Onsongo v Ragira (Civil Appeal E032 of 2025) [2026] KEHC 8530 (KLR) (11 June 2026) (Judgment)

Onsongo v Ragira (Civil Appeal E032 of 2025) [2026] KEHC 8530 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8530 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E032 of 2025 AM Okutoyi, J June 11, 2026 Between Naftal Michira Onsongo Appellant and Edinah Kemunto Ragira Respondent (Being an appeal from the Judgement of Hon. Chepchumba Carolyne Rono, Resident Magistrate given on 30.01.2025 in Kisii CMCC No. E199 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 and in which the respondent who was a passenger claims to have sustained injuries. 2.At the trial court, the respondent/plaintiff relied on three witnesses; PW1 PC Kasera whose evidence in civil suit no. 200 of 2023 was adopted in this case. The police abstract attributing blame on the appellant’s motor vehicle was produced; PW2 the respondent who adopted their statement as evidence in chief and PW3 Dr. Daniel Nyamieno who testified as to the injuries sustained by the respondent and produced the p3 form, treatment notes, clinical appointment card and medical report. 3.The appellants/defendants 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 relied upon 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 on the appellant, and awarding Kshs. 300,000/= in general damages, Kshs. 9,300/= in special damages and costs and interest of the suit. 5.Aggrieved with the decision of the trial magistrate court, 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 in proof of the injury of dislocation; disregarding the second medical report as adduced by the appellant; failing to hold that the respondent injuries had sustained were soft tissue; 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 his appeal with their written submissions dated 23rd 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 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. 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 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 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 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 the appellant’s Dr. Malik re-examined the respondent two 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 was by consent. The respondent concluded that the appeal be dismissed with costs. Analysis and Determination 14.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). 15.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.” 16.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 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 and proof of injuries that led to the assessment of award by the trial court. 17.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 Whether the Respondent proved the injuries pleaded on a balance of probabilityThe burden of proof at the trial court lay upon the respondent to prove her case on a balance of probability. 18.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. 19.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”. 20.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. 21.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 even if the case was heard by way of formal proof” 22.The respondent in this case claims to have sustained the following injuries; Bruising of the scalp at the forehead, dislocation of the left shoulder joint, dislocation of the left hip, abrasions to the right forearm and bruising of the left leg. She claims that she was first taken to Keumbo hospital, then transferred to Kisii Teaching and Referral Hospital (KTRH) where she was treated and discharged the same day. 23.On cross examination, the respondent stated that she did not have any reason for refusing a second x-ray during her re-examination. She did not produce any x-ray reports or initial treatments from Keumbo hospital to prove her injuries of dislocation. 24.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 the same were null and void. 25.The appellant further produced an investigation report dated 27th December 2023 with findings that the respondent had produced forged treatment records form KTRH. 26.The 2nd medical report also adduced by the appellant dated 13th September 2024 concluded that the claim was fictitious and not authentic. In this report, Dr. Malik shed doubt on the injuries claimed on several grounds; there was no explanation why treatment notes were printed three weeks after she was treated, there is no evidence of the CT scan or x rays conducted, the injuries particularly the dislocation don’t match the treatment plans and the claim that she was treated as an outpatient. The doctor concluded by stating that the injuries were grossly exaggerated, falsified and ruled out any dislocation. 27.This court notes that the evidence adduced by the appellant at the trial court out shadows that of the respondent and therefore significantly diminishes the credibility of the treatment notes. It is to be noted that the treatment notes are the main documentary evidence in this case, and it is on the basis of the findings thereof that the P3 form was filled as well as the 1st medical report by the respondent’s doctor. 28.The hospital that the respondent claims to have been treated, KTRH, has distanced itself from such claims as well as the treatment notes adduced. As such the evidence, in the p3 form as well as the first medical report is null and void. 29.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. 30.The evidentiary threshold in this case is on a balance of probability. 31.With the above analysis of the evidence in front of this court, I find that the primary documentary foundation of the respondent’s claim was seriously undermined. I am therefore 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 32.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 written and oral testimony. 33.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. 34.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. 35.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. 36.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. 37.With this context, I therefore find that the learned trial Magistrate erred in relying on medical evidence whose authenticity had been substantially challenged Whether the award of damages can stand 38.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. 39.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. 40.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. 41.An assessment of damages is anchored on injuries that have been proved by credible evidence, which is not the case in this appeal. Comparative authorities can only be considered once the court is satisfied as to the injuries for which compensation is sought. In the prevailing circumstances, this court is therefore unable to determine the issue of quantum. Disposition 42.Accordingly, the appeal succeeds. 43.The judgment of the trial court is hereby set aside and substituted with dismissing the respondent’s suit with costs. 44.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 appellantMr. Nyangosi for the respondentRuth Mokeira-court assistant