1. The application that is before this court for determination is the one dated 28th January 2025.
2. The applicant seeks the following orders;
1) THAT the Court be pleased to grant the Appellant leave to adduce additional evidence.
2) THAT the Honourable Court do grant leave for the filing of a Supplementary Record of Appeal.
3) THAT costs be in the Cause.
The applicants case;
3. It is the applicant’s case that he sold that motor vehicle that caused the accident in the year 2013 to the 2nd Respondent.
4. At the time when the accident occurred the beneficial owner of the motor vehicle was the 2nd respondent
5. The Applicant argues that he has made efforts to secure information around the ownership of the motor vehicle by writing to the Armaco insurance company and the insurance regulator authority in the year 2024.
6. It is his case that he has made all efforts to secure the information around the ownership of the motor vehicle, which he now would like to introduce as part of the record of appeal.
The 1st Respondent’s case
7. The 1st respondent opposes the application vehemently.
8. It is his case that day applicant is bent on filling up the gaps that came up during the trial.
9. It is further his case that all that the applicant is seeking to achieve is an after thought that is intended to change the judgment six months after the judgement was delivered.
10. It is his case that the applicant had an opportunity to raise the issue he seeks to bring up during the trial when the court considered the ownership of the motor vehicle. The applicant did not harness that opportunity.
11. He argues that the applicant should have acted when he received the demand letter from the first respondent as a bare minimum.
Analysis and determination:
12. The issues for determination are;
1) Whether the application has merit.
2) Who shall be the costs.
Whether the application has merit;
13. Whereas the court appreciate the efforts that the applicant says that he has made towards finding out about the ownership of the vehicle the applicant does not tell the court why he did not do or take all those steps earlier or upon receipt of the demand letter from the 1st respondent.
14. The court is aware of the need to bring closure to litigation so as to advance the rule of law and fairness to all litigants.
15. Litigation must not be done piecemeal.The court is of the opinion that the applicant had the opportunity to advance his full case once during the trial.
16. A litigant is expected to at all times remain diligent when defending a suit that is filed against it.
17. In Henderson v Henderson (1843-60) All ER 378, the Court of Chancery stated thus, regarding the need for parties to bring forward their entire claims:
“… Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect to a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
18. It is not in doubt that the applicant herein knew the beneficial ownership of the motor vehicle during the trial. It is no wonder he knew who to approach for the information he argues he was pursuing. He has not just discovered who the custodian of the information was.
19. He does not tell the court why he did not write to the Amarco insurance company or the regulator immediately the suit was filed or as soon as he received a response to the claim from the 1st respondent.
20. No explanation is given as to why he did not make an application to the trial court to be allowed to do what he seeking to do at this hour.
21. Being an adversarial system,the court must at all times balance the scales of Justice in such a way that it does not give an unfair advantage to one litigant at the expense of the other.
22. The court is of the view that the balance will be achieved by not allowing the introduction of new evidence.
23. The applicant has not advanced any justification as to why he did not take action promptly. Equity does not come to the aid the of the indolent.
Costs;
24. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
26. The applicant shall shoulder the costs.
Determination:
27. The application lacks merit.
Order;
1) The application is dismissed.
2) Costs in the cause.
2. The applicant seeks the following orders;
1) THAT the Court be pleased to grant the Appellant leave to adduce additional evidence.
2) THAT the Honourable Court do grant leave for the filing of a Supplementary Record of Appeal.
3) THAT costs be in the Cause.
The applicants case;
3. It is the applicant’s case that he sold that motor vehicle that caused the accident in the year 2013 to the 2nd Respondent.
4. At the time when the accident occurred the beneficial owner of the motor vehicle was the 2nd respondent
5. The Applicant argues that he has made efforts to secure information around the ownership of the motor vehicle by writing to the Armaco insurance company and the insurance regulator authority in the year 2024.
6. It is his case that he has made all efforts to secure the information around the ownership of the motor vehicle, which he now would like to introduce as part of the record of appeal.
The 1st Respondent’s case
7. The 1st respondent opposes the application vehemently.
8. It is his case that day applicant is bent on filling up the gaps that came up during the trial.
9. It is further his case that all that the applicant is seeking to achieve is an after thought that is intended to change the judgment six months after the judgement was delivered.
10. It is his case that the applicant had an opportunity to raise the issue he seeks to bring up during the trial when the court considered the ownership of the motor vehicle. The applicant did not harness that opportunity.
11. He argues that the applicant should have acted when he received the demand letter from the first respondent as a bare minimum.
Analysis and determination:
12. The issues for determination are;
1) Whether the application has merit.
2) Who shall be the costs.
Whether the application has merit;
13. Whereas the court appreciate the efforts that the applicant says that he has made towards finding out about the ownership of the vehicle the applicant does not tell the court why he did not do or take all those steps earlier or upon receipt of the demand letter from the 1st respondent.
14. The court is aware of the need to bring closure to litigation so as to advance the rule of law and fairness to all litigants.
15. Litigation must not be done piecemeal.The court is of the opinion that the applicant had the opportunity to advance his full case once during the trial.
16. A litigant is expected to at all times remain diligent when defending a suit that is filed against it.
17. In Henderson v Henderson (1843-60) All ER 378, the Court of Chancery stated thus, regarding the need for parties to bring forward their entire claims:
“… Where a given matter becomes the subject of litigation in, and of adjudication by a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect to a matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgement, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.”
18. It is not in doubt that the applicant herein knew the beneficial ownership of the motor vehicle during the trial. It is no wonder he knew who to approach for the information he argues he was pursuing. He has not just discovered who the custodian of the information was.
19. He does not tell the court why he did not write to the Amarco insurance company or the regulator immediately the suit was filed or as soon as he received a response to the claim from the 1st respondent.
20. No explanation is given as to why he did not make an application to the trial court to be allowed to do what he seeking to do at this hour.
21. Being an adversarial system,the court must at all times balance the scales of Justice in such a way that it does not give an unfair advantage to one litigant at the expense of the other.
22. The court is of the view that the balance will be achieved by not allowing the introduction of new evidence.
23. The applicant has not advanced any justification as to why he did not take action promptly. Equity does not come to the aid the of the indolent.
Costs;
24. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
26. The applicant shall shoulder the costs.
Determination:
27. The application lacks merit.
Order;
1) The application is dismissed.
2) Costs in the cause.