[2022] KEHC 13844 (KLR)

Lilumbi v Mwanje (Civil Appeal 46 of 2021) [2022] KEHC 13844 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13844 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 46 of 2021

WM Musyoka, J

October 7, 2022

Between

Joseph Lilumbi

Appellant

and

Simon Lunani Mwanje

Respondent

(An appeal arising from the ruling of Hon. J. Ong’ondo, Senior Resident Magistrate, delivered on 5th April 2016 in Kakamega CMCCC No. 451 of 2007)

Judgment

1. This is one of the matters that I took over from F Amin J on June 16, 2022. It was due for judgment on April 3, 2022. After perusing the record, it would appear that it is not due for ruling but judgment.

2. From the memorandum of appeal filed herein, dated May 4, 2016, the appeal arises from a ruling on review, delivered on April 5, 2016. It is averred that the application was dismissed for extraneous reasons; it is not considered that the appellant was a lay person; the trial court failed to find that the respondent was vicariously liable for the suit accident; the trial court was biased in favour of the respondent; the court failed to appreciate the law on proof of ownership of the accident motor vehicle; the trial court did not consider judicial precedent and ratio decidendi positively; the court did not apply substantive justice; and no explanation was given for the respondent having insurable interest in a motor vehicle he did not own.

3. Directions had been given on November 14, 2018, for disposal of the appeal by way of written submissions. From the record before me, none of the parties filed written submissions.

4. The impugned ruling arose from an application dated November 12, 2015, which had sought for review of a judgment that had been delivered on July 25, 2015, on grounds of error on the face of the record, and discovery of new evidence. The new evidence referred to was a covering report by the police on the suit accident and police recommendation thereon, and a copy of charge sheet and witness statements in Traffic Case No 1147 of 2006. The appellant averred that he obtained that evidence after the judgment was delivered on July 27, 2015, dismissing his suit. He obtained the documents in October 2015. After the dismissal of the suit, he visited the offices of the insurer of the accident vehicle and obtained the particulars of the owner or insured person in respect of the accident vehicle. He was supplied with the records of the policy holder and was furnished with an insurance sticker. He informed that the said evidence was new.

5. In reply, the respondent denied owning the accident vehicle, KAV 580W, and averred that the documents relied on by the appellant were doctored. He asserted that there was no discovery of new evidence, which was not within the reach of the appellant at the time the suit was being determined.

6. The appellant, curiously, has not included the typed and certified copy of the ruling delivered on April 5, 2016. What he has attached is the formal order extracted from that ruling, dated April 13, 2018, yet that order carries no reasons for the order, and is of no use for the purpose of review. Thankfully, the handwriting of the trial magistrate, in the original trial record, is legible enough. In that ruling, the trial court found that the documents that the appellant was relying on, to seek review, were not new documents, they were available as at the time the appellant filed suit and prosecuted it, and he could have obtained them with exercise of due diligence. On error on the face of the record, with respect to his decision that a police abstract was not proof of ownership, he stated that that was a matter of his interpretation of the evidence, it was a matter of his understanding of the evidence, and not a mistake of fact which could be addressed by way of review. He stated that the answer lay with appealing against that interpretation of the evidence and application of the law. The trial court dismissed the application.

7. Review of a judgment or ruling of a court can be sought on 3 general grounds, according to Order 45 of the Civil Procedure Rules; namely, discovery of new evidence, which was not available at the time the order was made, error on the face of the record, and any other sufficient reason. For the purpose of this appeal, only the first two arose. Discovery of new evidence and error on the face of the record.

8. Order 45 rule 1(1) of the Civil Procedure Rules states 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.”

9. I will start with discovery of new and important matter or evidence which, after 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. The police and the insurance policy documents that the appellant was relying on were in existence as at the date he filed suit on October 20, 2007, and when he gave evidence on February 25, 2014. It was evidence he could have accessed had he exercised due diligence. The documents were with the police and the insurers of the accident vehicle. He should have approached these entities before he filed suit or testified in order to get evidence to support his case. He could have even obtained court orders to be supplied with those documents, or even had officers from those entities summoned to attend court to avail the documents. He did not do that. He filed the suit through a law firm, Kitiwa & Company, Advocates. He, therefore, had the benefit of legal advice, and he should not plead ignorance. The diligence that he should have exercised in 2007 and 2014 was not exercised until October 2015, after his suit was dismissed in July 2015. That exercise of diligence came on too late in the day. By then the horse had bolted, and there was no opportunity to engage reverse gear. He is now engaging in revisionism, which is not permitted under the Kenya civil process and practice, which does not allow gathering evidence after one has lost a case, and asking the court to review the matter based on the facts gathered, which had been available all the while. I agree with the trial court; the alleged new material was not new. It was available in 2007 and 2014, but the appellant did not exercise due diligence to discover it at the time of filing suit or giving evidence. It was material that available all along.

10. On error on the face of the record, in respect of the finding and holding by the trial court that the police abstract was not proof of ownership of a motor vehicle, I agree with the trial court, that was not an error on the face. It was not a mistake of fact, but a matter of evaluation or assessment of the evidence by the trial court, and the drawing of a conclusion based on that assessment. If the appellant’s position is that that conclusion was wrong, or held no basis in law, that is not something to deal with by way review, it is a matter of law, not fact. The best way to deal with it would be by way of appeal.

11. Overall, it is my finding and holding that there is no merit in the appeal before me, and I hereby dismiss the same with costs.

DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 7TH DAY OF OCTOBER 2022WM MUSYOKAJUDGEErick Zalo, Court Assistant.Mr. Tanui , instructed by the Samba & Company, Advocates for the appellant.Mr. Rauto, instructed by Rauto & Company, Advocates for the respondents