[2022] KEHC 11106 (KLR)

Thiongo v APA Insurance Company Ltd (Civil Appeal 10 of 2019) [2022] KEHC 11106 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11106 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 10 of 2019

GWN Macharia, J

July 19, 2022

Between

David Kariuki Thiongo

Appellant

and

APA Insurance Company Ltd

Respondent

(Being an appeal against the Judgement and Decree of the Principal Magistrate's Court at Engineer in Civil Suit No. 2 of 2018 delivered by Hon. G. N. Okapasi (SRM) on 23rd January 2019))

Ruling

Background 1. Before court is the Respondent’s Notice of Motion dated 22nd November, 2021 brought under Sections 3A and 78(1) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules. The application seeks the following orders:a.That this court be pleased to take additional evidence comprised in the discharge voucher signed by the Appellant herein and which affects both this appeal and Engineer PMCC No. 2 of 2018. b.That both this appeal and Engineer PMCC No. 2 of 2018 be marked as fully settled.c.That the costs of this application be awarded to the Applicant.

2. The application is based on the grounds on its face and supported by the Affidavit of Ruth Mbalelo, the Respondent’s Legal Officer. She averred that subsequent to filing of the appeal in this court, the Appellant got into post-judgment negotiations with the Respondent which resulted in the Appellant accepting a sum of Kshs. 750,000/= from the Respondent in full and final settlement of his claim. As a consequence, the Respondent issued the Appellant with a discharge voucher dated 21st June, 2019 detailing the settlement terms and the Appellant executed the same to confirm that he has no other or further claims whatsoever against the Respondent arising from the damage to Motor Vehicle KBV 792N. To the Respondent therefore, the terms of the Discharge Voucher bar the Appellant from pursuing the appeal hence it is important that it be admitted into evidence.

3. In opposition, the Appellant filed a Replying Affidavit sworn by his advocate Wanjohi Gichango. He averred that the terms of the discharge voucher were limited to any claim that the Appellant would have raised regarding Motor Vehicle KBV 792N and does not bar him from pursing the present appeal on the issue of costs. He stated that the execution of the discharge voucher was preceded by a consent entered into by the parties on 15th May, 2019 in the trial court and adopted as a court order which was issued on 31st May, 2019. He noted that paragraph 6 of the said order categorically states that the consent shall not in any way affect the instant appeal.

Submissions 4. The application was canvassed by way of written submissions. The Respondent submitted that the discharge voucher clearly bars pursuit of any further proceedings and claims by the Appellant including this appeal. It was its submission that the Order issued on 31st May, 2019 in the trial court predates the discharge voucher and, inter alia, requires payment of Kshs. 500,000/= to the Appellant. However, the discharge voucher which was issued subsequently reflects a different and higher amount payable to the Appellant being Kshs. 750,000/=.

5. According to the Respondent, since the discharge voucher does not indicate how the additional amount was arrived at, it is reasonable to presume that it altered the consent order of 31st May, 2019 by including the claim for costs. In its view, if the Appellant chooses to pursue the appeal, he should reimburse the additional sum of Kshs. 250,000/= paid to him over and above the amount specified in the order of 31st May, 2019.

6. On the other hand, the Appellant reiterated his earlier averments in his written submissions. He maintained that the trial court’s order of 31st May, 2019 categorically provided that the consent would not in any way affect the appeal herein and the intention of the parties was to insulate the appeal. He relied on the case of Charles Josephat Akwono v Solicitor General[2015] eKLR where the Court. stated that the omission to expressly mention a matter which was within the knowledge of the parties therein in a discharge voucher could only be interpreted to mean that the parties did not intend that the matter be part of the settlement covered by the said discharge voucher.

Analysis and determination 7. I have considered the Respondent’s application, the respective affidavits by the parties as well as their written. The issues for determination are whether the Respondent has made out a case for the grant of leave to adduce additional evidence on appeal and whether the appeal should be marked as fully settled on the basis of the additional evidence.

8. The present application was made pursuant to Section 78 of the Civil Procedure Act which empowers the High Court to take additional evidence when exercising its appellate jurisdiction. The said provision stipulates:“(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.”

9. The principles governing the admission of additional evidence were laid down in Mohamed Abdi Mahamud v Ahmed Abdullahi Mohamad & 3 others [2018] eKLR, where the Supreme Court stated as follows:“[79]… We therefore lay down the governing principles on allowing additional evidence in 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 willful 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.[80]We must stress here that this Court even with the Application of the above-stated principles will only allow additional evidence on a case-by-case basis and even then sparingly with abundant caution.”

10. The Respondent seeks to adduce additional evidence in the form of a discharge voucher which was executed by the Appellant herein as a result of post judgement negotiations between the parties. To begin with, I am satisfied that the discharge voucher is relevant to the matter before the court as it relates to Engineer PMCC No. 2 of 2018 from which the appeal arose. Further, I am convinced that it is credible evidence since its authenticity has not been impugned. The Appellant admitted that he executed the discharge voucher and that he is not a stranger to its contents. Moreover, it is clear to me that it has a direct bearing on the main issue in the appeal which is whether the Appellant is entitled to the costs of the suit in the lower court. In the premises, I find that the Respondent has made out a case for the grant of leave to adduce the discharge voucher in evidence at this appellate stage.

11. Should the appeal be marked as fully settled on the basis of the discharge voucher? It is evident the Appellant and the Respondent hold divergent views on the impact that the discharge voucher has on the present appeal. I have carefully studied the discharge voucher as well as the record of appeal. I am not convinced that the appeal cannot be marked as settled on the basis of the discharge voucher without hearing the appeal on merits.

12. Accordingly, the Respondent’s Notice of Motion dated 22nd November, 2021 partly succeeds in the following terms:a.Leave is hereby granted to the Respondent to adduce and file additional evidence limited to the discharge voucher dated 21st June, 2019. b.The additional evidence shall be adduced by way of affidavit and be filed as Supplementary Record of Appeal within 14 days of the date of this Ruling.c.The Appellant shall be at liberty to file a Replying Affidavit, if any, to the Supplementary Record of appeal within 14 days of date of service and to cross-examine the Respondent on the additional evidence.d.Costs of the application shall abide the outcome of the appeal.

DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of:Mr.Wanjohi for the Appellant/RespondentMr.Menge Respondent/Applicant