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JudgmentGENERAL ACCIDENT INSURANCE (GA) LTD VS JACOB NJERU NDWIGA7 min read

GENERAL ACCIDENT INSURANCE (GA) LTD VS JACOB NJERU NDWIGA

High Court at Embu High Court · · Lucy Njuguna


(Appeal arising from the decision of Hon. S. Ouko in Runyenjes SPMCCC No.44 of 2019 delivered on 20th February 2024)

  1. The appellant has filed a memorandum of appeal dated 05th March 2024 seeking that:
    1. This appeal be allowed, the ruling of the trial court be set aside;
    2. The appellant’s witness being PW1 be allowed to refer to his original investigations report during re-examination; and
    3. The honourable court does award costs of this appeal to the appellant.
  2. The appeal is premised on the grounds that:
    1. The learned trial magistrate misapprehended the appellant’s request during virtual hearing to stand down PW1 so that he can be re-examined in open court and with reference being made to the original investigation report that had been produced;
    2. The learned trial magistrate failed to take into account the fact that during the virtual hearing, PW1 had made reference to and produced the original investigation report; and
    3. The trial magistrate did not take into account sections 48 and 49 of the Evidence Act Regarding opinions by experts.
  3. Through a plaint dated 30th May 2019, the appellant sought judgment against the respondent for a declaration that it is entitled to avoid the insurance policy, that respondent is liable to indemnify the appellant owing to misrepresentation of facts and that the respondent ought to satisfy any decrees arising from the suit. It was the appellant’s claim that the respondent, its insured, reported an accident involving his motor vehicle which was being used for a purpose other than that specified in the insurance policy document. That the appellant conducted investigations and established that the motor vehicle was being used as a hired taxi and not for private/personal use.
  4. During the hearing, PW1 was Geroge Kamau of Pygates Investigation Company who stated that he received instructions from the appellant to investigate the reported accident. That he visited the home of the respondent but he declined to provide him with a list of the occupants of the car at the time of the accident. That he interviewed one Simon Njagi and included his statement in the original investigation report that was produced as evidence. That he also took photographs of the motor vehicle at Runyenjes Police Station and formed the opinion that the claim did not meet the threshold for settlement. On cross-examination, he stated that Simon Njagi did not sign his report. That from the investigations, the motor vehicle had 4 occupants, 2 who died after the accident and the driver escaped and he was charging fares for transporting the passengers.
  5. During re-examination, the appellant’s advocate indicated that there were some missing documents which he wished for his witness to refer to but they were not available at the time. He asked the court to permit him to stand the witness down to allow him time to trace the documents. This application was met with objections from all the parties present. The appellant’s advocate claimed that he has never, before that day, sought for an adjournment to produce documents and no prejudice would be suffered by the opponents, and if any prejudice will be suffered, it can be compensated by costs. In its ruling, the trial court noted the 4-year long period before the hearing began, noting that the appellant had been given sufficient time to file all his pleadings and evidence but he failed to do so. It denied the application for filing the report out of time stating that it would be unjust to allow the application. This is the impugned ruling.
  6. The court directed the parties to file their written submissions but only the appellant complied.
  7. It was the appellant’s submission that the appellant intended to stand down his witness to refer to a document that was already in the court’s record and not new evidence. That its request was simply that the document would be used in re-examination in open court. That the appellant omitted to file the complete set of the investigation report, which omission was inadvertent and is not intended to frustrate the proceedings. It urged that it should be allowed to file the complete report and any aggrieved party can be compensated with costs.
  8. That, in any event, neither the plaintiff nor the defendant had closed their case. It urged the court to allow the appeal based on its discretion under Order 18 Rule 10 of the Civil Procedure Rules and Section 146 of the Evidence Act. Reliance was placed on the case of Wachira Karani v. Bildad Wachira (2016) eKLR where it was held that it is the core of the court to dispense justice. It stated that the purpose of seeking to examine PW1 in open court is to enable him produce the original investigation report and not to introduce new evidence. That cross-examination may be limited to the contents of the original investigation report.
  9. The issue for determination is whether the ruling of the trial court should be set aside.
  10. As a first appellate court, it is this court’s duty to re-examine the evidence adduced before the trial court. In the case of Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that:

“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”

  1. After calling and examining his first witness, the appellant’s counsel realized that the original investigation report intended to be produced by his witness, was incomplete. After the witness had been cross-examined by all the parties present, the appellant’s advocates moved the court to allow him to recall his witness in open court for purposes of producing the missing parts of the investigation report. The plaint was filed on 04th June 2019 and it was accompanied by the relevant documents including the list of documents and the investigation report. From a perusal of the record, there was a back-and-forth as parties were enjoined in the suit and a series of applications were filed and determined.
  2. By the time the matter was proceeding to the hearing, it had been nearly 4 years since filing of the plaint. Clearly, close of pleadings was long before PW1 was called to testify. The trial court, in its ruling, noted that the appellant’s advocate had sufficient time to put his documents in order before hearing. Given the timelines in that matter, I agree with the trial court. It is highly suspect that just as the hearing is taking off, that the appellant discovers that some parts of the investigation report are missing.
  3. In its submissions, the appellant referred to Order 18 Rule 10 of the Civil Procedure Rules 2010 which provides: “The court may at any stage of the suit recall any witness who has been examined, and may, subject to the law of evidence for the time being in force; put such questions to him as the court thinks fit.” It also referred to section 146 of the Evidence Act which provides:

“(1) Witnesses shall first be examined-in-chief, then, if the adverse party so desires, cross-examined, then, if the party calling them so desires, re-examined.

(2) Subject to the following provisions of this Act, the examination-in-chief and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief.

(3) The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

(4) The court may in all cases permit a witness to be recalled either for further examination-in-chief or for further cross-examination, and if it does so, the parties have the right of further cross-examination and re-examination respectively.”

  1. Section 146(3) of the Evidence Act empowers the court to permit introduction of a new matter in re-examination, which matters may be subjected to further cross-examination. In this case, the appellant’s advocate stood his witness down for re-examination in open court, stating that he wanted to refer to the missing parts of the investigation report. The missing documents in the investigation report may be introduced but the trial court denied the appellant that opportunity.
  2. In my view, with reference to this provision and the discretion of the court, the appellant should be allowed to refer to the original investigation report in re-examination. This is allowed on the basis of Article 48 of the Constitution which guarantees all the parties access to justice. In the premises, the following orders shall issue:
    1. This appeal is hereby allowed, the ruling of the trial court delivered on 20th February 2024 is hereby set aside;
    2. The appellant’s witness being PW1 is hereby allowed to refer to his original investigations report during re-examination;
    3. Opposing counsel to cross-examine PW1 and such cross-examination to be limited to the new documents introduced at re-examination; and
    4. The respondent shall have the costs of this appeal.
  3. It is so ordered.

Delivered, dated and signed at Embu this 9th day of October, 2024.


    GENERAL ACCIDENT INSURANCE (GA) LTD VS JACOB NJERU NDWIGA GENERAL ACCIDENT INSURANCE (GA) LTD VS JACOB NJERU NDWIGA