[2017] KEHC 7640 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 164 OF 2013

MORRIS MAKAU MUTUA........................................APPELLANT

VERSUS

JOSEPHAT NZUNGI DAVID.................................RESPONDENT

Being an appeal from the Judgment of the Senior Principal Magistrate’s Court at Kangundo by Hon. M.K.N. Nyakundi (Ag. SPM) in Civil Suit No. 236 of 2009 dated 11th July, 2013)

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JUDGMENT OF THE COURT

1. The primary suit was filed herein by the respondent against the Appellant via a plaint dated 17th August 2009 seeking general damages, costs and interest for injuries allegedly sustained on board of motor vehicle registration number KAQ 886Q as a result of a road accident alleged to have occurred on 4th June, 2009 along Tala – Machakos earth road near Koma.

2. The Appellant denied the suit vide an amended defence dated 29th July, 2011 pleading fraud in respect of the treatment notes from Kangundo District Hospital and misrepresentation on the part of the Respondent for filing a fraudulent and/or non existent claim. However, after a full trial the court held that the Appellant was 100% liable and proceeded to award the Respondent a sum Kshs. 75,000/= general damages, Kshs.13,200/= - special damages and costs. The Appellant being dissatisfied with the judgment filed the Memorandum of Appeal dated 6th August 2013. The Appellants laid down eleven grounds of Appeal.

3. The gist of the Appellant’s Memorandum of Appeal is that the Learned Trial Magistrate erred in fact and in law in finding that the Appellant was 100% negligent contrary to the weight of evidence which clearly showed that the appellant was not negligent and that the Respondent did file a fraudulent claim accident which evidence was conclusively given in Court by the defendant’s witnesses. Chief inspector Benard Rotich (DW1)andHospital Information Officer - Kangundo District Hospital (DW2).

4. The Memorandum of Appeal further faults the learned trial Magistrate for erring in law and in fact by totally disregarding the overwhelming evidence produced by the Appellant’s witnesses and by awarding the Respondent general damages without proving his case on a balance of probability.

5. The appellant prays that the appeal be allowed with costs and the judgment of the trial court be set aside.

6. The appeal is opposed by the respondent who submitted that in reply to grounds 1, 2, 3, 4, 5, 6, 7 and 8 of the memorandum of appeal, the learned trial Magistrate never erred in law and fact in finding that the Respondent was involved in the subject accident as the Respondent himself, PC Kisavi and Cpl Fredrick Maina, a Criminal Investigation Officer who investigated the authenticity of this claim and Mr. Mutua the clinical officer who treated the Respondent on the date of the accident all corroborated the Respondent’s evidence that he was a genuine victim of the accident in question. The respondent submitted that the whole appeal is basically about alleged fraud on the part of the Respondent. It is trite law that he who alleges must prove. It is submitted that the appellant never called any defence witness to come and testify in Court to prove the allegation whereas the Respondent and all his witnesses testified to the effect that the Respondent was indeed involved in this accident. The Appellant’s insurers also lodged a complaint of fraud with the criminal Investigation Department, Kangundo and PW2 Cpl Fredrick Maina testified that after investigations, he found that the Respondent was a genuine victim of the accident in question and all documents he had were authentic and never charged him with any offence as he had not committed any.

7. Parties filed submissions. I have carefully considered the appeal and submissions of the parties. The only issue for the determination by this court is whether or not the allegations of fraud by the appellants have been proved. In the High Court Appeal Case Oluoch Eric Gogo versus Universal Corporation Limited(2015) eKLR, the court reiterated the duty of the appellant court at page 3 and 4 as follows:

“As a first appellate court the duty of course is to approach the whole of the evidence on record from a fresh perspective and with an open mind. As was espoused in the Court of Appeal case of Selle & Another Vs Associated Motor Boat Co. Ltd & Another (1968) EA 123, my duty is to evaluate and re-examine the evidence adduced in the trial court in order to reach a finding, taking into account the fact this court had no opportunity of hearing or seeing the parties as they testified and therefore, make an allowance in that respect. In addition, this Court will normally as an appellate court, not normally interfere with a lower court’s judgment on a finding of fact unless the same is founded on wrong principle of fact and or law.

The Court of Appeal in the above case further held that:

“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principle in reaching his conclusion”. (See also Law JA, Knelle & Hannox Ag JJA in Mkube Vs Nyamuro [1983] KLR, 403-415, At 403).

From the above decision which echo section 78 of the Civil Procedure Act, it is clear that this court is not bound to follow the trial court’s finding of fact if it appears that either it failed to take into account particular circumstances or probabilities or of the impression of the demeanor of a witness is inconsistent with the evidence generally”

8. The first thing to observe is that the Record of Appeal herein is neither dated nor signed, but is filed herein on 24th November, 2014. That omission alone raises doubt about the authenticity of the Record and the weight this court should place on that record. The second issue to be noted by the court is that the said record appears to be incomplete. In his submissions, the appellant refers to evidence of DW1 Chief Inspector Benard Rotich 23196,and DW2 Hospital Information Officer- Kangundo District Hospital. The applicant submits that the evidence of the said DW1 and DW2 are handwritten. The aforesaid Record of Appeal does not show where the evidence of DW1 and DW2 can be found. However, the respondent has specifically stated that the appellants did not call evidence in the trial court. This fact appears to be supported by the Record of Appeal which does not show that the Appellant called evidence. There is no Supplementary Record of Appeal, and if this court is to go on with the record of appeal, the respondent’s case appears to be unassailable.

9. The summary of evidence adduced at trial was as follows. During the hearing of the suit the respondent called 4 witnesses: the Plaintiff-PW-1, Doctor - PW-2, Base Commander Kangundo Police Station – PW-3, and the Clinical Officer-PW-4,while the Appellants on their part called 2 witnesses: Records Officer-DW-1 and Base Commander Kangundo Police Station-DW2. During the hearing of the suit respondents witnesses testified as follows: The respondent testified that he was involved in the accident, but in the records of his treatment notes from Kangundo District Hospital and police entered his second name in the initial occurrence book asNJOGU instead ofNZUNGI. He further testifies that he had sworn an affidavit as to his proper names. During cross examination he stated that he was aware of the revocation of the police abstract and P3 since there was evidence that the police records and hospital records showed that he was not involved in the accident. PW-3 PC Kisavi-73406 was at pains to explain the reasons why the police abstract had been revoked by the maker. He also stated that he was not the investigating officer of the accident. PW-4 Clinical Officer testified that he saw the respondent on the 4th June, 2009, however the initial treatment notes were dated the month of March 2009. He confirmed during cross examination that the treatment notes were on a piece of plain paper and not stamped and that the signature appearing on the same was different from his which he put on his statement made to the police.

10. Even accepting the submissions of the Appellant that DW1 and DW2 gave evidence, the said evidence was ALLEGED to be as follows;

DW-1 Chief Inspector Bernard Rotich 231961

Testified that he was previously attached to Kangundo police station as the Base Commander in charge of traffic. He produced the OB No.4/4/06 /2009 where the Respondent failed to appear. He testified that he recalled the OB, the police file and IAR and upon perusal the name of the respondent did not appear in all the three records and thus issued a revocation letter dated 3rd October, 2011 produced as DExb.3.

He also stated that if the plaintiff was involved in the accident he had a duty to prove to the court by bringing an eye witness. His evidence was unshaken during cross examination and he highlighted that the issue of the P3 and Police Abstract was an inadvertent accident by the police.

DW-2 Hospital Information Officer – Kangundo District Hospital

Testified that her duties include registration of patients, admission and collection of data dealing with issues relating to medical records. She further testified that a patient cannot be attended to without his or her details been taken as that was the practice and procedure everywhere. In her testimony there were no records in any of the hospital registers which related to the Plaintiff or any of his aliases.

During cross examination she did confirm the presence of the treatment notes which were written on a plain piece of paper and not stamped. She further confirmed to court that the said outpatient number OPD.5353 given to the respondent belonged to another patient by the name Raphael Muli according to the outpatient record produced in court.

11. Having considered the entire evidence, and the doubtful authority of the record of appeal, this court has the following issues to determine.

i. Whether the allegations of fraud were proved by the appellant.

12. On the issue it was submitted for the appellant that the respondent’s name was not recorded on the Occurrence Book soon after the accident, and that the name of the respondent was not among the names submitted for treatment at the Kangundo District Hospital. These allegations led to the revocation of the respondent’s name from the police Abstract.

13. However, this court has carefully considered the evidence of PW1- Doctor, PW2 Base Commander Kangundo Police Station, and PW4- Clinical Officer. The sum total evidence of these witnesses is that the respondent was in the said motor vehicle, that he was injured and he was treated in hospital. Further, the respondent was in court and testified to these facts. The allegations by DW1 and DW2, cannot purport to dislodge the evidence of the plaintiff’s witnesses, who are themselves public officers holding public office. Given that the evidence of DW1 and DW2 do not appear on the Record of Appeal, it is difficult for this court to assess the combined worth of their evidence, leave alone making a finding that their evidence is superior to that of the plaintiff’s witnesses. This court must always remind itself that it is not a trial court, and did not have the opportunity to see the evidence first heard or to see the demeanor of the witnesses.

14. Further, the fact that a patient’s name does not at first report appear on the Occurrence Book ipso facto means that the patient was not involved in an accident. All documents are usually and constantly amended. PW2 – Doctors evidence was cogent enough to be believed.

15. It is noted that a civil case is to be decided on a balance of probability. Base on evidence before the court, it is the finding of the court that the plaintiff/respondent proved its cases on a balance of probability, and that he was involved in the said accident.

16. For the foregoing reasons it is the finding of this court that the appeal herein lacks merit and is hereby dismissed with costs to the respondent.

Judgment accordingly.

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E.K.O. OGOLA

JUDGE

DATED, SIGNED AND DELIVERED AT MACHAKOS THIS 7TH DAY OF FEBRUARY, 2017

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DAVID KEMEI

JUDGE

In the presence of:

Kariuki – for Odongo for Appellant

No appearance for Mutunga for Respondent