Skip to content
JudgmentDavid Kariuki Makami VS Fredrick Otieno Opiyo5 min read

David Kariuki Makami VS Fredrick Otieno Opiyo

High Court at Kisumu High Court · · M.S.Shariff

  1. By way of plaint dated 21st June, 2016, the respondent herein sought from the appellant compensation for injuries sustained in a road traffic accident involving the appellant’s motor vehicle registration number KBK 627V in which he was travelling in as a fare paying passenger. The respondent attributed the occurrence of the accident to the appellant’s driver’s negligence and that as a consequence thereof, he sustained injuries.
  2. The appellant duly entered appearance and filed its statement of defence denying liability and attributing the occurrence of the accident to the respondent’s negligence.
  3. The matter then proceeded to hearing, the respondent testified that he was travelling from Ahero to Awasi when the subject motor vehicle lost control and overturned occasioning him harm. He blamed the driver and or owner of the vehicle for negligence. That thereafter, he was treated at Ahero hospital
  4. Nicodemus Mbuge, a clinical officer testified as PW- and his testimony was that he attended to the respondent on 24/12/2015 as an outpatient and noted swelling on the chest, tenderness on the back and tenderness and bruises on the left elbow joint. He stated that the injuries were largely soft tissue.
  5. PW-2 was Dr. Were Okombo who prepared the medical report and stated the respondent sustained injuries to the head, neck, back, chest, elbow and knee joints. That the injuries were soft tissue.
  6. DW-1 Benard Owino stated that the respondent was never treated in their facility as the outpatient number 21245/15 was never given to the respondent.
  7. The trial court after weighing the evidence awarded Kshs 100,000/-. The issue of liability had been settled in the parent suit at 100% against the respondent.
  8. Aggrieved, the appellant moved this court vide a memorandum of appeal dated 20th May, 2021 raising the following grounds;
    1. The learned trial magistrate erred in awarding an excessive amount on quantum to the plaintiff.
    2. The learned trial magistrate in awarding the plaintiff an excessive amount in damages yet the claim was fraudulent.
    3. The learned trial magistrate erred in holding that the defendant was wholly to blame for the occurrence of the accident.
  9. The parties thereafter filed their submissions in disposing of the appeal.
  10. The appellant submits that the trial court erred in awarding damages based on fraudulent documents and cited the authority in Koinange & 13 others V Koinange (1968)KLR, 23.
  11. That the appellant produced a letter showing that the respondent was not treated at the facility.
  12. On quantum, it is submitted that the sum awarded is high considering that the respondent sustained soft tissue injuries and fraudulent.
  13. The respondent submits that he had proposed a sum of Kshs 350,000/- yet the trial court awarded Kshs 100,000/- the authority in Samwel Martin Njoroge Kamunyu V Mildred Okweya Baraza (2020) eKLR and Anthony  Nyamwaya V jackline Moraa Nyandemo (2022) eKLR.

Analysis and determination.

  1. This being a first appeal, the duty of the court is as was held in Mark Oiruri Mose vs. R (2013) eKLR thus;

….the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.

  1. The appeal herein raises issues of liability for the accident, the quantum of damages and whether the claim was fraudulent.
  2. From the above, I find the issue of fraud to be paramount and ought to be determined in priority to the other issues.
  3. The appellant asserts that the document allegedly produced from Ahero district Hospital is a forgery as the respondent was never treated in that facility. DW-1 stated that he worked at the said facility. The appellant in their amended statement of defence in the trial court particularized instances of fraud attributed to the respondent under paragraph 8A inter alia forging documents to further his claim.
  4. The respondent under paragraph 5 of the reply to the amended defence reiterated that the claim was genuine.
  5. In his analysis, the trial magistrate did not consider this fact.
  6. Order 2 Rule 10(1)(a) of the Civil Procedure Rules requires a pleading to give particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies on.
  7. The standard of proof in cases of fraud was stated in Kinyanjui Kamau vs. George Kamau (2015) eKLR where it was held as follows: -

….. It is trite law that any allegations of fraud must be pleaded and strictly proved……. In cases where fraud is alleged, it is not enough to simply infer fraud from the facts….

  1. The appellant having filed its amended statement of defence called DW-1, a medical superintendent at Ahero Hospital who confirmed that the respondent was not treated at the facility.
  2. On his part, the respondent called Nicodemus Mbuge who allegedly treated the respondent on 24/12/2015 but had since left the facility. He produced into evidence treatment chits he prepared and a P3 form prepared by one George Mwita who he said was still working at the facility.
  3. I have examined the letter dated 26/8/2016 and produced as Dexh-1 which confirms that the respondent was not allocated outpatient number 21245/15 and that the author of the letter is unknown to the facility.
  4. The contents of the letter taken with the respondent’s evidence makes it more probable than not that the respondent was not treated at the facility. The medic who allegedly treated the respondent is said to have been in the facility yet an individual who had allegedly left the facility attended court to testify.
  5. Premised on the above, I find the respondent was not treated at the facility and the claim was thus fraudulent.
  6. Had the claim been authentic, I would affirm the award of Kshs 100,000/- based on the authority in FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR, where an award of kshs 60,000/- was enhanced to Kshs 100,000/- in a case where the minor had sustained   soft tissue injuries, which were blunt object injury to the head, neck, limbs thorax and abdomen.
  7. Based on the above analysis, the trial court’s judgment is hereby set aside and substituted therewith an order dismissing the respondent’s suit in the trial court with costs to the appellant.
  8. Orders accordingly.

Delivered, Dated, and Signed at Kisumu this 27th day of August 2024


    David Kariuki Makami VS Fredrick Otieno Opiyo David Kariuki Makami VS Fredrick Otieno Opiyo