[2022] KEHC 14356 (KLR)

Riga Investments Limited v Nyanyuki (Civil Appeal E011 of 2020) [2022] KEHC 14356 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14356 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E011 of 2020

JN Njagi, J

February 11, 2022

Between

Riga Investments Limited

Appellant

and

Benson Mosoti Nyanyuki

Respondent

(Being an appeal from the judgment and decree of Hon W.C.Waswa, RM, in Nyamira CM`s Court Civil Case No.120 of 2015 delivered on 10/12/2020)

Judgment

1. The respondent had instituted suit against the appellant at the lower court seeking payment of general and special damages after the public service vehicle he was travelling in was hit by a vehicle belonging to the appellant whereby the respondent purported to have received injuries. The trial magistrate found the respondent vicariously liable in damages and awarded the respondent Kshs 150,000/= in general damages. The appellant was aggrieved by the award and filed this appeal.

2. The grounds of appeal are that:1. The learned trial magistrate misdirected himself in awarding a sum in respect of damages which was so inordinately high and excessive in the circumstances that it represented an entirely erroneous estimate vis-a-vis the respondent’s claim resulting in a miscarriage of justice.2. The learned trial magistrate erred in law and fact in holding that the respondent was the same person shown in the treatment records without any proof of the same hence arriving at the wrong decision.3. The learned trial magistrate failed to apply himself judicially and to adequately evaluate the evidence and the pleadings tendered and thereby arrived at a decision unsustainable in law.4. The learned trial magistrate erred in law and fact when he awarded the respondent an award without considering that the respondent never filed his submissions at the time of judgement.

3. The appeal was canvassed by way of written submissions by the advocates for the respective parties, the firm of Asati, Anyona & Co Advocates appearing for the appellant and the firm of Ombuhi K Mogire Advocates representing the respondent.

4. The trial magistrate found that the respondent had suffered the following injuries as recorded in a medical report prepared by Dr Morebu dated November 1, 2017:(a)Brain concussion(b)Blunt object injury to the anterior chest wall(c)Tenderness on the left thigh(d)Tenderness on the right foreleg and(e)Bruises on the right foreleg

Submissions 5. The advocates for the appellant submitted that the respondent filed the suit in the name of Benson Musoti Nyanyuki. That the treatment notes that he produced in the case from Kisii Teaching & Referral Hospital, Pexh.7, were in the name of Benjamin Musoti. That the other documents in the case -the P3 form Pexh.5, the medical report Pexh. 4(a) and the police abstract, Pexh.6 - were all in the name of Benson Musoti Nyanyuki. That the injuries reflected in the P3 form were different from those in the medical report. That the injuries captured in the P3 form were tenderness on the chest wall, bruises and tenderness on the right foreleg and tenderness on the left thigh. That whereas the same injuries were captured in the referred to medical report, the medical report contained additional injury on brain concussion. That the documents show that it is Benjamin Musoti who was treated. That the respondent denied in his evidence in court that he is the person called Benjamin Musoti. That he did not swear an affidavit to state that he was the same person being referred to in the treatment notes as Benjamin Musoti. That the two were therefore different persons. That the respondent cannot use the records for Benjamin Musoti to purport that he is the one who was injured.

6. The advocates further submitted that the general damages awarded by the trial magistrate were inordinately high. That the plaint, the P3 form and the medical report showed different injuries. That the award was based on the injuries reflected in the medical report which was prepared over 2 years later. That the medical report was based on wrong assumptions as there were no visible injuries at that time. That the treatment notes did not support the injuries as contained in the medical report. That treatment notes are the basic documents in a case of this nature. That the trial court did not take this into consideration when it made the award. That it was wrong for the trial court to ignore the evidence contained in the said document.

7. The advocates urged this court to allow the appeal and dismiss the respondent`s case with costs.

8. The advocates for the respondent on the other hand submitted that any lapses on the side of the medical records and the medical staff operations should not be visited upon an innocent accident victim who had no moderation at all over the same. That the P3 form and the police abstract do capture the correct name of the respondent. The advocates urged the court to find that there is no merit in the appeal and proceed to dismiss it with costs to the respondent.

Analysis and Determination 9. This being a first appeal this court is reminded that it has the duty to analyze and re-consider afresh the evidence adduced at the lower court and draw its own conclusions. In doing so the court has to bear in mind that the trial court had the advantage of seeing and hearing the witnesses testify - see Selle & Another v Associated Motor Boat Company Limited (1968)EA 123.

10. The issues for determination in this appeal are –1. Whether the respondent did prove that he was the same person who was being referred to in the treatment notes as Benjamin Musoti.2. Whether the award for general damages was inordinately high.

11. The evidence of the respondent was that he was travelling in a public service vehicle when the vehicle was hit by another vehicle that was reversing on its own motion. He was injured. That he was treated at Kisii Teaching and Referral Hospital. Later a medical report was prepared for him by Dr Morebu of Kisii Teaching Hospital, PW3. He sued the appellant.

12. The witnesses who testified for the respondent were a police officer, PW2, who produced the police abstract as exhibit and Dr Morebu, PW3 who produced the medical report as exhibit.

13. The appellant called one witness in the case, Cyrus Giteya DW1, who testified that he is the manager of the appellant. That on the material day their vehicle was parked at Omogonchoro market when it started to move on its own and hit motor vehicle registration No xxxx matatu at the passenger door. That nobody was injured in the matatu. That later the owner of the vehicle went to their office and they settled the matter. The witness however stated that he was not at the scene when the accident occurred.

14. The appellant submitted that the respondent was not the same person who was treated at Kisii Teaching and Referral Hospital as the name in the treatment note and the other documents produced in the case were different.

15. I have examined the evidence that was adduced before the trial court against the submissions by the respective advocates for the parties. The treatment card from Kisii Teaching & Referral Hospital, Pexh 7, is in the name of Benjamin Musoti. The P3 form, the medical report by Dr Morebu and the police abstract are in the name of Benson Musoti. The respondent stated that he is Benson Mosoti and not Benjamin Musoti. He said that there was a misrepresentation of his name in the treatment card which he attributed to a typing error, though the name on the card is handwritten.

16. Dr Morebu examined the respondent on the November 1, 2017 which was over two-and-a-half years after the occurrence of the accident. His evidence was that he relied on the P3 form and the discharge summary from Kisii County Hospital to prepare the medical report. That the name in the discharge summary was Moseti Benjamin. The said document was not produced to the trial court. Though the doctor was not the one who treated the respondent after the accident and only saw him over two-and-a half years later he stated in his report that-'Benson sustained some multiple severe soft tissue injuries that are on the process of healing with scars.'

17. According to Dr Morebu`s medical report the injuries sustained by the respondent were managed by TT injection, analgesics and antibiotics. It raises suspicion how such minor injuries had not healed when Dr Morebu saw the respondent over two-and-a-half years later after the accident. Is it the respondent that Dr. Morebu saw on the November 1, 2017 or it was another person going by the name Benjamin Musoti who the doctor attended to on that day? Moreso perplexing is why Dr Morebu used the name Benson Mosoti Nyanyuki is his report when the treatment card read the name Benjamin Musoti and the discharge summary read the name Moseti Benjamin.

18. The advocates for the appellant in their submissions at the lower court raised the issue on whether the respondent was the same person who was being referred to in the treatment card as Benjamin Musoti. The trial magistrate however did not make a determination on the issue. In my considered view, there was doubt as to whether the respondent was the same person who was being referred to in the treatment card as Benjamin Musoti and in the discharge summary as Moseti Benjamin. The respondent did not swear an affidavit when filing the suit that he was the same person. The doctor who treated him did not testify in the case to confirm that he was the same person. It was not thereby established that the respondent was the same person who was mistakenly treated at Kisii Teaching & Referral Hospital under the name of Benjamin Musoti. His claim ought to have been dismissed which I hereby do.

18. In case I am wrong on the above I am required to determine the amount of quantum I would have awarded the respondent had he succeeded in the case. The appellant submitted that the award of general damages made by the trial court was inordinately high.

19. The trial court based its award of damages on the injuries as captured in the medical report of Dr Morebu which were:Brain contusion, blunt injury on the anterior chest wall, tenderness on the left thigh, tenderness on the right foreleg and bruises on the right foreleg.The injuries as captured in the P3 form were:Tenderness on the anterior chest wall, bruises and tenderness of the right foreleg and tenderness on the left thigh.The injuries as claimed in the plaint were:Chest contusion, multi cut wounds on the right leg and blunt cum lacerations on the left leg.The injuries as I can discern from the treatment card are: chest contusion and some injuries on the right foreleg and left thigh.

20. It is clear from the documents that were placed before the trial court that the respondent did not sustain any injuries on the head. It is not known where Dr Morebu got the injuries on the head from when the same were not captured in the documents he relied on to prepare the medical report. Neither were there multi cut wounds on the right leg as indicated in the plaint. It is clear to me that the respondent only sustained blunt injury on the anterior chest wall and bruises and tenderness on the right thigh and left foreleg. The trial court fell into error in including brain concussion as part of the injuries sustained by the respondent. The magistrate did not interrogate the documents keenly to ascertain the injuries sustained by the respondent. The magistrate then must have misapprehended the injuries sustained by the respondent as a result of which he awarded inordinately high damages.

21. The respondent had at the lower court asked for general damages to the tune of Kshs 400,000/= while making reliance on the case of Francis Ochieng & Another v Alice Kajimba (2015)eKLR where Majanja J reduced an award of Kshs 500,000/= to Kshs 350,000/= where the respondent has sustained mild head injury with bilateral temporo-parietal scalp haematoma. The appellant had not cited any authority in the court below.

22. The trial court made an award of Kshs 150,000/= while making reliance on the case of Maimuna Kilungya v Motrex Transporters Ltd (2019)eKLR where Ongundi J awarded Kshs 125,000/= in general damages for blunt neck injury, blunt injury left shoulder and bruises on the left ear. In my view, the said authority compared relatively well with the injuries sustained by the respondent herein when excluding the brain concussion.

23. I have considered other comparative cases where awards for soft tissues injuries were made. In George Kinyanjui T/A Climax Coaches & Another Vs Hussein Mahad Kuyale (2016) eKLR Kimondo J reduced an award of Kshs 650,000/= awarded by the trial court to Kshs 120,000/= where the respondent had sustained tenderness on the posterior neck, chest, lumbo saxral spine, left shoulder and knee.

24. In Hantex Garments (Epz) Ltd Vs Haron Mwasala Mwakawa (2017) eKLR, Njoki Mwangi J upheld an award of Kshs 100,000/= in a case where the respondent had sustained bruises, blunt trauma, swelling and tenderness on the right leg.

25. In Benson Charles Ochieng & Another v Alice Atieno (2013)eKLR the court affirmed an award of Ksh 120,000/= where the plaintiff had sustained a swollen forehead which was tender with haematoma, a swollen and tender neck, blunt trauma to the chest which was tender, both hip joints and knees were swollen and tender and a cut wound on the left.

26. In Simon Muchemi Atako & Another vs Gordon Osore (2013) eKLR the Court of Appeal awarded the 1st appellant a sum of Kshs 120,000/= for injury to the nose with nose bleeding, blunt injury to the chest, blunt injury to the right hip, cut wound on the base of the left thumb with partial loss of the nail and bruise wound on the right knee.

27. The respondent herein sustained minor injuries in the form of blunt object injury to the anterior chest wall, tenderness on the left thigh, tenderness on the right foreleg and bruises on the right foreleg that healed without any complication. The respondent only attended hospital once. I would have awarded him Kshs 100,000/= had this appeal not succeeded.

28. The upshot is that there is no evidence that the respondent was the same person who was treated at Kisii Teaching & Referral Hospital under the name of Benjamin Musoti. The respondent did not prove that he received any injuries as a result of the accident that took place along Kisii-Kericho road on the March 30, 2015. I thereby uphold the appeal. The judgment of the trial court is set aside and the respondent`s case against the appellant dismissed with costs to the appellant.

Dated, signed and delivered virtually at Nairobi this 11th day of February 2022. J. N. NJAGIJUDGEIn the presence of:N/A for the AppellantMiss Ongwacho for the Respondent