https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12414

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HIGH COURT CIVIL APPEAL NO E202/2025 (MACHAKOS CHRISTOPHER WAMBUA MUTUNGA Vs KAVISYA INVESTMENT COMPANY LTD JUDGEMENT The appellant here filed an appeal through the memorandum of appeal dated 21st August 2025 against the judgement of the Honorable Magistrate sitting at Machakos in SCC E115 of 2025 on the following grounds. 1. The learned magistrate erred in law and in fact by dismissing the claim despite the uncontroverted evidence that the appellant was a passenger in motor vehicle registration number KBS 669K, as supported by the police abstract which established the appellant's presence in the accident. 2. The learned magistrate erred in law by failing to recognize the P3 form duly filled on 4rd August 2024 as a valid and recognized medical document under Kenyan law sufficient to prove the injuries sustained by the appellant. 3. The learned magistrate erred in law and in fact by holding that the absence of primary treatment notes from Masii hospital was fatal to the appellant's claim despite the presence of corroborative evidence in the form of P3 form which adequately documented the injuries. 4. The learned magistrate erred in law and in fact by failing to consider that the P3 form as a recognized medical document provided sufficient evidence of the appellant's injuries including blunt injuries on the lower chest, injury on the lower back and soft tissue injuries as pleaded in the statement of claim. 5. The learned magistrate erred in law and in fact by dismissing the claim on the basis of lack of primary treatment notes without judiciously analyzing the corroborative evidence provided by the police abstract and the P3 form which together established the occurrence of the accident and the injuries sustained. 6. The learned magistrate erred in law and fact by proposing an inordinately low quantum of Ksh 100,000 for the appellant's injuries which included blunt injuries on the lower chest, injuries on the lower back and soft tissue injuries despite the appellant's advocates citing relevant authorities. 7. The learned magistrate erred in law and in fact by failing to consider comparable judicial precedents and thereby arriving at an unreasonably low quantum. 8. The learned magistrate erred in law and in fact by failing to award the special damages of Ksh 39,030 as pleaded despite the appellant's evidence and requirements of the law being sufficiently met through the P3 form and police abstract. 9. The learned Magistrate’s decision to dismiss the claim was unjust, against the weight of the evidence, and based on misguided points of fact and wrong principles of law there by occasioning and miscarriage of justice. Their prayers are: 1. That this appeal be allowed with costs. 2. That the judgment delivered on the 24th July 325 in SCCC/ 5115/ 2025 be set aside in its entirety. 3. That the appellant's claim be allowed and this court be pleased to assess general damages and special damages to be awarded to the appellant. 4. That the costs of the primary suit together with interest at court rate be awarded to the appellants. 5. Any further or alternative relief or order this one court may deem just to grant. The appeal was canvassed by way of written submissions. Brief facts Through a claim dated the 1st January 2025 the claimant here stated that on 1st July 2024 while traveling as a passenger on board motor vehicle registration number KBS 665K along Masii - Muthetheni road when the said motor vehicle lost control and rammed into motor vehicle registration number KDL 957B thereby causing a road accident. APPELLANT'S SUBMISSIONS They are dated 10th February 2026. They summarized the matters for determination to be: 1. Whether the appellant had proved the injuries sustained? 2. Whether the proposed award of Ksh 100,000 was commensurate to the injuries sustained? It was submitted that the plaintiff in her documents produced a P3 form which showed that the appellant was 15 years old at the time of examination and had sustained headache, chest tenderness, lower back tenderness, and left ankle joint tenderness. It was submitted that in civil cases the standard of proof is on a balance of probabilities and therefore the learned adjudicator had erred in law and in fact by applying a strict evidentiary threshold inconsistent with the required standard of proof. That requiring formal treatment notes as the sole proof of injury undermines the very purpose of the Small Claims Court Act. They submitted that since P3 forms are filled by medical doctors in government health institutions, the same were prima facie proof that the appellant had sustained the listed injuries as a result of the accident. They relied on the case of Ibrahim versus Ahmed and another (2024) KEHC 10840 eKLR where the court had found that a P3 form could be used to discern some of the injuries sustained by a litigant. They also submitted that the P3 form was corroborated by the statement filed by the claimant and was unchallenged by the respondent. The respondent had contested the claimant's treatment at Masii health center by producing a list of patients supportedly to say that the records at the health center on the day of the accident show that the claimant's name was missing and she was not a passenger in the said motor vehicle nor did she sustain the injuries. They submitted that the list was hearsay as no statement was prepared by personnel from the health center to support the respondent's claims. The list was never certified as a true copy of the original and the stamp impression on it was too faint to make it out. On the award of Ksh 100,000 as general damages, it was submitted that the same was low and they prayed for an award of Ksh 200,000. RESPONDENT'S SUBMISSIONS They are dated April 2026. It was submitted that though this appeal is indicated as an appeal from SCCC 5115 of 2025, the appellant was not a party thereto. The appeal must relate to SCCC E115 of 2025. It was submitted that the claimant in the lower court matter did not file a witness statement. The appellant who sued as the guardian and the next friend of the claimant is the one who filed a witness statement in which he alleged that the claimant was a passenger in motor vehicle registration number KBS 666K. However the statement of claim describes the alleged motor vehicle as bearing registration number KBS 666X. The claimant's guardian and the next friend alleged in his witness statement that the motor vehicle was being driven negligently at an excessive speed. He was not an eyewitness and the claimant did not testify. This means that the claim was not proved to the required standard. That there were glaring contradictions in the claim before the court as to the exact registration number of the motor vehicle which was involved in this accident. Though the claimant claimed that she was treated at Masii Health Center after the accident, the respondent relied on a copy of the patient's register of the hospital which has the names of 34 patients who are victims of the accident but the name of the claimant is not among them. From the foregoing, it is clear that the claimant was not involved in this accident They disputed the claim for special damages of Ksh 39,050 as either no receipt was filed or the police and doctor did not attend to warrant payment. I have considered the grounds of appeal, the submissions and the evidence as used before the trial magistrate. This is a first appeal and as such the role of the court is to re-evaluate,re-assess and re-analyze the evidence which was tendered before the trial court and then arrive at its own independent conclusions. This has been stated in various authorities and in Abok James Odera trading as Odera and Associates versus Patrick Muchira & Co advocates (2013) eKLR the Court of Appeal re-stated the duty of the first appellate court which is, that the court has to re-evaluate the evidence and come up with its own finding and also determine whether the conclusion as written can stand or not and give reasons either way. This is an appeal from the Small Claims Court and section 38 of the Small Claims Court Act which limits appeals to the High Court to matters of law only. The matters for determination are 1. Whether the claimant proved that she was injured in the above accident. 2. Quantum of damages awarded In the primary suit the claimant relied on a P3 form and police abstract to prove her claim. The respondent had availed a list purportedly from Masii Health Center indicating the patients treated at the Health Center over this accident. However I note that there is no statement or letter from the hospital indicating that the list emanated from the hospital and that those patients were the only ones who were treated at the hospital over this accident. It is therefore not clear whether the list produced was genuine or bore the full list of the treated patients. The P3 form and police abstract were issued by the police. The respondent has not proved that they established from the side of the police that the claimant had not been traveling in the accident vehicle. I am satisfied that from the P3 form and police abstract form it has been proved on a balance of probability that the claimant was involved in this accident. The quantum of damages awarded are on the lower side. I now award Ksh 150,000 as general damages. On special damages no receipts were produced to prove the special damages except the Ksh 550 for the copy of records. I allow the claim for Ksh 550 only for the copy of records for the motor vehicle. Cost of the suit and interest of the primary suit and this appeal go to the claimant. I find the appeal to be meritorious and proceed to allow the same. Read and published in the CTS on this 21st July 2026 in the presence of: No appearance by either party Before Hon Joyce Gandani Judge Court Assistant Ben