https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9827

Onsongo v Nyangau (Civil Appeal E035 of 2025) [2026] KEHC 9827 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9827 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E035 of 2025 RK Koech, J July 2, 2026 Between Naftali Michira Onsongo Appellant and Patricia Kemunto Nyangau Respondent (Being an appeal from the judgment and decree of the Honourable C.C. Rono, Resident Magistrate, delivered on 30th January, 2025 in Kisii CMCC E 203 of 2023) Judgment 1.The appellant was the defendant in Kisii Chief Magistrate’s Court Civil Case No. E 203 of 2023 while the respondent was the plaintiff. The cause of action between the parties arose because of a road traffic accident that occurred on 20th November, 2022 involving the plaintiff who was walking besides the road and motor vehicle Registration No. KCH 416 H along Keumbu-Nyabisabo Road. 2.In a judgment delivered on 30th January, 2025 the learned trial magistrate found the appellant wholly liable for the accident and awarded the respondent Ksh. 800,000/= in general damages for injuries suffered as a result of the accident and Ksh. 8,730/= in special damages. 3.In a memorandum of appeal dated 20th February, 2025 the appellant is seeking orders to have the award by the trial court set aside and substituted with a suitable award favourable to the appellant and that the appellant be awarded costs of the appeal. 4.The grounds in support of the appeal are as summarized hereunder;1.That the trial magistrate erred in law and fact by finding that the respondent had proved his case on a balance of probabilities and by admitting electronic evidence without the requisite certificate of electronic prints,2.That the learned trial magistrate erred in law and fact by assessing damages for injuries without primary treatment notes, x-ray films and x-ray reports,3.That the learned trial magistrate erred in law by basing assessment of damages for injuries suffered on a medical report which was not backed by primary medical records and by failing to consider the appellant’s second medical report, and4.That the learned trial magistrate erred in law and fact by making an excessive award in damages for injuries that were largely soft tissue injuries in nature. 5.The parties agreed to dispose of the appeal by way of written submissions with the appellant filing submissions dated 16th February, 2026 and the respondent filing submissions dated 1st December, 2025. The appellant has challenged the trial court’s findings on both liability and the award of damages. According to the appellant, the respondent failed to produce treatment notes issued at Keumbu hospital where she was first taken and x-ray films taken at Kisii Teaching and Referral hospital. The appellant submits that the respondent’s doctor conceded that the respondent’s treatment records were not be found at Kisii Referral hospital register where the respondent was allegedly treated. 6.Referring to the appellant’s second medical report, the appellant submits that a review of the respondent’s treatment notes showed that she had no stitch wounds and that no x-ray films were taken of the respondent. It is also noted by the appellant’s doctor that the respondent was treated and discharged on the same day; further x-rays taken showed she had not suffered fractures as alleged. The appellant submits that his doctor produced two x-ray films of the respondent’s chest and pelvis, which showed no radiological signs of healed fractures. 7.The appellant faulted the trial court for admitting in evidence treatment notes that were inadmissible, saying the respondent did not prove her injuries. The appellant also faults the trial court for failing to consider a second medical report authored by Dr. Malik in comparison with the respondent’s medical report. It is submitted that no reasons were given why one report was preferred against the other report. The appellant is therefore urging this court to interfere with the award by the trial court and to re-assess the damages commensurate with the injuries suffered by the respondent. According to the appellant, the trial court ignored a medical report tendered in evidence for the appellant, which was authored by Dr. Malik, dated 23rd March, 2023. The appellant further submits that the respondent failed to proof any of the particulars of negligence attributable to the appellant as alleged in the plaint. 8.The appellant cited the case of County Assembly of Kisumu & 2 Others v Kisumu County Assembly Service Board & 6 Others (2015) KECA 397 (KLR) in which the Court of Appeal held that the provisions of S. 106B of the Evidence Act were mandatory as regards admissibility of electronic evidence. The appellant has faulted the trial court for admitting medical evidence in the form of computer printouts without the requisite certificate(s). The appellant faulted the trial court for its failure to consider an investigative report, which showed that the medical records relied on by the respondent did not originate from the medical facility ascribed to them (see defence exhibit 2). The appellant submits that if the respondent suffered any injuries, then they were soft tissue in nature and she should be awarded Kshs. 120,000/= in general damages 9.The respondent submits that the lower court judgment and decree is sound in law and fact and does not warrant any interference by this court. The respondent submits that the appellant’s appeal ought to be dismissed with costs. The respondent is urging this court, as the first appellate court, to be cautious as regards the invitation to interfere with the trial court’s findings. The respondent avers that she proved her case to the requisite standards as per the findings of the trial court. The respondent submits that Dr. Nyameino who had examined the respondent produced the respondent’s medical documents. It is pointed out for the respondent that the appellant’s counsel did not object to the production of the said documents. 10.The respondent submits that there is no legal requirement to produce x-ray films so long as a qualified medical practitioner has interpreted the same. Dr. Nyameino is said to have reviewed x-ray films and concluded that the respondent had suffered fractures. It is averred that the respondent’s doctor examined the respondent some days after the accident while Dr. Malik examined her 3 years after the accident. It is submitted that the trial court was right to prefer the contemporaneous report to the older report. The respondent sums up by saying her injuries were proved and commensurate award of damages was given. 11.I can identify only one issue for determination by this court, which is whether the trial court properly assessed damages payable to the respondent for injuries suffered because of the road traffic accident involving the appellant’s motor vehicle, which occurred on 20th November, 2022. 12.I now turn to the assessment of damages for the injuries suffered by the respondent. The medical report produced by Dr. Daniel Nyameino dated 28th December, 2022 shows that the respondent suffered facial cut wound on the left side, chest contusion with resultant two left rib fractures, back contusion, abdominal contusion, pelvic fracture at the left inferior pubic ramus, both knee abrasions and right ankle joint contusion. The report shows that the respondent was put on analgesics, antibiotics and tetanus vaccination. The report is silent on what was done to the fractures only saying that the respondent was put on strict bedrest with recommended follow-up. The respondent’s doctor opined that the injuries were likely to heal well with no loss of permanent functionality. He assessed the injuries as “grievous harm”. 13.The appellant produced by consent a second medical report by Dr. M.S. Malik dated 13th September, 2024, which is the day when he examined the respondent. Dr. Malik has casted doubt on allegations that the respondent suffered fractures captured in her first medical report. He points out that he subjected the respondent to fresh x-rays of the chest and pelvis, which revealed no radiological signs of past-healed fractures (see x-ray films marked “A & B” respectively annexed to his report and a radiological report dated 18th September. 2024 authored by Dr. Z. Oguttu. He reports that the respondent did not present him with x-ray films alleged to have been taken at Kisii Referral hospital. Dr. Malik points out that the respondent presented him with a casualty card printed on 13th December, 2022 yet she claimed to have been involved in an accident on 20th November, 2022. 14.Dr. Malik is of the view that the respondent’s injuries have been grossly exaggerated. He posits that she only suffered a minor scratch on the outer canthus of the left eye. The appellant called an insurance claims investigator called Kennedy Okello. He told the court that he made inquiries at Kisii Referral hospital and found that the treatment documents presented by the respondent did not originate from the hospital. He produced a report containing a letter from the hospital CEO regarding the respondent’s documents (see defence exhibit 2). 15.Based on the submissions of the parties, the trail court awarded the respondent Kshs. 800,000/= in general damages for the injuries suffered. The respondent had filed undated submissions in which she urged the trial court to award her Kshs. 2,500,000/= in general damages. The appellant, on the other hand, filed rival submissions dated 16th December, 2024. The appellant submitted that the respondent suffered soft tissue injuries and that there was no likelihood that she suffered fractures, walked into hospital for treatment and was released to walk back home. The appellant suggested that the respondent ought to be awarded Kshs. 120,000/= in general damages as opposed to Kshs. 2,500,000/= that the respondent was seeking. Assessment of damages is a matter for the trial court’s discretion. 16.In the case of Mariga v Musila (1984) KLR 251, it was held; and I quote;The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court finding on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made wholly erroneous estimate of damage suffered. The question is not what the appellate court would award but whether the lower court Judge acted on the wrong principles.”It is trite law, as severally held in many decisions that a first appellate court is like a trial court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123, it was held; and I quote;Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.” 17.Guided by the above principle appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies. 18.The above position was reiterated in the case of Kemfro Africa Ltd. t/a Meru Express Services v Lubia & Another (1982-88) 1 KLR 727 where it was held, “The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.” 19.An evaluation of the evidence on record shows that the trial court made a finding that the respondent suffered injuries itemized in her plaint and captured in Dr. Daniel Nyameino’s medical report. The trial court believed Dr. Nyameino’s report after referring to the respondent’s P3, which was equally filled by the same doctor. It is apparent that Dr. Nyameino relied on medical records sourced from Kisii Referral hospital. The trial court made no reference to the investigator’s report which cast doubt on the authenticity of the respondent’s treatment notes. Dr. Malik’s report appears to be more comprehensive and is backed by a radiology report and x-ray films of the respondent. I do agree with the appellant’s submissions that the impugned judgment rendered in a contested suit falls short of the requirements of Order 21 Rule 4 of the Civil Procedure Rules. The trial court should have given reasons why she believed Dr. Nyameino’s report and disbelieved Dr. Malik’s comprehensive report. It is apparent that the respondent’s doctor authored his report without the aid of x-ray films and radiologist reports to support the allegations that the respondent suffered fractures. His report is brief and devoid of supporting x-ray films and radiology reports. I agree with Dr. Malik’s observations that a patient who suffers a pelvic and rib fractures cannot casually walk to hospital, is treated and discharged with recommendation for strict bed rest with no subsequent reviews. There is no indication that she visited hospital again, no treatment expenses were claimed save for 2,230/= paid in a pharmacy. The x-ray taken by Dr. Malik shows both the pelvis and chest cavity appearing normal. Had the trial court scrutinized both medical reports it would have been evident that there was a remote likelihood that the respondent suffered fractures as suggested in her medical report. What is likely is that she suffered soft tissue injuries, as suggested by Dr. Malik, which are also captured in Dr. Nyameino’s medical report. The assessment of damages, in the circumstances, is so erroneous and excessive. 20.It is the duty of this court, as the first appellate court, to re-assess the damages for the plausible injuries suffered by the respondent. Having found that she only suffered soft tissue injuries, I do reduce the general damages awarded by the trial court from Kshs. 800,000/= to Kshs. 200,000/= (in words, Kenya shillings two hundred thousand only). I will not disturb the award for special damages. The appeal succeeds to the above extent; I will also award the appellant the costs of the present appeal.It Is Hereby Ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY, 2026HON. RICHARD K. KOECHJUDGEIn the presence of:Ms. Barasa appearing virtually for the AppellantMr. Nyangosi appearing virtually for the RespondentMs. Makali Court AssistantRight of appeal within 30 days, stay of execution for 30 days.