Onsongo v Nyatindo (Civil Appeal E033 of 2025) [2026] KEHC 8534 (KLR) (11 June 2026) (Judgment)

Onsongo v Nyatindo (Civil Appeal E033 of 2025) [2026] KEHC 8534 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8534 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E033 of 2025 AM Okutoyi, J June 11, 2026 Between Naftal Michira Onsongo Appellant and Cesilia Kerubo Nyatindo Respondent (Being an appeal from the Judgement of Hon. Chepchumba Carolyne Rono, Resident Magistrate given on 30.01.2025 in Kisii CMCC No. E200 of 2023) Judgment Background of the appeal 1.This appeal emanates from a suit filed in the Chief Magistrate’s court regarding a road accident that occurred on 20th November 2022 involving a motor vehicle registration number KCH416 H owned by the appellant. The respondent alleges that she was knocked down by the motor vehicle thereby sustaining injuries. 2.At the trial court, the respondent relied on three witnesses; PW1 PC Kasera who produced the police abstract and indicated that the accident was self- involving caused by the appellant’s motor vehicle, on cross examination he indicated he was not the investigating officer; PW2 the respondent who adopted their statement as evidence in chief and PW3 Dr. Daniel Nyamieno who testified as to the injuries sustained and produced the clinical appointment card, treatment notes, medical report and p3 form as evidence. 3.The appellants on their part had one witness; DW1 Kennedy Okello, an insurance claims investigator for parity loss assessors who indicated that he conducted an investigation in the claim herein and established the documents had been falsified. DW1 produced the investigation report dated 27th December 2023 as evidence. The appellants also produced a medical report by Dr. Malik dated 13th September 2024. 4.The Magistrate at the trial court delivered a judgement on 30th of January 2025 attributing 100% liability as against the appellant, and awarding Kshs. 300,000/= in general damages, Kshs. 23,150/= in special damages and costs and interest of the suit. 5.Aggrieved with the decision of the trial Magistrate, the appellant filed this instant appeal on the following summarized grounds; That the learned trial Magistrate erred in law in failing to appreciate the onus of proving the injuries lay on the respondent; relying on inadmissible documents/evidence to arrive at the quantum; assessing damages in the absence of initial treatment notes and x ray films reports or other evidence which in the absence thereof was no proof of dislocation; disregarding the second medical report as adduced by the appellant; holding that the respondent injuries had sustained soft tissue only on a balance of probabilities and making an award that was exorbitant and inordinately high. 6.The appellant with the reasons whereof prayed that the appeal be allowed, the award of general damages be set aside, varied, interfered with and be substituted with a suitable award with costs to the appellant. Appellant’s Submissions 7.The appellant supported the appeal with written submissions dated 16th February 2026 highlighting the err in law and fact in arriving at quantum and that the respondent had not proved that she had sustained the injuries claimed particularly the dislocation. 8.The appellant relied on the 2nd medical report by Dr. Malik that challenged the injuries which did not match with the alleged treatment and status of the respondent as at the time of the re-examination; and that if indeed she sustained any injuries, then they were minor soft tissue injuries. The appellant also highlighted the letter from Kisii Teaching and Referral Hospital (KTRH) that distancing themselves from the respondent and the treatment notes adduced. 9.The appellant highlighted the error in the trial court’s reliance on inadmissible documents particular the treatment notes that was a computer printout which had no evidence of its origin. The appellant further highlighted that there was no certificate of production as required by Sections 106A and 106B to justify the admissibility of the treatment notes. 10.Citing authorities, the appellant further argued that in the absence of treatments notes and x-ray films/reports, then the injuries of dislocation were not proved. The appellant concluded by submitting that if any injuries were sustained then they were soft tissue injuries and citing authorities proposed an award of Kshs. 120,000/=. Respondent’s submissions 11.The respondent on their side opposed the appeal and in their written submissions dated 25th February 2026 highlighted that the appellant has not contested liability which was apportioned at 100%. The respondent argued that the injuries were testified by PW2 and corroborated by PW3 in his medical report and P3 form. 12.The respondent’s affirmed that the production of x-ray or initial treatment notes is not mandatory where other credible evidence suffices. It was further argued that the appellant’s Dr. Malik re-examined the respondent 2 years post the accident which explains the healing and absence of scars. 13.On admissibility of the electronic generated treatment notes, the respondent’s submitted that this objection was never raised at the trial court and production by PW3 was by consent. The respondent argued that sections 106A and 106B apply to electronic records where authenticity is disputed and in this case the hospital records were relied upon by a qualified clinical officer and its origin from KTRH was not challenged. 14.On quantum of damages, the respondent stated that the award by the trial court of Kshs. 300,000/= was comparable to other awards. The respondent concluded that the appeal be dismissed with costs. Analysis and Determination 15.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 16.Similarly, in Peter v Sunday Post Ltd (1958) EA 424. The court stated that;“Whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand, this jurisdiction is exercised with caution.” 17.I have independently re-valuated and analyzed the appeal and trial record in its entirety. From the record, there is no contention that an accident did occur on 20th November 2022 involving a motor vehicle registration number KCH416 H belonging to the appellant. The attribution of 100 % liability as against the appellant has also not been raised in this appeal. The main issue that the appeal has focused on is the admissibility of evidence and proof of injuries that led to the assessment of award by the trial court. 18.The main issues therefore for the determination of this court are as follows;a.Whether the Respondent proved the injuries pleaded on a balance of probabilityb.Whether the learned trial magistrate erred in relying on medical evidence whose authenticity had been substantially challengedc.Whether the award of damages can stand 19.The first issue for the determination of this court is; Whether the Respondent proved the injuries pleaded on a balance of probability 20.The burden of proof at the trial court lay upon the respondent to prove her case on a balance of probability. 21.Section 107(1) of the Evidence Act, Cap 80 provides that:1.Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.2.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 22.This is further buttressed by Section 108 and 109 of the Evidence Act that provides as follows respectively;Incidence of burden.“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.”Proof of particular fact.“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”. 23.The respondent in this case was therefore required to establish not only that the accident occurred but also that she sustained the injuries pleaded and that these injuries were supported by credible evidence. 24.In the case of Kirugi and Another v. Kabiya and 3 others (1987) KLR 347; the courts observed that:“The burden of proof was always on the plaintiff to prove his case on a balance of probabilities…” 25.The respondent in this case claims to have sustained the following injuries; Scalp contusion, Back and Pelvic contusion, bruising of the elbow regions bilaterally, right knee region contusion and bruising with resultant patella dislocation and dislocation of the left ankle joint. 26.In the plaintiff’s statement, she claims to have been attended at Kisii Teaching and Referral Hospital (KTRH) where she was treated, discharged but still follows up on medical checkups and medication as she had not fully recovered. 27.During the trial, the plaintiff testified that she was fully healed. On cross examination, the respondent stated she was first taken to Keumbo sub county hospital where first aid was administered and later went to Kisii Teaching and Referral Hospital (KTRH) who treated her and discharged her the same day. 28.She stated that she did not have the treatment notes from Keumbo hospital but that she went with them to KTRH. At KTRH she claims an x-ray was done and that she has produced it in court. This court has perused the trial records and there is no evidence of this x-ray being produced as evidence. 29.The appellant on his side produced a letter from the Kisii Teaching and Referral Hospital (KTRH) dated 8th December 2023, denouncing the respondent ever being treated at the facility. The hospital could not confirm the authenticity of the treatment notes and stated that same are null and void. 30.Further, the appellant’s DW1 produced an investigation report dated 27th December 2023 with findings that the respondent had adduced forged treatment records from KTRH. 31.The 2nd medical report also produced by the appellant dated 13th September 2024 presented contradictory information where the respondent stated she was not x-rayed at KTRH. Dr. Malik presented the findings that that the respondent did not have any wounds that required stitching or dressing. 32.In this report, Dr. Malik shed doubt on the injuries claimed on several grounds; the hospital casualty card was printed on 13.12.2022 almost a month after the accident which occurred on 20.11.2022. The first medical report was compiled on 10.12.2022 three days before the treatment card was printed and yet this was the document that the clinical officer relied on. 33.The Doctor further stated that the P3 form was compiled with reliance of the treatment card on 5.12.2022, eight before the treatment sheet was printed. The appellant doctor further indicates that the hospital card recorded a CT scan and x-ray on knees which the respondent denied. 34.The appellant doctor went ahead to describe the nature of injury of dislocation of an ankle joint which is painful with severe trauma and that a patient with such injuries cannot bear any weight and requires immobilization in a plaster cast which was not the case for the respondent. 35.Dr. Malik referred the respondent to a second x-ray which ruled out the injuries claimed of dislocation but however noted that a fracture of the left fibula appeared on the x ray report. The doctor stated that it was quite possible that the injury was overlooked at the time of the accident or more likely this injury was sustained in a different earlier incident. 36.The doctor concluded that she may have sustained an un-displaced fracture of the lower end of her left fibula and if this can be proved, then she suffered total incapacity of a temporary nature of six weeks followed by partial incapacity of a temporary nature for a further period of four weeks with no permanent disability. 37.This court notes that the above finding of injury on the left fibula was not pleaded at the trial court neither mentioned in any of the medical history, P3 form or testimony adduced by the respondent. At this appellate stage, this court is therefore unable to make a determination on this injury to the left fibula or the connection to the accident in question. 38.This court notes that the evidence adduced by the respondent on injuries sustained are corroborated by the treatment notes. However, there is overwhelming evidence that has cast shadows on the credibility of these treatment notes. The hospital where the treatment notes are said to have originated from, KTRH, declared the same to have been forged. No plausible explanation was given by the respondent both at the trial or appeal stage to rebut this accusation. It therefore remains uncontroverted. 39.KTRH in its letter dated 9th December 2023 further stated that the respondent was never treated in their facility and there are no payment records. They concluded that the treatment notes referenced were null and void. It is critical that these are the same treatment notes which the PW1 doctor relied on to compile the 1st medical report and the P3 form. This then leaves the respondent with no credible evidence aside from her oral testimony to support her claim of injuries sustained. 40.In the case of Palace Investment Ltd. V. Geoffrey Kariuki Mwenda & Another (2015) the courts while reiterating the standard of proof observed that the onus is always on the plaintiff to prove his case on the balance of probabilities. 41.The evidentiary threshold in this case is on a balance of probability. 42.I therefore find that the primary documentary foundation of the respondent’s claim was seriously undermined and I am not persuaded that the respondent has proved the injuries sustained on a balance of probability. Whether the learned trial magistrate erred in relying on medical evidence whose authenticity had been substantially challenged 43.In his written submissions, the respondent urged the court that the evidence in the P3 form has not been challenged and the same is corroborated by the respondent’s testimony. 44.While the P3 form is undoubtedly an important medical-legal document, it is not conclusive proof of injury and must be considered alongside other evidence on record. 45.This was emphasized in the case of Joseph Ndungú Kimanyi v. Republic (1979) where it was observed that courts must carefully evaluate the credibility and reliability of evidence before acting upon it. 46.The question that this court must therefore determine is whether the P3 form retained sufficient probative value after the primary documentary treatment notes had been disowned by the hospital. 47.This court notes that the maker of the P3 form was not an eye witness to either the accident or the alleged medical treatment. As is the practice, the conclusions in the P3 form are informed by the history given by the patient and the resultant medical documents presented- which very documents and the resultant credibility are in question in this particular case. This therefore substantially weakens the evidentiary threshold of the P3 form when weighed against the evidence adduced in totality. 48.With this context, I therefore find that the learned trial Magistrate erred in applying evidence whose credibility had been substantially challenged in arriving at the conclusion on injuries claimed to have been sustained. 49.The element therefore of whether the ecteronic treatment notes adduced was inadmissible contrary to Section 106A and 106B of the Evidence Act becomes irrelevant at this point as I am satisfied its authenticity having been challenged, then the probative value has been extinguished. I am guided by the case of Koinange & 13 others v. Koinange (1986) where the courts held“That a document proved to be forged is devoid of probative value and cannot be relied upon by a court in determining parties rights” Whether the award of damages can stand 50.Having independently re-evaluated the entire record and evidence adduced as required of a first appellate court, I am not persuaded that the evidentiary threshold of a balance of probability has been met by the respondent in this case. 51.In the case of Miller V. Minister of Pensions (1947) 2 All ER 372, the court of appeal observed that:“Proof on a balance of probability means that a tribunal must be persuaded that the occurrence of the fact is more probable than not. 52.Upon considering the totality of evidence in this case, I am unable to reach that level of persuasion. Consequently, this court concludes that the award of damages as had been determined by the trial court cannot stand. 53.Having established that the respondent failed to prove the injuries pleaded and that the medical evidence relied upon was unreliable, it follows then that the claim for damages was not established. 54.In the circumstances therefore, this courts finds it unnecessary to embark upon an analysis of authorities cited on quantum or the appropriateness of the award made by the trial court as there is no proved injuries to measure against. Disposition 55.Accordingly, the appeal succeeds. 56.The judgment of the trial court is hereby set aside and substituted with dismissing the respondent’s suit with costs. 57.The costs of this appeal to be awarded to the Appellant.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE 2026.A.M. OKUTOYIJUDGEIn the presence of:Ms. Barasa for the appellantMr. Nyangosi for the respondentRuth Mokeira-court assistant