[2023] KEHC 3541 (KLR)

Kiragu v Gachoki (Civil Appeal 12 of 2014) [2023] KEHC 3541 (KLR) (24 April 2023) (Judgment)

Neutral citation: [2023] KEHC 3541 (KLR)

Republic of Kenya

In the High Court at Kerugoya

Civil Appeal 12 of 2014

RM Mwongo, J

April 24, 2023

Between

Peterson Ndambiri Kiragu

Appellant

and

Danson Muriithi Gachoki

Respondent

(Being an appeal herein from the judgment delivered on August 18, 2010 by Honourable S N Mbungi in)

Judgment

Background 1. The respondent was the conductor in a Toyota Hiace matatu registration number KAQ 028H belonging to the appellant. It was involved in an accident and rolled over on April 28, 2003, at Kwa V area along Makutano- Sagana road. The respondent pleaded having suffered the following injuries:a.Soft tissue injuries on the backb.Cut wound on right legc.Compound fracture of right tibia fibula

2. He complained of the following permanent injuries: Osteo-arthritis of right knee ankle; Chronic pain over fracture site and; and walking with a limp.

3. The trial court heard the evidence of the respondent, Dr Benson Kariuki Njuguna and Sgt Peter Wambua of Sgagna Traffic Police, and closed the case after the defence failed to turn up for the hearing of their defence The court found the defendant/appellant 100% liable and awarded compensation in the amount of Kshs 317,643. 80 made up as follows:a.General damages Kshs 300,000. 00b.Special damages Kshs 17,643. 00

4. Aggrieved, the appellant filed an appeal on the following grounds:a)The Learned Principal Magistrate erred in Law and in fact in finding the Appellant liable contrary to the evidence on record.b)The Learned Principle Magistrate erred in law and facts by not finding that the respondent’s case was not properly corroborated by the contradictory medical report produced.c)The Learned Principal Magistrate erred in law and facts by not finding that the respondent failed to produce P3 Form.d)The Learned Principal Magistrate erred in Law and in facts by not finding that no liability was proved against the appellant.e)The Learned Principle Magistrate erred in Law and in fact in awarding Kshs. 317, 643. 80 /= for general damages for injuries that were not proved by the respondent.

Issues for determination 5. From the grounds of appeal, three issues arise:a.Whether the absence of a P3 discredits the entire case of the respondent;b.Whether the finding of liability on the part of the defence is supportedc.Whether the damages awarded are unreasonable

Analysis and Determination 6. The duty of this court as a first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions see Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles:i.)First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.)In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.)It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time. I now analyse the issues based on the evidence on record

7. PW 1- Danson Muriuki Gachoki testified that he was a conductor in motor vehicle registration number KAQ 028H. On April 28, 2003 they were from Makutano heading to Sagana when the motor vehicle was involved in an accident. It lost control and rolled. He was injured on the head, chest and had a fractured leg. He reported the matter to the police and was issued with a police abstract. He was treated at Kerugoya general Hospital.

8. The next witness for the plaintiff was Dr. Benson Kariuki Njuguna (PW2). He stated that he is a medical specialist based in Kerugoya. He prepared the medical report for the plaintiff on January 12, 2004. He had treated the respondent earlier and found that the plaintiff had:a.sustained injuries on the back right leg.b.had a compound fracture of the right tibia/fibula.

9. The doctor stated that, as part of the treatment of the plaintiff, he put a plaster on the leg. When he prepared the medical report the plaintiff had healed but was walking with a limp. He relied on the initial treatment notes to complete his report, which he produced as PExhibit 2.

10. PW3- No 57643 Sgt Peter Wambua was based at Sagana traffic office. He testified on a police abstract filled on 1st October, 2003 in respect of Danson Mureithi Gachoki. He was a conductor of motor vehicle registration number KAQ 028H when the vehicle was involved in road traffic accident. Peterson Ndambiri was the owner of the motor vehicle. The driver of the motor vehicle was charged and later acquitted under section 215 of the CPC. He produced the Police abstract as exhibit no 3. On cross, examination he said that he was not the investigating officer.

11. As earlier pointed out, the defence did not call any witnesses.

12. In its judgment, the trial court made a determination that the Plaintiff had sufficiently proved that the accident had indeed occurred as pleaded in the Plaint. The trial court was further persuaded by the Plaintiff’s evidence and the police abstract produced in court as exhibit adequate evidence that the plaintiff was the conductor of the said motor vehicle. The driver of the motor vehicle and by extension the defendant, had a duty of care to the plaintiff

13. On the issue of General damages, the trial court relied on the medical report prepared by Doctor Benson Kariuki that showed that the plaintiff sustained a fracture of right tibia/fibula and it had healed well.

14. On the issue of quantum, the trial court noted that the award of Kshs 600, 000 submitted by the plaintiff was on the higher side. The plaintiff in the authority quoted suffered more serious injuries. The court considered, and made an award of Kshs 300,000 as reasonable.

Liability 15. On the issue of liability, the court held that the Appellant was fully liable for causing the accident.

16. The appellant argued that the Plaintiff did not give evidence on how the Appellant or his servant was liable for causing the accident; that the plaintiff failed to state what exactly the Appellant or his servant did or failed to do in order to occasion the accident and purported injuries sustained by the Respondent. There was also no proof that the Respondent was indeed an employee of the Appellant as at the time of the purported accident despite the same having been denied in the defence.

17. The respondent submitted that it clear from the record that on or about 24th April, 2003 he was lawfully travelling in a Motor Vehicle Registration Number KAQ 028H; that he was lawfully employed by the Defendant as the Conductor of the same; that the defendant, his driver and agent so negligently drove, managed and/or controlled the said Motor Vehicle occasioning an accident; and that he was injured on the head, chest and fractured leg whereby he reported to the police and he was issued with a police abstract.

18. The evidence on record is as follows. PW 1 testified that in the year 2003 he was an employee of the defendant. He said he was a conductor in motor vehicle registration number KAQ 028H. On April 28, 2003 they were travelling from Makutano heading to Sagana when the motor vehicle was involved in an accident. It lost control and rolled.

19. PW3- NO 57643 Sgt Peter Wambua, an officer based at Sagana traffic office, testified on a police abstract filled on 1st October, 2003 in respect of Danson Mureithi Gachoki. He stated that the plaintiff was a conductor of motor vehicle registration number KAQ 028H when the vehicle was involved in road traffic accident.

20. On his part, the appellant did not call any witness or supply any evidence to rebut that of the respondent.

21. Section 107 of the Evidence Act (Cap 80) Laws of Kenya provides that:“whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

22. In John Wainaina Kagwe v Hussein Dairy Ltd[2013] eKLR, the Court of Appeal held as follows:“The Respondent never called any witness(es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no fresh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”

23. Further, the appellant relied on their defence which stated that the respondent was negligent for failing to wear a seat belt. However, the trial court held that since the vehicle rolled in the accident, a seat belt could not have prevented the accident from occurring.

24. The Plaintiff’s testimony shows that at that the motor vehicle was involved in an accident, it lost control and rolled and he suffered injuries on the head, chest and fractured his leg; that he reported to the police and he was issued with a police abstract. There is nothing to contravene that testimony.

25. Based on the above analysis, I see no basis for interfering with the trial court’s finding on liabilityWhether the absence of a P3 Form discredits the entire case of the respondent;

26. The appellant argued that the absence of a P3 form was a crucial gap in proving the claim and for purposes of corroborating the injuries as stated in the medical report. This failure to produce the P3 form meant that the respondent failed to prove his case on a balance of probabilities. According to the appellant, this may also be translated to mean that the P3 form had contents that were contradictory to those of the medical report or that there were no injuries at all and hence the reason why the same was not produced in Court.

27. In this case, what was presented was a doctor’s report in which it was indicated that the doctor also relied on the treatment notes. In the case of Titus v Ikonze (Civil Appeal 53 of 2019) [2021] KEHC 345 (KLR) (16 December 2021)“The mere fact that doctors did not testify does not by and of itself vitiate the impact of evidence based on the medical records presented. Secondly, no evidence was adduced to controvert the medical evidence on record. Thirdly, these medical documents/reports have not been impeached as invalid and not genuine as no fraud or forgery has been alleged as to authenticity of these documents.

28. In Carzan. Flowers (K) Ltd v Edwin Ojiambo [2016] eKLR it was stated that:“In the present case, the original treatment card was availed to the doctor. The copy was availed to court and marked for identification. The parties and the court had the benefit of seeing and referring to the said treatment card. I agree with Justice Maraga (as he then was) In Timsales Ltd v Stanley Njihia (Supra) that where a doctor makes reference to a treatment card, unless otherwise proved, the production of the treatment card is not necessary.”

29. The thrust of the authorities suggests that a medical report with or without treatment notes will provide sufficient evidence of an injury; and further, that where a medical report has not been controverted or its admission impugned, the court can rely on the same. In the same vein, I am of the view that the absence of a P3 form does not materially affect the evidence of injury in this case.

Quantum of damages 30. On quantum, it is well settled that the principles upon which this court should interfere with damages by a lower court are those stated in the case of Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini vs A M M Lubia& Another [1998] eKLR:“…. It must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

31. The Appellant submitted that the Respondent’s case was not properly corroborated as the evidence tendered in evidence was contradictory. In particular, the Respondent in his evidence in chief stated that he got injured on the head, chest and sustained a fracture on his leg. In the filed plaint, the Respondent indicated that he had suffered the following injuries: soft tissue injuries on the back, cut wound on the right leg and a compound fracture on the right tibia/fibula. The contradictions therein are so glaring as the only injury that appears to be consistent is the fracture, a factor which the court did not put into consideration while delivering its judgment.

32. PW2- Dr Benson Kariuki Njuguna testified that prepared the medical report for the plaintiff on 12thJanaury, 2004. He had treated the respondent earlier. He sustained injuries on the back right leg. He had a compound fracture of the right tibia/fibula. He produced the medical report as P Exhibit 2.

33. In the case of Beatrice Nthenya Sila v Ruth Mbithe Kitsisa & 3 others [2014] eKLR Kasango J held that:It is obvious the Learned Magistrate believed the Respondents when they gave evidence on the injuries they suffered. Further the Learned Magistrate received the doctor’s evidence about those injuries. And finally the Learned Magistrate must have considered the P3 Form which identified those injured and categorized their injuries. The Learned Magistrate, in view of that cannot be faulted in her judgment.”

34. In the present case, the appellant did not testify at all or produce a medical report or any other evidence that gave a contrary position to that of the respondent.

35. The appellant submit that the amount awarded for general damages was equally excessive of the stated injuries.

36. JMN (Minor suing through next of friend and father WWN v Petroleum and industrial Services Ltd [2014] eKLR, "where the plaintiff sustained more serious injuries inclusive of and was awarded Kshs. 180,000/=in general damages”

37. The Court of Appeal observed inSimon Taveta vs. Mercy Mutitu Njeru [2014] eKLR that:“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

Conclusion 38. Ultimately, for all the reasons stated herein, I am unable to fault the trial court in its determination on both liability and quantum of damages, and see no basis for disturbing the same

39. Accordingly, the appeal fails in its entirety and is hereby dismissed with costs to the respondent.

DATED AT KERUGOYA THIS 24TH DAY OF APRIL,2023. ............................................R MWONGOJUDGEDelivered in the presence of:1. Magee for the Respondent2. Kahiga for the Applicant3. Court Assistant, Murage