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.
Determination
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:A. National Cereals and Produce Board v Erad Supplies &general Contracts Ltd (CA 9 of 2012), The Administrator, H H The Agha Khan Platinum Jubilee Hospital v Munyambu [1985] KLR 127 the Court of Appeal emphasized that the principal rule in admission of additional evidence is that there must be exceptional circumstances to constitute sufficient reason for receiving fresh evidence at the appellate stage. In Wanjie &others v Sakwa & others [1984] KLR 275 the Court of Appeal considered at length the rationale for the obvious restriction of reception of additional evidence in Rule 29 of the Court of Appeal Rules. Chesoni JA observed at page 280:“ this rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.”"B) In the case of Kenya Medical Research Fundatiion v Erick Omenja t/a Manje Auto Garage [2020] eKLR the court had this to say:13. As said, the application under consideration is one for leave of the Court to adduce additional evidence appeal. Therefore, Section 78 of the Civil Procedure Act and Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010 is the legal foundational basis of the application. For ease of reference I will reproduce the said provisions.14. Section 78 of the Civil Procedure Act states as follows: -(1)Subject to 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 conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.15. Order 42 Rules 27, 28 and 29 of the Civil Procedure Rules, 2010 provide as follows: -
27. (1)The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the court to which the appeal is preferred; but ifa)the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; orb)the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court to which the appeal is preferred may allow such evidence or document to be produced, or witness to be examined.(2)Wherever additional evidence is allowed to be produced by the court to which the appeal is preferred the court shall record the reason for its admission.
28Wherever additional evidence is allowed to be produced, the court to which the appeal is preferred may either take such evidence or direct eh court from whose decree the appeal is preferred or any other subordinate court to take such evidence and to send it when taken to the court to which the appeal is preferred.
29.Where additional evidence is directed or allowed to be taken the court to which the appeal is preferred shall specify the limits to which the evidence is to be confined and record on its proceedings the points so specified.
16. The arena of additional evidence on appeal was elaborately dealt with by the Supreme Court in Mohammed Abdi Mohamud v Ahmed Abdulahi Mohamad & 3 others (supra). The Court laid down the following principles for allowing additional evidence: -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 proportionally 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.”17. The Court of Appeal in a Five-Judge bench added its voice on the subject in Safe Cargo Limited v Embakasi Properties Limited & 2 others [2019] eKLR as follows: -
12.This Court in discussing its power to admit additional evidence under Rule 29(1) stated as follows in Republic v Ali Babitu Kololo. [2017] eKLRIt has been said time and again that the unfettered power of the Court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in the determination of the appeal.”
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.
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