https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8490

Onsongo v Nyatindo (Civil Appeal E036 of 2025) [2026] KEHC 8490 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8490 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E036 of 2025 AM Okutoyi, J June 11, 2026 Between Naftal Michira Onsongo Appellant and Dennis Isanda Nyatindo Respondent (Being an appeal against the Judgement of Hon. Chepchumba Carolyne Rono, Resident Magistrate given on 30.01.2025 in Kisii CMCC No. E205 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 KCH 416 H owned by the appellant allegedly knocking down the respondent who was a pedestrian. As a result of the accident, the respondent claims to have sustained injuries. 2.At the trial court, the respondent relied on three witnesses; PW1 PC Kasera whose evidence in civil suit no. 200 of 2023 was adopted in this case as well. He produced the police abstract attributing blame on the appellant’s motor vehicle as evidence; 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 P3 form, treatment notes, clinical appointment card and medical report. 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. 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. 350,000/= in general damages, Kshs. 22,250/= 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 there was no proof of fractures and dislocation; disregarding the second medical report as adduced by the appellant; holding that the respondent sustained only soft tissue injuries 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. judgment of the trial court in respect of liability and quantum be set aside and/or varied it. Appellant’s Submissions 7.The appellant supported his appeal with their written submissions dated 16th February 2026 highlighted the err in law and fact in arriving at the quantum and that the respondent had not proved that she had sustained the injuries claimed particularly the fractures and dislocation. 8.The appellant relied on the 2nd medical report by Dr. Malik that challenged the injuries which did not match the second x rays administered nor with the health status of the respondent as at the time of the re-examination and that if indeed he sustained any injuries, then they were minor soft tissue injuries. 9.The appellant highlighted the error in the trial court’s reliance on inadmissible documents particular the treatment card 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/report then the injuries of fractures and dislocation were not proved. The appellants 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 that it was devoid of merit. In their written submissions dated 19th of February 2026, the respondent averred that the onus of proof of injuries had been discharged on a balance of probability by the respondent through his testimony at the trial court which was corroborated by PW3 in his medical report and P3 form. 12.The respondent submitted that the production of x-ray or initial treatment notes is not mandatory where other credible evidence suffices. It was further argued that reliance on the disownment letter from KTRH was selective as the letter did not disown the treatment notes nor does it invalidate the P3 form or the respondent’s testimony. 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 was by consent. The respondent concluded that the appeal be dismissed with costs. 14.On the conflicting medical reports, the respondent submitted that the trial court relied on contemporaneous evidence in determining the injuries sustained. In conclusion, the respondent submitted that the trial court’s award of Kshs. 350,000/= was neither exorbitant nor inordinate for the fracture, dislocation and soft tissue injuries and cited authorities to support this. 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 carefully 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 on the appellant has also not been raised in this appeal. The main issue that the appeal has focused on is the admissibility of evidence that led to the assessment of quantum 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 probability;b.Whether the learned trial magistrate erred in relying on medical evidence whose authenticity had been substantially challenged; andc.Whether the award of damages can stand. Whether the Respondent proved the injuries pleaded on a balance of probability The burden of proof at the trial court lay upon the respondent to prove his case on a balance of probability. 19.Section 107(1) of the Evidence Act, Cap 80 provides that:i.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.ii.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 20.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”. 21.The respondent in this case was therefore required to establish not only that the accident occurred but also that he sustains injuries pleaded and that these injuries were supported by credible evidence. 22.In the case of Kirugi and Another v. Kabiya and 3 others (1987) KLR 347; the courts held that:“The burden of proof was always on the plaintiff to prove his case on a balance of probabilities even if the case wa sheard by way of formal proof” 23.My perusal of the trial record reveals that the respondent PW2 relied on his oral testimony, clinical appointment card, and treatment notes from Kisii Teaching and Referral Hospital, P3 form and medical report. In the plaint, the respondent claims to have sustained the following injuries: Bruising of the forehead, dislocation of the right shoulder joint, fractures of three right ribs, abrasions to both elbow regions and fractures of the right tibia/fibula. 24.The P3 form was produced by PW1the police officer which indicated the injuries as 3 rib fractures, dislocation of the right shoulder and other soft tissue injuries. Neither the treatment notes nor P3 form indicate a fracture of the right tibia/fibula. 25.The appellant on the other hand produced evidence 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 records and stated that same were null and void. 26.The appellant’s DWI further produced an investigation report dated 27th December 2023 with findings that the respondent had produced forged treatment records form KTRH. The 2nd medical report also adduced by the appellant dated 13th September 2024 concluded that the claim was fictitious and not authentic. 27.This rebuttal by the appellant of the evidence by the respondent significantly diminishes its probative evidentiary value. The authenticity of the treatment records that lay the basis for the claim of injuries in this case has directly been challenged by the institution purported to have generated them, and the evidentiary burden therefore shifted to the respondent to satisfactorily explain the discrepancy. 28.The respondent did not challenge this accusation at the trial court or appeal stage. The respondent did not call any witnesses from the hospital to authenticate the treatment notes or treatment offered nor did he offer any plausible explanation regarding the hospital’s denial. This therefore renders the appellant’s evidence uncontroverted and significantly diminishes the probative evidentiary value of the treatment notes which are at the center of this claim. 29.What this court is therefore left with is the respondent’s testimony and the P3 form that still had discrepancies on the injuries sustained. 30.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. 31.The evidentiary threshold in this case is on a balance of probability. 32.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 33.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. 34.While the P3 form is an undoubtedly an important medical-legal document, it is not conclusive proof of injury and must be considered alongside other evidence on record. 35.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.” 36.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. 37.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 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. 38.With this context, I therefore find that the learned trial Magistrate erred in applying evidence whose credibility and authenticity had been seriously challenged in arriving at the conclusion on injuries claimed to have been sustained. Whether the award of damages can stand 39.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. 40.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. 41.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. 42.Having established that the respondent failed to prove the injuries sustained, then consequently, this court is unable to assess the damages as there exists no factual basis upon which I can meaningfully compare awards. Disposition 43.Accordingly, the appeal succeeds. 44.The judgment of the trial court is hereby set aside and substituted with dismissing the respondent’s suit with costs. 45.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 2026A.M. OKUTOYIJUDGEIn the presence of:Ms. Barasa for the Appellant.Mr. Nyangosi for the Respondent.Ruth Mokeira-Court Assistant.