[2019] KEHC 404 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 373 OF 2017

(CORAM: F. GIKONYO J.)

KELVIN MUNENE GITUMA....................................................................APPELLANT

VERSUS

GOLD ROCK INTERNATIONAL ENTERPRISES (K) LIMITED....RESPONDENT

(An appeal from the Ruling of the Hon. A.M.Obura (Mrs.) SPM,

delivered on 23. 6.2017 in Milimani CMCCC No. 7567 of 2014)

JUDGMENT

1. The Appellant herein was the plaintiff in the trial Court. He instituted proceedings against the Respondent (defendant in the trial Court) vide plaint dated 15th December 2014. He prayed for special damages at Kshs 1,847,804. 00/= and general damages. It was his averment in the plaint that on 2nd November 2012 he was a lawful passenger in M/v Reg. No. KBL 297J which was negligently and carelessly driven by the Defendant’s agent as to hit a culvert as a result of which he sustained bodily injuries.

2. The trial Court delivered its judgement on 14th November 2016 apportioning liability to the Respondent and awarded Kshs 1,500,000/= as general damages. On special damages it awarded Kshs 129,000/= being Kshs 4,000/= for the medical Report and Kshs 125,000/= for the removal of the implants.

3. The trial court however declined to award the sum of Kshs. 1,847,804/= as special damages. The court opined that the said sum was paid by CBK pension fund, the appellant did not personally incur the medical expense and there is no evidence that the pension fund seeks to recover the sum from him. It further held that the plaintiff had stated that the sum was an education fund that was flexible to cater for medical bills. The trial court was therefore not persuaded that the appellant should recover the sums in the circumstances.

4. On 26th January the appellant filed an application seeking the trial court to review and/or vary its judgement in which it declined to award special damages in the amount of Kshs 1. 847,084/=.

5. It was the appellant’s averment that the funds used to offset the medical bills were meant for his education and that of his siblings but due to the accident the funds were deducted from the education fund hence making the fund not accessible to him or his siblings for the purpose of education. The appellant attached a letter dated 2nd December 2016 from the pensions administrator, CBK fund giving notice that the sum of Kshs 1,807,359. 20/= was used to offset the medical bills at Aga Khan Hospital.

6. The Respondent opposed the applications through affidavit sworn by Collins Nyaema the Legal Officer of the respondent insurers who averred that during the hearing the plaintiff testified that the pensions fund was for educational purposes and was flexible to meet his medical bills as such the appellant knew from the onset this was an argument he would advance during the trial and it was incumbent upon him to provide sufficient material to prove and support his claim. That the appellant has not demonstrated that the information contained in the letter dated 2ND December 2016 was not available with the fund prior to delivery of the judgement.

7. The trial court agreed with the submission of the Respondent and held that in the circumstances there was no discovery of a new or important evidence which the applicant could not produce after the exercise of due diligence as per Order 45 of the Civil Procedure Rules.

8. Aggrieved by the foretasted decision the appellant filed its memorandum of appeal on 20th July listing twelve (12) grounds of Appeal which as rightfully stated by the Respondent may be summarised as hereunder;

a. That the Learned Magistrate erred in law by finding that the appellant had not met the threshold for review under the two limbs of Order 45 of the Civil Procedure thereby dismissing the appellant’s application dated 26th January 2017.

b. That the Learned Magistrate misdirected herself and misconstrued the principle laid down in the Case of Leli Chaka Ndolo v Maree Ahmed & S.M. Lardhib [2017] eklr by failing to award special damages to the Appellant merely because the medical expenses leading to the claim for the special damages were catered for by the Central Bank of Kenya Pension Fund.

9. On 19/7/2019 this Court directed parties to canvass the appeal by way of written submissions. Both parties have since filed their respective submissions.

Appellants Submissions

10. The appellant submitted that Order 45 Rule 1 Civil Procedure Rules is not confined only to situations where there is discovery of a new matter as review may be granted for “sufficient reason”. The appellant further invoked the collateral Source Rule that is to say a defendant tortfeasor may not benefit from the fact that the plaintiff has received money from other sources as a result of the Defendant’s tort. The appellant relied on the cited authorities of Eunice Wangui Kiragu v Mary Adhera Adhaya [2016] eklr, Leli Chaka Ndoro v Maree Ahmed & S.M. Lardhib (2017) eklr.

Respondent’s Submissions

11. The Respondent submitted that the Appellant has couched the appeal as a merit review of the judgement by raising new grounds such as the principle of collateral source. That the applicant’s application for review was only premised on one ground for review; the discovery of new and important evidence in the form of a letter by the Central Bank Pension Fund dated 2nd December 2016 and the issue of Other sufficient reasons was only introduced as a ground for review in the appellant’s submissions. That this court cannot in the circumstances delve into the question of collateral source rule since its jurisdiction is only limited to evaluating whether the trial magistrate properly exercised her discretion within the provisions of Order 45 of the Civil Procedure Rules. To support its submission the court relied on the following cited authorities i.e. Afapack Enterprises Limited v Punita Jayant Achraya ( Suing as the Administrator of the Estate of the late Sushila Anantrai Raval) [2013] eklr, Stephen GATHUA Kimani v Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eklr, Pancras.T.Swai v Kenya Breweries Limited [2014] eklr, Abdullahi Mohamud v Mohammud Kahiye [2015] eklr, Twaheri Abdulkarim Mohammed v Independent Electoral 7 Boundaries Commission ( IEBC) & 2 Others [2014] eklr.

Analysis and Determination

12. This is a first appeal. The court is duty-bound to re-evaluate the facts and come to its own independent findings and conclusions. See the case of Selle v Associated Motor Boat Co. & others [1968] E.A. 123.

13. It is important to note from the outset that this appeal is not against the judgement of the trial Court but the refusal by trial court to review its judgement. And as it will be seen later, I am forced to say what is necessary to determine the appeal without prejudicing any party.

14. Review as a remedy is provided in section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The rule provides as follows;

1. Any person considering himself aggrieved;

a. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

b. by a decree or order from which no appeal is hereby allowed, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the Court which passed the decree or made the order without unreasonable delay.

2. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when being the respondent, he can present to the appellate Court the case on which he applies for review. (emphasis added)

15. The basis of the appellant’s application for review was two-fold; Discovery of New evidence and Sufficient Reason.

Discovery of new evidence

16. The ground of discovery of new evidence or matter is very specific and should be so proved. See order 45 rule 3(2) of the Civil Procedure Rules that:

(2) Where the court is of opinion that the application for review should be granted, it shall grant the same:

Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation.

17. The letter in issue is dated 2nd December 2016; it was therefore written after the judgment. Accordingly, it may not profit an application for review. An appeal however provides possibility of admission of further evidence; but of course upon satisfaction of certain conditions set out in the law. Second, the Appellant adduced evidence on the payment of special damages by CBK from family education fund account held by the CBK Pension Fund. During the hearing at the trial Court the appellant testified as follows;

In cross-examination he stated;

“We have a fund i.e. Central Bank Fund. It paid all the bills. It is an Education fund but it is flexible. We give directions on Payment. I don’t have the contract in court……”

In re-examination he also stated;

“ We have an investment with Central Bank. It is our family money meant for school fees for my siblings and I. It is not double Compensation….”

18. The trial court considered the evidence and made a decision on that aspect of the case. A more formidable challenge would be in an appeal against the entire judgment of the trial court. It bears repeating, within the appellate jurisdiction further evidence may be permitted. But, such recourse in a review jurisdiction may be severely restricted or inappropriate. The challenge I am seeing may be potent and a good ground for appeal but not review. See the case of National Bank of Kenya Ltd vs Njau [1995-98] 2 EA 231 (CAK) in which the Court of Appeal had the following to say in respect of grounds which are not appropriate for applications for review but appeal:

"A review may be granted whenever the Court considers that it is necessary to correct an apparent error or omission on the part of the Court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another judge could have taken a different view of the matter. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review. In the instant case, the matters in dispute had been fully canvassed before the Learned Judge who made a conscious decision on the matters in controversy and exercised his discretion in favour of the Respondent. If he had reached a wrong conclusion of the law, it could be a good ground for appeal but not review. An issue hotly contested cannot be reviewed by the same court which had adjudicated upon it."

19. The consideration of whether or not the court arrived at the wrong principle of law or failed to consider the principles established by the Collateral Source Rule is matter for appeal and not review. Such would be properly considered in an appeal. Should the need arise, I repeat that the appeal process provides for admission of further evidence upon satisfaction of certain conditions set out in law.

20. For more understanding, the Collateral Source Rule has been aptly defined in Black’s Law Dictionary 11th Edition pg. 319as follows;

“The doctrine that if an injured party receives compensation for the injuries from a source independent from the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay. Insurance proceeds are the most common collateral source.”

Sufficient reason

21. The Appellant urged that review ought to have been allowed on the ground of ‘any other sufficient reason’. According to the appellant, special damages was disallowed without being granted an opportunity to adduce evidence in support thereto. During the hearing of the case the appellant had the opportunity to provide the contract but only stated that he did not have it in Court. This therefore discounts his argument that he was not given an opportunity to adduce the evidence during the hearing.

22. It is clear the direction the court is taking. But before I close, let me state some important matter just in passing. Perhaps it would have made a difference if the Appellant applied to re-open the suit before judgment or appeal the substantive decision by the trial court and then apply for adduction of further evidence within such appeal. The test would be as was set out in the case of Mzee Waujie & 93 Others v A K Saikwa & 3 Others (supra) where it was held that in order for the Court to consider admitting new evidence, it has to be shown that the evidence which the parties seek to be admitted was not or could not have been obtained by reasonable diligence at the time of the trial, or it has an influence on the outcome of the case, or that it must be presumed to be credible. See the decision by Hancox, JA (as he then was) in the above cited case on the issue of admitting new evidence under Rule 29(1) of the Court of Appeal Rules which offers insightful dents inter alia;

“But I am not persuaded either that these proposed instances of additional evidence, if ordered to be taken, would be likely to affect the result of the suit, or that such evidence, was not available by the exercise of reasonable diligence before and during trial (indeed the contrary would appear to be the case). Both these conditions have in my opinion to be established by the applicant before he can succeed under Rule 29(1)(a). In Cooley v Edwards [1982] NLJ 247, the English Court of Appeal, in dealing with the more strict provisions of RSC Ord 59, r 10(2) said;

“It must be shown that the new evidence could not have been obtained with reasonable diligence for use at the trial, and that it was of such weight that it was likely in the end to affect the court’s decision.”

I consider that the same test should be applied under our rules, for otherwise it would open the door to litigants to leave until an appeal all sorts of material which should properly have been considered by the Court of trial.”

23. Similarly, in Hassan Hashi Shirwa v Swalahudin Mohamed Ahmed (supra), it was held that;

“Re-opening a case is not an impossibility, but there must be cogent reasons for re-opening, and not because a party has suddenly had a brain wave and spotted a loophole in its case, which it can now seal by re-opening the case.”

24. In order for the Court to consider re-opening a case or to permit new evidence, the Applicant must adduce cogent reasons as to why the pleadings should be re-opened to admit new evidence by showing that; 1) the new evidence could not have been obtained with reasonable diligence for use at the trial; or 2) it was of such weight that it was likely in the end to affect the court’s decision. I should add that the Applicant must also show that the re-opening is not to enable the party to seal a loophole in his case but rather to attain substantive justice.

25. The fact that the Appellant and his family were the beneficial owners of the fund managed by CBK and that the medical expenses were paid out of the said fund for the benefit of the Appellant would certainly be a pertinent consideration in an application to re-open a suit or in a quest for further evidence in an appeal. However, this is not an appeal on the judgment of the trial court but for her refusal to exercise discretion on a review application.

26. Again, with extreme trepidation, for reasons stated above, I find this appeal as formulated to lack merit and is dismissed with no Order as to costs.

Dated and signed at Meru this 14th day of November 2019

F. GIKONYO

JUDGE

Dated, signed and delivered in open court at Nairobi this 4th day December 2019

L. NJUGUNA

JUDGE