Introduction
1. By judgment delivered on 28th April 2025 in Nyamira MCCC E095 of 2023, the trial court held the Respondent wholly liable for a road traffic accident involving motor vehicles KCY 739U and KBB 988H, but dismissed the Appellant’s claim on the basis that he failed to prove that he sustained the pleaded injuries in that accident.
2. The Appellant lodged a memorandum of appeal dated 14th May 2025 challenging that finding on grounds that;
1) That the learned trial magistrate erred in finding that the Appellant failed to prove that he was injured in the accident.
2) That the learned trial magistrate erred in relying on contradictions in the Appellant’s evidence.
3) That the learned trial magistrate erred in disregarding the Appellant’s medical evidence.
4) That the learned trial magistrate erred in placing undue weight on alleged inconsistencies.
5) That the learned trial magistrate erred in failing to award general damages.
6) That the learned trial magistrate erred in failing to apply the standard of proof on a balance of probabilities.
7) That the learned trial magistrate erred in disregarding documents admitted without objection.
8) That the learned trial magistrate erred in treating minor errors in the P3 form and treatment notes as material.
9) That the learned trial magistrate erred in holding that treatment at Nyamira Level 5 Hospital was a necessary element of proof.
10) That the learned trial magistrate erred in failing to evaluate the entire evidence before the court.
11) That the judgment was against the weight of the evidence.
Background
3. The Appellant’s case, as pleaded in the amended plaint dated 08th April 2024, was that on 31st July 2021 he was a fare-paying passenger in motor vehicle KCY 739U when the Respondent’s motor vehicle KBB 988H was negligently driven and collided with the vehicle in which he was travelling, causing him to sustain multiple injuries for which he claimed general and special damages.
4. The Respondent filed a defence dated 21st September 2023 denying negligence. At the trial the Appellant adopted a witness statement dated 8th April 2023 and a list of documents dated 03rd April 2023 which included a P3 form dated 31st July 2021, a RAM Hospital discharge summary dated 06th August 2021, a medical report dated 25th August 2021, a Police Abstract dated 03rd December 2021 and various receipts, all of which were admitted as exhibits without objection.
5. The trial court accepted that an accident occurred and attributed liability to the Respondent but dismissed the claim on the basis that the Appellant had not proved that the injuries documented in the medical records were caused by that accident.
6. The Record of Appeal, which contains the pleadings, witness statements, medical records, P3 form, police abstract, receipts and the trial court judgment, is before this Court.
7. Only the Respondent filed written submissions on appeal. The submissions are dated 14th May 2025 and are on record. In those submissions, the Respondent supported the decision of the trial court and maintained that the Appellant’s evidence on injury was inconsistent and unreliable, particularly on the question of where he was first treated. Counsel argued that the trial court was therefore correct in rejecting the claim for want of proof.
8. In support of that position, the Respondent relied on the authorities of Kenya Ports Authority v Threeways Shipping Services (K) Ltd [2012] eKLR and William Koross v Hezekiah Kiptoo Kimeu & Another [2015] eKLR, which emphasise the principle that a claimant must present consistent and credible evidence and that a court is entitled to reject a claim where material contradictions undermine the evidentiary foundation of the case.
9. As a first appellate court, this Court is required to re-evaluate and analyse the evidence afresh and draw its own conclusions, guided by the principles in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123. This duty obliges the Court to subject the entire record to a fresh and exhaustive scrutiny, to reconsider the evidence presented before the trial court, and to reach its own independent determination on both fact and law. While doing so, the Court must bear in mind that it did not have the benefit of seeing and hearing the witnesses, and should therefore accord due respect to the trial court’s assessment of witness credibility, intervening only where the findings are based on no evidence, are based on a misapprehension of the evidence, or where the trial court demonstrably acted on wrong principles. The appellate function is therefore not to substitute the trial court’s view lightly, but to correct any material misdirection and to ensure that the conclusions ultimately reached are consistent with the evidentiary record and the applicable legal standards.
Issues for determination
10. Having considered the appeal in light of the record of appeal and the submissions filed by the Respondent, the issues arising for determination are:
1) Whether the accident was proved
2) Whether liability for the accident was correctly attributed to the Respondent
3) Whether the Appellant proved, on a balance of probabilities, that he sustained the pleaded injuries, taking into account the alleged contradictions in his evidence and the medical documentation produced
4) Whether the appeal has merit.
Analysis
1) Whether the Accident Was Proved
11. There is no dispute that an accident occurred on 31st July 2021 involving motor vehicles KCY 739U and KBB 988H. The Respondent did not contest this fact. The trial court therefore correctly held that the occurrence of the accident was proved.
2) Whether Liability Was Correctly Attributed to the Respondent
12. The trial court found the Respondent wholly liable for the accident, and that finding has not been challenged on appeal. There is therefore no basis upon which this Court can interfere with the attribution of liability, which remains settled.
3) Whether the appellant proved that he sustained the pleaded injuries
13. The Appellant stated in both his witness statement and oral testimony that he was rescued from the scene and taken to Nyamira Level 5 Hospital where he received treatment. This was a clear and affirmative assertion of where he was first treated. However, the medical documents he produced present a materially different version of events. The discharge summary from RAM Hospital dated 06th August 2021 indicates that he was admitted at RAM Hospital on 31st July 2021, the very date of the accident, and remained admitted there continuously until 06th August 2021, when he was discharged. The medical report dated 25th August 2021 similarly contains no reference to any initial treatment at Nyamira Level 5 Hospital.
14. No document emanating from Nyamira Level 5 Hospital, whether treatment notes, referral notes, or prescriptions, was produced, despite the Appellant’s insistence that this was his first point of treatment immediately after the accident. This inconsistency does not affect the fact that an accident occurred, but directly undermines the credibility and reliability of the Appellant’s account of injury. If the Appellant had indeed been treated at Nyamira Level 5 Hospital before being taken elsewhere, one would reasonably expect such treatment to be reflected either in the RAM Hospital records or in documents from Nyamira Level 5. Instead, the RAM Hospital records depict uninterrupted inpatient treatment from 31st July 2021 to 06th August 2021, leaving no logical space for the Nyamira Level 5 treatment described by the Appellant.
15. The contradictions in the present case are not clerical or peripheral. They materially weaken the probative value of the Appellant’s evidence on whether he sustained the injuries pleaded.
16. The Appellant bore the burden of proving, on a balance of probabilities, that he sustained the pleaded injuries. In light of the unexplained inconsistencies between his testimony and the medical documentation, the trial court was entitled to find that this burden had not been discharged.
4) Whether the Appeal Has Merit
17. Upon re-evaluating the evidence and applying the relevant legal principles, I find no basis to interfere with the trial court’s finding that the Appellant failed to prove that he sustained the pleaded injuries.
Disposition
18. In the end, I find that the appeal has no merit and it is dismissed with costs to the Respondent.
1. By judgment delivered on 28th April 2025 in Nyamira MCCC E095 of 2023, the trial court held the Respondent wholly liable for a road traffic accident involving motor vehicles KCY 739U and KBB 988H, but dismissed the Appellant’s claim on the basis that he failed to prove that he sustained the pleaded injuries in that accident.
2. The Appellant lodged a memorandum of appeal dated 14th May 2025 challenging that finding on grounds that;
1) That the learned trial magistrate erred in finding that the Appellant failed to prove that he was injured in the accident.
2) That the learned trial magistrate erred in relying on contradictions in the Appellant’s evidence.
3) That the learned trial magistrate erred in disregarding the Appellant’s medical evidence.
4) That the learned trial magistrate erred in placing undue weight on alleged inconsistencies.
5) That the learned trial magistrate erred in failing to award general damages.
6) That the learned trial magistrate erred in failing to apply the standard of proof on a balance of probabilities.
7) That the learned trial magistrate erred in disregarding documents admitted without objection.
8) That the learned trial magistrate erred in treating minor errors in the P3 form and treatment notes as material.
9) That the learned trial magistrate erred in holding that treatment at Nyamira Level 5 Hospital was a necessary element of proof.
10) That the learned trial magistrate erred in failing to evaluate the entire evidence before the court.
11) That the judgment was against the weight of the evidence.
Background
3. The Appellant’s case, as pleaded in the amended plaint dated 08th April 2024, was that on 31st July 2021 he was a fare-paying passenger in motor vehicle KCY 739U when the Respondent’s motor vehicle KBB 988H was negligently driven and collided with the vehicle in which he was travelling, causing him to sustain multiple injuries for which he claimed general and special damages.
4. The Respondent filed a defence dated 21st September 2023 denying negligence. At the trial the Appellant adopted a witness statement dated 8th April 2023 and a list of documents dated 03rd April 2023 which included a P3 form dated 31st July 2021, a RAM Hospital discharge summary dated 06th August 2021, a medical report dated 25th August 2021, a Police Abstract dated 03rd December 2021 and various receipts, all of which were admitted as exhibits without objection.
5. The trial court accepted that an accident occurred and attributed liability to the Respondent but dismissed the claim on the basis that the Appellant had not proved that the injuries documented in the medical records were caused by that accident.
6. The Record of Appeal, which contains the pleadings, witness statements, medical records, P3 form, police abstract, receipts and the trial court judgment, is before this Court.
7. Only the Respondent filed written submissions on appeal. The submissions are dated 14th May 2025 and are on record. In those submissions, the Respondent supported the decision of the trial court and maintained that the Appellant’s evidence on injury was inconsistent and unreliable, particularly on the question of where he was first treated. Counsel argued that the trial court was therefore correct in rejecting the claim for want of proof.
8. In support of that position, the Respondent relied on the authorities of Kenya Ports Authority v Threeways Shipping Services (K) Ltd [2012] eKLR and William Koross v Hezekiah Kiptoo Kimeu & Another [2015] eKLR, which emphasise the principle that a claimant must present consistent and credible evidence and that a court is entitled to reject a claim where material contradictions undermine the evidentiary foundation of the case.
9. As a first appellate court, this Court is required to re-evaluate and analyse the evidence afresh and draw its own conclusions, guided by the principles in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123. This duty obliges the Court to subject the entire record to a fresh and exhaustive scrutiny, to reconsider the evidence presented before the trial court, and to reach its own independent determination on both fact and law. While doing so, the Court must bear in mind that it did not have the benefit of seeing and hearing the witnesses, and should therefore accord due respect to the trial court’s assessment of witness credibility, intervening only where the findings are based on no evidence, are based on a misapprehension of the evidence, or where the trial court demonstrably acted on wrong principles. The appellate function is therefore not to substitute the trial court’s view lightly, but to correct any material misdirection and to ensure that the conclusions ultimately reached are consistent with the evidentiary record and the applicable legal standards.
Issues for determination
10. Having considered the appeal in light of the record of appeal and the submissions filed by the Respondent, the issues arising for determination are:
1) Whether the accident was proved
2) Whether liability for the accident was correctly attributed to the Respondent
3) Whether the Appellant proved, on a balance of probabilities, that he sustained the pleaded injuries, taking into account the alleged contradictions in his evidence and the medical documentation produced
4) Whether the appeal has merit.
Analysis
1) Whether the Accident Was Proved
11. There is no dispute that an accident occurred on 31st July 2021 involving motor vehicles KCY 739U and KBB 988H. The Respondent did not contest this fact. The trial court therefore correctly held that the occurrence of the accident was proved.
2) Whether Liability Was Correctly Attributed to the Respondent
12. The trial court found the Respondent wholly liable for the accident, and that finding has not been challenged on appeal. There is therefore no basis upon which this Court can interfere with the attribution of liability, which remains settled.
3) Whether the appellant proved that he sustained the pleaded injuries
13. The Appellant stated in both his witness statement and oral testimony that he was rescued from the scene and taken to Nyamira Level 5 Hospital where he received treatment. This was a clear and affirmative assertion of where he was first treated. However, the medical documents he produced present a materially different version of events. The discharge summary from RAM Hospital dated 06th August 2021 indicates that he was admitted at RAM Hospital on 31st July 2021, the very date of the accident, and remained admitted there continuously until 06th August 2021, when he was discharged. The medical report dated 25th August 2021 similarly contains no reference to any initial treatment at Nyamira Level 5 Hospital.
14. No document emanating from Nyamira Level 5 Hospital, whether treatment notes, referral notes, or prescriptions, was produced, despite the Appellant’s insistence that this was his first point of treatment immediately after the accident. This inconsistency does not affect the fact that an accident occurred, but directly undermines the credibility and reliability of the Appellant’s account of injury. If the Appellant had indeed been treated at Nyamira Level 5 Hospital before being taken elsewhere, one would reasonably expect such treatment to be reflected either in the RAM Hospital records or in documents from Nyamira Level 5. Instead, the RAM Hospital records depict uninterrupted inpatient treatment from 31st July 2021 to 06th August 2021, leaving no logical space for the Nyamira Level 5 treatment described by the Appellant.
15. The contradictions in the present case are not clerical or peripheral. They materially weaken the probative value of the Appellant’s evidence on whether he sustained the injuries pleaded.
16. The Appellant bore the burden of proving, on a balance of probabilities, that he sustained the pleaded injuries. In light of the unexplained inconsistencies between his testimony and the medical documentation, the trial court was entitled to find that this burden had not been discharged.
4) Whether the Appeal Has Merit
17. Upon re-evaluating the evidence and applying the relevant legal principles, I find no basis to interfere with the trial court’s finding that the Appellant failed to prove that he sustained the pleaded injuries.
Disposition
18. In the end, I find that the appeal has no merit and it is dismissed with costs to the Respondent.