1.By a Notice of Motion dated 31st day of August 2020 under the provisions of Order 4 rule 27(1) (b) of the Civil Procedure Rules, the appellant moved the court for Orders to be allowed to produce further evidence in the form of a medical report on the ground that the trial court made an observation that the applicants injuries were superficial while the witness had given evidence that the applicant had suffered severe injuries.
2.The application was supported by an annexed affidavit sworn by the applicant in which he deposed that he gave evidence at the trial and stated that he had suffered serious injuries which evidence was confirmed by his witnesses and that the conclusion of the case the court held that he had suffered soft tissue injuries but failed to take note that his spinal code had been affected limiting his ability to walk.
3.He deposed further that he was unable to walk at all and had to use a wheel chair and had been examined by Dr Mwago who issued him with a medical report dated August 20, 2020 attached to the affidavit in support.
4.The application was opposed by the respondent, through a replying affidavit sworn by his Advocate on record Fredrick Kariukidated March 5, 2021, in which he deposed that the judgement of the lower court was delivered on January 17, 2018 from which the same had paid the full decretal sum thereon of ksh 391993 in full settlement.
5.It was contended that the finding of the trial court was correct according to the evidence tendered and that the applicant did not particularized the nature of injuries in his plaint and that the best recourse for the applicant was to seek review of the lower court instead of seeking leave of this honourable court to adduce fresh evidence.
6.When the matter came up for hearing before me the Advocate for the parties sought to rely on the affidavit file herein and left it to the court since the matter was an exercise of discretion on the part of the court.
7.The legal position on when the appellant court may allow a party to adduce fresh and or additional evidence is now settled based on several decisions of the superior court and this court does not wish to re-invent the wheel thereof save for to state some of them as follows:
8.The issues for determination is whether the applicant has met the above threshold to enable the court allow the admission of additional evidence on appeal, from the evidence through the affidavit, it is clear that what the applicant intend to produce is a fresh medical report dated 20/ 8/ 2020 and not a medical report as at the time of the trial and or the judgement which was delivered on 27th November 2018 which is a departure from the medical report by the same doctor dated 11/4/2015.
9.I take the view that the substance of the appeal is the trial court determination as at 2017 and therefore no justifiable reason has been n advance to enable the court admit a fresh medical report as at 2020.
10.I therefore find no merit on the application herein which I hereby dismiss with cost being in the cause.