[2022] KEHC 1954 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KIAMBU

CIVIL APPEAL NO. 136 OF 2021

SHARON MWENDE NDOLO...............APPELLANT

-VERSUS-

1. RAHAB NYANGIMA JOHN

2. NELSON MWANGI NDUKI........ RESPONDENTS

(Appeal from the judgment of the Senior Principal Magistrate’s Court at Ruiru, C.A. Otieno-Omondi, SPM dated 2nd July, 2020 in Ruiru CMCC NO. 203 of 2020)

RULING

1. SHARON MWENDE NDOLO, the appellant, has filed a notice of motion dated 14th October, 2021.

BACKGROUND

2. The appellant sued before the Ruiru SPM court RAHAB NYANGIMA JOHNand NELSON MWANGI NDUKI, 1st and 2nd respondents respectfully. Before that Court, the appellant sought an award of general and special damages which she suffered following a motor vehicle accident.

3. The trial court on 6th April, 2021 in that case ordered the respondents to pay costs to the appellant of Kshs.10,000. The respondent being aggrieved with that order for costs filed before this Court, Civil Appeal NO. 073 of 2021.

4. The trial court delivered its judgment on 2nd July, 2021. The respondents filed before this Court an appeal against that final determination in Civil Appeal NO. 129 of 2021.

5. The appellant was also aggrieved by that judgment of the trial court of 2nd July, 2021 and in particular the refusal to award special damages of Kshs.596,706. She therefore filed before this Court Civil Appeal No. 136 OF 2021. The trial court declined to award the appellant the amount of Kshs.596,706 in special damages because that amount had not been paid by the appellant to the hospital.

NOTICE OF MOTION DATED 14TH OCTOBER, 2021

6. Appellant seeks by that application the following prayers:-

1. THATthe honourable court is pleased to consolidated (sic), hear and determine together 3 appeals being appeals number 136/2021 (being the instant appeal); 129/2021 and 073 of 2021;

2. THAT the honourable court is pleased to adopt and apply the record of appeal and index filed in HCCA/136/2021 for purposes of hearing and determining of the 2 appeals being appeals number 129/2021 and 073/2021;

3. THATthe honourable court is pleased to take additional documentary evidence identified in the applicant’s/appellant’s supporting affidavit limited to the following documents: -

a. A demand letter from Coptic Hospital dated 29/9/2021;

b. An accompanying discharge report to the demand letter dated 27/9/2021;

c. Title deed number KWALE/UKUNDA/3009.

4. THAT the honourable court is pleased to grant leave that the additional documentary evidence be adduced by way of an affidavit and filed as a supplementary record of appeal.

5. THATthe respondent be at liberty to file a replying affidavit if any to the supplementary record of appeal.

7. In support for the prayer for consolidation of the appeals it was deponed that because the three appeals are anchored on similar pleadings, evidence and because the appellant has filed a record of appeal in this appeal, and because it would be in furtherance of the Overriding Principle, in the Civil Procedure Act, that consolidation would result in dispensation of justice in timely manner, and consolidation should be ordered.

8. The respondents opposed that prayer partly by raising merits of the appeal and partly by arguing that the appellant filed this present appeal when she was aware of the existence of Civil Appeal NO. 129 of 2021 and therefore the prayer for consolidation should be disallowed.

9. My analysis of this prayer reveals that the three appeals are premised on the same suit before Ruiru court. Appeal No. 129 of 2021 and this appeal 136 of 2021, are both directed against the same judgment, that of Ruiru court of 2nd July, 2021. The appeal NO. 073 of 2021 is directed to an order on costs made in that same matter on 6th April, 2021.

10. The purpose for ordering consolidation of suits is to achieve the overriding objective of the Civil Procedure Act, that is, for expeditious and proportionate disposal of civil dispute. No doubt also that consolidation saves costs. See case ofKOREN UNITED CHURCH OF KENYA & 3 OTHERS VS. SENG HA SANG (2014) eKLR.

11. There is merit in the prayer for consolidation. The lead file in the consolidation shall be this file, Civil Appeal No. 136 of 2021, because that is where a record of appeal has already been filed.

12. The appellant by prayers 3 to 5 of the Notice of Motion seeks to produce additional evidence in this appeal. The trial court declined to award special damages of Kshs.696,706 on the basis that the appellant did not prove by receipts she had paid this amount. The appellant concedes the amount to date has not been paid to the hospital but that, that amount remains payable by her. She therefore wishes to adduce additional evidence of the demand by the hospital for the payment of that amount. Appellant also seeks to adduce additional evidence of the hospital’s discharge report which was attached to the hospital’s demand letter. Additionally, the appellant wishes to adduce evidence of the title deed which is held by the said hospital as security for the payment of the afore stated amount.

13. The respondent submitted on merits of the proposed additional evidence and further submitted that the appellant seeks to introduce a new case by adducing additional evidence.

14. Section 78(1) of the Civil Procedure Act affords an appellate court discretion to take additional evidence. This is what that section provides:-

“(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;”(underlining mine)

15. The Supreme Court in the case MOHAMED ABDI MAHAMUD VS. AHMED ABDULLAHI MOHAMED & 3 OTHERS (2018) eKLR set out the governing principals of allowing additional evidence as follows:-

“We therefore lay down the governing principles on allowing additional evidencein appellate courts in Kenya as follows:

(a) The additional evidence must be directly relevant to the matter before the court and be in the interest of justice;

(b) It must be such that, if given, it would influence or impact upon the result of the verdict, although it need not be decisive;

(c) it is shown that it could not have been obtained with reasonable diligence for use at the trial, was not within the knowledge of, or could not have been produced at the time of the suit or petition by the party seeking to adduce the additional evidence;

(d) Where the additional evidence sought to be adduced removes any vagueness or doubt over the case and has a direct bearing on the main issue in the suit;

(e) The evidence must be credible in the sense that it is capable of belief;

(f) The additional evidence must not be so voluminous making it difficult or impossible for the other party to respond effectively;

(g) Whether a party would reasonably have been aware of and procured the further evidence in the course of trial is an essential consideration to ensure fairness and due process;

(h) Where the additional evidence discloses a strong prima facie case of wilful deception of the Court;

(i) The Court must be satisfied that the additional evidence is not utilized for the purpose of removing lacunae and filling gaps in evidence. The Court must find the further evidence needful.

(j) A party who has been unsuccessful at the trial must not seek to adduce additional evidence to, make a fresh case in appeal, fill up omissions or patch up the weak points in his/her case.

(k) The court will consider the proportionality and prejudice of allowing the additional evidence. This requires the court to assess the balance between the significance of the additional evidence, on the one hand, and the need for the swift conduct of litigation together with any prejudice that might arise from the additional evidence on the other.”

16. Applying this principle, I find that the additional evidence is indeed directly relevant to the appeal before court and would influence the impact of this appeal. The demand letter of the hospital was sent to the appellant a month after the trial court’s judgment. It therefore could not be produced at trial. That additional evidence relates to the trial court’s declination to award the special damages stated above. The appellant had adduced the Coptic Hospital discharge report at the trial and the appellant in adducing the additional evidence in this appeal, she would not be making a fresh case nor would she be filing omissions.

17. The prayers for adducing additional evidence is in my view merited.

DISPOSITION

18. In respect to the prayers in the Notice of Motion application dated 14th October, 2021 this Court grants the following orders: -

a. The Kiambu High Court Civil Appeals Nos. 073 of 2021, 129 of 2021 and 136 of 2021 are hereby consolidated.

b. The lead file shall be Civil Appeal No. 136 of 2021 as consolidated with Civil Appeal NO. 129 of 2021 and as consolidated with Civil Appeal No. 073 of 2021

c. The main appeal shall be in Civil Appeal No. 136 of 2021. Civil Appeals Nos. 129 of 2021 and 073 of 2021 shall be cross appeals.

d. The appellant in those consolidated appeals shall be SHARON MWENDE NDOLO. The first respondent shall be RAHAB NYANGIMA JOHN. The second respondent shall be NELSON MWANGI NDUKI.

e. The appellant shall file and serve within 14 days from today, a supplementary record of appeal annexing the additional evidence set out in prayers No. 3 of Notice of motion dated 14th October, 2021.

f. The respondents shall file and serve a replying affidavit within 14 days of service of the supplementary record of appeal in response to the additional evidence.

g. At the reading of this Ruling, a date will be fixed for directions on the hearing of this Appeal by which date, the Deputy Registrar shall have obtained the trial court’s file.

h. The costs of the application shall abide with the outcome of this appeal.

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

MARY KASANGO

JUDGE

Coram:

Court Assistant : Maurice

For appellant, SHARON MWENDE NDOLO : -Mr. Kimanzi

For Respondent, RAHAB NYANGIMA JOHN

& NELSON MWANGI NDUKI : -No appearance

RULINGdelivered virtually.

MARY KASANGO

JUDGE