[2014] KEHC 1188 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUSIA

CIVIL APPEAL NO.11 OF 2007

KORAN ISAAC …………………………………………………..APELLANT

VERSUS

MARIAM HAMED ……………………………………………RESPONDENT

(An Appeal arising out of the Judgment of E.H Keago RM delivered on 23rd March 2006 in Busia Civil Case No 199 of 2002)

J U D G M E N T

1. At the Subordinate Court at Busia, Miriam Hamed (The Respondent also referred to herein as the Plaintiff) sued Koran Isaac (the Appellant also referred to as herein the Defendant) for Damages for unlawful assault. That claim was successful and the Court found the Defendants wholly liable and made an award of General Damages of kshs.50,000/= and Special Damages of kshs.16,000/= against her. The Defendant is aggrieved by the Decision on both liability and quantum and has preferred this Appeal against it.

2. In the Plaint filed on 20th June 2002, the Plaintiff averred that on or about 4th April 2002, the Defendant without any colour of right, authority, justifiable cause and or excuse unlawfully and viciously assaulted her. The attack left her with serious bodily injuries that were particularized in the Plaint. It was further averred in the Plaint that arising out of the incident the Defendant had been charged with the offence of Assault causing actual bodily harm in Busia Criminal Case No.481/200. . Republic –vs- Koran Isaa.(herein the criminal case)the Plaintiff being the Complainant.

3. In the Defence of 30th June 2002, the Defendant denied the assault and the injuries said to have been sustained by the Plaintiff. In addition, the Defendant stated that she was acquitted of the criminal charges and no criminal liability was established against her. In the end, the Defendant prayed that the Plaintiffs’ claim be dismissed with costs.

4. At the hearing, the Plaintiff told Court that on the night of 4th April 2007 at about 10. 30, she left her house to an outside toilet to answer a call of nature. As she made her way the Defendant, together with Ali Mohamed, Sara and Abdi attacked her. They were armed with timber, motor vehicle tyre, panga and bricks. They used these to inflict injury on her in an assault that is said to have lasted close to one hour. She was rescued from the ordeal by two Police officers.

5. As a result of the injuries the Plaintiff received treatment at Busia District hospital. She produced the treatment notes from the Hospital (Exhibit 1),duly completed P3 Form (Exhibit 4) and a report of a Medico legal opinion on her by Dr Anthony Mubisi (Exhibit 6). In cross-examination she denied being the aggressor. And although she had produced the proceedings in the criminal case she would not explain why the Defendant was acquitted.

6. When the matter came up for further hearing on 23rd February 2006, the Plaintiffs case proceeded exparte as Counsel for the Defendant did not attend Court. Nasir Dahir (PW2, the name incorrectly typed, see handwritten proceedings) is the daughter of the Plaintiff. On that fateful day, she was in the house at 48 Estate when she heard screams. When she opened her window she saw the Defendant, Mohamed Dilo, Sara Bilo and Ahmed Biro beating up her mother. After receiving that evidence, the Court made an order closing both the Plaintiffs’ and the Defence case. This, as noted earlier, was because the Defendant and his Counsel were absent at the hearing. The Defendant in reaction, applied to have the exparte proceedings set aside.

7. In a ruling of 7th August 2006, the Trial Court allowed the Defendant to tender evidence. The Defendant recalls being in her house on 4th February 2001 at around 9. 00 pm, the door to her house ajar. The Plaintiff, a neighbour, stood outside the door and started to quarrel and abuse her. Neighbours and a Village Elder (Odongo) inquired about the ongoings. That as she came out of her house, the Plaintiff tried to attack her but the neighbours intervened and pushed her to her house. She denied assaulting the Plaintiff and told Court that she successfully defended the criminal charges preferred against her.

8. The village elder, Henry Odongo Ouma (DW 2), knows the protagonists here as his neighbours. Between 9. 30 p.m and 10. 00 p.m, on 4th April 2001 he was in the house when he heard screams outside. When he came out he found the Plaintiff standing outside the Defendants door. The two were quarrelling. That he went there and asked the Plaintiff to go to her house. She may have been reluctant because he was forced to pull her to her house but only for her to return back to the house of the Plaintiff this time with her children.

9. That is the rival evidence that was presented to Court. This being a first Appeal the court is called upon to consider the evidence afresh and draw its own conclusion noting that it did not have the opportunity to see or hear the witnesses. The court is not bound to follow the trial court’s findings of fact if it appears that the said court failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence, or if the impression based on the demeanour of the witness is inconsistent with the evidence in the case generally. Selle –vs- Associated Motor Boat Co. Ltd[1968]EA 126.

10. In this Appeal, the Appellant raises six grounds, namely;

The Learned Resident Magistrate erred in law and in fact in his allowing the Respondent’s claim in the face of grave and glaring contradictions in the Respondent’s evidence.

The Learned Resident Magistrate erred in law in not finding that the Respondent had not established her case on a balance of probabilities.

The Learned Resident Magistrate erred in law in finding that the Respondent was competent to produce the Medical Report in evidence.

The Learned Resident Magistrate erred in law and in fact in not finding that the special damages pleaded had not been proved in evidence.

The Learned Resident Magistrate was wrong in disbelieving the uncontradicted testimony of the Appellant without giving any reasons or grounds for the disbelief.

The Judgment of the Learned Resident Magistrate as a whole was against the weight of evidence.”

11. In responding to the Appeal, Counsel for the Respondent proposed that the grounds of Appeal raised three (3) issues. These are:-

Whether the Respondent proved her case on a balance of probabilities

Whether the medical report produced in court was admissible in evidence

Whether the appellant is liable to pay the Respondent special damages pleaded in paragraph 4 of the plaint.

In the light of the Grounds of Appeal, I agree with the framing of the issues.

12. The Appellants Counsel submitted the Plaintiffs story was “so unconvincing and unrealistic that it should not be believed.” Let me examine that story in some detail. At the material time, both the Plaintiff and her daughter (PW2) were resident in Section 48 Estate, Busia Town. That on the night of 4th April 2001, the Plaintiff was attacked by Ali Mohamed. Sara, Abdi and the Defendant. That they were armed with timber (presumably a wooden plank), motor vehicle tyre, panga and bricks. They assaulted her viciously and the assault lasted for about one hour. That as a result of the serious injuries, she was admitted at Busia District Hospital for 2 days.

13. It is true, as argued by the Appellant, that PW1 did not give a detailed account of the incident when she testified before the Civil Court. In her lean testimony she said,

“The defendant was with Ali Mohamed, Sara and Abdi. They beat me using timber, motor vehicle tyre, panga, bricks. They al(sic) beat me using those above weapons. They beat me for about 1 hour One AP and one regular police came and rescued me. I tried to rescue myself. I was just alone. The neighbours came also including Ibrahim. He didn’t assist me.”

In order to test the veracity of that evidence, this Court must not only compare it with the evidence of PW2 but also of the evidence of PW1 and other witnesses in the proceedings in the criminal case which were produced in Court.

14. Before the Criminal Court, the Plaintiff stated the role of each of h er assailants. The accused daughter, Sara hit her with a panga on the right shoulder and cut her on her left ring finger. The accused’s son Mohammed hit her with a stick on her left thumb. Ali Noor put a tyre on her neck. Abdi hit her with a piece of brick. While the Defendant hit her with a metal on her forehead. These details were no doubt useful for purposes of the Prosecution achieving the threshold of proof in the criminal trial and not much criticism can be made of the Plaintiff for being less thorough in the tortious claim.

15. The Appellants Counsel argued that at the time of the assault, the Plaintiff was alone and so there would be no other eye witness. In what context did the Plaintiff say she was alone? She testified;

“The defendant was with Ali Mohamed, Sara and Abdi. They beat me using timber, motor vehicle tyre, panga, bricks. They al(sic) beat me using those above weapons. They beat me for about 1 hour One AP and one regular police came and rescued me. I tried to rescue myself. I was just alone. The neighbours came also including Ibrahim. He didn’t assist me.”

My understanding is that she was by herself at the time of assault. Taken in that context it may be a little stretched to conclude that she meant that no other person witnessed the assault.

16. This Court has compared what PW2 told the two Courts in respect to the incident. Her evidence before the Civil Court was simply,

“I heard screams and when I opened the window I saw the above named people beating my mother.”

The named people were Mohamed, Sara, Ahmed, Abdi and the Defendant. In the criminal trial she was more detailed,

“I was in my house with my child and I heard a person talking outside as if quarreling. I opened the window. I went out and I found it was the accused with Sarah her daughter and Alinoor Mohammed his sone. I found all of them assaulting Mariam Ahmed. (PW1) in the compound. I saw the accused hit PW1 with metal on her head. “

Those two accounts are materially similar.

17. The story that emerges from the Defence is that there was a verbal confrontation between the Plaintiff and the Defendant. The Plaintiff being the aggressor stood at the door of the Defendant’s house and abused her. That the Plaintiff attempted to attack the Defendant but she was restrained by the neighbours. That the Defendant never assaulted the Plaintiff. The Defendant and her witness were consistent in their evidence. Up to that point, it would be fair to say that accounts of both the Plaintiff and the Defendant are evenly matched.

18. There is at least some agreement, that on the night of 4th April 2001 between 9. 30 – 10. 00p.m there was a confrontation of sorts between the Plaintiff and the Defendant. Was it physical and violent with the Defendant being the aggressor as alleged by the Plaintiff or was it simply a verbal assault by the Plaintiff as alleged by the Defendant? If the confrontation left the Plaintiff with physical injuries then the Plaintiff’s account would be more believable. That would tilt the scales in her favour.

19. In proof of her injuries, the Plaintiff produced a medical chit from Busia District Hospital where she had been treated and a P3 Form. Looking at the medical chit (see original file) dated 4th April 2001, the medical officer observed,

“…..clothing wet blood stains, cut wound lacerated wound forehead.”

At the Criminal trial, Sgt. Peter Mutia who visited the scene soon after the incident told Court,

“I went and saw the Complainant had falled (sic) down near her doors. She was bleeding from her head.”

He maintained this line in cross-examination.

“I did not find you fighting with the Complainant. I found the Complainant bleeding from her head.”

20. If one was to take the evidence of the Plaintiff and her daughter, the medical chit from the hospital and what Sgt Mutia told Court at the criminal trial, one draws the conclusion that, on a balance of probabilities, the Plaintiff had proved that she sustained injuries on the night of 4th April 2001. Those injuries were inflicted on her by the Defendant in the company of others.

21. This Court must now determine whether the medical report (not chit) produced in Court was admissible in evidence. The medical report was produced by the Plaintiff in the course of the exparte proceedings of 23rd February 2006. Of course, she was not the maker of that document. The argument by the Appellants Counsel is that the Trial Magistrate erred in admitting the production of the medical report by an incompetent witness in contravention with the provision of 35 the Evidence Act. And to the Counsel’s credit this is an argument that he first took up in his final submissions before the Trial Court.

22. For this proposition, Counsel asked this Court to give regard to the Decision in Nyeri Civil Appeal No.192 of 1996 Thuraira Karauri –vs- Agnes Ngechewhere the Court of Appeal held,

“Secondly, the medical report prepared by Dr Maina Ruga was produced by the Plaintiff herself in breach of the clear provisions of Section 35 of The Evidence Act (cap 80 Laws of Kenya). it was not produced by consent. Dr. Ruga should have been called to produce it. The Judge clearly erred in admitting it.”

The Learned Magistrate sought to distinguish that decision as follows:

“The said authority is distinguishable in that in that case of the plaintiff produced the Medical report, she was cross examined on it and she was not able to explain it. It is quite different herein. The medical report was produced without any objection, neither were any questions put on the plaintiff in that case. Under Sections 35 such documents may be accepted and Section 36 of Cap 80 provides on the condition or weight to be attached to that evidence.”

Counsel, without elaborating, submitted that the Trial Magistrate’s reasoning was erroneous.

23. For the Respondent it was argued that the Trial Court was correct in admitting the medical report as there was no objection to its production. That in any event there were treatment notes from Busia District Hospital that proved that the Plaintiff had indeed suffered some injuries.

24. Let me recall the circumstances under which the Plaintiff produced the medical report. It was on 23rd February 2006 when the Plaintiff proceeded exparte in the absence of the Defendant or his advocate. It is therefore not entirely accurate to argue, as did the Plaintiff’s Counsel, that the Defendant did not object to its production. The truth is that the Defendant was not available to object. The crucial issue is whether the provisions of Section 35 of The Evidence Act could be overlooked merely because the proceedings were Exparte. That Section provides:

“35. (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say-

if the maker of the statement either-

had personal knowledge of the matters dealt with by the statement; or

where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and

(b) if the maker of the statement is called as a witness in the proceedings:

Provided that the condition that the maker of the stamen shall be called as a witness need not be satisfied if he is dead, or cannot be found, or is incapable of giving evidence or if his attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable.”

From the record of the Trial Court the medical report was produced by the Plaintiff who was not a maker thereof. Secondly, there was no proof that the circumstances contemplated in the provisio to that Section existed so as to exempt the maker.

25. Considering somewhat similar circumstances where a Plaintiff proceeding exparte purported to produce medical reports which he did not author, the Court of Appeal in Nyeri Civil Appeal No.243 of 1998 Mohammed Musa & Another –vs- Peter Mailanyi & Another[2000] eKR held,

“He placed much reliance on Section 48 of The Evidence Act Cap 80 Laws of Kenya and wondered on what basis the court was being called upon to form an opinion when the medical reports were tendered by a person who was neither the maker of them nor an expert. The learned Judge agreed with Mr Miller. He held, and in our view quite properly so, that the plaintiff was under a duty to summon he makers of the reports if he wanted the court to assess the degree of his injuries and to award damages appropriate to them.”

26. On the basis of the decisions in Karauri (supra) and Musa (supra), unless there is consent of the parties or the existence of the circumstances in the provisio to Section 35, a medico-legal report, just like any other expert opinion, must be tendered by its maker. For this reason I would hold that the Learned Magistrate fell into error when he allowed the Plaintiff to produce the Medio-Legal Report prepared by Dr Antony Mubisi.

27. Did that necessarily mean that the Plaintiff had failed to prove her injuries? I do not think so, because the Plaintiff had produced the medical chit issued to her at Busia District Hospital. She had proved that she had sustained a cut wound to her forehead. What she may not have proved was the prognosis of the injuries that had been captured by the medical report. In the absence of the medical report she could not have proved the probable future course and outcome of the injuries she suffered: Nevertheless, on the basis of the medical chit she was able to prove that she had suffered a cut wound to her forehead. In my own assessment the General Damages of ksh.50,000/= awarded by the Trial Court, albeit considering the inadmissible medical report, is a fair award for the cut wound suffered by the Plaintiff. I would not disturb that award.

28. A less contentious issue must be the award on Special Damages. The Learned Magistrate made an award of ksh.16,000/= comprised of ksh.4000/= for the Medical Report and ksh.12,000/= being the Advocates fees for watching brief in the criminal trial. Having found that the medical report was not properly before Court, I would also find that payment made for it would not be a recoverable item. In respect to the claim of ksh.12,000/=, the Plaintiff contradicted herself. In her evidence in Chief she said,

“I had an Advocate who was watching brief Mr. Wanga (now deceased). I paid him ksh.12,000/=. These are the receipts I used to pay fees Ex.3 (a) and (b).”

but in cross examination,

“I want Koran to pay me ksh.12,000/= as costs. The criminal case was conducted by the police. I didn’t pay anybody money on the criminal case proceedings. I don’t know anything about the claim of ksh.20,000/=.”

There was no re-examination of this witness so as to explain this overt contradiction and I would agree with the Appellants Counsel that this claim was not proved on a balance of probabilities.

29. The result is that the Appeal only succeeds on its challenge to the order by the Trial Court on Special Damage, it is otherwise fails. The order of The Trial Magistrate of Special Damages of ksh.16,000/= is hereby set aside. As to the costs of this Appeal there has been substantially more failure than success. The Respondent shall have ¾ costs of the Appeal.

F. TUIYOTT

J U D G E

DATED, DELIVERED AND SIGNED AT BUSIA THIS 12TH DAY OF NOVEMBER 2014.

IN THE PRESENCE OF:

KADENYI ………………………………………………COURT CLERK

…………………………………………………………FOR APPELLANT

………………………………………………………FOR RESPONDENT