https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6644

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CIVIL APPEAL NO. E011 OF 2023** **OTUKE ALBERT NYAKWANA ……………………..…… APPELLANT** **VERSUS** **LUCY KWAMBOKA MOGISO …………………….….... RESPONDENT** *(Being an Appeal from the Judgment of Resident Magistrate, Wamae M.**at the Magistrate’s Court at Bomet, Civil Suit Number 24 of 2020)* **J U D G M E N T** 1. The Respondent (then Plaintiff) sued the Appellant (then Defendant) for general and special damages that arose from a road traffic accident that occurred on 21st October 2017 along Bomet-Kaplong Road. 2. The trial court conducted a hearing where the Respondent called three witnesses before closing his case while the Appellant did not call any witness. 3. In its Judgement delivered on 9th February 2023, the trial court found the Appellant 100% liable for causing the accident and awarded the Respondent a net award of Kshs 240,721/=. 4. Being aggrieved with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 8th March 2023 appealing against the whole Judgement. 5. My duty as the 1st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 6. I hereby proceed to summarise the case in the trial court and the parties’ respective submissions in the present Appeal. **The Plaintiff’s/Respondent’s case.** 1. Through her Plaint dated 10th March 2020, the Appellant stated that she was a fare paying passenger in motor vehicle registration number KCH 362D along Bomet-Kaplong Road when the said motor vehicle was involved in a self-causing accident. 2. It was the Respondent’s case that the Appellant or his driver was negligent in causing the accident. The particulars of the negligence were stated in paragraph 5 of the Plaint. That as a result of the accident, the Respondent suffered the following injuries: - * 1. Blunt injury to the anterior chest wall leading to soft injuries 2. Blunt injury to the right hip joint leading to dislocation of the hip joint. 3. Blunt injury to the lower back leading to spondylosis. 3. The Respondent prayed for special and general damages against the Respondent. 4. Through her written submissions dated 26th November 2025, the Respondent submitted that the trial court could not be faulted for awarding him Kshs 200,000/= as general damages. That the Respondent called Dr. Obed Omuyoma to prove the injuries sustained by the Respondent. The Respondent further submitted that the Appellant did not call any witness to controvert her evidence. 5. It was the Respondent’s submission that the quantum awarded by the trial court was reasonable in respect to the gravity of injuries suffered by the Respondent. It was the Respondent’s further submission that the failure to produce other medical documents was not fatal and did not prove that the accident did not occur. He relied on **Beatrice Nthenya Sila vs Ruth Mbithe Kitsisa & 3 others (2014) eKLR.** **The Defendant’s/Appellant’s case.** 1. Through his statement of defence dated 6th April 2020, the Appellant denied the occurrence of the accident on 21st October 2017 and further denied being the registered owner of motor vehicle registration number KCH 362D. 2. It was the Appellant’s case that if the accident occurred then it was caused by the negligence of the Respondent. The particulars of negligence were contained in paragraph 5 of the Defence. 3. Through his written submissions dated 20th September 2025, the Appellant submitted that the Respondent was treated three days after the accident. That the Respondent did not provide any other treatment notes from any other hospital and this meant that the injuries could not be confirmed in the absence of treatment notes. He relied on **Timsales Ltd vs Wilson Libuywa (2008) eKLR.** The Appellant further submitted that the Judgement be set aside and suit dismissed but if it was inclined otherwise, then it awards Kshs 100,000/= as general damages. He relied on **HB (Minor suing through mother & next friend DKM) vs Jasper Nchonga Magari & another (2021) eKLR** and **Ndungu Dennis vs Ann Wangari Ndirangu & another (2018) eKLR.** 4. I have gone through and carefully considered the Record of Appeal, the Appellants’ written submissions dated 20th September 2025 and the Respondent’s written submissions dated 26th November 2025. The only issue that I have sieved for my determination was whether the award on damages was excessive. 5. The Respondent pleaded the following injuries: - * 1. Blunt injury to the anterior chest wall leading to soft injuries 2. Blunt injury to the right hip joint leading to dislocation of the hip joint. 3. Blunt injury to the lower back leading to spondylosis. 6. It was the Appellant’s case that the trial court erred in awarding the Respondent damages. That the Respondent had failed to prove that she suffered the injuries listed above. It was the Appellant’s further case that the Respondent failed to produce treatment notes. That the Respondent was treated three days after the accident and it meant he could have suffered the injuries elsewhere. 7. I have looked at the record and I have noted that the Respondent did not produce the treatment notes. The question then became whether this omission was fatal. In **Elakhaya v Peter [2023] KEHC 19102 (KLR),** the court held: - ***“Although in a plethora of decisions among them the case of Eastern Produce K Ltd v James Kipketer Ngetali [2005] KLR the courts have stated that lack of evidence of treatment notes should raise doubts in the trial magistrate’s mind who should find that there is no sufficient evidence to prove that the plaintiff was injured, and that the plaintiff failed to prove the case on a balance of probability as required, it is this court’s considered view that the main evidential object is to ensure that there are no intervening circumstances that may give rise to doubts concerning the occurrence of the alleged injury or as to their nature and extent, and mode of treatment. Nevertheless, the determination as to whether the absence of treatment notes is fatal depends on the circumstances of each case, and whether there is other corroborative evidence of the accident and injuries.*** ***In Amalgamated Sawmills Limited v Joseph Njoroge Matheri [2010] eKLR Emukule J pointed out that there may be circumstances when a treatment card need not be produced, and its absence would not be fatal:*** ***“Whereas I agree with the authorities cited that it is necessary to produce the primary card evidencing treatment, once a Doctor’s Report has been admitted in evidence by consent I think it is not open to a party on appeal to try and repudiate that report or evidence. Failure to produce a treatment card cannot therefore be fatal to an employee’s claim.”*** 1. Similarly, in **Erick Juma & 2 others v Fredrick Gacheru & another [2016] KEHC 1106 (KLR),** Majanja J. (as he then was) held: - ***“…………It is true that treatment notes are part of the evidence of the involvement in the accident and injury. I however reject the argument that without treatment notes one cannot prove involvement in an accident or injury. The duty of the court is to examine the entire evidence and make a finding whether the facts alleged are proved on the balance of probabilities. The existence of treatment notes would assist establishing consistency and corroborating the other evidence but are not necessarily decisive…….”*** 1. Further, in **Kieti v Jumbo Foam Mattresses Industries [2022] KEHC 14325 (KLR**), the court held: - ***“Even if the treatment notes were missing, there was sufficient evidence both oral and documentary to find injury was proved……”*** 1. From the above authorities, it was clear that the omission of treatment notes was not fatal. The court had to consider other additional evidence in regards to the injuries suffered. In the present case, the Respondent (PW3) testified that on the material day, she went to Tenwek Hospital where she was treated and since the injuries were not severe, she proceeded to complete her journey. The Respondent further testified that she went to Naivasha County Referral Hospital on 23rd January 2018 for further treatment. This testimony was uncontroverted upon cross examination. 2. Dr. Obed Omuyoma (PW1) produced a Medical Report as **P. Exh 4a.** The production or veracity of the Medical Report was not challenged in the trial court. I have looked at the Report and it indicated the injuries suffered by the Respondent. The injuries were similar to the ones pleaded in the Plaint. 3. Flowing from the above and on a balance of probability, it is my finding that the Respondent suffered the injuries pleaded as a result of the accident. 4. For this court to interfere with an award, it must be satisfied that the trial magistrate misdirected himself in some manner and as a result arrived at a wrong decision, or that it was clear from the case as a whole that the trial magistrate was clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of justice. **See Catholic Diocese of Kisumu vs Tete (2004) eKLR.** 5. In the present case, the Appellant proposed an award of Kshs 100,000/= while on the other hand, the Respondent prayed that the Appeal be dismissed. 6. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. I have found the following cases quite helpful in terms of comparison: - 7. In **Patrick v Ajak (Civil Appeal E07 of 2020) [2022] KEHC 612 (KLR) (31 March 2022) (Judgment)** where the Respondent sustained the following injuries: Blunt injury to the upper 1st incisor tooth with mild breakage of the tip, cut wound on the inner aspect of the upper lip, blunt injury to the neck, blunt injury to the left shoulder, blunt injury to the left chest, blunt injury to the left hip, bruises on both knees and occasional chest and eft hip joint pain. The Appellate court set aside an award of Kes. 500,000/= and substituted it with an award of Kes. 300,000/=. 8. In **Ayoro v Freight World Logistics Limited & another [2023] KEHC 22489 (KLR),** the court substituted an award of Kshs 90,000/= for an award of Kshs 150,000/= for blunt injury to the neck leading to soft tissue injuries, blunt injury to the thoraco-lumber spine leading to soft tissue injuries, blunt injury to the left hip joint leading to soft tissue injuries and blunt injuries to the left knee joint leading to soft tissue injuries. 9. In **Ochuodho v Ochola [2025] KEHC 2875 (KLR),** the Appellate court sustained the award of Kshs 300,000/= for degloving injury on the right hand, soft tissue injuries on the right side if the face, blunt injury to the neck leading to soft tissue injuries, blunt injury to the anterior chest wall leading to soft tissue injuries, soft tissue injuries of both knee joints and blunt injury to the lower back leading to soft tissue injuries. 10. I have considered the authorities above and the nature of the injuries suffered by the Respondent. I have also considered the current inflation rates and I find the award of Kshs 200,000/= as general damages as sufficient and commensurate to the injuries sustained. 11. In regards to the special damages, the Appellant pleaded Kshs 8,000/= for the Medical Report, Kshs 550/= for the motor vehicle search and Kshs 2,171/=. I have seen the receipt for the Medical Report, motor vehicle search receipt and treatment. PW1 produced an attendance receipt of Kshs 30,000/= and I have noted that the trial court noted that there was no objection from either party on the awarding of the attendance costs. The net result of the above is that the awards to the doctor (PW1) and special damages are sustained. 12. Flowing from the above, it is my finding that there was no reason to interfere with the award of the trial Court. 13. In the end, the Appeal dated 8th March 2023 has no merit and is dismissed. Each Party to bear its own costs for the Appeal. **Judgment delivered, dated and signed at Bomet this 19th Day of May, 2026.** **...........................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Judgment Delivered in the presence of;** **Siele/Susan Court Assistant** **Amboko for Respondent** **Wanyinge for Appellant**