https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12391

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E188 OF 2024** **MARGARET GAKENYI NYAGA…………………………………………….APPELLANT** **VERSUS** **JAMES LUSWETI MAKOKHA...…………………………………………RESPONDENT** *(Being an Appeal from the judgement and decree of* ***Hon. M. Olonyi,*** *Resident Magistrate, delivered on* *26th September, 2024 in* *Tamu PMCC No. E117 of 2023).* **JUDGEMENT** 1. **THE APPEAL.** 2. This appeal emanates from the judgement and decree of **Hon. M. Olonyi,** Resident Magistrate, delivered on 26th September, 2024 in *Tamu PMCC No. E117 of 2023.* 3. The Appellant has presented 9 grounds of appeal, vide the memorandum of appeal dated 26th September, 2024, which I reproduce as follows: 4. **The learned trial Magistrate erred in law and fact by failing to make an award for damages in the presence of proof of injury, loss and/or damage suffered by Appellant as a result of the accident occasioned by the Respondent who had as а matter of fact, admitted blame by consenting to liability.** 1. **The learned trial Magistrate erred in law and fact by failing to appreciate that the burden of proof in civil matters is on a balance of probability and not beyond reasonable doubt and therefore, that the Appellant had discharged the burden of proof placed on it in contemplation of the express and mandatory provisions of *Sections 107, 108* and *109* of the *Evidence Act,* to the extent of the injuries sustained as a result of the accident which demanded that an award on general damages be made.** 2. **The learned trial Magistrate erred in law and in fact by not properly, as expected and/or dutifully analyzing and/or considering the material/evidence on record in this case, the P3 form, as well as the applicable principles of law, evidence and/or assessment of damages while arriving at her decision/judgement on assessment of general damages.** 3. **The learned trial Magistrate erred in law and in fact by attaching less or no weight to the evidence of PW2 as well as the injuries as attributed in the P3 form produced as Exhibit 3 and ultimately, failing to make an award for general damages.** 4. **The learned trial Magistrate erred in law and in fact by holding, implying and/or suggesting that the decision as to what injuries the Appellant suffered was a matter to be determined by treatment documents as opposed to a P3 form being a public and mandatory document.** 5. **The learned trial Magistrate erred in law and fact by failing to consider available case law that is well related to the circumstances of the Appellant’s case at hand thereby ignoring the relevant guiding facts to reach a fair and reasoned determination on the award of general damages, and thereby erroneously finding against the Appellant.** 6. **The learned trial Magistrate erred in law and fact by failing to appreciate that the only available option in the circumstances was to make an award for general damages based on the injuries listed on the P3 form.** 7. **The learned trial Magistrate erred in law and in fact by failing to appreciate the express and mandatory provisions of *Section 27* of the *Civil Procedure Act* on the principles guiding the award of costs and thereby failing to make an award for the same.** 8. **The learned trial Magistrate erred in law and fact by failing to appreciate that the Appellant had a right to a fair hearing and that a court is a neutral player while adjudicating on issues between parties and in turn, conducting the trial in a manner that clearly depicted bias against the Appellant which also appears to be the manner in which the judgement was written.** 9. The Appellant proposes that this appeal be allowed, and that the judgement and resultant decree of the trial court be set aside in their entirety and substituted with a finding that the Appellant adduced unchallenged and uncontroverted evidence establishing her case on a balance of probabilities. 10. The Appellant further urges this Honourable Court to assess and award general and special damages, together with the costs of this appeal and of the proceedings before the trial court. 11. **THE DUTY OF THIS COURT.** 12. This being the first appellate court, I am required under *Section 78* of the *Civil Procedure Act* and as was espoused in the case of ***Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123*** to reassess, reanalyze and reevaluate the evidence adduced in the trial court and draw my conclusions while bearing in mind that I did not see or hear the witnesses when they testified. 1. In ***Selle***, **Sir Clement De Lestang**observed that: ***“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.*** ***However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly 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 a witness is inconsistent with the evidence in the case generally.”*** 1. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of ***Peters v Sunday Post Limited [1958] EA 424*** in which it was held that 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; and*** ***iii. 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.”*** 1. **BACKGROUND OF THE DISPUTE.** 2. A brief history of the matter before the lower court is that the Appellant (the Plaintiff before the lower court) filed the suit jointly against Darson Trading Limited (the 1st Defendant before the lower court) and the Respondent (the 2nd Defendant before the lower court) vide a plaint dated 10th October, 2023 seeking, *inter alia,* general damages, special damages, costs of the suit and interest arising out of a road traffic accident that is said to have occurred on 5th April 2022 along the Kericho–Awasi Road at Pala Area involving motor vehicle registration number KCV 680E and motor vehicle registration number KAE 293T. 3. The Appellant pleaded that at all material times, Darson Trading Limited was the registered owner of motor vehicle registration number KCV 680E, make Toyota Voxy, while the Respondent was the driver thereof. It was averred that on the material day at about 8:00 p.m., the Appellant was lawfully travelling aboard the said motor vehicle when the same was negligently, recklessly and carelessly driven, causing it to lose control and collide with motor vehicle registration number KAE 293T. 4. The Appellant attributed the occurrence of the accident to the negligence of Darson Trading Limited and the Respondent and set out particulars thereof, including driving at an excessive speed in the circumstances, failing to keep proper control of the motor vehicle, failing to keep a proper lookout, failing to brake, slow down or swerve to avoid the accident and failing to adhere to the provisions of the *Traffic Act* and the *Highway Code.* The Appellant further invoked the doctrine of *res ipsa loquitur.* 5. As a result of the accident, the Appellant pleaded that she sustained various injuries, namely a deep cut wound on the head, bruises on both upper arms and legs, swelling and tenderness on the upper limbs and neck, as well as tenderness and bruises on both elbow joints and legs. She averred that she suffered loss and damage and continued to incur medical expenses arising from the accident. 6. The Appellant also pleaded special damages in the sum of Ksh.5,950/- comprising Ksh.5,000/- for a medical report and Ksh.950/- being logbook search fees. She averred that despite demand and notice of intention to sue having been issued, Darson Trading Limited and the Respondent had failed, refused and/or neglected to compensate her, hence the institution of the suit before the lower court. 7. In their joint defence dated 29th October, 2023, Darson Trading Limited and the Respondent resisted the Appellant’s suit and denied, *in toto,* the allegations contained in the plaint. They denied ownership and/or control of motor vehicle registration number KCV 680E and further denied that the Respondent was the driver thereof at the material time, thereby putting the Appellant to strict proof. 8. The two Defendants further denied that the accident occurred in the manner pleaded by the Appellant, namely that on 5th April, 2022 along the Kericho–Awasi Road at Pala Area, motor vehicle registration number KCV 680E lost control and collided with motor vehicle registration number KAE 293T, thereby occasioning injuries to the Appellant. They equally denied that the Appellant sustained any loss, damage or injuries arising from the alleged accident and put her to strict proof thereof. 9. The two Defendants specifically denied all particulars of negligence attributed to them in the plaint, including allegations that the motor vehicle was driven at an excessive speed, without due care and attention and in a manner that caused the accident. They further denied the applicability of the doctrine of *res ipsa loquitur* as well as reliance on the *Traffic Act* and the *Highway Code.* 10. In the alternative and without prejudice to the foregoing denials, the two Defendants before the trial court – Darson Trading Limited and the Respondent – pleaded that if any accident occurred as alleged, then the same was wholly and/or substantially caused by the negligence of the driver and/or owner of motor vehicle registration number KAE 293T. In this regard, they attributed negligence to the said driver, including driving at an excessive speed, veering onto the lane of motor vehicle registration number KCV 680E, failing to keep a proper lookout, failing to brake or avoid the accident, driving under the influence of alcohol and failing to adhere to the provisions of the *Traffic Act* and the *Highway Code*. 11. The two Defendants further pleaded, in the alternative, that the accident was caused and/or substantially contributed to by the Appellant’s own negligence. Particulars thereof included failure to sit carefully, failure to use safety gadgets, distracting the driver, travelling as an unlawful passenger and failing to take reasonable steps to avoid the accident. They also pleaded that the accident, if any, was occasioned by bad road conditions for which they could not be held liable. 12. Additionally, the Defendants challenged the jurisdiction of the trial court and indicated their intention to raise a preliminary objection contending that the plaint and verifying affidavit were fatally defective and liable to be struck out. Consequently, they prayed for the dismissal of the Appellant’s suit with costs. 13. **THE EVIDENCE BEFORE THE TRIAL COURT.** 14. By a consent agreement dated 20th June, 2024, the parties herein compromised the issue of liability and recorded judgement in favour of the Appellant against the Respondent on liability apportionment of 20% against the Appellant and 80% against the Respondent. Consequently, Darson Trading Limited was effectively exonerated from liability. 15. The Appellant testified and adopted the contents of her statement dated 10th October, 2023 as part of her evidence in chief. She stated that on 5th April, 2022 at about 8:00 p.m., she was lawfully travelling aboard motor vehicle registration number KCV 680E along the Kericho–Awasi Road when, upon reaching Pala Area, the said motor vehicle was recklessly and carelessly driven, lost control and veered off its lane before colliding with motor vehicle registration number KAE 293T, thereby causing her severe injuries. 16. She further testified that following the accident, she was initially rushed to Awasi Mission Hospital and was thereafter transferred to Ahero County Hospital where she received treatment. It was her testimony that she later learnt that motor vehicle registration number KCV 680E belonged to Darson Trading Limited and the Respondent herein. She stated that she sustained the injuries particularized in the plaint and treatment documents produced before the trial court and that she had continued to seek medical attention arising from the injuries sustained in the accident. 17. The Appellant further testified that the accident was reported at Awasi Police Station where a police abstract and P3 form were issued. She blamed the driver of motor vehicle registration number KCV 680E for the accident, stating that he dangerously overtook other vehicles when it was unsafe to do so, thereby causing the vehicle to veer off its path and collide with motor vehicle registration number KAE 293T. Consequently, she prayed for compensation for the injuries sustained, special damages incurred and costs of the suit. 18. The Appellant produced the following documents in support of her case: * Copy of the Appellant’s identity card * Police abstract. * Invoice from Piche Technologies for the sum of Ksh.950/-. * NTSA invoice for the sum of Ksh.550/-. * Motor vehicle copy of records of motor vehicle reg no. KCV 680E. * Bundle of receipts totaling Ksh.5,950/-. * Letter of demand dated 13th September, 2023 * Service email to the insurance company. * Service document upon Defendants by WhatsApp. 1. Upon being cross examined, the Appellant told the trial court that she was 42 years old and reiterated that she was seeking compensation in respect of medical expenses incurred and general compensation for the injuries sustained. 2. The Respondent called **Nelson Mandela** (PW2) as her witness. In his testimony, PW2 told the trial court that he was a clinical officer working at Ojolo Sub-County Hospital and was registered with the Clinical Officers Council under registration number 11967. He stated that he knew the Appellant and had treated her following a road traffic accident and prepared the treatment notes and P3 form which he produced in court as exhibits. 3. PW2 testified that the Appellant, aged about 40 years, was taken to the hospital after being involved in a road traffic accident reported to have occurred on 5th April, 2022 at about 1:00 a.m. He stated that she presented with torn clothes stained with blood and dirt, appeared anxious and in pain and was not under the influence of alcohol or drugs. He further testified that she had a cut on the left side of the head, bruises and swelling on both upper limbs, bruises and swelling on the legs and tenderness on the chest region. He stated that the injuries were consistent with blunt and sharp trauma arising from a road traffic accident. 4. PW2 further testified that he cleaned, stitched and dressed the Appellant’s wounds, administered pain medication and tetanus injections and thereafter completed the treatment process. He stated that the Appellant was treated and discharged after receiving medical attention and that a P3 form was later completed and signed by him, though he noted that some details such as certain dates were not fully filled in on the form, indicating that it was completed after initial treatment. The witness produced the P3 form as an exhibit in support of the Appellant’s case. 5. It is instructive from the record of the trial court that the attempt by PW2 to produce a copy of the treatment notes was rejected by the court, following an objection by the Respondent’s Counsel, whereby the learned trial Magistrate rendered herself as follows: ***“The witness has stated that the original are in the hospital. The rules of evidence are clear that a document shall be produced in its original form and by the maker unless in exceptions stipulated by law none of which has been adhered to herein. In light of that the objections by counsel for defendant is sustained.”*** 1. Upon being cross-examined, PW2 stated that he was a qualified clinician and confirmed his registration details. He testified that the Appellant was first treated and later returned to the facility after reporting to the police station, whereupon the P3 form was filled. He stated that no additional diagnostic tests such as blood pressure or diabetes screening were conducted. 2. PW2 further stated that while the Appellant had injuries consistent with a road traffic accident, including a cut wound on the left parietal region of the head, swelling, bleeding, bruises and tenderness on various parts of the body, he did not document injuries to the neck or elbow joints. He explained that treatment notes were used to complete the P3 form and that verification of injuries would be found in those notes. He maintained that the Appellant was treated and discharged within approximately two hours after medical attention was provided. 3. **THE TRIAL COURT’S FINDINGS.** 4. In its judgement delivered on 26th September, 2024, the trial court observed that the parties had entered into a consent judgement on liability, thereby leaving only the issue of assessment of quantum for determination. 5. In determining quantum, the court considered the evidence of the Appellant, who testified that she sustained injuries as set out in the treatment documents and the P3 form dated 8th April, 2022, produced through PW2, the clinical officer. 6. The court noted that the P3 form indicated injuries comprising a cut wound, bruises and swelling on the arms and legs, while PW2 in cross-examination added that the Appellant had also suffered a head injury, chest injuries, bruises on the upper limbs and legs and that the injuries were consistent with a road traffic accident involving blunt and sharp force trauma. 7. The trial court further observed that PW2 stated he relied on treatment notes in completing the P3 form, yet the said treatment notes were not produced in evidence. The court noted that although counsel for the Appellant sought time to avail the said treatment notes, they were ultimately not produced. The court held that, as a result, the basis upon which the P3 form was completed was not properly established through primary medical records. 8. The trial court found that although the P3 form had been produced, it was filled based on treatment notes which were not before the court, and not on direct examination of the alleged injuries. Consequently, the court held that quantum had not been proved and dismissed the claim for general damages on that basis. 9. Notwithstanding the above finding, the court, as required, proceeded to assess damages, for purposes of completeness and appellate guidance. The trial court therefore proceeded to assess general damages and, considering the injuries pleaded and comparable authorities, would have awarded a sum of Ksh.100,000/- for general damages had the claim been proved. 10. With respect to special damages, the court found that only Ksh.550/- had been strictly proved through receipts relating to NTSA search fees, and awarded the same as special damages. 11. Ultimately, the court entered judgment on liability in favour of the Appellant against the Respondent at the agreed ratio of 80:20, awarded special damages of Ksh.550/-, and, after apportionment, entered judgement in the sum of Ksh.440/- in favour of the Appellant as special damages. 12. **THE APPELLANT’S SUBMISSIONS.** 13. In her submissions, the Appellant’s faults the trial court for allegedly failing to properly apply the law on burden of proof as set out under *Sections 107, 108, 109* and *112* of the *Evidence.* It is contended that the Appellant discharged the burden of proof on a balance of probabilities, yet the trial court declined to award general damages despite finding that injuries were pleaded and partially supported by medical evidence. 1. It is further submitted that the court erred in failing to appreciate that proof in civil cases is on a balance of probabilities and not beyond reasonable doubt. 2. The Appellant frames three issues for determination: whether the Appellant proved injuries on a balance of probabilities; whether she was entitled to an award of damages; and whether she was entitled to costs. 3. In addressing these issues, the Appellant relies on *Sections 107, 108, 109* and *112* of the *Evidence Act* on the burden of proof and special knowledge of facts. It is submitted that the burden lay upon the Appellant to prove her claim, and that she discharged the same through both oral and documentary evidence. 4. The Appellant submits that she testified as PW1 while PW2, **Nelson Mandela,** a clinical officer, testified that he treated her on 5th April, 2022 and later filled the P3 form on 8th April 2022. She points out that PW2’s evidence was that the Appellant had suffered a cut wound on the head, bruises and swelling on the upper limbs and legs, chest tenderness and other soft tissue injuries consistent with a road traffic accident. She adds that PW2 further testified that he administered treatment including cleaning, stitching, analgesics and tetanus injections and assessed the injuries as “harm.” 5. It is further submitted that PW2 produced the P3 form while other documents including the police abstract, NTSA records, demand letter and proof of service were produced by the Appellant herself as exhibits. 6. It is argued that although treatment notes were marked for production, they were not ultimately admitted due to objection by the Respondent’s counsel, which was upheld by the trial court. The Appellant contends that the treatment documents had been filed and served and were part of the record, and their non-production should not have been fatal to the claim. 7. The Appellant submits that the trial court erred in holding that injuries were not proved merely because treatment notes were not produced, arguing that treatment notes are not the only mode of proving injuries. Reliance is placed on the definition of evidence in *Black’s Law Dictionary* to support the proposition that evidence may be oral, documentary or physical. 8. In support of this position, the Appellant relies on several authorities. 9. In ***Carolyne Indasi Mwonyonyo v Kenya Bus Service Ltd [2012] eKLR*,** it was held that there is no rule requiring treatment notes or medical reports as the only proof of injuries and that oral evidence may suffice. 10. In ***Henry Binya Oyala v Sabera O. Itira [2011] eKLR*,** the court held that medical reports are not mandatory and courts should assess damages where liability is admitted. 11. In ***Ben Ocharo & Others v Kenya Farmers Co-operative Society, Kisii HCCA No. 91 of 2006*,** the court held that a victim’s testimony is a primary and valuable source of evidence and should not be disregarded merely because it is not supported by initial treatment records. 12. In ***Peterson Gutu Ondieki v Daniel Njigua Gichohi HCCC No. 4018 of 1990*,** it was held that non-production of a medical report is not fatal where injuries are otherwise proved. 13. The Appellant also relies on *Richard Kuloba, Casebook on Measure of Damages for Bodily Injuries,* for the proposition that a victim’s own account is a primary source of evidence and may complement medical reports. 14. It is submitted that the P3 form and medical evidence clearly demonstrated that the Appellant sustained injuries including deep cut wounds on the head, tenderness on the chest, bruises and swelling on the upper and lower limbs, all of which were consistent with a road traffic accident and remained uncontroverted by the Respondent. 15. The Appellant further submits that no contrary medical evidence was tendered by the Respondent. 16. The Appellant places reliance on the cases of ***Eastern Produce (K) Ltd – Chemomi Tea Estate v Bonfas Shoya [2018] eKLR*** and ***Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR*** on the standard of proof in civil cases, submitting that where two probabilities exist, the court must adopt the more probable version on a balance of probabilities. 17. It is therefore submitted that the trial court erred in finding that quantum was not proved, as the evidence on record was sufficient to establish injuries and entitlement to general damages. 18. The Appellant urges the Court to find that the evidence adduced was unchallenged and uncontroverted and that the trial court misdirected itself in treating treatment notes as the only acceptable proof of injuries. 19. On quantum, the Appellant relies on the authorities of ***Otieno v Mwea County Medical Centre Ltd & 2 others (Civil Appeal No. 49 of 2021) [2023] KEHC 22474 (KLR)*,** ***Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR*,** and ***Hassan Farid & another v Sataiya Ene Mepokari & 6 others [2018] eKLR*,** where comparable awards for soft tissue injuries ranged between Ksh.200,000/- and Ksh.250,000/-. 20. Taking into account inflation, comparable authorities and lapse of time, the Appellant submits that a sum of Ksh.300,000/- would be reasonable compensation for general damages for pain, suffering and loss of amenities. 21. On costs, the Appellant relies on *Section 27* of the *Civil Procedure Act* which provides that costs follow the event unless the court for good reason orders otherwise. Reliance is placed on the cases of ***Super Marine Handling Services Ltd v Kenya Revenue Authority Civil Appeal No. 85 of 2006, Devram Manji Daltani v Danda [1949] 16 EACA 35*** and *Halsbury’s Laws of England (4th Ed, Re-issue 2010), Vol. 10 para. 16,* which emphasize that costs are discretionary but ordinarily follow the event and must be exercised judicially. 22. It is submitted that since the Appellant instituted the suit due to the Respondent’s negligence and incurred legal costs both at trial and on appeal, she is entitled to costs of the suit and the appeal. 23. The Appellant therefore urges this Court to allow the appeal, set aside the trial court’s decision on quantum and substitute it with an award of general damages assessed at Ksh.300,000/- together with costs and interest. 24. **THE RESPONDENT’S SUBMISSIONS.** 25. On his part, the Respondent submits that the appeal is devoid of merit and does not satisfy the well-settled principles upon which an appellate court may interfere with the findings of a trial court. The Respondent contends that an appellate court may only interfere where the trial court applied the wrong principles of law, misapprehended the evidence, or reached findings unsupported by the evidence on record. 26. It is submitted that the Appellant has failed to demonstrate any misdirection by the learned trial Magistrate, any misapprehension of the evidence, or that the impugned decision was unsupported by the evidence. The Respondent therefore urges this Court to uphold the judgement of the trial court. 27. The Respondent further submits that the Appellant failed to discharge both the legal and evidential burden of proof as required under *Sections 107, 108* and *109* of the *Evidence Act.* It is argued that the central question on appeal is whether there was sufficient evidence before the trial court to prove the injuries allegedly sustained by the Appellant and thereby justify an award of general damages. According to the Respondent, there was no evidence on a balance of probabilities upon which the trial court could properly assess or award damages. 28. On the evidence of the Appellant (PW1), the Respondent submits that she did not adduce any meaningful evidence regarding the injuries she allegedly sustained. Although PW1 adopted her witness statement, the statement merely referred generally to injuries allegedly contained in medical documents attached to the plaint without identifying or describing the injuries themselves. 29. It is further submitted that, during examination-in-chief, PW1 gave no oral testimony describing her injuries, while in cross-examination she admitted that she did not have her statement or the medical documents with her, was unsure whether her statement contained particulars of the injuries and indicated that her advocate would assist her in answering those questions. 30. The Respondent argues that these admissions demonstrate that PW1 failed to place before the court the primary evidence regarding her injuries and failed to identify the medical documents upon which she intended to rely. 31. The Respondent maintains that, since the injured person is the primary source of evidence concerning the nature and extent of the injuries suffered, the absence of such evidence left the trial court without a proper factual basis upon which to assess damages. 32. In support of that proposition, reliance is placed on ***Judith Otieno v Mwea County Medical Center Ltd & 2 Others, Nakuru Civil Appeal No. 49 of 2021,*** wherein the court emphasized that the injured plaintiff's own account of the injuries sustained constitutes valuable primary evidence and complements the medical evidence. 33. The Respondent submits that the authority supports the proposition that a Plaintiff ought to give an account of the injuries suffered and that, in the present case, the Appellant failed to do so. 34. With respect to the evidence of PW2, the clinician, the Respondent submits that his testimony did not cure the deficiencies in the Appellant’s case. It is argued that PW2 produced a P3 form which had not been identified by PW1 and whose authenticity and reliability were seriously challenged during cross-examination. 35. Particular reliance is placed on PW2’s admission that the second page of the P3 form was undated, that the Appellant merely appeared *“sick looking,”* which could have resulted from numerous causes, and that he completed the P3 form from treatment notes, which he acknowledged constituted the primary documents for verification of the contents of the P3 form. The Respondent therefore submits that PW2’s evidence did not establish the Appellant’s injuries on a balance of probabilities. 36. The Respondent further distinguishes the decision in ***Judith Otieno v Mwea County Medical Center Ltd & 2 Others*** from the present case and submits that, unlike in the present appeal, the Plaintiff in that case personally testified regarding the injuries sustained, thereby providing the court with primary evidence upon which to assess damages. 37. It is also pointed out that the medical documents in that case were produced by consent and were therefore not subjected to cross-examination, whereas in the instant matter the medical evidence was challenged during trial. 38. On that basis, the Respondent contends that the authority does not assist the Appellant but instead reinforces the requirement that a claimant must adduce primary evidence of the injuries alleged. 39. The Respondent accordingly prays that the appeal be dismissed with costs. 40. **ISSUES FOR DETERMINATION.** 41. Having carefully considered the record of appeal, the judgement of the trial court, the grounds of appeal, the rival submissions of the parties and the applicable law, I am of the considered view that the following issues arise for determination: 42. Whether the learned trial Magistrate erred in law and fact in finding that the Appellant had failed to prove the injuries she sustained on a balance of probabilities. 43. Whether the Appellant established her entitlement to an award of general damages. 44. If the answer to (b) above is in the affirmative, what is the appropriate award of general damages. 45. Who should bear the costs of the appeal and the proceedings before the trial court. 46. **ANALYSIS AND FINDINGS.** 47. The first issue for determination is whether the learned trial Magistrate erred in finding that the Appellant had failed to prove her injuries. 48. The principal issue arising in this appeal is whether the learned trial Magistrate properly evaluated the evidence relating to the injuries sustained by the Appellant. 49. Although liability had been compromised by consent at the ratio of 80:20 in favour of the Appellant, the trial court declined to award general damages upon finding that the Appellant had failed to prove the injuries complained of because the treatment notes upon which the P3 form had been prepared were not produced in evidence. 50. The burden of proof in civil proceedings is governed by *Sections 107, 108* and *109* of the *Evidence Act, Cap 80 Laws of Kenya*. *Section 107(1)* provides: **“Whoever desires any court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”** 1. *Section 108* further provides: **“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”** 1. *Section 109* of the *Act* complements the foregoing provisions by providing that: **“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence unless it is provided by any law that the proof of that fact shall lie on any particular person.”** 1. These provisions establish that the legal burden rested upon the Appellant to prove, on a balance of probabilities, that she sustained injuries in the accident and that she was consequently entitled to compensation. 2. The standard of proof in civil proceedings is not proof beyond reasonable doubt but proof on a balance of probabilities. This principle has been consistently affirmed by our courts. 3. Where two competing versions exist, the court must determine which version is more probable on the evidence presented and a party succeeds where the evidence renders his version more probable than not. 4. I have carefully re-evaluated the evidence tendered before the trial court. The Appellant testified that she was a passenger in motor vehicle registration number KCV 680E when it was involved in the accident. She further testified that she was rushed to Awasi Mission Hospital before being transferred to Ahero County Hospital where she received treatment. She expressly stated that she sustained the injuries pleaded in the plaint and particularized in the medical documents produced before the court. 5. The Appellant’s evidence did not stand alone. PW2, **Nelson Mandela,** a qualified Clinical Officer, testified that he personally attended to the Appellant following the accident. He described, in considerable detail, the injuries that he observed upon examination. 6. According to PW2’s testimony, the Appellant sustained a cut wound on the left parietal region of the head, bruises and swelling on both upper limbs, bruises and swelling on both legs, tenderness on the chest region and injuries consistent with blunt and sharp trauma arising from a road traffic accident. 7. PW2 further testified that he cleaned and sutured the wound, administered analgesics and tetanus prophylaxis before discharging the Appellant. He subsequently completed and produced the P3 form which was produced in evidence without objection. 8. The learned trial Magistrate nevertheless held that because the treatment notes were not produced, the P3 form lacked an evidential foundation and consequently the injuries were not proved. With tremendous respect to the learned trial Magistrate, I am unable to agree with that conclusion. 9. A P3 form is a public document prepared in the ordinary course of duty by a duly authorized medical officer after examining an injured person. Once such a document is produced by its maker and admitted into evidence, it becomes part of the evidentiary record which the court is obliged to evaluate together with the rest of the evidence. 10. The absence of treatment notes may affect the weight to be attached to the P3 form depending on the circumstances of each case, but it does not render the P3 form devoid of evidential value. 11. Indeed, the P3 form is expressly headed *“Medical Examination Report”* and is, by its nature, a medical assessment upon which a court may rely in determining the nature and extent of injuries suffered, although it remains good practice to produce the underlying treatment notes where available. 12. More importantly, there is no provision in the *Evidence Act* or in any other statute requiring treatment notes to be produced as the exclusive means of proving personal injuries. Proof of injuries may be established through oral testimony, documentary evidence or a combination of both. Ultimately, the question is whether the totality of the evidence satisfies the civil standard of proof. 13. The Court in ***Carolyne Indasi Mwonyonyo v Kenya Bus Service Ltd [2012] eKLR*** aptly observed: ***“There is no rule of law that requires that injuries can only be proved by production of treatment notes or a medical report. Oral evidence, if credible, together with other admissible evidence may sufficiently establish the injuries suffered.”*** 1. Likewise, in ***Henry Binya Oyala v Sabera O. Itira [2011] eKLR*,** the High Court held that the absence of a medical report is not necessarily fatal to a claim where there is otherwise sufficient evidence establishing the injuries sustained and the court is satisfied that the injuries have been proved. 2. The jurisprudence that emerges from the above authorities is that failure to produce treatment records or a medical report does not automatically defeat a claim for damages where the injuries are otherwise established by other admissible evidence. 3. Indeed, the same principle is echoed by *Richard Kuloba in Casebook on Measure of Damages for Bodily Injuries*, where the learned author observes that the injured person’s own account is ordinarily the primary source of evidence concerning the injuries sustained and may be complemented by medical evidence. 4. Ironically, the authority principally relied upon by both parties, namely ***Judith Otieno v Mwea County Medical Centre Ltd & 2 Others (Civil Appeal No. 49 of 2021) [2023] KEHC 22474 (KLR),*** does not support the proposition that treatment notes constitute the only acceptable proof of injuries. On the contrary, the court recognized that the victim’s own account constitutes valuable primary evidence regarding the injuries sustained and complements the medical evidence. 5. In the present case, the Appellant testified regarding the occurrence of the accident, the treatment she received and the injuries she sustained. That evidence was corroborated by PW2, the treating clinician, whose testimony remained substantially unshaken during cross-examination. 6. Although PW2 acknowledged that the treatment notes were used in completing the P3 form, that acknowledgment merely explained the source of the information contained in the P3 form. It did not negate either his oral testimony or the contents of the P3 form itself. 7. It is also significant that the Respondent did not tender any contrary medical evidence disputing either the injuries or the treatment received by the Appellant. The Respondent equally did not suggest that the Appellant sustained the injuries elsewhere or that the injuries recorded in the P3 form were fabricated. The challenge mounted by the Respondent was essentially technical, namely that the treatment notes had not been produced. 8. Civil litigation is determined on a balance of probabilities and not on technical perfection. *Article 159(2)(d)* of the *Constitution* commands courts to administer justice without undue regard to procedural technicalities. While that provision does not dispense with the law of evidence, it reinforces the principle that courts should evaluate the substance of the evidence presented rather than elevate procedural omissions into substantive bars to justice. 9. Having independently re-evaluated the entire record, I am satisfied that the learned trial Magistrate imposed a standard of proof higher than that required in civil proceedings by effectively treating the production of treatment notes as indispensable notwithstanding the existence of credible oral testimony and a duly produced P3 form. In doing so, the trial court fell into error. 10. I therefore find that the Appellant proved, on a balance of probabilities, that she sustained soft tissue injuries in the road traffic accident of 5th April, 2022. Consequently, the trial court erred in dismissing the claim for general damages on the ground that the injuries had not been proved. 11. The second issue for determination is whether the Appellant established her entitlement to an award of general damages. 12. Having found that the Appellant proved, on a balance of probabilities, that she sustained injuries arising from the accident, the next question for determination is whether she was entitled to an award of general damages for pain, suffering and loss of amenities. 13. The purpose of an award of general damages in personal injury claims is to compensate an injured party for the physical and psychological consequences of the injuries suffered. The award is discretionary and must be guided by the evidence adduced, the nature and extent of the injuries, comparable awards made in similar cases and the need to maintain consistency in awards while taking into account changes in economic conditions. 14. The Court of Appeal in ***H. West & Son Ltd v Shephard [1964] AC 326,*** a frequently cited authority on assessment of damages for personal injuries, stated: ***“Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which may be regarded as giving reasonable compensation.”*** 1. Similarly, in ***Butt v Khan [1981] KLR 349,*** the Court of Appeal emphasized that assessment of damages is an exercise of judicial discretion and that an appellate court ought not to interfere with an award unless it is demonstrated that the trial court acted upon wrong principles, took into account irrelevant factors, failed to consider relevant factors or that the award was either inordinately high or low as to represent an erroneous estimate. 2. In the present case, liability was not contested before this Court. The parties had recorded a consent judgement before the trial court apportioning liability at 80% against the Respondent and 20% against the Appellant. The only remaining question was whether the Appellant suffered injuries warranting compensation. 3. As already found, the evidence established that the Appellant sustained a cut wound on the head, bruises and swelling on the upper limbs and legs, tenderness and other soft tissue injuries consistent with blunt and sharp trauma following a road traffic accident. The injuries did not result in permanent disability, fractures, surgical intervention or long-term incapacity. They were, however, genuine injuries which occasioned pain and suffering and for which the Appellant was entitled to reasonable compensation. 4. The Respondent’s submission that no award should be made because the injuries were not proved cannot therefore stand. Once a claimant establishes the occurrence of an injury attributable to the defendant’s negligence, the claimant becomes entitled to compensation. The issue thereafter is the assessment of an appropriate award. 5. I am guided by the decision in ***Ben Ocharo & Others v Kenya Farmers Co-operative Society, Kisii HCCA No. 91 of 2006,*** where the court observed that a victim’s testimony regarding injuries sustained is a valuable source of evidence and should not be disregarded merely because it is not supported by every possible piece of documentary evidence. 6. I also find guidance in the decision of the High Court in ***Otieno v Mwea County Medical Centre Ltd & 2 Others (Civil Appeal No. 49 of 2021) [2023] KEHC 22474 (KLR),*** where the court reiterated that assessment of damages must be based on the injuries proved and comparable awards made in similar circumstances. 7. The trial court, although declining to award damages, proceeded to assess general damages at Ksh.100,000/- for purposes of guidance. With respect, that assessment was made without the benefit of properly appreciating the medical evidence on record and without considering the comparable authorities relied upon by the Appellant. This Court, having found that the injuries were proved, is entitled to undertake its own assessment of damages. 8. That then brings me to determine the third issue for determination, which is the appropriate award of general damages in the circumstances of this case. 9. The assessment of damages is not an exact science. Courts are required to exercise discretion judiciously while ensuring that comparable injuries attract comparable awards. The Court of Appeal in ***Kemfro Africa Ltd t/a Meru Express Service & Another v Lubia & Another (No. 2) [1987] KLR 30*** held: ***“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that 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 high or low that it must be a wholly erroneous estimate of the damage.”*** 1. Further, in ***Southern Engineering Company Ltd v Musingi Mutia [1985] KLR 730,*** the Court of Appeal held that comparable injuries should as far as possible attract comparable awards, while recognizing that each case must be determined on its own facts. 2. The Appellant relied on the decisions in ***Otieno v Mwea County Medical Centre Ltd & 2 Others (Civil Appeal No. 49 of 2021) [2023] KEHC 22474 (KLR),*** ***Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR*** and ***Hassan Farid & Another v Sataiya Ene Mepokari & 6 Others [2018] eKLR,*** in support of an award in the range of Ksh.200,000/- to Ksh.300,000/- for comparable soft tissue injuries. 3. In ***Anthony Nyamwaya v Jackline Moraa Nyandemo,*** the court considered injuries involving soft tissue injuries and awarded compensation after taking into account the nature of the injuries, the comparable awards and the effect of inflation on previous awards. 4. Similarly, in ***Hassan Farid & Another v Sataiya Ene Mepokari,*** the court reiterated that awards must be fair and reasonable and must reflect current economic realities while avoiding either over-compensation or under-compensation of an injured party. 5. I have considered the authorities cited by the Appellant, the nature of injuries proved in this matter and the fact that the accident occurred in April, 2022. The injuries sustained by the Appellant consisted principally of soft tissue injuries, including a head cut wound requiring cleaning and stitching, bruising, swelling and tenderness to various parts of the body. There was no evidence of permanent incapacity. However, the injuries were in my view not so minor as to justify the conservative award of Ksh.100,000/- suggested by the trial court. 6. Taking into account the comparable authorities, inflationary trends, the nature of the injuries proved and the period that has elapsed since the accident, I am satisfied that an award of Ksh.200,000/- constitutes fair and reasonable compensation for pain, suffering and loss of amenities. 7. I therefore set aside the finding of the trial court declining to award general damages and substitute the same with an award of general damages for pain, suffering and loss of amenities at Ksh.200,000/-. 8. The parties had agreed on liability at the ratio of 80:20 in favour of the Appellant. The award of general damages must therefore be subjected to the agreed contribution. Accordingly, the Respondent shall be liable for 80% of the award. The amount payable as general damages shall therefore be: Ksh.200,000/- less 20% contribution = Ksh.160,000/-. 9. I now turn to the issue of costs. The Appellant contends that she is entitled to costs both before the trial court and on appeal, having been compelled to institute proceedings as a result of the Respondent’s negligence. The Respondent did not advance any specific argument challenging the Appellant’s entitlement to costs other than urging that the appeal be dismissed with costs. 10. The issue of costs is governed by *Section 27* of the *Civil Procedure Act,* which provides: **“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall follow the event unless the court, for good reason, shall otherwise order.”** 1. The general rule therefore is that costs follow the event. However, the award of costs remains within the discretion of the court, which discretion must be exercised judicially and upon reasonable grounds. 2. In ***Super Marine Handling Services Ltd v Kenya Revenue Authority, Civil Appeal No. 85 of 2006,*** the Court of Appeal held that: ***“Costs are discretionary and the discretion must be exercised judicially. The general rule is that costs follow the event unless the court has good reason to order otherwise.”*** 1. Similarly, in ***Devram Manji Daltani v Danda [1949] 16 EACA 35,*** the former Court of Appeal for Eastern Africa observed that the ordinary rule is that the successful party should not be deprived of costs except for good cause. 2. The rationale behind the rule was also explained in *Halsbury’s Laws of England, 4th Edition, Reissue, Volume 10, paragraph 16,* where it is stated that the award of costs is intended to compensate the successful party for expenses properly incurred in litigation, while leaving the court with discretion to depart from the general rule where circumstances justify such departure. 3. In the present matter, the Appellant was compelled to institute proceedings to recover compensation arising from injuries sustained in a road traffic accident caused by the Respondent’s negligence. The Appellant succeeded on liability before the trial court by consent and has now succeeded on the question of quantum on appeal. The Respondent has therefore been unsuccessful in resisting the claim for general damages. 4. I find no reason to depart from the general rule that costs follow the event. The Appellant is consequently entitled to the costs of the proceedings before the trial court as well as the costs of this appeal. 5. **DISPOSITION AND ORDERS.** 6. Having considered the entire record of appeal, the evidence tendered before the trial court, the submissions of the parties and the applicable law, I find that the learned trial Magistrate erred in law and fact in holding that the Appellant had failed to prove the injuries sustained in the accident merely because the treatment notes relied upon by PW2 were not produced. 7. The Appellant proved, on a balance of probabilities, that she sustained injuries arising from the accident of 5th April, 2022. The evidence of the Appellant, coupled with the testimony of PW2 and the P3 form produced in evidence, sufficiently established the injuries complained of. The learned trial Magistrate therefore applied an incorrect standard of proof and arrived at an erroneous conclusion. 8. The appeal consequently succeeds. The judgement and decree of the trial court dated 26th September, 2024 are hereby set aside to the extent that they declined to award general damages. In their place, this Court substitutes the following orders: 1. The judgment on liability entered by consent at the ratio of 80% against the Respondent and 20% against the Appellant shall remain undisturbed. 2. The award of special damages of Ksh.550/- made by the trial court is hereby upheld. 3. The Appellant is awarded general damages for pain, suffering and loss of amenities in the sum of Ksh.200,000/-. After applying the agreed contribution of 20%, the Respondent shall pay the Appellant: * General damages: Ksh.160,000/- * Special damages: Ksh.440/-. 4. The award of special damages shall attract interest from the date of filing the suit before the trial court, while the award of general damages shall attract interest from the date of the trial court’s judgement, until payment in full. 5. The Appellant shall have the costs of the suit before the trial court and the costs of this appeal. The costs of the appeal are assessed at Ksh.30,000/-. 9. Orders accordingly. 10. This file is closed. DELIVERED (virtually) DATED & SIGNED this 30th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR THE APPELLANT: **Ms. Omollo.** FOR THE RESPONDENT: No appearance. COURT ASSISTANT: **Mr. Ngoge** & **Mr. Juma.**