection between the Law of Evidence and the specific statutes that govern medical professionals in Kenya. 37.Section 48(1) of the Evidence Act, Chapter 80, provides a broad definition of an expert, stating that when a court has to form an opinion upon a point of foreign law, science, or art, the opinions of persons specially skilled in such disciplines are admissible. The statute does not explicitly stipulate that only a medical doctor can be considered an expert in medical matters; rather, it sets a threshold of special skill, which must be assessed on a case-by-case basis by looking at the witness's training, formal qualifications, and professional experience. 38.I do not think it is in dispute that in hierarchical and professional standing, the medical doctor ranks higher than a clinical officer. Indeed, in many medical institutions, especially in the rural areas, Clinical Officers are often the first port of call as they man many health centres that do not necessarily have the Medical Doctors. From their crisp white coats, it is assumed by some that the Clinical Officers are Doctors. The use of the initials C.O. and M.O for Clinical Officer and Medical Officer also brings that confusion to bear due to the closeness of the abbreviations. 39.It is important to therefore clarify whether such a Clinical Officer can be termed as an expert witness. An expert witness would be one who owes a duty to the court to use his skills and expertise to help the court reach a just conclusion by giving a report or testimony which is sound, logical, unbiased and based on scientific analysis in relation to matters technical or scientific matters before the court (Chandra & Sharma, 2023). 40.The competence of clinical officers to testify as expert witnesses is not a novel one to be fair. In the landmark case of Raphael Kavoi Kiilu v Republic [2010] KECA 386 (KLR), the Court of Appeal through Aganyanya, Visram, Nyamu JJA held that:“Under section 2 of the Clinical Officers Act (Training, Registration and Licensing Act Cap 260 (LOK) a clinical officer means:-“a person who, having successfully undergone a prescribed course of training in an approved training institution, is a holder of a certificate issued by that institution and is registered under the Act… ”Section 7(4) of the Act States:-“A person who is registered by the council shall be entitled to render medical or dental services in any medical institution in Kenya approved for the purposes of this section by the Minister by Notice in the Gazette.”The Act goes further to provide that such officers may engage in private practice “in the practice of medicine, dentistry or health work for a fee.” It follows that the clinical officer did testify in this case on his area of competence.” 41.The Court of Appeal was faced with a direct challenge touching on a clinical officer's qualification to tender an expert report and a P3 form in a sexual offences case. The apex court scrutinized the provisions of Cap 260 and held that a clinical officer is fully entitled to render medical services and testify within their specific area of medical competence, adding that there is no statutory requirement in the Sexual Offences Act or the Evidence Act mandating that medical evidence can only be produced by a medical doctor. 42.This decision was quoted with approval in Mutie Mwita v Republic [2014] KEHC 6810 (KLR) to the effect:“Similarly, the court in the case of Kyalo Kiswii v Republic [2015] eKLR when addressing the issue of competence of clinical officer had this to say:The issue of whether or not a clinical officer is a competent person to give medical evidence was settled by this court in Raphael Kavoi Kiilu v Republic [2010] eKLR (criminal appeal No. 198 of 2008). In that appeal, it was alleged that a clinical officer was not qualified under the Evidence Act to give evidence in matters relating to sexual offences. The Court held that a clinical officer was in fact, authorized under the Clinical Officers (Training, Registration and Licensing) Act and therefore is fit to give medical evidence………….. We agree with this proposition. A clinical officer, being authorized under the Clinical Officers Act is an authorized person who can render medical services, and further can give medical evidence under section 77 of the Evidence Act. Nothing therefore turns on this ground of appeal as well.” 43.There are a myriad of other cases that agree with this position and it is understandable why this is so. Clinical Officers are not quacks. They are not masqueraders wearing white coats. They are trained professionals who render key professional services in many health centres. They have taken training in their occupation, they have an Act of Parliament that determines their scope, they also have prescriptive authority and are also widely recognized in many parts of Africa and the Commonwealth as health professionals. 44.In the court proceedings, the Clinical Officer was not asked his registration number and he also did not volunteer the same. Did this make his evidence less diminishing in expertise? No. 45.Justice Gitari encountered a similar scenario of witness not giving his registration number in Joseph Mwangi Kariuki v Republic [2018] KEHC 1686 (KLR) and he held as follows:“ 1.Expert Evidence:The appellants states that the Clinical Officer did not state his registration number, years of practice and specification. TheClinical Officer testified as PW4 on 8/7/2014. He gave his name as John Mwangi, a Senior Clinical Officer at Kerugoya District hospital. He further testified that he examined the complainant EN aged eight years and filled a P3 form. In cross-examination he testified that he did his work professionally.I find that the witness clearly gave his designation as a Senior Clinical Officer and confirmed that he examined the complainant professionally. The appellant did not dispute that he is a Senior Clinical officer who was qualified to fill the P.3 form. The P3 form bears the hospital stamp of Medical Superintendent Kerugoya and is signed by the Clinical Officer. Though he did not give his registration number nor state his years of experience, there is no dispute that he was qualified as a Senior Clinical Officer and could fill the P.3 form. Section 48(1) of the Evidence Act provides:-Opinions of experts“(1)When the court has to form an opinion upon a point of foreign law, or of science or art, or as to identity or genuineness of handwriting or finger or other impressions, opinions upon that point are admissible if made by persons specially skilled in such foreign law, science or art, or in questions as to identity or genuineness of handwriting or finger or other impressions.” 46.This plethora of authorities and the lack of any distinguishing aspect in respect of this particular Clinical Officer leads this Court to hold that there was no reason to ignore the evidence tendered by the Clinical Officer. The Court should limit itself to asking whether or not the person testifying as an expert is peritus, skilled and has adequate knowledge. 47.Applying these principles to the present case, the lower court record indicates that Patrick Mwangi testified as PW1, stating that he was the Certified Clinical Coordinator of Medical Services for Murang’a County and also practiced at the Highway Clinic. He produced a medical report dated 7th January 2017 which he had personally prepared and signed after examining the Appellant, and during cross-examination, his valid practicing certificate was confirmed. 48.The Respondents’ counsel did not challenge his academic qualifications during cross-examination, nor did they put it to him that the report fell outside his professional competence. The learned magistrate’s total rejection of his evidence on the sole ground that he was not a registered medical doctor was therefore a grave misdirection that ignored the clear statutory provisions of Cap 260. 49.However, even if one were to assume for a moment that the trial court was justified in approaching the clinical officer’s expert opinion with visual caution, a deeper and more profound structural error occurred in the magistrate’s final determination. The learned magistrate concluded that the rejection of the clinical officer’s medical report created a total vacuum of proof, leading him to declare that “it follows that there is no proof from a medical expert that the plaintiff suffered injuries alleged herein.” In arriving at this conclusion, the trial court proceeded under the flawed assumption that a personal injury claim can only be sustained by the singular production of a formal, expert medical report. 50.A perusal of the lower court record in the matter before us reveals that the Appellant had successfully introduced a wealth of alternative medical evidence that went completely ignored by the trial magistrate. Specifically, the record contained a duly completed P3 form (pages 14 and 15), a detailed clinical summary (page 16), and consecutive treatment records and progress notes (pages 17, 18, and 19) detailing his immediate emergency admission and subsequent clinical management. 51.These documents, which were properly admitted into evidence, provided an unassailable sub-stratum of medical facts that fully corroborated the Appellant’s testimony regarding his injuries, and since the respondents offered zero evidence in rebuttal, the magistrate’s total dismissal of the claim on quantum was a flagrant error that occasioned a substantial miscarriage of justice. 52.On the issue of damages, the court did not assess the damages ostensibly on the reason that the Plaintiff had not proved the case on the damages suffered.The Appellant brought out the case of Wamae Njenga v Embu Gaturi Coop Society CA 22 of 2024, where the court held that:“On general damages, the magistrate is required to assess damages even when the case does not end in the plaintiff's favour. This serves the purpose of a successful appeal. It was wrong for the Magistrate to fail to do his duty in this case.” 53.This cited case is not accurately representative of the happenings in this matter as in the instant case the trial court had found that the damages had not been proved due to the expertise holding. The trial Court could not have then gone ahead to assess the damages where the same court was holding that the damages had not been proved. It is therefore not correct as submited by the Appellants that damages should be assesed whether the case succeeds or not. That is limited to the liability issue. The Court should quantify damages on suppositions by stating for instance that had the Appellant sufered a fracture this is what we would have awarded. Thus Wamae Njenga was in reference to liability which is what the Court was referring to when it indicated the plaintiff's favour. The Magistrate was therefore right not to assess damages. 54.This Court has the benefit of the Lower Court Record and had perused both the submissions or the Appellant and the Respondents at the trial court. And with the legal burden of proof having been fully discharged on a balance of probabilities, we must turn to the final quantification of the claim, guided by the principles in Stephen Kanini Wang'ondu v The Ark Limited [2016] eKLR. 55.When a trial court fails to perform its duty to quantify a claim, it forces the appellate court to assess damages from the record to avoid an unnecessary remittal. Having perused the uncontroverted receipts at pages 23 to 27 of the record, we find that the special damages of Kshs. 4,720/= were explicitly proved, and taking into account the nature of the fractured chest wall and multiple bruises, an award of Kshs. 500,000/= for general damages is reasonable and consistent with comparable precedents.Ordersa.The appeal succeeds in its entirety, and the trial court’s dismissal of the Appellant’s suit on quantum is hereby set aside.b.Judgment is hereby entered in favor of the Appellant against the 1st, 2nd, and 3rd Respondents jointly and severally as follows:i.General Damages for Pain, Suffering, and Loss of Amenities: Kshs. 500,000/=ii.Special Damages (fully pleaded and proved): Kshs. 4,720/=iii.Total Award: Kshs. 504,720/=c.Interest on the total award shall accrue at court rates from the date of the trial court judgment, being 14th March 2023, until payment in full.d.The Respondents shall bear the costs of this appeal and the costs of the proceedings in the lower court. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 28TH DAY OF MAY 2026. BENARD MURUNGA WAFULAJUDGEDelivered on the virtual platform in the presence of:Ndonga h/b for Mbuthia for the AppellantN/A for the RespondentsAbdirazak Abdi - Court AssistantSigned By/for:THE JUDICIARY OF KENYAHON. JUSTICE BENARD WAFULA MURUNGAMILIMANI HIGH COURTHIGH COURT CIVIL APPELLATE DIVISION DATE: 2026-05-2810:17:20