[1999] KEHC 109 (KLR)
The court held that the appellant failed to specifically plead and prove the particulars of injuries sustained in the accident. The medical evidence presented was inconsistent and produced long after the accident, undermining its probative value. The absence of contemporaneous medical records from the hospitals...
Source-derived case information.
- Citation
- [1999] KEHC 109 (KLR)
- Parties
- Appellant: Martha C. Mwambia; Respondent: Julius Aritho Mutea
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 200 of 1992
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Road Traffic Accidents, Personal Injury, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martha C. Mwambia
Appellant
Julius Aritho Mutea
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in failing to award general damages for personal injuries allegedly sustained by the appellant.
- 2 Whether the evidence adduced was sufficient to prove the nature and extent of the appellant's injuries.
- 3 Whether particulars of injuries must be specifically pleaded and proved in a personal injury claim.
Ratio Decidendi
The court held that the appellant failed to specifically plead and prove the particulars of injuries sustained in the accident. The medical evidence presented was inconsistent and produced long after the accident, undermining its probative value. The absence of contemporaneous medical records from the hospitals where the appellant claimed to have been treated further weakened her case. The court found that the trial magistrate was correct in declining to award general damages due to insufficient and unreliable evidence regarding the nature and extent of the injuries. The appeal was therefore dismissed for lack of merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
40 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO. 200 OF 1992
MARTHA C. MWAMBIA ..................................... APPELLANT
VERSUS
JULIUS ARITHO MUTEA ............................... RESPONDENT
JUDGMENT
The appeal before me eminates from the decision of the Senior Resident Magistrate sitting at Nairobi. The decision was delivered on the 7th of January, 1991.
The original plaintiff and appellant in this case had been involved in a road accident. The motor vehicle she was travelling in as a fare paying passenger over turned. Apparently the vehicle overturned over the right way up. The passengers, including the appellant, boarded and continued their journey that was between Nairobi and Meru.
At Embu the appellant alighted. She was refunded 40/-. She was able to recall the registration number of the vehicle and sued the Defendant No.1- the owner of the vehicle and Defendant No.2 - the driver.
It seems that Defendant No.2 never attended court to give evidence. Defendant No1. stated he had no idea that his vehicle had been involved in an accident. There was no indication of this when looking at the said vehicle.
In her judgement the trial Magistrate held that the Defendants were to blame for the accident. She held the defendant No.1 vicariously liable for the negligence of Defendant No.2.
Thereafter she noted that Special Damages had been proved and awarded the plaintiff this head of damages.
The only issue that was left, which is a basis of this appeal, is on Quantum.
The trial Magistrate found that the P3 form and Medical report produced to court were extremely at variance. It is therefore unclear whether the appellant had sustained injuries or not.
As a result the trial Magistrate made no award as to the General damages.
The appeal courts advocate argued from this finding that if the trial magistrate could award special damages it follows that the Plaintiff/appellant must have been injured. General Damages must therefore be awarded possibly based on the P3 form that was in fact on record and more accurate.
The respondents advocate stated that the injuries, if any, were minor. He supported the Magistrates findings.
From the judgement the Magistrate found that the appellant had pain on her shoulder and neck.
That she was treated at Embu General Hospital and at Aga Kha General Hospital where she stated she had been admitted for 3 days. No medical evidence from the two institution was produced to prove the said injury.
Nonetheless the appellant produced a P3 form by Dr. Mulupi on 3. 5.88 (The accident occurred on 28. 6.86).
The P3 form revealed the appellant had a injuries being:
a) a fracture of clavicle
b) Fracture of 7th & 6th rib
c) Fracture of pelvis
The above injuries are said to have been one day old when examined namely 3. 5.88.
Dr. Wokabi on the other hand examined the appellant on 10. 5.88 - a week later.
The doctor stated that there was a healed fracture of the outer trip of the right collar bone. There was no mention of the 7th and 6th ribs being fractured nor of the pelvis being fractured.
The reports revealed that the examination occurred two years after the accident and not after one day.
The best medical evidence a litigant ought to bring to court is that which is produced nearest to when the accident occurred.
I find that the respondents submission on this appeal is correct when he states that the treatment carried from Embu General Hospital and Aga Khan General Hospital be made available during trial. Nonetheless the opinion of a Consultant Surgeon is imperative. Unfortunately I am amazed and perplexed that an accident that occurred two years prior to the examination by Dr. Mulupi and Dr. Wokabi should be one day old. This would only mean that the injures sustained may not have anything to do with the case.
The matters are made worse when the advocate for the plaintiff appellant failed to particularize the injuries sustained.
Under paragraph 4 of the Plaint “particulars of injuries” has been stated as “To be filed in court”(Emphasis mine). This of course is not desirable in any case. Particulars must be pleaded and proved. This point was brought up by the advocate for the respondent.
I would therefore find that this appeal has no merits. The same be and is hereby dismissed with costs to the respondent.
There was no cross appeal by the respondent on the Special Damages and I make no findings here.
Dated this 16th day of June, 1999 at Nairobi.
M.A. ANG’AWA
JUDGE