Brief background;
The appeal arises from the Judgement and Decree issued by the Trial Magistrate at Kisii Chief Magistrate's Civil Suit No. 691 of 2019 delivered on the 7th August 2022.The appellant is challenging the determination on quantum.
The Cause of action herein is a road traffic accident that occurred on 22.04.2019 which left the Respondent with personal injuries.
In seeking legal remedy, the Respondent, filed a plaint dated 03.09.2019.
The primary suit proceeded to full hearing and the trial court rendered its judgment on 01.08.2022 in the following terms: -
Liability 100% as against the Defendant (- the Appellant herein);
General damages of Ksh 700,000/=;
Special damages of Ksh 44, 050/=; and
Costs and interest awarded to the Plaintiff (- the Respondent herein)
Aggrieved by the trial court's findings the Appellant has lodged the Appeal herein on the grounds of the appeal as set out in the memorandum of appeal dated 18.08.2022 and the Supplementary Appeal dated 5th December 2023.
Appellant's case;
The Respondent was a pedestrian walking along, Kisii- Migori road when at Daraja-Mbili, Motor Vehicle registration number KBZ 003Q allegedly lost control and knocked him.
The appellant relies on the case of Bundi Murube V Joseph Omkuba Nyamuro [1982-88/1KAR 108 wherein the Court of Appeal set out circumstances in which the Appellate Court can interfere with the Trial Court's finding of fact more especially where the decision is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably, to have acted on wrong principles in making, the findings he did.
When the matter came up for trial, the Plaintiff testified and called three (3) witnesses namely: Dr. Peler Morebu Momanyi, One Onyinka Festus.
During cross examination, the Plaintiff testified that;
"Plaster was placed in theatre. I cannot see theatre charges...the treatment notes and billing came from RAM Hospital. Plaster was removed by a doctor. The date for review was not indicated"
PW3 - Onyinkwa Testus stated:
"I am a clinician at RAM. I have discharged summary for Osoro."
On cross-examination he testified that;
I" am an employee of RAM Hospital as clinician....we do not have payroll number. I did not come with employment documents. I have a Council badge and professional practicing certificate."
During cross examination, Dr. Morebu Momanyi while testified that:
"I relied on patient card, x-ray films, the discharge summary, and physical examination. He had Plaster of pains on the left leg."
During re-examination the witness said;
"Injuries were multiple and it will take time to heal"
PW 4. PC. Kenneth, the Police officer on cross-examination stated;
"He was treated at Clinic called Agape....... the report does not show fracture to the leg.....
On re-examination he testified that;
"Patient was initially rushed to Agape. Accident occurred at 06.00am. it was reflected at 11.00am. it was reported by Evans Osoro Waiguru."
According to the Appellant,the evidence as adduced by the witnesses in particular the Plaintiff, Onyinkwa and the Police officer regarding the issue of treatment, investigation of the injuries sustained and management are so inconsistent and contradictory that they cannot be relied upon as a basis for determination on quantum even on standard of proof of a balance of probability.
The appellant submits that accident was reported to the police station by the Respondent himself five (5) hours after its occurrence. At the time of reporting, the Respondent had been seen at a clinic called Agape, according to the Police investigating officer.
It is the appellant’s view that if indeed it's true as the police told the Court, why didn't the Respondent tell the Court the same? And assuming that the Plaintiff sustained injuries that were as severe beyond the capacity of Agape clinic to treat, and he was referred to RAM Hospital, why didn't the Respondent produce a referral letter?
According to the Appellant, PW3 led the Court to believe that he was from RAM hospital, but failed to identify himself.He did not produce any employment card; he did not state his payroll number or even produce a hospital badge. The fact that the witness is registered as a clinician with the National Nursing Association does not necessarily mean that he is employed at RAM hospital.
It is also argued that indeed the discharge summary emanated from RAM hospital why didn't the Respondent call its maker, Dr. Benjamin Chebet.
According to him the discharge summary was cleverly crafted by the Respondent to hoodwink the Court that he sustained a fracture.
Further the Appellant's submitted that DW1 - Mahmood Hassan stated;
"I was asked to verify some invoices and discharge note. It is for Evans Osoro Waruguru. It did not originate from us. The number shown belongs to Dennis Makori Nyangeri. He was admitted on 23.4.2019 and discharged on 24.4.2019. It is not possible for one number to be used by two persons. Invoices did not originate from Ram Hospital. I did not see records of Evans Osoro Waiguru. He was never admitted at our facility on the material date. I told an investigator from the Insurance about it. I did a letter disowning the documents."
During cross examination he stated:
"I looked at the documents supplied and made conclusion. The Patient name belonged to Dennis Makori. I have a copy of letter for admission and discharge of patients....the number is allocated when the patient si admitted as in-patient. I did not avail the documents...it is not possible for error ot occur."
During re-examination he stated that:
"Two patients cannot be allocated the same number. Dennis Makori was our palient. Evans Osoro Waiguru was never treated at our hospital."
DW 2 stated that;
"I was given instructions by Fidelity Insurance to investigate the case of Evans Osoro Waiguru."
On Examination he stated that:
"they did a letter that the documents did not originate from their hospital...the inpatient number belonged to Dennis Makori....., we confirm the inpatient number belongs to a different person.
In the Judgement delivered on 1st August 2022, the Trial Court held;
"The next issue is quantum. The injuries allegedly suffered by the Plaintiff was contested and specifically discharge summary from RAM Hospital. PW2 Onyinkwa Festus Clinician from RAM Hospital produced the said document. It was his evidence that the Plaintiff was treated at the facility.
DW1 Mohamoud Hassan accountant and working in records stated that the Plaintiff was never treated at the facility. DW2 Richard Ngeno was tasked by the insurance to investigate the claim. That he compiled the report. DWi never produced any document to show that Discharge Summary belonged to another patient. DW2 did not produce any report arising out of investigation.
As things stand, they gave a general statement without supporting documents. PW3 produced a discharge summary. This was not discounted by another document. Again, the hospital has not disowned the said witness as their worker. Under the circumstances, the discharge summary is still valid document showing the Plaintiff was treated at RAM Hospital."
It is the appellants submissions that had the Court appreciated the evidence on record, it could have noted that one
Onyinkwa Festus having been unable to identify himself and produce any document showing his relationship with RAM Hospital, the Court erred by making an assumption that he was a clinician from RAM Hospital. The issue of employment is a factual issue which is required to be proved. The witness fell short of the identification test and to that effect, the court's finding was erroneous and was based on no evidence.
Secondly, the Trial Court's holding that the Defendant did not disown the said witness (Onyinkwa Festus)as their worker is with respect un-intelligent way of reasoning. The very basic principle of law is that he who alleges must prove. The witness did not prove that he was an employee of RAM Hospital. It was not the duty of the Appellant to fill in the gaps of the Respondents case.
The holding amounted to the Court shifting the burden of proof of the Appellant. In any case, this witness's name was not among the witnesses identified in the Plaintiff's list of witness. The Appellant was ambushed by his introduction into proceedings.
Further and interestingly, according to the Appellant, the "witness" having produced the alleged discharge summary in examination-in-chief, he turned around on cross- examination and said "the (discharge summary) document was authored by Dr. Benjamin Chebet"
The appellant submits, that the trial court misapprehended the law on production of documentary evidence by relying on a document which was not produced pursuant to the requirements of Section 35 of the evidence Act. The Court ought to have cautioned itself against placing reliance on the document whose authenticity was in doubt. Further, the Respondent did not lay the basis for the production of the document. It is the appellants case that The Respondent cleverly sneaked into the proceeding the document during examination- in-chief, when everybody else believed that the witness was its author. A fact which became unlawful during cross-examination.
The importance of producing the treatment chits was considered in the case of Timsales Limited Vs. Wilson Libuywa (2008) eKLR Maraga J as he then was, in order to tie the treatment of the Plaintiff to the accident, stated thus;
"...A medical report by a doctor who examines him much later is of little, if any, help at all. Although it may be based on the doctor's examination of the plaintiff on whom he may, like in this case, have observed the scars, unless it is supported by initial treatment card it will not prove that the plaintiff indeed suffered an injury on the day and place he claimed he did. The scars observed on such person would very well relate to injuries suffered in another accident altogether.."
Lastly on this point, and with the greatest respect to the Trial Magistrate, the Court holding that DWI never produced any document to show that the discharge summary belonged to another patient is mind blogging. If the Appellant had proceeded in the manner suggested by the Court, then that could have infringed on the Constitutional rights to privacy of one Dennis Makori Nyangeri.
Besides, patient documents are confidential documents protected by the Constitutional right to privacy. The trial Court in so holding shifted the burden of proof to the Appellant contrary to the rules of evidence.
The trial Court wondered why the Appellant did not produce the Insurance Investigators report. The appellant submits that the Insurance report was a privileged document which did not form part of the issues before the Court for determination.
The appellant is of the view that it was sufficient to state that he did not find records of the Respondent at the Hospital showing that the Respondent was treated and received management at the facility.
Reliance is placed in the appeal in Samuei Karani Murithi-vs- Eutychus Wanjohi &2 others /2019| eKLR where he stated;
"Therefore, absence of initial treatment chits or some form of reliable and admissible record or evidence thereto denies any connection between the injuries set out and the medical report and the accident on the alleged cause of the injuries. consequently, there is no plausible basis for an award in general damages or medical expenses."
The appellant urges the court to make a finding that there was no evidence produced by the Respondent showing the nature and treatment of the alleged injuries which included several fractures.
The discharge summary was not supported by evidence on several fractures. The alleged discharge summary was not supported by evidence on treatment and therefore the same was of no probative value in supporting the alleged injuries and that the trial court misdirected itself in assessing damages for an injury which had not been proved.
The appellant also relies on the case of Mbogo & Another -vs- Shah (1968) EA where the Court set out as follows;
A" Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge ni exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifestation from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been injustice."
The appellant wants the appeal to be allowed and the trial Court's decision on quantum be set aside and the Court reassess the quantum of damages payable which are in the nature of soft tissue injuries as guided by the findings in Civil Appeal No 5 of 2013 Eastern Produce (K) Limited (2015) eKLR where it was held that;
"... the injuries were thus of a soft tissue nature. They would not affect the respondent's employment as general or manual worker... Considering inflation and the nature of soft tissue injuries before me, and which have completely healed, an award of Kshs. 50,000 is sufficient."
The appellant also relies on the case of FM (Minor suing through the mother and next friend MWM) vs JNM & Another |2020| eKLR - in which Justice Nyakundi made an award of Kshs. 100,000/- for General damages for pain and suffering.
Respondents case;
It is the Respondent’s case that the pleaded injuries were confirmed by the evidence no record. The Appellant did not adduce any evidence to discount the said injuries. The trial court's award on general damages was in its entirety a just and fair compensation for the Respondent's injuries.
The award is not only commensurate with the nature of injuries suffered by the Respondent but also manifestly consistent with precedent awards made in similar cases.
The Respondent called forth 4-witnesses during the primary suit's hearing.
'PW-I' - Dr. Peter Morebu Momanvi who testified that he had examined and prepared a medical report for one, EVANS OSORO WAIGURU, the respondent herein who sustained the following injuries;
Head injury
Right tibia fracture
Right fibula fracture
Blunt trauma to the scalp
Blunt trauma to the lower back
Blunt trauma to the lower back.
The doctor assessed the injuries to be grievous harm and confirmed that the Respondent requires physiotherapy with occupational therapy.
He further produced the following documents as exhibits before the Trial Court in support of the Plaintiff's case:-
Medical Report,Receipt for Ksh 6,500/= and P3 Form.
During cross examination, Dr. Morebu confirmed that he relied on the patient treatment card, X-Ray films, Discharge Summary and physical examination when preparing the medical report and assessing the injuries.
'PW-Il' - Evans Osoro Waiguru - (The Respondent herein) adopted his written statement dated 03.09.2019 as part of his testimony.
He stated that on 22.04.2019, he was lawfully walking off the road along Kisii- Migori Road when at Daraja Mbili market; he was hit from behind by motor vehicle Reg. No. KBZ 003 Q which had lost control and veered off its lane. As a result of the accident, he sustained severe injuries which were treated at Ram Hospital.
He produced the following documents copy of Records, invoice for Ksh. 550/= and bundle receipts.
PW-III' - was one Onyinkwa Festus- (A clinician based at Ram Hospital who stated that one Evans Osoro Waiguru (the Respondent herein), was admitted and treated for five days at Ram Hospital and thereafter discharged. He confirmed that the Respondent had sustained multiple severe injuries as a result of the accident. He confirmed that X-Rays were done and ascertained that the Respondent herein sustained fractures of the tibia and fibula bones.
He produced the following document as exhibit before the Trial Court discharge summary from Ram Hospital.
PW-IV' -was PC Kenneth Waiguru a traffic police officer attached to Kisil Police Station - where the accident was reported and investigated. He produced the following document the Police abstract as Exhibit No.ー3：
The Appellant's called 'DW-I - Mahmoud Hassan who testified that he works at Ram Hospital as an accountant and Records officer. He had been asked to verify some invoices and discharge notes for one Evans Osoro Ng'ang'a, documents which he said did not originate from Ram Hospital.
He did not produce any documents before the Trial Court to show that the Discharge Summary belonged to another patient.
The second witness one 'DW-II - Richard Ngeno.He testified that he is a proprietor of Gurzin Associate, which is an investigating firm. He had received instructions to investigate the case of Evans Osoro Waiguru.
The witness did not produce any report arising out of the investigations they conducted.
4Reliance is placed in the case of Peters v Sunday Post Ltd (1958) EA 4where the former Court of Appeal for Eastern Africa observes as follows,
"It is a strong thing for an appellate court to differ from the finding on a question of fact, of the judge who tried the case and who has had the advantage of seeing and hearing the witness But the jurisdiction "(to review the evidence) should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion."
The Court of Appeal in Butt vs. Khan /197711 KLR states as follows: -
"An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect. and so arrived at a figure which was either inordinately high or low.
Dr. Morebu in the medical report notes that the injuries sustained by the Respondent herein were severe multiple injuries which he assessed to be grievous harm. He further noted that recovery would take a very long time and the patient would require physiotherapy with occupational therapy.
The Respondent highlights that there is not a single piece of evidence that was tendered discounting controverting the nature and seriousness of the Respondent's injuries as pleaded.
Reliance is also placeed to Catholic Diocese of Kisumu vs. Sophia Achieng Tete(2004) 2 KLR 55 where the Court of Appeal observes as follows: -
"It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not notified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at
The foregoing is reiterated by the Court Of Appeal in Jane Chelagat Bor vs. Andrew Otieno Onduu /1988-9212 KAR 288: (1990-1994] EA 47: -
22) The foregoing is reiterated by the Court Of Appeal in Jane Chelagat Bor vs. Andrew Otieno Onduu /1988-9212 KAR 288: /1990-19941 EA 47: HICCA 59 of 2022[of 10];
"In effect the court before it interferes with an award of damages. should be satisfied that the Judge acted on wrong principle of law. or has misapprehended the fact. or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere. whether on the ground of excess or insufficiency."
The appellate court can only interfere with the award of damages where it finds that the trial court applied wrong principles of law by taking into account some irrelevant factor, leaving out of account some relevant ones and therefore arriving at an erroneous estimate of damages to be awarded.
The appellant in their memorandum of appeal dated 18.08.2022 have criticized the lower court's decision on quantum and in particular the finding that the injuries sustained by the respondent had been proven. They base their argument on the notion that the Discharge Summary produced as Plaintiff did not emanate from Ram Hospital.
The Respondent seeks to differ with this in line of submission and lead the court to the evidence of PW 3- Onyinkwa Festus, a clinician working at Ram Hospital.
Pw3 rightly stated that he works at Ram Hospital as a clinician and had a discharge. summary for the Respondent herein who was treated on 22.02.2019. He also testified that he interacted with the respondent when he received him as an outpatient.
Pw3 listed the injuries sustained by the Respondent and the medication administered and,: lastly produced a discharge summary - PExh 5' who's production was never challenged by the appellant herein at the court of first instance and the appellant cannot be seen to challenge the same at this stage.
The evidence of PW3 was also not shaken by the appellant during cross examination as the witness rightly identified with the maker Dr. Benjamin Chebet and also knew the proprietorship of Ram Hospital and Your Lordship this alone cannot be a basis of disowning a valid document that met the threshold for production as exhibit.
The appellant has also placed huge reliance of the evidence of DW1 - an accountant and a Record officer working with Ram Hospital and whose demeanor and conduct in court was found to be hostile where the court noted on the witness was exhibiting extreme anger and was hostile both to the court and to the plaintiff's counsel prompting the court to adjourn the matter.
DW I did not offer any impeccable evidence to defeat the evidentiary value of the treatment notes produced as 'PExh-s' if anything DW 1 did not interact with the plaintiff at any stage in the course of his treatment i.e. treatment whether inpatient or outpatient.
The Respondent has distinguished the authority of Timsales limited Wilson Libuywa (2008) eRLR and agree to the said authority to the extent the learned judge emphasized on the importance of production and reliance of initial treatment notes as opposed to reliance of secondary medical documents. The Respondent has led evidence that the Respondent was treated at Ram Hospital and issued with a discharge summary which was produced before the Trial Court as 'PEx-5' and met all the requirements of S.35 of the Evidence Act.
The Respondent also distinguishes, the authority in the case of Samwel Kerani Murüthi -- Eutvchus Waniohi & 2 others (2019) eKLR (cited by the appellant) involved a Respondent/Plaintiff who failed to produce and/or avail treatment chits, contrary to the instant matter where the Respondent herein ably produced a treatment note/chit (Discharge Summary) and further called a witness to produce the same.
It is its case that upon examination of the evidence before the Trial Court do find that the Discharge Summary produced herein met the threshold set in S. 35 of the Evidence Act and is properly in record and further affirm the findings of the Trial Court on judgement on quantum.
It is exclusively incumbent upon the Appellant to clearly demonstrate to Your Lordship that the trial Court in awarding Ksh 700,000/= as general damages, acted in misapprehension of legal principle or fact which the Applicant has failed to do.
The Respondent submits that the Trial Court's decision on general damages was in its entirety a just and fair compensation of the Respondent's injuries. The amount awarded is not only commensurate with the nature of injuries suffered by the Respondent but also consistent with other awards made in similar cases.
Reliance is placed on the case of Sammy Mugo Kinyanjui & another -vs- Kairo Thuo (2017) eKLR where the plaintiff sustained fracture of right tibia and fracture of left tibia and fibula, tenderness in the forehead, neck, chest, abdomen, right knee among other injuries. The Court made an award of Ksh 600,000/= as general damages. These injuries clearly are similar and comparable to the Respondent's injuries.
Reliance is also placed on the case of Naomi Momanvi v G4S Security Services Kenva Limited & another /20181 eKLR where this Honourable Court observes that:
"9. In addition, the current value of the shilling and the economy have to be taken into account and although astronomical awards must be avoided, the court must ensure that awards make sense and result in fair compensation (see Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] eKLR and Jabane v Olenja [1986] KLR 661)."
In Morrison Nvaga Ndwiga & another -vs- Ezekiel Khatete [20221 eKLR the plaintiff sustained: tenderness and swelling of the left leg, fracture of the tibia and fibula left leg and other soft tissue injuries. The court awarded Ksh 500,000/= as general damages.
In Pauline Gesure Onami v Samuel Changamure & another /2017| eKLR, the plaintiff: sustained fractures of the tibia and fibula bones of both legs in addition to laceration on the neck and, blunt trauma to the chest and deep cut wound on both legs mid shaft.
Omondi J. upheld an award of Kshs 600,000/= in 2017.
In Nahson Nabaro Nvandega -vs- Peter Nvakweha Omboga(2020) eKLR the Court: awarded Kshs. 650,000/= as general damages for the following injuries: bruises on the face, fracture of the right tibia bone, cut wound on the right leg.
According to the Respondent, The Appellant's appeal on quantum is therefore unmerited.
Analysis and determination;
In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA.the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
This principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
The appellant is challenging the trial Court's determination on quantum.
According to 'PW-I' - Dr. Peter Morebu Momanvi who testified that he had examined and prepared a medical report for one, Evans Osoro Waiguru, the respondent herein who sustained the following injuries;
Head injury, Right tibia fracture, Right fibula fracture, Blunt trauma to the scalp, Blunt trauma to the lower back and Blunt trauma to the lower back.
I have relooked at the testimonies of the witnesses and the doctors’ evidence and Iam satisfied that the Respondent proved his case on a balance of probabilities. I have also looked at the exhibits including the medical report that were produced by the witnesses again and I am satisfied that the trial court exercised its discretion within the law. Iam satisfied that the doctor assessed the injuries to be grievous harm and confirmed that the Respondent requires physiotherapy with occupational therapy.
In Morrison Nvaga Ndwiga & another -vs- Ezekiel Khatete [20221 eKLR the plaintiff sustained: tenderness and swelling of the left leg, fracture of the tibia and fibula left leg and other soft tissue injuries. The court awarded Ksh 500,000/= as general damages.
In Pauline Gesure Onami v Samuel Changamure & another /2017| eKLR, the plaintiff: sustained fractures of the tibia and fibula bones of both legs in addition to laceration on the neck and, blunt trauma to the chest and deep cut wound on both legs mid shaft.
Omondi J. upheld an award of Kshs 600,000/= in 2017.
In Nahson Nabaro Nvandega -vs- Peter Nvakweha Omboga(2020) eKLR the Court: awarded Kshs. 650,000/= as general damages for the following injuries: bruises on the face, fracture of the right tibia bone, cut wound on the right leg.
The Court of Appeal in Butt vs. Khan 1977 11 KLR states as follows: -
"An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately
high or low.
It is this court’s finding and I so hold that Respondent proved his case and that the amount awarded by the court is not inordinately high. The trial court awarded compensation in a sum that is not only commensurate with the nature of injuries suffered by the Respondent but also consistent with other awards made in similar cases.
Disposition;
The appeal lacks merit.
Order;
The appeal is dismissed with costs.