[2022] KEHC 1978 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO 129 OF 2019

GATUNDU TRAVELLERS SAVINGS & CREDIT

COOPERATIVE SOCIETY LIMITED ...1ST APPELLANT

JULIUS MBOGO....................................... 2ND APPELLANT

-VERSUS-

GEORGE MUTURI KAMAU.......................RESPONDENT

RULING

1. Before court, is the Notice of Motion dated 25th May, 2021. The application was not opposed by the appellants.

2. The application is brought under Section 78 of the Civil Procedure Act Cap 21. The respondent by that application applies for leave to admit further evidence in this appeal in the form of further documents.

BACKGROUND

3. The respondent filed a case against both appellants before the Senior Principal Magistrate Court at Gatundu Civil Case No. 214 of 2017. The respondent by that action prayed for general and special damages that resulted from a motor vehicle accident on 3rd February, 2017. The appellant plead fraud and misrepresentation on the part of the respondent. Part of the particulars of the fraud and misrepresentation pleaded by the appellant before the Gatundu Magistrates Court was: -

a) Fabricating documents to support a fake claim;

b) Forging documents to further this claim.

c) Obtaining or attempting to obtain by false pretence money from the defendants (the appellants) by way of damages claimed in the fake claim.

d) Purporting to have been injured in the accident whilst travelling in motor vehicle registration NO. KBX 915L when he knows the same to be false.

e) Informing and misrepresenting facts at Gatundu Hospital that he had been injured in an accident involving motor vehicle KBX 915L when he knows the same to be false and misleading.

f) Fraudulently obtaining claim support documents, treatment notes from Gatundu Hospital.

4. The essence of the pleadings of fraud and misrepresentation was captured in the trial court’s judgment when it considered the appellant’s witness evidence. The witness stated that the Emergency Manual Register of the Gatundu Hospital did not bear the name of the respondent on the date the respondent stated he was treated for injuries suffered following the motor vehicle accident. The trial court rejected that evidence of fraud and misrepresentation and found the appellants 100% liable for the accident. The court also awarded the respondent damages for pain and suffering. The appellants have filed this appeal against that judgment.

5. The respondent stated that he was arrested and charged before Gatundu Court with the offences of forgery, making a document without authority and uttering a false document, in respect to the Gatundu Hospital out-patient record. That criminal case was however subsequently withdrawn under Section 87(a) of the Criminal Procedure Code.

6. The respondent wishes to produce in this appeal:-

a) Certified copies of the proceedings in the Criminal Case 494 of 2019 Gatundu Magistrates;

b) Letters: 18th November, 2020 from National Police Service; of 24th September, 2020 from the County Government of Kiambu Department Health Services, Gatundu Level 5 Hospital; dated 22nd September, 2020 from Clinical Officer in charge; and

c) Notes by the ICT Officer Gatundu Level 5 Hospital.

ANALYSIS

7. Section 78 of Cap 21 provides as follows: -

“(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power:-

a) To determine a case finally;

b) To remand a case;

c) To frame issues and refer them for trial;

d) To take additional evidence or to require the evidence to be taken;

e) To Order a new trial.

(2) Subject as aforesaid, the appellate Court shall have the same Powers and shall perform as nearly as may be the same duties as are charged conferred and imposed by this Act on Courts of Original Jurisdiction in respect of suits instituted therein.

8. The above Section under sub-section (d) empowers this Court to take additional evidence in an appeal.

9. The court retains discretion on permitting the introduction of documents in an appeal. The documents that the respondent wishes to produce, were not in existence when the trial court delivered its judgment. This is because the criminal trial against the respondent was withdrawn on 24th November, 2020. I am of the view that the respondent has shown sufficient reasonS why those documents could not be produced at the trial. In this regard, I cite the case EO VS. COO (2020) eKLR as follows: -

“20. InCivil Appeal (Application) 84/2012 ATTORNEY GENERAL VS TORINO ENTERPRISES LIMITED [2019] eKLRwhich is one of the latest decisions from the Court of Appeal on the question of whether or not an appellate Court should allow an application for adduction of new evidence, the superior Court citedRule 29(1)(b) of its Rulesand many other decisions and stated:-

“13. In Dorothy Nelima Wafula Versus Hellen Nekesa Nielsen and Paul Fredrick Nelson [2017] eKLR, It was expressed that under that UnderRule 29(1) (a), additional evidence will be introduced on appeal inthe discretion of the Court, “for sufficient reason.” The Court further stated that:-

‘Though what constitutes “Sufficient reason” is not explained in the rule, through Judicial practice, the Court has developed guidelines to be satisfied before it can exercise its discretion in favour of a Party seeking to present additional evidence on appeal. Before this Court can permit additional evidence Under rule 29, it must be shown, one, that such evidence could not have been obtained by reasonable diligence before and during the hearing, two, the new evidence would probably have had an important influence on the result of the case if it was available at the time of the trial, and finally, that the evidence sought to be adduced is credible, though it need not incontrovertible’.”

10. I am satisfied that the facts of this case fall within the ambits set out by the Supreme Court in the caseMOHAMED ABDI MOHAMED VS. AHMED ABDULLAHI MOHAMED AND 3 OTHERS (2018) eKLR.The evidence to be produced is directly relevant to this appeal and it is therefore in the interest of justice the evidence be produced.

DISPOSITION

11. In respect to the notice of motion dated 25th May, 2021, and bearing the above discussion, I grant the following orders:-

(a) The respondent is granted leave to submit further evidence in this appeal as set out in the prayer 1(a) to (e) of the Notice of Motion dated 25th May, 2021.

(b) Such evidence shall be produced through an affidavit and shall be filed in this Court within 7 days from today’s date.

(c) The appellants are granted leave to file an affidavit in reply within 14 days of service.

(d) The costs of the Notice of Motion dated 25th May, 2021 shall abide with the outcome of this appeal.

(e) At the reading of this Ruling, a date shall be fixed for direction on the hearing of the appeal.

RULING DATED AND DELIVERED AT KIAMBU THIS 3RD DAY OF MARCH, 2022.

MARY KASANGO

JUDGE

Coram:

Court Assistant : Mourice

For appellants : - N/A

For Respondent : - Mr. Momanyi

RULING DELIVERED VIRTUALLY.

MARY KASANGO

JUDGE