https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7758

Jubilee Allianz General Insurance (K) Ltd v Odero (Civil Appeal E059 of 2025) [2026] KEHC 7758 (KLR) (4 June 2026) (Ruling) Neutral citation: [2026] KEHC 7758 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E059 of 2025 DK Kemei, J June 4, 2026 Between Jubilee Allianz General Insurance (K) Limited Appellant and Kennedy Omondi Odero Respondent Ruling 1.The Respondent herein has filed an application dated 22/4/2026 seeking the following reliefs; -i.That this Honourable Court be pleased to expunge from the record of appeal dated 22/1/2026 a copy of the letter dated 22nd May 2025 from AKI at page 70.ii.That the costs of the application be provided for 2.The application is supported by the grounds set out thereunder and by the affidavit of the Respondent, sworn on even date. The Respondent’s gravamen is inter alia; that the Appellant was on 19/5/2025 granted a one day leave by the trial Court to file and serve a further list of documents; that pursuant to the aforesaid leave, the Appellant did on 21/5/2025 file and served Defendant’s list of documents dated 21/5/2025, which list had the following documents;i.Certificate of Insurance (26719073) evidencing expiration of cover.ii.Email correspondence to AKI for verification of certificate of insurance (26719073).iii.Any other documents with leave of Court.; that the Appellant herein did on 18/6/2025 – when the matter came up for defence hearing, file another Defendants’ further list of documents dated 21/5/2025 which list introduced as an attachment a copy of letter dated 22/5/2025 from AKI; that the aforesaid letter was not only filed without the leave of the trial Court but was not served upon the Respondent herein thus denying him the right of fair hearing; that apropos to the aforesaid, the Appellant has in an attempt to steal a match, introduced the said letter in the Record of Appeal which introduction is against the laid down principle of introduction of new evidence at the Appellate level; that based on the aforesaid, the Respondent herein would be highly prejudiced as he will be condemned unheard and as such, suffer irreparable harm; that it is in the interest of the rules of natural justice that the letter dated 22/5/2025 from AKI be expunged from the Record of Appeal; that the application has been made without undue delay. 3.The Appellant filed a replying affidavit dated 7/5/2026 wherein it was averred inter alia; that on 18th June 2025, when this matter came up for defence hearing, the Appellant informed the Court that they were calling one witness by the name Patience Mirara who informed the Court that she was relying on Defendant’s list of documents and the Defendant’s further list of documents which proceedings can be found at page 12 of the Record of Appeal; that the Respondent did not raise an objection before the Subordinate Court to the production of the Defendant’s list of documents and the Defendant’s further list of documents as evidenced by the proceedings as the Court would have made a ruling on the same; that upon adoption of the Witness Statement as evidence in chief by the Appellant before the Subordinate Court and production of documents and further list of documents by the Defendant’s witness, the trial Magistrate directed that the Respondent/Applicant herein proceeds with cross examination; that after re-examination had been conducted by the Defence Counsel before the Subordinate Court, the trial Magistrate sought to understand the role of Association of Kenya Insurers hereinafter referred to as (AKI) in the Issuance of Certificate of Insurance and which the witness indeed clarified that; the Judgment of the Subordinate Court at Paragraph 22 and which is found at page 6 of the Record of Appeal, the trial Magistrate acknowledges that the Defendant produced a Letter from AKI which raised various serious issues and therefore the Respondent/Applicant herein cannot purport to state that the said document was never produced before the trial Court; that once a document has been produced in evidence by consent of the parties without any objection being raised then the contents of the said documents are deemed to have been admitted and therefore form part of the evidence as rightly analyzed by the subordinate Court; that the findings relating to the said document by the trial Court attempting to impeach or water down the contents thereof is one of the grounds that form the basis of appeal before this Honourable Court and as such cannot be expunged otherwise the substratum of this appeal will be lost; that documentary evidence has high probative value and can never be watered down by secondary or oral evidence even if we were to call a witness/maker of the document to produce the same; that it is in the interest of justice that the said Application be dismissed with costs to the Appellant/Respondent. 4.The application was canvassed by way of oral submissions.5.Learned counsel for the Respondent submitted inter alia; that they seek to expunge a letter dated 22/5/2025 found on page 70 of the Record of Appeal; that the application is grounded on the grounds set out together with the affidavit in support and annexures thereto; that it is not in dispute that the Appellant filed a list of documents dated 21/5/2025 and 22/5/2025, which documents were duly filed as can be found on the proceedings of the trial court on 19/5/2025 where the Appellant was granted 2 days leave to file its document and which led to the filing of documents on 21/5/2025; that the documents in question now did not form part of the documents; that the second document was filed on 18/6/2025 at 11:51 hours and this is the one which introduced the impugned letter after the Appellant had testified and closed its case; that the trial Court’s judgment analyzed the impugned letter but that is not true as the Court mentioned correspondence from AKI and which is found in the Defendants list of documents No. 2 which contained e-mail correspondence between Appellant and not AKI; that the Appellant claims that we ought to have objected to the document but then we had not been served with it; that the Appellant now claims that the document formed part of the Respondent’s document which is not true; that the application be allowed with costs in the cause. 5.Mr Ochieng Opiyo, learned Counsel for the Appellant, relied on the replying affidavit filed on 8/5/2026. That the issue being raised herein seeking to expunge the document should have been raised before the trial Court to make a finding whether it was admissible or inadmissible in evidence. That during the defence case (page 12 record of appeal) of 18/6/2025, there is clear indication that parties were ready to proceed. That nowhere did Counsel for the Plaintiff raise an objection to the effect that the document was filed out of time or had not been served upon them. That the witness took the stand and indicated that he wished to have the list of documents admitted as exhibits. That the matter thus proceeded to cross-examination. That the documents were admitted in the presence of Counsel and who should have objected to the production (see judgment page 68 of the record of appeal paragraph 22 thereof). That the Appellant’s appeal forms the basis of the sentiments of the trial Court regarding the document in question. That the application should be dismissed and the appeal be prosecuted. 6.I have given due consideration to the Respondent’s application as well as the oral submissions. The issue for determination is whether the application has merit. 7.It is noted that the Respondent’s contention is in respect of the letter dated 22/5/2025 from AKI to the Appellant herein, whose contents were as follows:‘’ Re: Motor Vehicle Insurance Certificate No.C26848051.We wish to advise that the above motor insurance certificate was allocated to Trident Insurance Company Ltd who issued it to KCC 822B for the period 24/01/2023 to 24/01/2024, but cancelled on 22/02/2023.’’I have perused the impugned judgement of the trial court dated 30/7/2025 and note that the dispute between the parties was about the certificate of insurance No. C26848051. The learned trial magistrate, after hearing the parties and perusing their submissions, came up with the following observations:‘’21. I sought to understand the role of AKI in the issuance of insurance certificate but the same did not come out clearly in the evidence adduced herein. An attempt was made for the defendant’s witness ti undertake a certain procedure allegedly in a bid to verify the certificate held by the Plaintiff. Without forming the basis in law of such procedure, the same cannot by itself be the basis of impeaching the certificate held by the plaintiff.22. The defendant produced in evidence correspondence from AKI whose import was that the certificate cited by the plaintiff was not issued by the defendant. This is so impactful and it cannot be introduced so casually in evidence. The evidence has nuances of fraud and the defendant definitely required to do more. I would in the least have expected the defendant to have called an officer from AKI to produce such evidence.23. The upshot is that the defendant cannot be allowed to in such a casual manner dismiss a certificate which clearly has its name as the issuer. I thus hold that there existed a valid insurance contract as between the parties herein at all material times relevant to this suit.’’It would therefore seem that the gist of the Respondent’s application revolves around the trial magistrate’s findings. The Respondent has contended that the Appellant had introduced the letter in question much later after the period granted by the trial had elapsed and thus it was through the back door. However, as can be seen from the sentiments of the trial magistrate, he had been confronted with the two versions and explanations regarding the issue of the two certificates of insurance. The learned trial magistrate noted that the Appellant’s contention was that the certificate of insurance issued to the Respondent was not genuine and that the letter dated 22/5/2025 from AKI had clarified the same. The trial magistrate duly noted the said concerns but found no merit in the same and dismissed the Appellant’s contestations and ruled in favour of the Respondent. The Appellant was thus aggrieved and lodged the present appeal. The issue of the late filing of the contested letter dated 22/5/2025 from AKI to the Appellant should have been raised early in time before the trial court so that the trial court could issue the appropriate orders whether to admit or reject the same. As matters stand and as can be seen from the findings of the learned trial magistrate, the said letter was part of the trial magistrate’s deliberations. In that regard iam inclined to agree with the sentiments of the Appellant’s counsel that their appeal rests squarely on the letter dated 22/5/2025. I find that it would be prejudicial to expunge the said letter yet the same formed part of the trial court’s determination. 8.The role of expunging a document that had been filed before the trial court and which was also considered by the said court should be performed by the said court and not the appellate court. It was the duty of the trial Court to make a finding whether the document in contention was admissible or inadmissible in evidence. The record of the trial court indicates that during the defence case (page 12 record of appeal) of 18/6/2025, there is indication that parties were ready to proceed and that the Counsel for the Plaintiff did not raise an objection to the effect that the document was filed out of time or had not been served upon them. Consequently, the matter proceeded and that the witness indicated that he wished to have the list of documents admitted as exhibits. Thereafter cross-examination proceeded. It would thus appear that the documents were admitted in the presence of Counsel and who should have objected to the production (see judgment page 68 of the record of appeal paragraph 22 thereof). As the Appellant has contended that the appeal forms the basis of the sentiments of the trial Court regarding the document in question, it is my considered view that allowing the Respondent’s application would cripple the Appellant’s case yet the document in question had formed part of the trial court’s determination of the dispute before it. I find that the Respondent will not suffer any prejudice as he will have the opportunity to challenge the appeal. It is also instructive that the Respondent was also at liberty to file a cross appeal if at all he has issues with part of the trial court’s judgement, for instance, the fact that the trial court considered the letter in contention in the determination of the suit. 9.In view of the foregoing observations, it is my finding that the Respondent’s application dated 22/4/2026 lacks merit. The same is dismissed. Each party to bear their own costs. Parties are directed to proceed to comply with directions on the disposal of the appeal dated 12th March, 2026. DATED AND DELIVERED AT SIAYA THIS 4TH DAY OF JUNE 2026D.KEMEIJUDGEIn the presence of:Ochieng Opiyo...................................for AppellantN/A Okoyo Omondi ..............................for RespondentM/S Maureen.......................................Court Assistant