REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA T KISII
CIVIL APPEAL NO. E031 OF 2025
NAFTALI MICHIRA ONSONGO…………………APPELLANT
VERSUS
ISABELLA OSEBE MONARI……………………RESPONDENT
(Being an appeal from the judgement and decree of the Magistrate’s Court at Kisii (Hon. Chepchumba Carolyne Rono RM) dated 30 th January, 2025 in Kisii MCCC No. E198 of 2023)
BETWEEN
ISABELLA OSEBE MONARI…………………………PLAINTIFF
VERSUS
NAFTALI MICHIRA ONSONGO…………………DEFENDANT
JUDGEMENT
1. The judgement arises from the judgement and decree of the Hon. Chepchumba Carolyne Rono (RM) dated 30 th January, 2025 in Kisii MCCC No. E198 of 2023 wherein the court entered judgement for the Respondent against the Appellant who was found wholly liable. The respondent was awarded Ksh. 800, 000/= and Ksh. 10, 250/= in general and special damages respectively. The respondent was also awarded costs of the suit and interest .
2. The Appellant was aggrieved by the said judgment and duly filed his memorandum of appeal dated 20 th February, 2025 wherein he raised the following grounds of appeal; THAT
a) The learned trial magistrate erred in law in failing to realize that the onus of proving the injuries pleaded lay with the respondent.
b) The learned trial magistrate erred in law in failing to find that the treatment sheet/notes being a computer printout/computer generated document was inadmissible in evidence and of no value due to failure to have a certificate of electronic evidence as required mandatorily under Sections 106A and 106B of the Evidence Act.
c) The learned trial magistrate erred in law and in fact in assessing damages upon the pleaded injuries in the absence of initial treatment notes, x rays and x ray reports and which injuries were not proved by any treatment notes, x-ray films, x-ray reports or other evidence.
d) The learned trial magistrate erred in law and in fact in failing to hold that the medical report prepared by the clinical officer, one Daniel Nyameino, was of no consequence as it was based on unauthenticated and inadmissible medical treatment notes/sheet.
e) The learned trial magistrate erred in law in failing to hold that without the production of the x-ray films and reports, there was no credible evidence of any fractures and dislocations.
f) The learned trial magistrate erred in law in holding that the Respondent sustained injuries as disclosed by medical report produced by the Plaintiff without any consideration of the medical report produced Dr. M.S.Malik and without assigning any reason why the court preferred the report of the clinical officer to that of Dr. Malik; a surgeon, thus making a capricious, unjust and unfair decision.
g) The learned trial magistrate erred in law and in fact in totally ignoring the medical report of Dr. M.S.Malik and the attached X-rays and reports, which report was produced by consent, without any reason and which report tended to show that the alleged fractures and dislocations were not sustained by the Respondent.
h) The learned trial magistrate erred in law in making an award on the basis of the medical report by Dr. Daniel Nyameino, a clinical officer that was unsupportable and based on nothing in the absence of treatment notes, X-rays and X-ray reports.
i) The learned trial magistrate erred in law in failing to hold that the Respondent sustained only soft tissue injuries and award damages appropriate for such injuries.
j) The learned trial magistrate erred in law and in fact in making contradictory holdings that she would rely on the,”Plaintiffs and Defendant’s medical reports to arrive on quantum” and immediately thereafter she was of the, “considered view that the plaintiff’s sustained injuries as claimed in the medical report produced by the plaintiff”.
BRIEF FACTS
3. By a plaint dated 13 th March, 2023, the Respondent herein filed suit claiming general and special damages for injuries sustained an alleged accident that occurred on 20 th November, 2022 involving motor vehicle registration number KCH 416H along Keumbu-Nyabisabo road at Rwibwago area or thereabouts.
4. She blamed the occurrence of the accident on the driver of the motor vehicle registration number KCH 416H who said to have negligently driven and or managed the vehicle thereby permitting it to lose control and land into a ditch as a consequence of which the plaintiff sustained injuries and suffered much pain, loss and damage.
5. She claimed that as a result of the aforesaid accident, she sustained serious injuries involving:
i. Neck contusion
ii. Dislocation of the right shoulder joint
iii. Chest contusion with resultant rib fractures
iv. Back contusion
v. Pelvic contusion with resultant pelvic fracture
vi. Lacerations to the right hand
vii. Bruising of both knee area
6. The Appellant filed a statement of defence dated 4 th May, 2023 denying the occurrence of the accident, denying a proprietorship interest in motor-vehicle registration number KCH 416H or that it was negligently driven and or managed.
7. The Appellant also denied any vicarious liability for tortious acts and asserted that if any accident had occurred, then it was wholly caused or substantially contributed to by the respondent while on board motor-vehicle registration number KCH 416H.
APPELLANT’S SUBMISSIONS
8. On pleadings and evidence counsel for the appellant submits that the Respondent testified that after the accident she was taken to Keumbu hospital but that she did not have treatment notes from Keumbu hospital. She testified that she was referred to Kisii Teaching and Referral Hospital but that she did not produce the referral letter. It was also submitted that she had an X-ray for the pelvis area taken but did not produce it. That allegedly she could not remember the date she was taken to Kisii Teacching and Referral hospital.
9. It was submitted that while PW3 was a clinical officer he had been wrongly recorded as doctor. That the witness produced a clinical appointment card (exhibit 3), P3 form (Exhibit 4) medical report (Exhibit 6A) and another P3 form (Exhibit 7). Regarding the treatment notes the witness said that he neither treated the patient, fill the treatment notes and that the maker of the document was not indicated. It was also submitted that the documents which were computer printouts did not have the requisite certificate from the person who printed the said documents.
10. Counsel also submitted that the appellant had called DW1 as its witness who produced an investigation report as exhibit D-1 which contained the letter dated 8.12.2023 from the CEO Kisii Teaching and Referral Hospital in which the letter is quoted verbatim to say, “confirmed that the patient was not treated at Kisii teaching and referral hospital and no payment was received, nor details of the outpatient number,”
11. It was submitted that the medical report of Dr. M.S.Malik was admitted in evidence. That the report showed that on the day of the accident the Respondent was treated and discharged. She had no wounds that required stitching or dressing. That she walked in and out of the hospital and did not seek further medication. That upon examination by Dr. Malik, the examination only elicited occasional pain in the chest. Dr. Malik, it was submitted, found no evidence of her having been injured around the neck, chest, right shoulder joint, right hand or lumber spine or knees. That the respondent also had no previous X-ray films or reports with her.
12. Counsel submitted that X-rays of the respondent’s chest and pelvis were taken and that the X-rays were labeled A and the pelvis labeled B in his report. That the X-rays showed no fractures, or any radiological signs or any past healed fractures of 5 th , 6 th and 7 th ribs or pelvis. That both the chest and pelvis X-rays were seen by two consultant radiologists, whose reports are attached to Dr. Malik’s report and which show that there were no radiological signs of any past, healed fractures of the pubic ramis. The hip joints were in their normal places. The radiological reports were also attached showing these results. It was his submission that the injuries were exaggerated and falsified and that Dr. Malik was of the opinion that the Respondent sustained minor soft tissue injuries and not the alleged fractures and dislocations.
13. Counsel faulted the trial court for relying on the P3 form to award the general damages of Ksh. 800, 000/= and failed to consider the medical report produced by Dr. M.S.Malik and that the trial court gave no reason why the court preferred the medical report of the clinical officer to that of Dr. Malik.
14. It was the appellant’s submission that the respondent had the onus of proving the pleaded injuries and that this burden was not discharged before the trial court. He cited Sections 107 and 108 of the Evidence Act and relied on the cases of Boniface Kinyua Kathuri V David Munyoki [2020] eKLR and Nyambane & Nyambane & another v Ombasa [2022] KEHC 14432 (KLR.
15. Counsel submits that the Respondent’s witness PW3 relied on treatment notes which were a computer print out but that the same was unaccompanied by a certificate of electronic evidence and hence the document was inadmissible and that the trial court erred in relying on it. In support of this submission counsel cited the case of County Assembly of Kisumu & 2 others V Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR), William Odhiambo Oduol V Independent Electoral & Boundaries Commission & 2 others [2013] KEHC 2710 (KLR), Jackline Vusevwa Selenge v Olivier Guiguemende [2021] KEELRC 1062 KLR, Rachael Njoki Kahara v Gideon Migiro Nyambati [2020] KEHC 8011 (KLR) and Ambe v Sajero [2024] KECA 1687 (KLR).
16. Counsel submitted that the implication of the inadmissibility of the treatment sheet was enormous. That the court could not give any damages for the fractures and dislocation injuries which could not be ascertained without the initial treatment notes. Counsel cited the case of Dhiraj Manji v Tyson Ouma [2021] KEHC 7409 (KLR) in support of the submission that where treatment notes are not produced, it is difficult to ascertain the injuries sustained. The court held that the respondent’s failure to produce initial treatment notes was a fatal omission to his case. Further that where no X ray films are produced in court to confirm that indeed the respondent sustained a fracture such a fracture is not proved. Counsel further cited Peter Migiro v Valley Bakery Limited [2015] eKLR Nakuru HCCA No. 5 of 2011, Nyambane & another v Ombasa, Daniel Odhiambo Ngesa v Daniel Otieno Owino & Another [2020] eKLR Siaya HCCA No. 26 of 2019, Opiyo v Abiud (Civil Appeal E135 of 2021) KEHC, Kembe v Abiud Civil Akpeal E133 of 2021 [2023] KEHC 1673 (KLR), Climax Coaches Limited v Kavaya [2024] KEHC 6182 KLR and Apex Security Services Limited v Joel Atuti Nyaruri [2018] KEHC 7559 (KLR).
17. Counsel submitted that in the absence of the production of X-ray films and reports the pleaded fractures and dislocations were not proved and that courts have declined to award damages for those unproved injuries. That the treatment notes from Keumbu SCH were not produced while those from Kisii T&RH were disowned by that hospital and were in any case inadmissible.
18. It was the appellant’s submission that he had demonstrated that the trial magistrate in assessing damages took into account an irrelevant factor or left out of account a relevant one and ended up awarding an amount that was so inordinately high that it must be a wholly erroneous estimate of the damages the Respondent was entitled to.
RESPONDENT’S SUBMISSIONS
19. Counsel for the Respondent submitted that the Respondent's evidence had included her oral testimony, witness statement, P3 Form (Exhibit 4), medical report by Daniel Nyameino (Exhibit 6A), and another P3 Form (Exhibit 7). That PW3, a clinical officer from Kisii Teaching and Referral Hospital (KTRH), produced these documents and confirmed the injuries, including the pelvic fracture, rib fracture, and right shoulder dislocation. Although initial treatment notes from KTRH were challenged, the P3 Form and medical report provided independent corroboration of the injuries
20. Counsel submitted that although the Appellant produced a medical report by Dr. M.S. Malik which opined that the Respondent sustained only minor soft tissue injuries, with no evidence of fractures or dislocations based on later X-rays, Dr. Malik had supposedly examined the Respondent nearly two years post-accident that occurred on (31.10.2024), and his findings do not negate the contemporaneous evidence of the Respondent's injuries
21. It was submitted that the trial court had evaluated both medical reports and relied on the P3 Form in finding that the Respondent had proved the pleaded injuries on a balance of probability including the pelvic fracture, shoulder dislocation, and soft tissue injuries. That the award of Kshs. 800,000/= was guided by this finding.
22. It was submitted that proof of injuries in personal injury claims is on a balance of probabilities and that injuries need not only be proved solely by treatment notes or X-rays; oral testimony, P3 forms and medical reports suffice if consistent and u-rebutted. Reliance in support of this submission was placed on Kabue v Kurui & Anotherv(Civil Appeal E006 of 2023) [2025] KEHC 1695 (KLR)
23. The respondent submits that her testimony on the injuries sustained and treatment at Keumbu Hospital and at KTRH was not controverted. That the P-3 form indicated chest contusion, back tenderness, pelvic tenderness, right hand laceration, bruising of both knees, right shoulder dislocation, and pelvic fracture. PW3 confirmed seeing X-ray films (though not produced), and the medical report corroborated the fractures and dislocations.
24. It was submitted that Appellant's reliance on Dr. Malik's report (taken years later) did not disprove the injuries and that it merely showed healed conditions, consistent with recovery from fractures. He cited the case of Eldoret Express Ltd v Otako (Civil Appeal 18 of 2021) [2024] KEHC 9155 (KLR), for the basis that absence of initial notes is not fatal if other evidence like P3 and reports exist.
25. Counsel further submitted that the allegation of falsified injuries was unproven, for the reason that fraud required a higher standard (above balance of probabilities but below beyond reasonable doubt), and that therefore CEO's letter was hearsay without the maker's testimony.
26. Counsel for the Respondent argues that non-production or inadmissibility of initial notes is not fatal where other evidence proves the injuries. Further that the appellant’s assertion that the medical report by Daniel Nyameino (a clinical officer) was based on inadmissible notes and unsupportable without X-rays ignores that clinical officers are qualified to prepare reports under the Clinical Officers (Training, Registration and Licensing) Act, No. 20 of 2017.
27. He further urged that the trial court evaluated both reports and preferred Nyameino's, which was contemporaneous and consistent with the P3 Form. He submitted while Dr.Malik report was produced by consent, it was not unchallenged as it was post-dated and did not disprove initial fractures. The trial court gave reasons for preferring the Respondent's evidence and no caprice was shown. He submitted that the appellate courts defer to trial courts' evaluation of conflicting expert evidence unless perverse and relied on the case of Mochama v Ogoti (Civil Appeal E083 of 2023) [2025].
28. On quantum Counsel for the Respondent submitted that the award of Kshs. 800,000/= was not inordinately high for a pelvic fracture, shoulder dislocation, rib fractures, and soft tissue injuries. Counsel urged that comparable awards had included Kshs. 900,000/= for skull fractures in Mohamed v HMB (Civil Appeal E004 of 2023) [2025] KEHC 13905 (KLR), and Kshs. 1,000,000/= reduced to Kshs. 500,000/= for soft tissues in Mochama v Ogoti(supra). It was submitted the injuries were graver, and the award aligns with inflation-adjusted precedents and that therefore no wrong principle was applied.
29. From the foregoing, the issues which arise for determination are:
I. Whether the treatment notes relied upon by PW3 and incorporated into his medical report were admissible, and if not, what effect that has on the probative value of the report.
II. Whether, independently of the treatment notes, the Respondent proved on a balance of probabilities that she sustained a pelvic fracture, a right shoulder dislocation, and rib fractures
III. Which injuries were proved.
IV. The quantum of damages.
ANALYSIS AND DETERMINATION
30. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
31. Similarly in Coghlan vs. Cumberland (1898) 1 Ch. 704, the Court of Appeal (of England) stated as follows -
"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen."
I) Whether the treatment notes relied upon by PW3 and incorporated into his medical report were admissible, and if not, what effect that has on the probative value of the report.
32. Sections 106A and 106B of the Evidence Act impose mandatory conditions for the admissibility of electronic and computer-generated records, including a certificate identifying the document and the manner of its production. The treatment notes herein were computer printouts unaccompanied by any such certificate. Courts have consistently held such documents inadmissible in the absence of the statutory certificate. In the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR) the Court of Appeal held that, “In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B(2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced.” The Learned Trial Magistrate does not appear to have addressed this objection at all in admitting and relying on the notes.
33. The difficulty here is not confined to the formal admissibility of the notes. PW3 himself testified that he did not treat the Respondent, did not make the treatment notes, and that the maker of the notes was not indicated. His own report is accordingly not an account of his personal clinical findings but a restatement of a document he did not author and whose provenance he could not vouch for. That is a distinct and more fundamental infirmity than a mere failure to produce a certificate it goes to the weight that can be attached to Mr. Nyameino's report as a piece of expert evidence, since an expert's opinion is only as sound as the primary material upon which it is founded. Where that primary material is both unauthenticated and disowned by its purported source, a report built upon it cannot, without more, ground a finding of a specific fracture or dislocation.
34. This conclusion is reinforced, albeit as corroborative context rather than as an independent finding, by the letter from the CEO of KTRH produced through DW1's investigation report, stating that the hospital's own records did not show the Respondent was treated there. That letter was not tested by the cross-examination of its author and is hearsay in the strict sense; this Court does not rely on it to find that the notes were fabricated, and expressly declines to make any finding of fraud or fabrication, a higher standard than is required for disposal of this appeal. It is noted only as consistent with, and not rebutted within, the broader pattern of an unreliable documentary chain.
II) Whether, independently of the treatment notes, the Respondent proved on a balance of probabilities that she sustained a pelvic fracture, a right shoulder dislocation, and rib fractures
1. It is trite that the burden of proving the pleaded injuries lay upon the Respondent as the party asserting them. Section 107 of the Evidence Act, Cap. 80 provides that:
1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
35. It is equally well established that a claimant need not prove injuries by documentary evidence alone; oral testimony, a P3 Form, and a medical report may suffice where consistent and un-rebutted. In Eldoret Express Ltd v Otako (Civil Appeal 18 of 2021) [2024] KEHC 9155 (KLR) the court cited with approval the case of Ben Ocharo & Others vs. Kenya Farmers’ Co-operative Society Kisii High Court Civil Appeal No.91 of 2006 (UR) the court stated that:“…the primary source of information about injuries sustained in an accident if at all is by the victim himself. He will tell the story. Next in line will be … witnesses of the accident. There may also be people who have an intimate knowledge of the injured person who have lived or worked with him for a reasonably long time who may also have useful information to give of the injuries and his condition. Of course then there are the medical records starting with the treatment notes through to medical reports prepared by the medical personnel who examined them. However, the information from the victim is valuable and is complementary to the doctor’s report. Therefore, whereas the initial treatment records are no doubt of tremendous value they are not the only ones, to prove injuries sustained in a road traffic accident as the learned magistrate tended to think. Such injuries can be proved by word of mouth by the victim himself. Accordingly, a victim’s own statement with regard to the injuries should not easily be dismissed merely on the grounds that it was not matched by initial treatment [documents] from the hospital. It is worthy reiterating what Ringera, J. (as he then was) said in the case of Peterson Gutu Ondieki vs. Daniel Gichohi, HCCC No. 4018 of 1990 (UR). He held that non-production of a medical report was not necessarily fatal to a plaintiff’s case. That the injuries sustained can be established through oral evidence of the victim…”.
36. However, where a fracture is specifically pleaded, this Court has repeatedly held that its proof ordinarily requires an X-ray film and a report upon it, and that the mere existence of a radiology request, a P3 Form entry, or a treating officer's say-so, without more, does not suffice. Dhiraj Manji v Tyson Ouma [2021] KEHC 7409 (KLR) where the court held that:
I am also in agreement that a radiology request is not sufficient prove of the existence of a fracture. Ordinarily after a request is made, an x-ray is conducted and the doctor who conducts the x-ray does a comprehensive report on the outcome of the x-ray. In this particular case such doctor’s report has not been produced.
Further still, no x-ray film was produced in court to confirm that indeed the respondent herein sustained a fracture. No expert and/or specialist in fractures was called to adduce evidence in Court to the effect that the respondent had sustained a fracture. In absence of such crucial piece of evidence, it is hard for the Court to rule out the presence or otherwise, of a fracture.
37. It is considerable that the Appellant adduced affirmative, unrebutted radiological evidence directly contradicting the existence of any fracture, whether recent or old. Two consultant radiologists, independently reading X-rays of the chest and pelvis taken in October 2024, found no radiological signs of any fracture of the ribs or pelvis, and specifically found no evidence of any past healed fracture of the pubic ramus, with the hip joints normally situated. This is a materially different, and stronger, evidentiary position than the simple non-production of X-ray films addressed in the authorities cited above; it is not merely an absence of proof but a presence of contrary proof.
38. The Respondent's submission that Dr. Malik's findings, taken roughly two years after the accident, are simply consistent with a healed fracture and therefore do not "disprove" her case does not withstand scrutiny. The expert evidence that there was no radiological evidence of any past fracture is accordingly not neutral as between the competing accounts; it is affirmative evidence weighing against a fracture ever having occurred. The Learned Trial Magistrate does not appear to have grappled with this distinction at all.
39. On the totality of the evidence, the unauthenticated and disowned treatment notes, PW3's own concession that he neither treated the Respondent nor authored the notes underlying his report, and the unrebutted contrary radiological findings, this Court finds that the Respondent did not discharge her burden of proving, on a balance of probabilities, that she sustained a pelvic fracture, a right shoulder dislocation, or rib fractures.
40. The record discloses that the Learned Trial Magistrate stated she would rely on "the Plaintiff's and Defendant's medical reports" to arrive at quantum, and then immediately proceeded on the basis that the Respondent's injuries were as claimed in her own medical report, without any visible engagement with, or reasons for rejecting, the contrary findings of Dr. Malik and the radiologists, notwithstanding that his report was produced by consent and was therefore properly before the court.
41. A trial court is not obliged to accept an expert report merely because it is more favourable to one party. There is however an obligation to give reasons where a competing, properly admitted expert report is rejected, particularly where, as here, that report is more contemporaneous with direct radiological examination than the report it prefers. The failure to do so, on the specific facts of this case, amounts to an error of principle in which a relevant matter, the only unrebutted radiological evidence on record, was left out of account.
III) Which injuries were proved
42. What remains, on a fair reading of the whole record, is that the Respondent sustained soft tissue injuries consistent across both medical accounts: contusion to the neck, chest, back, and pelvis; laceration to the right hand; and bruising to both knees. Dr. Malik's own examination found continuing complaint of occasional chest pain and is not inconsistent with contusion soft tissue injury having been sustained in the accident, even as it rules out fracture or dislocation. This Court so finds.
IV) Quantum of damages
43. It is settled law that an appellate court will not disturb an award of general damages merely because it would itself have arrived at a different figure; interference is warranted only where the trial court took into account an irrelevant factor, left out of account a relevant one, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate. See Kemfro Africa Ltd v A.M. Lubia & another [1987] KLR 30; Butt v Khan [1981] KLR; Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55. For the reasons given above, this Court finds that the trial court did leave out of account a relevant matter; the non rebutted radiological evidence and thus did take into account an irrelevant or unproved matter which the unauthenticated treatment notes and the fracture/dislocation findings founded on them. The award of Kshs. 800,000/= of the trial court was accordingly based on a wholly erroneous estimate of the injuries actually proved.
44. Comparable awards for multi-site soft tissue injury without proved fracture support a materially lower figure. In Opiyo v A
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IN THE HIGH COURT OF KENYA T KISII
CIVIL APPEAL NO. E031 OF 2025
NAFTALI MICHIRA ONSONGO…………………APPELLANT
VERSUS
ISABELLA OSEBE MONARI……………………RESPONDENT
(Being an appeal from the judgement and decree of the Magistrate’s Court at Kisii (Hon. Chepchumba Carolyne Rono RM) dated 30 th January, 2025 in Kisii MCCC No. E198 of 2023)
BETWEEN
ISABELLA OSEBE MONARI…………………………PLAINTIFF
VERSUS
NAFTALI MICHIRA ONSONGO…………………DEFENDANT
JUDGEMENT
1. The judgement arises from the judgement and decree of the Hon. Chepchumba Carolyne Rono (RM) dated 30 th January, 2025 in Kisii MCCC No. E198 of 2023 wherein the court entered judgement for the Respondent against the Appellant who was found wholly liable. The respondent was awarded Ksh. 800, 000/= and Ksh. 10, 250/= in general and special damages respectively. The respondent was also awarded costs of the suit and interest .
2. The Appellant was aggrieved by the said judgment and duly filed his memorandum of appeal dated 20 th February, 2025 wherein he raised the following grounds of appeal; THAT
a) The learned trial magistrate erred in law in failing to realize that the onus of proving the injuries pleaded lay with the respondent.
b) The learned trial magistrate erred in law in failing to find that the treatment sheet/notes being a computer printout/computer generated document was inadmissible in evidence and of no value due to failure to have a certificate of electronic evidence as required mandatorily under Sections 106A and 106B of the Evidence Act.
c) The learned trial magistrate erred in law and in fact in assessing damages upon the pleaded injuries in the absence of initial treatment notes, x rays and x ray reports and which injuries were not proved by any treatment notes, x-ray films, x-ray reports or other evidence.
d) The learned trial magistrate erred in law and in fact in failing to hold that the medical report prepared by the clinical officer, one Daniel Nyameino, was of no consequence as it was based on unauthenticated and inadmissible medical treatment notes/sheet.
e) The learned trial magistrate erred in law in failing to hold that without the production of the x-ray films and reports, there was no credible evidence of any fractures and dislocations.
f) The learned trial magistrate erred in law in holding that the Respondent sustained injuries as disclosed by medical report produced by the Plaintiff without any consideration of the medical report produced Dr. M.S.Malik and without assigning any reason why the court preferred the report of the clinical officer to that of Dr. Malik; a surgeon, thus making a capricious, unjust and unfair decision.
g) The learned trial magistrate erred in law and in fact in totally ignoring the medical report of Dr. M.S.Malik and the attached X-rays and reports, which report was produced by consent, without any reason and which report tended to show that the alleged fractures and dislocations were not sustained by the Respondent.
h) The learned trial magistrate erred in law in making an award on the basis of the medical report by Dr. Daniel Nyameino, a clinical officer that was unsupportable and based on nothing in the absence of treatment notes, X-rays and X-ray reports.
i) The learned trial magistrate erred in law in failing to hold that the Respondent sustained only soft tissue injuries and award damages appropriate for such injuries.
j) The learned trial magistrate erred in law and in fact in making contradictory holdings that she would rely on the,”Plaintiffs and Defendant’s medical reports to arrive on quantum” and immediately thereafter she was of the, “considered view that the plaintiff’s sustained injuries as claimed in the medical report produced by the plaintiff”.
BRIEF FACTS
3. By a plaint dated 13 th March, 2023, the Respondent herein filed suit claiming general and special damages for injuries sustained an alleged accident that occurred on 20 th November, 2022 involving motor vehicle registration number KCH 416H along Keumbu-Nyabisabo road at Rwibwago area or thereabouts.
4. She blamed the occurrence of the accident on the driver of the motor vehicle registration number KCH 416H who said to have negligently driven and or managed the vehicle thereby permitting it to lose control and land into a ditch as a consequence of which the plaintiff sustained injuries and suffered much pain, loss and damage.
5. She claimed that as a result of the aforesaid accident, she sustained serious injuries involving:
i. Neck contusion
ii. Dislocation of the right shoulder joint
iii. Chest contusion with resultant rib fractures
iv. Back contusion
v. Pelvic contusion with resultant pelvic fracture
vi. Lacerations to the right hand
vii. Bruising of both knee area
6. The Appellant filed a statement of defence dated 4 th May, 2023 denying the occurrence of the accident, denying a proprietorship interest in motor-vehicle registration number KCH 416H or that it was negligently driven and or managed.
7. The Appellant also denied any vicarious liability for tortious acts and asserted that if any accident had occurred, then it was wholly caused or substantially contributed to by the respondent while on board motor-vehicle registration number KCH 416H.
APPELLANT’S SUBMISSIONS
8. On pleadings and evidence counsel for the appellant submits that the Respondent testified that after the accident she was taken to Keumbu hospital but that she did not have treatment notes from Keumbu hospital. She testified that she was referred to Kisii Teaching and Referral Hospital but that she did not produce the referral letter. It was also submitted that she had an X-ray for the pelvis area taken but did not produce it. That allegedly she could not remember the date she was taken to Kisii Teacching and Referral hospital.
9. It was submitted that while PW3 was a clinical officer he had been wrongly recorded as doctor. That the witness produced a clinical appointment card (exhibit 3), P3 form (Exhibit 4) medical report (Exhibit 6A) and another P3 form (Exhibit 7). Regarding the treatment notes the witness said that he neither treated the patient, fill the treatment notes and that the maker of the document was not indicated. It was also submitted that the documents which were computer printouts did not have the requisite certificate from the person who printed the said documents.
10. Counsel also submitted that the appellant had called DW1 as its witness who produced an investigation report as exhibit D-1 which contained the letter dated 8.12.2023 from the CEO Kisii Teaching and Referral Hospital in which the letter is quoted verbatim to say, “confirmed that the patient was not treated at Kisii teaching and referral hospital and no payment was received, nor details of the outpatient number,”
11. It was submitted that the medical report of Dr. M.S.Malik was admitted in evidence. That the report showed that on the day of the accident the Respondent was treated and discharged. She had no wounds that required stitching or dressing. That she walked in and out of the hospital and did not seek further medication. That upon examination by Dr. Malik, the examination only elicited occasional pain in the chest. Dr. Malik, it was submitted, found no evidence of her having been injured around the neck, chest, right shoulder joint, right hand or lumber spine or knees. That the respondent also had no previous X-ray films or reports with her.
12. Counsel submitted that X-rays of the respondent’s chest and pelvis were taken and that the X-rays were labeled A and the pelvis labeled B in his report. That the X-rays showed no fractures, or any radiological signs or any past healed fractures of 5 th , 6 th and 7 th ribs or pelvis. That both the chest and pelvis X-rays were seen by two consultant radiologists, whose reports are attached to Dr. Malik’s report and which show that there were no radiological signs of any past, healed fractures of the pubic ramis. The hip joints were in their normal places. The radiological reports were also attached showing these results. It was his submission that the injuries were exaggerated and falsified and that Dr. Malik was of the opinion that the Respondent sustained minor soft tissue injuries and not the alleged fractures and dislocations.
13. Counsel faulted the trial court for relying on the P3 form to award the general damages of Ksh. 800, 000/= and failed to consider the medical report produced by Dr. M.S.Malik and that the trial court gave no reason why the court preferred the medical report of the clinical officer to that of Dr. Malik.
14. It was the appellant’s submission that the respondent had the onus of proving the pleaded injuries and that this burden was not discharged before the trial court. He cited Sections 107 and 108 of the Evidence Act and relied on the cases of Boniface Kinyua Kathuri V David Munyoki [2020] eKLR and Nyambane & Nyambane & another v Ombasa [2022] KEHC 14432 (KLR.
15. Counsel submits that the Respondent’s witness PW3 relied on treatment notes which were a computer print out but that the same was unaccompanied by a certificate of electronic evidence and hence the document was inadmissible and that the trial court erred in relying on it. In support of this submission counsel cited the case of County Assembly of Kisumu & 2 others V Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR), William Odhiambo Oduol V Independent Electoral & Boundaries Commission & 2 others [2013] KEHC 2710 (KLR), Jackline Vusevwa Selenge v Olivier Guiguemende [2021] KEELRC 1062 KLR, Rachael Njoki Kahara v Gideon Migiro Nyambati [2020] KEHC 8011 (KLR) and Ambe v Sajero [2024] KECA 1687 (KLR).
16. Counsel submitted that the implication of the inadmissibility of the treatment sheet was enormous. That the court could not give any damages for the fractures and dislocation injuries which could not be ascertained without the initial treatment notes. Counsel cited the case of Dhiraj Manji v Tyson Ouma [2021] KEHC 7409 (KLR) in support of the submission that where treatment notes are not produced, it is difficult to ascertain the injuries sustained. The court held that the respondent’s failure to produce initial treatment notes was a fatal omission to his case. Further that where no X ray films are produced in court to confirm that indeed the respondent sustained a fracture such a fracture is not proved. Counsel further cited Peter Migiro v Valley Bakery Limited [2015] eKLR Nakuru HCCA No. 5 of 2011, Nyambane & another v Ombasa, Daniel Odhiambo Ngesa v Daniel Otieno Owino & Another [2020] eKLR Siaya HCCA No. 26 of 2019, Opiyo v Abiud (Civil Appeal E135 of 2021) KEHC, Kembe v Abiud Civil Akpeal E133 of 2021 [2023] KEHC 1673 (KLR), Climax Coaches Limited v Kavaya [2024] KEHC 6182 KLR and Apex Security Services Limited v Joel Atuti Nyaruri [2018] KEHC 7559 (KLR).
17. Counsel submitted that in the absence of the production of X-ray films and reports the pleaded fractures and dislocations were not proved and that courts have declined to award damages for those unproved injuries. That the treatment notes from Keumbu SCH were not produced while those from Kisii T&RH were disowned by that hospital and were in any case inadmissible.
18. It was the appellant’s submission that he had demonstrated that the trial magistrate in assessing damages took into account an irrelevant factor or left out of account a relevant one and ended up awarding an amount that was so inordinately high that it must be a wholly erroneous estimate of the damages the Respondent was entitled to.
RESPONDENT’S SUBMISSIONS
19. Counsel for the Respondent submitted that the Respondent's evidence had included her oral testimony, witness statement, P3 Form (Exhibit 4), medical report by Daniel Nyameino (Exhibit 6A), and another P3 Form (Exhibit 7). That PW3, a clinical officer from Kisii Teaching and Referral Hospital (KTRH), produced these documents and confirmed the injuries, including the pelvic fracture, rib fracture, and right shoulder dislocation. Although initial treatment notes from KTRH were challenged, the P3 Form and medical report provided independent corroboration of the injuries
20. Counsel submitted that although the Appellant produced a medical report by Dr. M.S. Malik which opined that the Respondent sustained only minor soft tissue injuries, with no evidence of fractures or dislocations based on later X-rays, Dr. Malik had supposedly examined the Respondent nearly two years post-accident that occurred on (31.10.2024), and his findings do not negate the contemporaneous evidence of the Respondent's injuries
21. It was submitted that the trial court had evaluated both medical reports and relied on the P3 Form in finding that the Respondent had proved the pleaded injuries on a balance of probability including the pelvic fracture, shoulder dislocation, and soft tissue injuries. That the award of Kshs. 800,000/= was guided by this finding.
22. It was submitted that proof of injuries in personal injury claims is on a balance of probabilities and that injuries need not only be proved solely by treatment notes or X-rays; oral testimony, P3 forms and medical reports suffice if consistent and u-rebutted. Reliance in support of this submission was placed on Kabue v Kurui & Anotherv(Civil Appeal E006 of 2023) [2025] KEHC 1695 (KLR)
23. The respondent submits that her testimony on the injuries sustained and treatment at Keumbu Hospital and at KTRH was not controverted. That the P-3 form indicated chest contusion, back tenderness, pelvic tenderness, right hand laceration, bruising of both knees, right shoulder dislocation, and pelvic fracture. PW3 confirmed seeing X-ray films (though not produced), and the medical report corroborated the fractures and dislocations.
24. It was submitted that Appellant's reliance on Dr. Malik's report (taken years later) did not disprove the injuries and that it merely showed healed conditions, consistent with recovery from fractures. He cited the case of Eldoret Express Ltd v Otako (Civil Appeal 18 of 2021) [2024] KEHC 9155 (KLR), for the basis that absence of initial notes is not fatal if other evidence like P3 and reports exist.
25. Counsel further submitted that the allegation of falsified injuries was unproven, for the reason that fraud required a higher standard (above balance of probabilities but below beyond reasonable doubt), and that therefore CEO's letter was hearsay without the maker's testimony.
26. Counsel for the Respondent argues that non-production or inadmissibility of initial notes is not fatal where other evidence proves the injuries. Further that the appellant’s assertion that the medical report by Daniel Nyameino (a clinical officer) was based on inadmissible notes and unsupportable without X-rays ignores that clinical officers are qualified to prepare reports under the Clinical Officers (Training, Registration and Licensing) Act, No. 20 of 2017.
27. He further urged that the trial court evaluated both reports and preferred Nyameino's, which was contemporaneous and consistent with the P3 Form. He submitted while Dr.Malik report was produced by consent, it was not unchallenged as it was post-dated and did not disprove initial fractures. The trial court gave reasons for preferring the Respondent's evidence and no caprice was shown. He submitted that the appellate courts defer to trial courts' evaluation of conflicting expert evidence unless perverse and relied on the case of Mochama v Ogoti (Civil Appeal E083 of 2023) [2025].
28. On quantum Counsel for the Respondent submitted that the award of Kshs. 800,000/= was not inordinately high for a pelvic fracture, shoulder dislocation, rib fractures, and soft tissue injuries. Counsel urged that comparable awards had included Kshs. 900,000/= for skull fractures in Mohamed v HMB (Civil Appeal E004 of 2023) [2025] KEHC 13905 (KLR), and Kshs. 1,000,000/= reduced to Kshs. 500,000/= for soft tissues in Mochama v Ogoti(supra). It was submitted the injuries were graver, and the award aligns with inflation-adjusted precedents and that therefore no wrong principle was applied.
29. From the foregoing, the issues which arise for determination are:
I. Whether the treatment notes relied upon by PW3 and incorporated into his medical report were admissible, and if not, what effect that has on the probative value of the report.
II. Whether, independently of the treatment notes, the Respondent proved on a balance of probabilities that she sustained a pelvic fracture, a right shoulder dislocation, and rib fractures
III. Which injuries were proved.
IV. The quantum of damages.
ANALYSIS AND DETERMINATION
30. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123:
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the 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, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
31. Similarly in Coghlan vs. Cumberland (1898) 1 Ch. 704, the Court of Appeal (of England) stated as follows -
"Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen."
I) Whether the treatment notes relied upon by PW3 and incorporated into his medical report were admissible, and if not, what effect that has on the probative value of the report.
32. Sections 106A and 106B of the Evidence Act impose mandatory conditions for the admissibility of electronic and computer-generated records, including a certificate identifying the document and the manner of its production. The treatment notes herein were computer printouts unaccompanied by any such certificate. Courts have consistently held such documents inadmissible in the absence of the statutory certificate. In the case of County Assembly of Kisumu & 2 others v Kisumu County Assembly Service Board & 6 others [2015] KECA 397 (KLR) the Court of Appeal held that, “In our view, this is a mandatory requirement which was enacted for good reason. The court should not admit into evidence or rely on manipulated (and we all know this is possible) electronic evidence or record hence the stringent conditions in sub-section 106B(2) of that Act to vouchsafe the authenticity and integrity of the electronic record sought to be produced.” The Learned Trial Magistrate does not appear to have addressed this objection at all in admitting and relying on the notes.
33. The difficulty here is not confined to the formal admissibility of the notes. PW3 himself testified that he did not treat the Respondent, did not make the treatment notes, and that the maker of the notes was not indicated. His own report is accordingly not an account of his personal clinical findings but a restatement of a document he did not author and whose provenance he could not vouch for. That is a distinct and more fundamental infirmity than a mere failure to produce a certificate it goes to the weight that can be attached to Mr. Nyameino's report as a piece of expert evidence, since an expert's opinion is only as sound as the primary material upon which it is founded. Where that primary material is both unauthenticated and disowned by its purported source, a report built upon it cannot, without more, ground a finding of a specific fracture or dislocation.
34. This conclusion is reinforced, albeit as corroborative context rather than as an independent finding, by the letter from the CEO of KTRH produced through DW1's investigation report, stating that the hospital's own records did not show the Respondent was treated there. That letter was not tested by the cross-examination of its author and is hearsay in the strict sense; this Court does not rely on it to find that the notes were fabricated, and expressly declines to make any finding of fraud or fabrication, a higher standard than is required for disposal of this appeal. It is noted only as consistent with, and not rebutted within, the broader pattern of an unreliable documentary chain.
II) Whether, independently of the treatment notes, the Respondent proved on a balance of probabilities that she sustained a pelvic fracture, a right shoulder dislocation, and rib fractures
1. It is trite that the burden of proving the pleaded injuries lay upon the Respondent as the party asserting them. Section 107 of the Evidence Act, Cap. 80 provides that:
1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person
35. It is equally well established that a claimant need not prove injuries by documentary evidence alone; oral testimony, a P3 Form, and a medical report may suffice where consistent and un-rebutted. In Eldoret Express Ltd v Otako (Civil Appeal 18 of 2021) [2024] KEHC 9155 (KLR) the court cited with approval the case of Ben Ocharo & Others vs. Kenya Farmers’ Co-operative Society Kisii High Court Civil Appeal No.91 of 2006 (UR) the court stated that:“…the primary source of information about injuries sustained in an accident if at all is by the victim himself. He will tell the story. Next in line will be … witnesses of the accident. There may also be people who have an intimate knowledge of the injured person who have lived or worked with him for a reasonably long time who may also have useful information to give of the injuries and his condition. Of course then there are the medical records starting with the treatment notes through to medical reports prepared by the medical personnel who examined them. However, the information from the victim is valuable and is complementary to the doctor’s report. Therefore, whereas the initial treatment records are no doubt of tremendous value they are not the only ones, to prove injuries sustained in a road traffic accident as the learned magistrate tended to think. Such injuries can be proved by word of mouth by the victim himself. Accordingly, a victim’s own statement with regard to the injuries should not easily be dismissed merely on the grounds that it was not matched by initial treatment [documents] from the hospital. It is worthy reiterating what Ringera, J. (as he then was) said in the case of Peterson Gutu Ondieki vs. Daniel Gichohi, HCCC No. 4018 of 1990 (UR). He held that non-production of a medical report was not necessarily fatal to a plaintiff’s case. That the injuries sustained can be established through oral evidence of the victim…”.
36. However, where a fracture is specifically pleaded, this Court has repeatedly held that its proof ordinarily requires an X-ray film and a report upon it, and that the mere existence of a radiology request, a P3 Form entry, or a treating officer's say-so, without more, does not suffice. Dhiraj Manji v Tyson Ouma [2021] KEHC 7409 (KLR) where the court held that:
I am also in agreement that a radiology request is not sufficient prove of the existence of a fracture. Ordinarily after a request is made, an x-ray is conducted and the doctor who conducts the x-ray does a comprehensive report on the outcome of the x-ray. In this particular case such doctor’s report has not been produced.
Further still, no x-ray film was produced in court to confirm that indeed the respondent herein sustained a fracture. No expert and/or specialist in fractures was called to adduce evidence in Court to the effect that the respondent had sustained a fracture. In absence of such crucial piece of evidence, it is hard for the Court to rule out the presence or otherwise, of a fracture.
37. It is considerable that the Appellant adduced affirmative, unrebutted radiological evidence directly contradicting the existence of any fracture, whether recent or old. Two consultant radiologists, independently reading X-rays of the chest and pelvis taken in October 2024, found no radiological signs of any fracture of the ribs or pelvis, and specifically found no evidence of any past healed fracture of the pubic ramus, with the hip joints normally situated. This is a materially different, and stronger, evidentiary position than the simple non-production of X-ray films addressed in the authorities cited above; it is not merely an absence of proof but a presence of contrary proof.
38. The Respondent's submission that Dr. Malik's findings, taken roughly two years after the accident, are simply consistent with a healed fracture and therefore do not "disprove" her case does not withstand scrutiny. The expert evidence that there was no radiological evidence of any past fracture is accordingly not neutral as between the competing accounts; it is affirmative evidence weighing against a fracture ever having occurred. The Learned Trial Magistrate does not appear to have grappled with this distinction at all.
39. On the totality of the evidence, the unauthenticated and disowned treatment notes, PW3's own concession that he neither treated the Respondent nor authored the notes underlying his report, and the unrebutted contrary radiological findings, this Court finds that the Respondent did not discharge her burden of proving, on a balance of probabilities, that she sustained a pelvic fracture, a right shoulder dislocation, or rib fractures.
40. The record discloses that the Learned Trial Magistrate stated she would rely on "the Plaintiff's and Defendant's medical reports" to arrive at quantum, and then immediately proceeded on the basis that the Respondent's injuries were as claimed in her own medical report, without any visible engagement with, or reasons for rejecting, the contrary findings of Dr. Malik and the radiologists, notwithstanding that his report was produced by consent and was therefore properly before the court.
41. A trial court is not obliged to accept an expert report merely because it is more favourable to one party. There is however an obligation to give reasons where a competing, properly admitted expert report is rejected, particularly where, as here, that report is more contemporaneous with direct radiological examination than the report it prefers. The failure to do so, on the specific facts of this case, amounts to an error of principle in which a relevant matter, the only unrebutted radiological evidence on record, was left out of account.
III) Which injuries were proved
42. What remains, on a fair reading of the whole record, is that the Respondent sustained soft tissue injuries consistent across both medical accounts: contusion to the neck, chest, back, and pelvis; laceration to the right hand; and bruising to both knees. Dr. Malik's own examination found continuing complaint of occasional chest pain and is not inconsistent with contusion soft tissue injury having been sustained in the accident, even as it rules out fracture or dislocation. This Court so finds.
IV) Quantum of damages
43. It is settled law that an appellate court will not disturb an award of general damages merely because it would itself have arrived at a different figure; interference is warranted only where the trial court took into account an irrelevant factor, left out of account a relevant one, or arrived at a figure so inordinately high or low as to represent a wholly erroneous estimate. See Kemfro Africa Ltd v A.M. Lubia & another [1987] KLR 30; Butt v Khan [1981] KLR; Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55. For the reasons given above, this Court finds that the trial court did leave out of account a relevant matter; the non rebutted radiological evidence and thus did take into account an irrelevant or unproved matter which the unauthenticated treatment notes and the fracture/dislocation findings founded on them. The award of Kshs. 800,000/= of the trial court was accordingly based on a wholly erroneous estimate of the injuries actually proved.
44. Comparable awards for multi-site soft tissue injury without proved fracture support a materially lower figure. In Opiyo v A
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