Anthony v Karau [2022] KEHC 14100 (KLR)

Anthony v Karau (Civil Appeal 160 of 2018) [2022] KEHC 14100 (KLR) (13 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14100 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal 160 of 2018

MW Muigai, J

October 13, 2022

Between

Kamande Anthony

Appellant

and

Samson Njoroge Karau

Respondent

(Being An Appeal from the Judgement of the Senior Resident Magistrate at Mavoko, J.A. Agonda delivered on 23rd November 2018 In the Senior Principal Magistrate’s Court at Mavoko Civil Case No 183 of 2016)

Judgment

Lower Court Record Plaint 1. This suit was commenced by a Plaint filed on 4. 03. 2016 at the Principal Magistrate in Mavoko where the Plaintiff averred that on 13. 03. 2015 while lawfully travelling as a passenger along Mombasa road in Motor Vehicle Registration number KBW 110 Z and at Devki, the Defendant who is the registered owner of that Motor vehicle, was over speeding and drove the motor vehicle carelessly and negligently causing it to lose control and hit Motor Vehicle registration number KBX 888 N from behind causing an accident.

2. The Plaintiff particularized the negligence of the driver and /or his authorized agent as; driving without any proper look out, failing to exercise care and skill in the management of the said motor vehicle so as to avoid the accident, driving at an excessive speed in the circumstances, driving without due regard of other users and in particular, the Plaintiff and causing the accident.

3. The injuries sustained were particularized as fracture-right Tibia/Fibular, crush injuries-left 3rd and 4th foot toes and below knee amputation-right leg.

4. Further, the Plaintiff averred that he was 33 years old working as a matatu operator/ conductor and could earn a monthly salary of Kshs 17,000 but since the accident he has been unable to continue with his work thereby loosing income and means to provide for his family of four children and a wife. He sought special damages of Kshs. 140,084 only and future damages of Kshs 840,000 only.

5. The plaintiff prayed for;i.General damages,ii.Special damages as stated above and future medical expensesiii.Costs of the suit

Defence 6. The Defendant filed his Defence on 19th May 2016 in which he denied most of the contents of the Plaint and only admitted to the jurisdiction of the court and that there has been no other matter between the parties.

Reply To Defence 7. The Plaintiff filed a reply to Defence on 19. 05. 2016 essentially denying the contents of the defence and seeking to have the same dismissed with costs.

Hearing 8. At the Hearing, the Plaintiff called 2 witnesses, PW1 was SAMSON NJOROGE KARAU, the Plaintiff. He stated that on 13. 03. 2015 he was at work in Motor Vehicle registration number KBW 110Z as a tout along Mombasa road from Simba Cement heading to Syokimau when they got an accident. He said that the vehicle was over speeding as it lost control, veered off the road and hit a motor vehicle on the road side. He got injured on both legs and right leg was amputated. He contended that he was using an artificial leg. He said he lost two toes and was taken to Shalom Hospital for First Aid and referred to Kenyatta National hospital where he was admitted for 45 days. He produced the following documents;i.a receipt for the purchase of crutches,ii.Hospital attendance card,iii.consultation request form dated 16th April 2015iv.Consultation form dated 21st April 2015v.Case summary dated 19th May 2015 from KNHvi.In patient credit formvii.Copy of recordsviii.Receipt of Kshs 5000ix.Demand letter dated 17th December 2015x.KNH receipt for Kshs 140,084

9. He said he reported the matter to Athi River Police Station and was issued with a P3 form which he produced as well as a police abstract. He was examined by Dr. Mwaura and paid Kshs 1500. Permanent disability was assessed at 5% on the left leg .He said he used to earn Kshs 17,000 monthly and Kshs 300 per day mileage and he used to be sent for Ksh 8,000 and the mileage and he used to pay on daily basis but he cannot work because of his amputated legs. He blamed the driver of the motor vehicle for the accident as it was over speeding and its brakes failed ramming into another vehicle. He contended that the replacement renewal 5 years was 120,000 X7 = 840,000 approximately. He said he will have died at 70 years and that his left leg does not have a lot of problem but he has little pain and the right leg cannot walk long distance.

10. Upon Cross examination, he stated that he has not amended his plaint and he was a conductor employed by Anthony Kamande and did not have a document to confirm that. He did not have advance tax and was being paid Kshs 17,000 per month but had no documentary evidence. He contended that he was conductor and a passenger. He did not sue the driver who caused the accident. He had buckled himself. He was admitted for 45 days; on 14th March 2015 to 14th April 2015, discharge date. It was 30 days and he did not have documents to show he was admitted for 45days. The artificial leg was GP Westlands and he was not given any receipt. He was taken there by good Samaritans who paid for travelling and did not know how much the artificial leg costed.

11. It was his testimony that the accident occurred at 11. 00pm and the copy of records indicate that the registered owner is Anthony Kamande and KCB but he did not sue the bank and he did not know if the insurance was given notice of intention to sue.

12. In re-examination he reiterated that he was a passenger and stayed in hospital for 45 days but the documents indicate 30days. He said he did not get out of the hospital as indicated. He said he sued a man but his advocate file erroneous description of the Defendant in the verifying affidavit.

13. PW2 was No. 88387, PC IBRAHIM KEMBOI from Athi River Police who performs traffic duties. He indicated that Motor vehicle KBW 1110 Z joined the main road from the feeder road while trailer Mercedes Benz Registration number KBX 888N ZD 3137 was on the highway, the vehicles collided and the Plaintiff got injured. He blamed KBW 110Z and he produced the police abstract.

14. Upon Cross- examination, he said the driver of KBW 110 Z ran away and was not found at the scene. He said the motor vehicle is allowed/ permitted to have a conductor and passenger. He did not interrogate the Plaintiff but he wrote his statement. He stated that the turn boy sustained a fracture.

15. In re-examination, he said the driver of KBW 110 Z ran away from the scene of the accident hence his whereabouts was not known.

16. The Defendant was the only defense witness. It was his testimony that he is a transporter and lives in Thika. He denied knowing the Plaintiff. He said that Motor vehicle KBW 1110Z was involved in an accident on 3. 06. 2016 and they did not have an employee by Plaintiff’s name. it was a tipper motor vehicle carrying goods and not passengers.

17. Upon Cross Examination, he stated that he did not know but their motor vehicle was involved in an accident. It has his driver and one passenger, Samson Karau. He knew through his insurer who knew through a demand letter. He opined that the Plaintiff was not a turn boy and was illegal in his motor vehicle and he was not charged. He said the driver knew the Plaintiff but he did not.

18. In re-examination, he stated that according to entry 7 of the Police Abstract, pending under investigations his driver has not been charged. He reiterated that the plaintiff was not his employee and it was a contradictory statement that he was a conductor then a lawful passenger.

Trial Court Judgement 19. The trial court delivered judgement on 23rd November 2016. The court enumerated on five issues. As to whether the Defendant was the registered owner of motor vehicle registration number KBW 110 Z as at 13th March 2015, the Trial court found in the affirmative according to the copy of records and the police abstract .

20. Secondly, the court found that the accident occurred on 13. 03. 2015 along Mombasa road at Devki junction as evidenced by the testimony of Plaintiff and PW2 as well as the police abstract, involving the two motor vehicles.

21. Thirdly, as regards who is to blame for the accident and to what extent, the court made reference to the Plaintiff’s testimony that he was a fare paying passenger and the driver failed to consider other road users and in particular the driver of the trailer who was in his right lane on the highway hence he would have slowed down considering the rod was always busy and it being a junction, he needed to be extra vigilant to ensure he joined the main highway at the opportune time. The court found that the Defendant’s evidence was not corroborated and he never called his driver who was a crucial witness to shed light on how the accident occurred.

22. The Trial Court was of the opinion that DW1 ought to have asked for summons from the court to bond the driver to attend court and give his testimony. The Trial court stated that it relied heavily on the plaintiff’s testimony which was corroborated by documentary evidence. The Trial Court stated that the Defendant needed a comprehensive motor vehicle inspection report and should have called the motor vehicle inspector and the driver to shed more light on how the several parts of the body of the vehicle were damaged and how the accident occurred. The court found that the Defendant’s evidence was hearsay with regard to how the accident occurred and based on Order 2 Rule 6 if the Civil Procedure Act that parties are bound by their pleadings, the court rejected DW1’s testimony of how the accident occurred.

23. The Trial court found the Defendant vicariously liable for employing an unskilled and careless driver who was negligent and caused the accident. The Trial court found the Defendant 100% liable for the accident.

24. On the injuries sustained and the appropriate quantum, the court found that based on the medical reports and documentation produced, the Plaintiff had proved his case on a balance of probability. On the loss of earning, the Plaintiff did not produce any contract of employment, mpesa transactions to show how he was being paid and did not produce any documentary evidence. He did not plead loss of earning and so the court could not award what was not pleaded.

25. As regards the receipt for the motor vehicle search, the court found that since the stamp was not affixed then the same could not be awarded. For the medical report, the court stated that he should have produced the original receipt and not a photocopy without original affixed stamp.Guided by the cases of Silvanus Ondiek Ochola vs Delta Hauliage Services and another HCCC No 92 of 2007, Kericho and Kennedy Mutinda Nzoka vs Basco Producet (Kenya) Limited [2013] eklr, the Trial court entered judgement on liability at 100% in favour of the Plaintiff against the defendant and awarded the following;i.General damages Kshs 800,000ii.Special Damages 0iii.Purchase of Artificial Leg Kshs. 840,000Total Kshs 1,640,000

The Appeal 26. Dissatisfied by the judgement, the Appellant filed a Memorandum of Appeal dated 6th November 2018 seeking the following orders, that;

i.The Appeal be allowed with costs and the judgement of the subordinate court be set aside.ii.The Respondent’s cause in Civil Case no 183 of 2016 at Mavoko Law Court be dismissed with costs.iii.Any further relief that the Honourable Court deems fit to grant in the interest of justice

27. The grounds upon which the Appeal is premised on are that;i.The Learned Trial Magistrate erred in law and failed in entering judgement against the Appellant against adduced and dismissing the Appellants evidence as tailor madeii.The Learned Trial Magistrate erred in law and in fact when she failed to harmonize her proceedings with the judgment and misconstrued the Appellant’s evidenceiii.The Learned Trial Magistrate erred in fact and in law when she disregarded appellant’s evidence and delivered judgement which never envisaged a balance of probabilitiesiv.The Learned Trial Magistrate erred in law and fact when she disregarded the evidence of the appellant and proceeded to find against the appellant based on her own opinion and presumptions. Further turning a blind eye to the appellant’s submissions.v.The Learned Trial Magistrate erred in law and in face giving drastic orders in total disregard of the appellant’s detriment and laws of evidencevi.The Learned Trial Magistrate turned a blind eye to the fatal forgeries occasioned by the Respondent in her exhibits to the detriment of the Appellant.vii.The Learned Trial Magistrate made a ridiculous verdict which essentially cured a fatal mistake in the Plaintiff’s pleadings by granting prayers in a plaint without an accompanying verifying affidavit.

1. The Appeal was canvassed by way of written submissions.

Appellant’s Submissions 29. The submissions were filed on 1st of December 2021 in which he submitted that at paragraph 4 of the Plaint the Respondent said he was lawfully travelling as a passenger along Mombasa road and at paragraph 5 said he is 33 years old and working as a matatu operator/conductor, during cross examination he stated that he was at work in motor vehicle KBW 110 Z along Mombasa road from Simba Cement headed to Syokimau.

30. He submitted that the learned magistrate on at least seven (7) occasions referred to the Respondent as “a lawful fare paying passenger.” And while relying on the case of Migori High Court Civil Appeal No 61 of 2018 Mary A. Anyango vs South Nyanza Sugar Co. Limited, it was further submitted that the Trial court made a finding that was disjointed from both the pleadings and adduced evidence thus depriving him a hearing on the question of whether or not the Respondent was lawful fare paying passenger in the subject motor vehicle.

31. He contended that his constitutional right to fair trial, right to have adequate time and facilities to prepare a defence under Article 50 (2), right to be informed of the evidence the prosecution intends to rely on and reasonable access to it and the right to adduce and challenge evidence as provided for under Article 50 (2) (k) were violated. That he was condemned unheard as this was the basis upon which the court found him 100% liable.

32. It was submitted that at paragraph 2 of the Plaint, the Respondent described the Appellant as a female adult of sound mind residing in the Republic of Kenya and during cross examination on 3rd of April 2017 stated that Kamande Anthony is a man and he opined that the Respondent had not interacted with the Appellant at the time of filing the suit. The Appellant contended that no evidence had been adduced to prove that the Respondent had been instructed by the Appellant to be on board the subject motor vehicle at the time of the accident or ever , as an employee or otherwise, nor that he had ever received monies being salary or that there was communication between the driver and the Respondent as would be expected between colleagues. The Appellant reiterated that he had not authorized the Respondent to board the subject motor vehicle.

33. Further, the Appellant submitted that the Respondent did not know the name of the driver as he did not name him anywhere in the pleadings nor the stand as he does not know it and has never known it and the relationship is that of total strangers. In addition, for liability to attach to the Appellant, it was submitted that being a vicarious liability case, the learned trial magistrate ought to have satisfied herself that the driver, in allowing the Respondent to board the subject Motor vehicle acted within the confines of the agency relationship he had with the Appellant. Therefore, the court erred in finding the Appellant vicariously liable for the injuries allegedly sustained by the Respondent. Reliance was placed on the case of Kajiado High Court Civil Appeal No. 31 of 2015 Margaret Mumbua Mbithi vs A.S.K Sanghan & Dahir Ali and Mombasa HCCA No. 28 of 2015 PZ Cussons (E.A) Limited vs Felton Kimori & Felisina Kimori .

34. The Appellant submitted that the motor vehicle was a TATA Tipper truck that in the common course of natural events, human conduct and public and private business are not used in ferrying passengers and as such the trial court erred in invoking section 119 of the Evidence Act which he opines cannot cure the Respondent’s failure to lead vital evidence.

Respondent’s Submissions 35. The Respondent’s filed submissions on 8th December 2021 and submitted on four main issues. As to whether the Respondent’s verifying affidavit was defective warranting the Respondent’s suit to be dismissed, it was opined that the Appellant ought to have raised that issue at the preliminary stage vide a preliminary objection and failure to do so proves that the issue was an afterthought or he is using this as a delay tactic to prevent him from enjoying the fruits of the judgment.

36. According to the Respondent, the defect was not fatal. He said that it was not in contention that he did not file a verifying affidavit which conforms to the requirements of Order 4 rule 2 of the Civil Procedure Rules and the reference to a further plaint in the verifying affidavit was a typographical error on their part which is regrettable. Furthermore, the error does not go to the root of the Respondent’s case and does not prejudice the Appellant in any way and cannot lead to dismissal of the suit. The Respondent relies on section 1A and 1B of the Civil Procedure Act, Article 159 of the Constitution of Kenya and the cases of D.T Dobie & Company (Kenya) Limited vs Joseph Mbaria Muchina & Another [1980]eKLR and Abdulahi Sheikh Ahmed vs Mandera County Government [2019] eKLR.

37. As to whether there were any forgeries occasioned by the Respondent and its impact, it was submitted that under Section 350 of the Penal Code, forgery is an offence and the Appellant ought to have reported the same to the relevant authorities. The Appellant failed to produce an OB number or any evidence to substantiate the allegations rendering the same as baseless, he contended. Further, this issue only came up in submissions and not in the Defence and should be disregarded.

38. As regards whether the learned magistrate was right in finding the Respondent a passenger in the Appellant’s motor vehicle, it was submitted that being a turn boy does not take away the fact that he was still a passenger. He contended that the Appellant failed to join his driver as a third party in the trial to shed more light on the nature of their relationship and on the issue of liability. Therefore, the Trial Court cannot be faulted for making the finding based on the evidence presented to Court. It was submitted that the Respondent was a newly employed tout and no employment paperwork had been issued to him, that a tout is a passenger and his presence in the Lorry was for the benefit of the Appellant’s business. The driver was aware of his presence and this cannot be termed as illegal or unlawful. The Tipper Lorry did not have any sign or warning to the effect that no unauthorized passengers were allowed as is the practice. The court was urged to uphold the judgment and dismiss the Appeal.

39. As to whether the Trial Magistrate disregarded and misconstrued the Appellant’s evidence, it was submitted that the Trial Magistrate keenly examined the pleadings and the evidence adduced during the hearing and the Trial Court could not have determined issues not raised in the pleadings as this would be great injustice to him. To buttress this point, reference was made to the case of Zacharia Orwa Ondoro vs South Nyanza Sugar Co. Limited (2018) eKLR.

Determination 40. I have considered the Memorandum of Appeal, the lower court record and the submissions of the parties and I find that the main question for determination is that of liability and liability.

Liability 41. It is not in contention that the accident occurred on 13. 03. 2015 along Mombasa road at Devki junction as Motor Vehicle Registration number KBW 110 Z (hereinafter referred to as “the subject motor vehicle”) joined the main road from the feeder road while trailer Mercedes Benz Registration number KBX 888N ZD 3137 was on the highway.

42. It is in contention, and that the subject of appeal is that the Respondent was in the subject motor vehicle and that the driver of the subject motor vehicle was to blame for the accident. The fact of blame worthiness is clear from the evidence of PW1, PW2 and DW1 who also referred to the police abstract blaming the driver of the subject motor vehicle for the accident.

43. This being 1st Appellate Court, it did not have the opportunity to see, listen to nor interrogate the witnesses the evaluation of the evidence to reach an independent outcome has to base its determination on the facts and the law presented before it on the Trial Court record. The Court finds the Plaintiffs witnesses corroborated by documentary evidence was not rebutted by the Defense evidence. The driver was not called as a witness.

44. In the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123 the court stated that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from 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 demeanor of a witness is inconsistent with the evidence in the case generally.”

45. The Appellant has raised the issue of the verifying affidavit making reference to a further amended plaint yet there is none on record, to which the Respondent states was a typographical error. The purpose of a Verifying Affidavit was stated in the case of Korica (U) Limited & another v Kenya Ports Authority [2008] eKLR where the Court observed as follows –“The objective of verifying affidavits is to avoid suits being filed without the authority of the Plaintiffs themselves. That is why Order 7 Rule 1 requires that the filing of plaints should be accompanied by verifying affidavits sworn by the Plaintiffs themselves as authority that the suits are filed with their authority.”

46. Order 4 Rule 1 of the Civil Procedure Rules, 2010 provides that;The plaint shall contain the following particulars—(a)the name of the court in which the suit is brought;(b)the name, description and place of residence of the plaintiff, and an address for service;(c)the name, description and place of residence of the defendant, so far as they can be ascertained;(d)the place where the cause of action arose;(e)where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect; and(f)an averment that there is no other suit pending, and that there have been no previous proceedings, in any court between the plaintiff and the defendant over the same subject matter and that the cause of action relates to the plaintiff named in the plaint.(2)The plaint shall be accompanied by an affidavit sworn by the plaintiff verifying the correctness of the averments contained in rule 1(1)(f) above.

47. The Court of Appeal in the case of Josephat Kipchirchir Sigilai v Gotab Sanik Enterprises Ltd & 4 others [2007] eKLR discussed the relationship between a verifying affidavit and the consequences of its striking out and stated that;“An affidavit, as a general rule, is evidence. It would appear to us that the affidavit is intended to make the plaintiff own every averment in his plaint. It was intended to change the averments in the plaint from being mere averments or pleadings into evidence as is true in other modes of instituting suits and to pin down the plaintiff to them and thus make them part of evidence in support of his case; and possibly to limit room for manoeuvre...A verifying affidavit as envisaged by the rule, is meant to assert or vouch to the truth of what is stated therein.….We think an omission to fully comply with the provision is a mere irregularity which, except in very clear cases, may be cured. We agree with Mr. Onyinkwa for the appellant that striking out a suit is a draconian and extreme measure which should only be resorted to in the clearest of cases, where the court, after considering all the facts and circumstances of the case comes to the inescapable conclusion that the plaintiff is abusing the court process or his claim is frivolous or vexatious or scandalous or does not lie.”

48. The verifying affidavit sworn by the Respondent on 4th of March 2018, I find that the Respondent should have been more keen in what he was signing and filing in court. Invoking Article 159 (2) (d) of the Constitution of Kenya, 2010, I find that this is not an issue that cannot be rectified and one that goes to the root of dismissing the Plaint. It is a curable defect. In addition, the Appellant ought to have raised this issue at the preliminary stage to allow the court exercise its discretion on whether to strike out the Plaint or not. More significantly, the Respondent/Applicant has not demonstrated that the memorandum of claim is frivolous or vexatious or scandalous or fail to disclose reasonable cause of action.

49. On the issue of the referring to the Appellant as female instead of male in the Plaint, an issue the Appellant has raised, according to the Trial Court record, on 13th June 2017 an oral application for amendment was made and the Appellant’s advocate indicated that he will not oppose the amendment. The Respondent also indicated in re-examination that he was not aware if his pleadings were amended. It is however not clear why he did not file a new verifying affidavit.

50. From the record, there is no contention on the nature of the injuries. The Appellant seems to take issue with the fact that he was found to be vicariously liable for the accident and how the Respondent was in the subject motor vehicle. From the abstract dated 21. 12. 2015, the owner of the subject motor vehicle is KIMANI ANTHONY and the subject motor vehicle was to blame for the accident through its driver. The class of the passenger is indicted as “pass”. PW2 stated that the Respondent was a passenger. The copy of records dated 19th January 2016 also indicated the Appellant as the owner of the motor vehicle, a fact he also admits to.

51. The Appellant submitted that the Trial Court ought to have established that the driver was acting within the confines of the agency relationship. I do not think the Trial court could have gone outside what was presented before it. The Appellant did not deny that the driver of the subject vehicle was his employee, he only denied the relationship with the Respondent however this was not supported by any evidence. The Appellant who knows the driver does not even mention his name. On the other hand, the Respondent also alleged to have been an employee but did not support this allegation with any evidence. The court’s hands are therefore tied and left to deal with the fact only that the Respondent was in the motor vehicle.

52. The Court of Appeal (Omolo, Lakha & Bosire, JJA.) clarified that vicariously liability of the owner of a motor vehicle did not depend on the liability or decree against the driver but on proved negligence in the case of SAMUEL GIKURU NDUNGU v COAST BUS COMPANY LTD [2000] eKLR, where they held as follows:“As we stated earlier, the appellant did not sue the driver of the accident motor vehicle. In Omar Athman v. Garissa County Council, Nairobi High Court Civil Case No. 2484 of 1992 (unreported) which the trial Judge cited in his judgment but did not make any comments on, Aganyanya, J. struck out the plaintiff's suit for incompetence because the driver of a motor vehicle in a running down defended suit was not made a party in the suit. In his view the liability against the owner of the vehicle in such a case being vicarious is dependent on a decree against his driver on the same facts.In Selle & Another v. Associated Motor Boat Company Ltd. & Others [1968] EA 123, the respondents who owned and maintained a boat involved in an accident in which one of the appellants was injured, were held vicariously liable for their driver's negligence even though the said driver was not a party in the suit. Likewise in Mwonia v. Kakuzi Ltd [1982- 88]1 KAR 523, the respondent was held liable for its driver's negligence although the driver was neither made a party nor did he testify in the case against his employer. Chesoni and Nyarangi Ag. JJA (Kneller JA, dissenting, but not for the reason that the driver was not joined) held that on the basis of the evidence before the court the respondent as owner of the accident motor vehicle was liable to the appellant in damages for the proved negligence of its driver.From the authorities it would appear to us that the mere fact that the driver of an accident motor vehicle is not joined in a damages claim against his employer arising from his driving is not fatal. Liability against the employer largely depends on the pleadings and the evidence in support of the claim. Vicarious liability of the employer is not pegged to the employees' liability but to his negligence. Having come to that conclusion we are unable to agree with Aganyanya J. that the non-joinder of the driver in an action as the one which gave rise to this appeal renders the suit incompetent.”

53. The non-joinder of the driver as a Defendant does not, therefore, of its own defeat the Plaintiff’s suit and the Appellant is still liable and responsible for the collateral negligent act of the driver with whom a master and servant relationship existed.

54. The inpatient credit form indicates the date of admission of the Respondent was 14. 3.2015 and date of discharge as 14. 4.2015 but the final invoice indicated the discharge date as 28. 4.2015. This contradiction could only have been clarified if an officer of Kenyatta National Hospital would have testified to shed more light on which document the Court should rely upon during the Trial Court Proceedings.

55. I find that the Trial Court fell into error in finding that the Respondent was a fare paying passenger yet no such evidence was placed before it.

56. The Appellant raises a ground that there were fatal forgeries. It is trite law that he who alleges must prove. Section 109 of the Evidence Act, Cap 80, Laws of Kenya, provides for proof of particular facts, and it states as follows:“The burden of proof as to any particular fact lies in the person who wishes the court to believe in its existence, unless provided by any law that the proof of fact shall lie on any particular person.”

57. The Appellant only alleged forgery but did not produce any evidence as to what was forged, how it was forged and who forged it, As such, going by the serious nature of the offence of fraud and lack of evidence on record, I find that the Appellant has failed to prove this allegation and therefore dismiss it.

Quantum 58. As regards the issue of the prayers awarded by the Trial Court being far from what was pleaded, I refer to the Plaint on record in which the Respondent sought the following orders;i.General damages,ii.special damages as stated above and future medical expensesiii.Costs of the suit

59. The Court awarded the following;i.General damages Kshs 800,000ii.Special Damages 0iii.Purchase of Artificial Leg Kshs. 840,000Total Kshs 1,640,000

60. The award of general damages was pleaded for and awarded. The Respondent prayed for future medical expenses. The permanent injury was assessed Dr. Mwaura at 50% for the right leg and 5% for the left foot and pegged future costs of the prosthetic leg at Kshs. 120,000 renewed every 5 years at 7 renewals and he gave a total of Kshs 840,000. The purchase of the Artificial leg appears to me to be a synonym of the prosthetic leg that would cost Kshs 840,000 as per the assessment of the doctor. The Trial Court referred to the same in its judgment. I therefore substitute the word “Purchase of artificial leg” with future medical expenses of Kshs. 840,000.

61. On the Special damages, the trial court failed to award the same on account that the Respondent did not affix a revenue stamp on the documents produced. This issue was discussed in the case of Joseph Kimani & another vs. James Kangera Kahanya [2017] eKLR, the Court stated:“The matter of unstamped payment receipts has been put to rest in numerous court decisions.Under the Stamp Duty Act, Cap 48 Laws of Kenya it is a mandatory requirement that any receipts produced in evidence must have a revenue stamp for them to be admissible except in criminal proceedings by a collector to recover stamp duty, unless it is duly stamped.”

62. In Maxam Limited vs. Heineken East Africa Import Company Limited & another [2019] eKLR, the Court said:“46. For the court to consider the effect of failure to have the document in question stamp duty stamped as required under section 19(1) of the Stamp Duty Act, has to consider the purpose of having a document stamped. The section provides that:-“No instrument chargeable with stamp duty shall be received as evidence in any proceedings whatsoever except …”My understanding of the section is to ensure any document for which stamp duty is required to be paid for, should have stamp duty paid first before it can be received. Failure to pay stamp duty does not in my mind mean that the document is invalid or fatally defective but stamp duty that is required to be paid had not been paid; first before admission of the document as there is no bar in paying the stamp duty due thereafter or upon an order of the court to that effect.”

63. I therefore agree with the finding of the Trial court. The Trial court would have upon application by the relevant party allowed it to rectify the anomaly but there was no such application. Also, since special damages must be specifically produced and proved, the finding of the Trial Court was proper in the circumstances.

64. I agree with the Trial Court to the extent that he who alleges must prove his case on a balance of probability and find no reason to interfere with that decision.

Disposition 65. In the end, the appeal fails and is dismissed with costs to the Appellant.

66. It is so ordered.

DELIVERED, DATED AND SIGNED AT MACHAKOS THIS 13TH DAY OF OCTOBER, 2022. M.W MUIGAIJUDGE