RM (suing through her next of friend and mother JM v Kora Construction Company Limited & 2 others [2022] KEHC 15043 (KLR)

RM (suing through her next of friend and mother JM v Kora Construction Company Limited & 2 others (Civil Appeal 34 of 2020) [2022] KEHC 15043 (KLR) (4 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15043 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 34 of 2020

WM Musyoka, J

November 4, 2022

Between

RM (suing through her next of friend and mother JM

Appellant

and

Kora Construction Company Limited

1st Respondent

Patrick Andayi

2nd Respondent

Attorney General

3rd Respondent

(An appeal arising from the Judgment of Hon. W. Lopokoiyit, Resident Magistrate, delivered on 26th March 2020, in Kakamega CMCCC No. 224 of 2016)

Judgment

1. The suit before the primary court was by the appellant, seeking compensation, by way of damages, from the respondents, for damage sustained by the appellant, on account of a road traffic accident involving her and a vehicle belonging to and driven by the respondents. The respondents denied liability, and, in the alternative, attributed liability on the appellant.

2. A trial was conducted. PW1 was the major appellant, the mother of the minor appellant. She described how she was taking the minor appellant to school, on August 6, 2015, when the accident vehicle, KBC 519W, hit her. She took the child to hospital, and she presented hospital records, and detailed the expenses she incurred. She stated that the driver was charged with the offence of careless driving, and convicted. She stated that the vehicle belonged to the Ministry of Works. DW1 was a director of the 1st respondent, who said the 1st respondent had a contract with the Ministry of Public Works, which came with the vehicle KBL 519W, and which vehicle was surrendered back to the ministry after the project. He stated that the 1st respondent was not the registered owner of the vehicle in 2015, when the accident happened. He said liability lay with the Ministry. In the end, in a judgment delivered on March 26, 2020, the trial court attributed liability on the 1st respondent at 100%. The trial court did not award general damages, as a medical report was not produced, but special damages were awarded at Kshs 20,530. 00. Costs were disallowed, as no demand notice was ever served.

3. The appellant was aggrieved, hence the instant appeal. Her memorandum of appeal is dated July 8, 2020. Her grounds of appeal are centred around failing to award general damages after making findings on liability, failing to consider the medical documents produced, treating medical report as the only document to be considered to assess degree of injury, selectively focusing on only some aspects of the P3 form, and the failure to award costs.

4. The 1st respondent cross-appealed, on grounds around the finding that the accident vehicle was owned by it and in attributing liability to it.

5. Directions were given on November 24, 2021, for disposal of the appeal by way of written submissions. I have seen written submissions by the 1st and 2nd respondents, but none by the appellant and the 3rd respondent.

6. The 1st respondent submits that the trial court did not err in not awarding damages for the injuries suffered as no medical report was produced. On the P3 form, it is submitted that the P3 form does not establish the degree of injury for the purpose of compensation. It is further submitted that the trial court had established for a fact that there was no demand issued and served before the suit was filed, and therefore there was no basis for award of costs. Finally, it is submitted that the 1st respondent was not the owner of KBL 519W, or the employer of the 2nd respondent for vicarious liability to attach. The submissions by the 2nd respondent are on similar grounds.

7. There are 4 issues that fall for determination: the evidential effect of a document marked for identification and not formally produced in evidence; whether the appellant is entitled to special damages; whether the appellant should be awarded costs; and who should be held liable for the accident.

8. On the first issue, the evidential effect of a document marked for identification, but not formally produced in evidence or even marked as an exhibit, it was stated, in Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2005] eKLR (Visram, Mwilu & Otieno-Odek, JJA), that the mere marking of a document for purposes of identification is not proof of the contents of the document. It is of probative value only after it is produced as an exhibit. See also Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] eKLR (Ouko P, Musinga & J Mohammed, JJA). The medical report, in this case, was only marked for identification, it was never produced. It was not an exhibit. Indeed, it should not even have been placed on record, for it had not been produced.

9. The issue, as to whether the appellant was entitled to an award of general damages, arises, ostensibly, because of the non-production of the medical report. The appellant argues that there was other evidence which the trial court could have used for the purpose of assessing compensation for pain and suffering. She points at the P3 form, X-ray report and treatment notes that were put in evidence as exhibits. She submits that the medical report is not the only material upon which the trial court should base itself for the purpose of assessment of general damages.

10. The importance of medico-legal report should not be understated. It is a crucial document in personal injury cases. It is a medico-legal report, in the sense that it is for use in legal proceedings, because it is specifically tailored to address points that a court seized of a personal injury claim would be interested in, in terms of the nature and extent of the injuries, the nature of the treatment given, the impact of the injuries on the victim, and future prognosis. These would be relevant for the purpose of assessment of damages. The other medical documentation, such as the P3 form, X-ray report and treatment notes, are really secondary to the medico-legal report. They would be produced to support, augument and authenticate the medico-legal report. More importantly, unlike the medico-legal report, they are not generated for the specific purpose of assessment of damages in personal injury claims. The P3 form, for example, is a police document, generated for the specific purpose of criminal investigations and criminal prosecution. It is designed to bring out the nature, extent and category of injury, to assist the police in framing the appropriate charges, and to assist the court in determining the offences committed and the sentences to impose. The X-ray report is an internal document, meant for consumption of medical personnel handling patients in a medical facility, to guide them in determining the nature of treatment to give to the patient in the circumstances. Medical treatment notes are also internal documents, within a medical facility environment, generated for use by medical personnel, such as nurses, clinicians and doctors. They are not generated for court use. The medico-legal report is, therefore, very critical or central in personal injury claims.

11. The question then is, should a claim fail where a medico-legal report is not produced as an exhibit? The conventional judicial opinion is that it should not, if there is other evidence on the nature and extent of the injuries sustained by the person. The other medical evidence can come from the victim themselves (see Henry Binya Oyala v Sabera O Itira [2011] eKLR (Asike-Makhandia, J), or from the P3 form (see Erick Juma & 2 others v Fredrick Gacheru & Another [2016] eKLR (Majanja, J)), or from medical treatment notes (see Beth Njeri Kogi v Martin Muraya Rwamba & another [2019] eKLR (Ngetich, J)). Personal injury claims are in the nature of civil suits. The standard of proof for civil cases is on a balance of probability. In the context of the instant matter, the preponderance of the other medical evidence would suffice to tip the scales (see Erick Juma & 2 others v Fredrick Gacheru & another [2016] eKLR (Majanja, J)).

12. In the matter before the trial court, the appellant produced a P3 form, a discharge summary and an X-ray request form. All indicated the injury sustained by the appellant, as a fracture of the mid-shaft femur, right lower limb. That was adequate evidence of the nature and extent of the injury suffered. The appellant had adduced adequate evidence to demonstrate, on a balance of probability, that she had sustained an injury and the nature of the injury suffered. The material is adequate for the purpose of assessing general damages. The appellant has not filed written submissions, and so she has not provided any guide to me for the purposes of assessing damages. The respondents too have not addressed the issue. The trial court did not give an indication of what it would have awarded in the circumstances. In Aloise Mwangi Kahari v Martin Muitya & Another [2020] eKLR (Ngetich, J), the appellant had a compound fracture of the right tibia and fibula, and other severe injuries, and the court awarded Kshs 500,000. 00, as general damages for pain and suffering. The appellant herein suffered lesser injuries, a simple fracture. The trial court should have awarded to her a sum representing half of what was awarded in Aloise Mwangi Kahari v Martin Muitya & Another [2020] eKLR (Ngetich, J). I shall accordingly assess general damages at Kshs 300,000. 00.

13. The next issue is whether costs should have been awarded to the appellant. The mantra is that costs follow the event (see Morgan Air Cargo Limited v Evrest Enterprises Limited [2014] eKLR (Gikonyo, J). Although the court, ultimately, has the discretion to decide whether or not to award costs (see section 27(1) of the Civil Procedure Act, cap 21, Laws of Kenya), costs following the event points at the same being awarded to the party who has succeeded in the litigation. In this case, the trial court found that the appellant had succeeded in proving liability, and awarded special damages against the 1st and 2nd respondents, and accordingly entered judgment in her favour. Costs should have followed that event.

14. The appellant was denied costs on grounds that no demand notice was ever issued. At the hearing, the appellant did not testify on whether or not she had sent out a demand notice to the respondents, and no copy of such demand notice was placed on record. There was justification in the conclusion that there was no proof of such notice being given. The question is, does the omission to give a demand notice disentitle a successful party to costs? The trial court did not cite any law. The respondents, in their written submissions, support that conclusion by the trial court, but they too do not cite any law to justify their position. The provisions of the Civil Procedure Act and the rules have no provision on that. What the trial court, perhaps, had in mind is rule 53 of the Advocates Remuneration Order, which states as follows:“No advocate’s costs where suit is brought without notice except on special order.If the plaintiff in any action has not given the defendant notice of his intention to sue, and the defendant pays the amount claimed or found due at or before the first hearing, no advocates costs shall be allowed except on a special order of the judge or magistrate.”

15. Did rule 53 of the Advocates Remuneration Order apply to the matter before the trial court? I do not think it did. In the first place, the respondent did not pay “the amount claimed or found due at or before the first hearing.” See Julius Kenyatta Ogochi v Mary Njambi Githenji [2012] eKLR (Azangalala, J), Secondly, rule 53 refers to advocates cost, and not party and party costs. The costs, that follow the event of a dismissal or allowing of a claim, are as between parties, and rule 53 does not apply to them. Rule 53 applies to advocates costs being charged against a defendant where the plaintiff had not given the defendant notice of his intention to sue. In the circumstances, there was no justification for denial of costs to the appellant, in the instant case, by the trial court. Rule 53 also only applies at taxation of costs (see Thomas Gitau Njogu & 4 others v Patrick Waruinge Muhindi & 2 others [2013] eKLR (Nyamweya, J)). Whether or not the appellant was entitled to costs on account of not having issued or served a demand notice to the respondents should not have arisen in the main determination of the suit, but at assessment of costs by the executive officer of the trial court or whoever assesses costs at the magistrate’s court.

16. The final issue is as to whether the 1st and 2nd respondents were liable to the plaintiff. The 1st respondent argues that the accident vehicle did not belong to it, but to the government, specifically to the Ministry of Works. The finding by the trial court was that, as at time the accident was occurring on August 6, 2015, the subject motor vehicle was still registered in the name of the 1st respondent as owner, according to the record from the registry of motor vehicles placed on record. If it was a government vehicle or was under the control of government, then it ought to have borne GK plates. That is a matter to take judicial notice of. The police abstract, placed on record, showed that the accident vehicle had a policy of insurance in force, a cover by British American Insurance Company Limited. Government vehicles are not insured. The fact of the insurance cover points to private control of the vehicle. There was sufficient material before the trial court, therefore, for it to conclude that the vehicle was under the control of the 1st respondent, as at the date of the accident. The fact the vehicle was under the control of the 1st respondent, or that it was responsible for it, would mean that whoever had physical control over it, at the material time, was its agent or servant, and the 1st respondent could be vicariously liable for his actions. That should take care of the argument that the 2nd respondent was not an employee of the 1st respondent.

17. Overall, I find merit in the appeal. I allow it. The findings and holdings of the trial court on general damages and costs are set aside, and are substituted with an award of general damages at Kshs 300,000. 00, and costs of the suit, at the court below and of this appeal. The cross-appeal is dismissed. It is so ordered.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 4TH DAY OF NOVEMBER 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Ms Kadenyi, instructed by Emily & Associates, Advocates for the appellant.Mr Mukoya, instructed by RV Mukoya & Company, Advocates for the 1st respondent.Mr Osango, instructed by Osango & Company, Advocates for the 2nd respondent.