1. For determination is the Applicant’s/Defendant’s Notice of Motion application dated 13th March 2025, filed pursuant to Article 159 (2) (d), 48, 50 and 50 (1) of the Constitution; Section 1A, 1B, 3A, and 63(e) of the Civil Procedure Act; Order 51 (1) of the Civil Procedure Rules.
2. The application seeks for orders that: -
i. That the Plaintiff’s 4th List of Documents dated 26th February 2025, and the annextures thereto, be expunged from the record of the Court.
ii. The matter do proceed for hearing on the basis of documents filed by the parties prior to delivery of the Court’s Judgment of 23rd May 2019
iii. Costs of the application be provided for.
3. The application is based on the grounds on the face of it, and is supported by the affidavit of Mr. George Gicheha, the Applicant’s Underwriting Manager, sworn on 13th March 2025.
4. The Defendant’s principal contention, as expressed in the application, is that the he Plaintiff's 4th List of Documents dated 26th February 2025 and annextures be expunged from the record, and that the matter to proceed strictly on the basis of the documents that were on record prior to the date (22.03.2024) when the Court of Appeal ordered a retrial in this case on the question of quantum.
5. The Application is opposed through the Replying Affidavit sworn on 21st March 2025 by Mr. Gibson Wachaga, a Director of the Plaintiff.
6. The Plaintiff/Respondent contends that the documents in question ought to be admitted, as the Court of Appeal, in its judgment dated 22nd March 2024, remitting the matter to this Court for a retrial on the issue of quantum, expressly directed this Court to take evidence from the parties on the question of quantum. According to the Plaintiff, this directive by the Court of Appeal effectively reopened the matter to be heard afresh with respect to the issue of quantum.
7. The Application was canvassed by way of written submissions. The Defendant filed its submissions dated 28th March 2025, whilst that of the Plaintiff is dated 7th April 2025.
Analysis and determination:-
8. I have carefully considered the Defendant’s application herein, the response by the Plaintiff and the submissions by the parties in support of their respective positions. I am of the view that the sole issue for determination in this matter is whether the 4th List of Documents filed by the Plaintiff should be expunged from the record, taking into account the directions issued by the Court of Appeal regarding the determination of quantum.
9. The background of this matter is that by a judgment dated 23rd May 2019, this Court (J.A Makau J) delivered a judgment in favour of the Plaintiff. The learned Judge found that the Defendant’s repudiation of liability under the fire insurance policy issued in favour of the Plaintiff was null and void.
10. Dissatisfied with the court’s decision, the Defendant appealed to the Court of Appeal against the finding. On 22nd March 2024, the Court of Appeal delivered its judgment on the appeal, remitting the matter back to the High Court with the directions that the question of quantum of damages be retried.
11. The relevant parts of the Court of Appeal Judgment stated in part that:
“65. The Judge concluded that the appellant had failed to adduce evidence to support its counterclaim. The Judge then proceeded to grant the reliefs to which we have referred, amongst them, the order directing the appellant to pay the sum of Kshs. 88,645,440 plus applicable taxes as the replacement costs of stocks of jute bags destroyed by fire on 11th August 2015.
66. Clearly, the learned Judge did not at all interrogate how that claim was made up. The loss adjusters report based on which the Judge concluded that recommendation for settlement of the claim was made was not produced. In effect, while proof of loss claimed by the respondent was a live issue, the learned Judge did not interrogate it or make findings on it beyond granting the relief. The Judge concluded, wrongly in our view, that proof of loss was a non-issue.
67. In the circumstances, having found, as we have, that the appellant is liable to indemnify to respondent for the loss incurred, we order and direct that unless the parties agree on the quantum of loss, within 30 days from the date of delivery of this judgment, the matter shall be remitted back to the trial court before a judge other than J.A. Makau, J., to take evidence from the parties and determine the extent of loss incurred by the respondent because of the fire on 11th August 2015. To that end, we direct that upon expiry of 30 days from the date of delivery of this judgment, the matter is to be mentioned before the Presiding Judge of the Commercial & Tax Division of the High Court at Nairobi for purposes of directions on the hearing and disposal on the quantum of loss."
12. From the foregoing, it is evident that the Court of Appeal remitted the matter back to this Court with clear directions for the court “to take evidence from the parties and determine the extent of the loss incurred by the Respondent as a result of the fire that occurred on 11th August 2015.”
13. The central point of divergence between the parties lies in the interpretation of the scope of the retrial. The Defendant maintains that the retrial should proceed strictly on the basis of the documents that were on record at the time the High Court initially delivered its judgment. In contrast, the Plaintiff contends that the retrial, as ordered by the Court of Appeal, effectively reopened the case, thereby allowing this Court the latitude to admit fresh or additional evidence.
14. Having considered the two rival positions and the authorities cited by the parties, I find more persuasive the Respondent’s argument that the order from the Court of Appeal, directing retrial on the question of quantum, effectively reopened the case in that respect, and allowed the parties to adduce fresh or further evidence as may be necessary, for a just resolution of the question of quantum of damages suffered by the Plaintiff as a result of the fire accident.
15. I am in agreement with the position taken by the Court (P.M. M Njoroge J) in the case of Isaiya Mugambi M’muketha v Attorney General & 2 others; John Muchai Mugambi (Interested Party), where the learned Judge in interpreting a similar directive from the Court of Appeal stated that: -
“The submission by the 3rd defendant that the new evidence collected by the court ought to be rejected is, ipso facto, groundless. It flies in the face of the unequivocal instruction by the Court of Appeal that additional evidence be obtained. The Court of Appeal said: “Additional evidence is called for to facilitate a fair determination of damages.’’
16. As was the case in Isaiya Mugambi M’muketha (supra), the Court of Appeal in the present matter expressly directed this Court to “take evidence from the parties and determine the extent of loss incurred.” In my view, this directive conferred upon this Court the discretion to admit additional evidence where such evidence is necessary for the effective determination of the issue of quantum of damages. I would have arrived at a different conclusion had the Court of Appeal instructed this Court to “reconsider the claim on the basis of evidence submitted at trial,” which would have limited the scope of inquiry to the existing record.
17. In reaching the above decision, this Court is guided by the fundamental principle of substantive justice, as enshrined in Article 159 of the Constitution of Kenya, 2010. It is the view of this Court that to expunge the Plaintiff’s 4th List of Documents would run counter to both the letter and spirit of the Court of Appeal’s directives as expressed in the subject judgment, and would also undermine the proper administration of substantive justice.
18. The existing jurisprudence in this country is that unless there is demonstrable real prejudice to the other party, or if the evidence was obtained in breach of the Constitution or law, documents should generally remain on record to facilitate a just determination of the issues. See the cases of Flora Cherono v Mary Njihia & 9 others [2021] eKLR and John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital & Another [2013] eKLR cited by the Plaintiff.
19. In the present case, the Defendant has not adequately demonstrated any real prejudice they are likely to suffer at the retrial, if the Plaintiff’s 4th List of documents is not expunged.
20. The allegation by the Defendant that admitting the documents would lead to the Defendant facing “new evidence which could have been produced at the time of the initial hearing”, is not strong enough to bar admission. In any event, the Defendant will still retain the opportunity to challenge the authenticity, relevance, and probative value of the documents through cross-examination and submissions during the retrial.
21. Further, the Defendant, if they so wish, will equally be at liberty to adduce any further and additional documents they may consider relevant on the question of quantum of damages so as to assist the court in the retrial as directed by the Court of Appeal.
Disposal
22. Accordingly, it is hereby ordered as follows:-
i. The Defendant’s application dated 13th March 2025, seeking to expunge the Plaintiff's 4th List of Documents from the record, is hereby dismissed.
ii. The Plaintiff's 4th List of Documents shall remain on record.
iii. The Defendant is hereby granted 21 days leave to file any further documents that they consider necessary to assist the court in the retrial.
iv. Costs of this application shall be in the cause.
23. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Kigata…………………..for the Applicant
Manyara….…………....for the Respondent
2. The application seeks for orders that: -
i. That the Plaintiff’s 4th List of Documents dated 26th February 2025, and the annextures thereto, be expunged from the record of the Court.
ii. The matter do proceed for hearing on the basis of documents filed by the parties prior to delivery of the Court’s Judgment of 23rd May 2019
iii. Costs of the application be provided for.
3. The application is based on the grounds on the face of it, and is supported by the affidavit of Mr. George Gicheha, the Applicant’s Underwriting Manager, sworn on 13th March 2025.
4. The Defendant’s principal contention, as expressed in the application, is that the he Plaintiff's 4th List of Documents dated 26th February 2025 and annextures be expunged from the record, and that the matter to proceed strictly on the basis of the documents that were on record prior to the date (22.03.2024) when the Court of Appeal ordered a retrial in this case on the question of quantum.
5. The Application is opposed through the Replying Affidavit sworn on 21st March 2025 by Mr. Gibson Wachaga, a Director of the Plaintiff.
6. The Plaintiff/Respondent contends that the documents in question ought to be admitted, as the Court of Appeal, in its judgment dated 22nd March 2024, remitting the matter to this Court for a retrial on the issue of quantum, expressly directed this Court to take evidence from the parties on the question of quantum. According to the Plaintiff, this directive by the Court of Appeal effectively reopened the matter to be heard afresh with respect to the issue of quantum.
7. The Application was canvassed by way of written submissions. The Defendant filed its submissions dated 28th March 2025, whilst that of the Plaintiff is dated 7th April 2025.
Analysis and determination:-
8. I have carefully considered the Defendant’s application herein, the response by the Plaintiff and the submissions by the parties in support of their respective positions. I am of the view that the sole issue for determination in this matter is whether the 4th List of Documents filed by the Plaintiff should be expunged from the record, taking into account the directions issued by the Court of Appeal regarding the determination of quantum.
9. The background of this matter is that by a judgment dated 23rd May 2019, this Court (J.A Makau J) delivered a judgment in favour of the Plaintiff. The learned Judge found that the Defendant’s repudiation of liability under the fire insurance policy issued in favour of the Plaintiff was null and void.
10. Dissatisfied with the court’s decision, the Defendant appealed to the Court of Appeal against the finding. On 22nd March 2024, the Court of Appeal delivered its judgment on the appeal, remitting the matter back to the High Court with the directions that the question of quantum of damages be retried.
11. The relevant parts of the Court of Appeal Judgment stated in part that:
“65. The Judge concluded that the appellant had failed to adduce evidence to support its counterclaim. The Judge then proceeded to grant the reliefs to which we have referred, amongst them, the order directing the appellant to pay the sum of Kshs. 88,645,440 plus applicable taxes as the replacement costs of stocks of jute bags destroyed by fire on 11th August 2015.
66. Clearly, the learned Judge did not at all interrogate how that claim was made up. The loss adjusters report based on which the Judge concluded that recommendation for settlement of the claim was made was not produced. In effect, while proof of loss claimed by the respondent was a live issue, the learned Judge did not interrogate it or make findings on it beyond granting the relief. The Judge concluded, wrongly in our view, that proof of loss was a non-issue.
67. In the circumstances, having found, as we have, that the appellant is liable to indemnify to respondent for the loss incurred, we order and direct that unless the parties agree on the quantum of loss, within 30 days from the date of delivery of this judgment, the matter shall be remitted back to the trial court before a judge other than J.A. Makau, J., to take evidence from the parties and determine the extent of loss incurred by the respondent because of the fire on 11th August 2015. To that end, we direct that upon expiry of 30 days from the date of delivery of this judgment, the matter is to be mentioned before the Presiding Judge of the Commercial & Tax Division of the High Court at Nairobi for purposes of directions on the hearing and disposal on the quantum of loss."
12. From the foregoing, it is evident that the Court of Appeal remitted the matter back to this Court with clear directions for the court “to take evidence from the parties and determine the extent of the loss incurred by the Respondent as a result of the fire that occurred on 11th August 2015.”
13. The central point of divergence between the parties lies in the interpretation of the scope of the retrial. The Defendant maintains that the retrial should proceed strictly on the basis of the documents that were on record at the time the High Court initially delivered its judgment. In contrast, the Plaintiff contends that the retrial, as ordered by the Court of Appeal, effectively reopened the case, thereby allowing this Court the latitude to admit fresh or additional evidence.
14. Having considered the two rival positions and the authorities cited by the parties, I find more persuasive the Respondent’s argument that the order from the Court of Appeal, directing retrial on the question of quantum, effectively reopened the case in that respect, and allowed the parties to adduce fresh or further evidence as may be necessary, for a just resolution of the question of quantum of damages suffered by the Plaintiff as a result of the fire accident.
15. I am in agreement with the position taken by the Court (P.M. M Njoroge J) in the case of Isaiya Mugambi M’muketha v Attorney General & 2 others; John Muchai Mugambi (Interested Party), where the learned Judge in interpreting a similar directive from the Court of Appeal stated that: -
“The submission by the 3rd defendant that the new evidence collected by the court ought to be rejected is, ipso facto, groundless. It flies in the face of the unequivocal instruction by the Court of Appeal that additional evidence be obtained. The Court of Appeal said: “Additional evidence is called for to facilitate a fair determination of damages.’’
16. As was the case in Isaiya Mugambi M’muketha (supra), the Court of Appeal in the present matter expressly directed this Court to “take evidence from the parties and determine the extent of loss incurred.” In my view, this directive conferred upon this Court the discretion to admit additional evidence where such evidence is necessary for the effective determination of the issue of quantum of damages. I would have arrived at a different conclusion had the Court of Appeal instructed this Court to “reconsider the claim on the basis of evidence submitted at trial,” which would have limited the scope of inquiry to the existing record.
17. In reaching the above decision, this Court is guided by the fundamental principle of substantive justice, as enshrined in Article 159 of the Constitution of Kenya, 2010. It is the view of this Court that to expunge the Plaintiff’s 4th List of Documents would run counter to both the letter and spirit of the Court of Appeal’s directives as expressed in the subject judgment, and would also undermine the proper administration of substantive justice.
18. The existing jurisprudence in this country is that unless there is demonstrable real prejudice to the other party, or if the evidence was obtained in breach of the Constitution or law, documents should generally remain on record to facilitate a just determination of the issues. See the cases of Flora Cherono v Mary Njihia & 9 others [2021] eKLR and John Muriithi & 8 others v Registered Trustees of Sisters of Mercy (Kenya) t/a “The Mater Misericordiae Hospital & Another [2013] eKLR cited by the Plaintiff.
19. In the present case, the Defendant has not adequately demonstrated any real prejudice they are likely to suffer at the retrial, if the Plaintiff’s 4th List of documents is not expunged.
20. The allegation by the Defendant that admitting the documents would lead to the Defendant facing “new evidence which could have been produced at the time of the initial hearing”, is not strong enough to bar admission. In any event, the Defendant will still retain the opportunity to challenge the authenticity, relevance, and probative value of the documents through cross-examination and submissions during the retrial.
21. Further, the Defendant, if they so wish, will equally be at liberty to adduce any further and additional documents they may consider relevant on the question of quantum of damages so as to assist the court in the retrial as directed by the Court of Appeal.
Disposal
22. Accordingly, it is hereby ordered as follows:-
i. The Defendant’s application dated 13th March 2025, seeking to expunge the Plaintiff's 4th List of Documents from the record, is hereby dismissed.
ii. The Plaintiff's 4th List of Documents shall remain on record.
iii. The Defendant is hereby granted 21 days leave to file any further documents that they consider necessary to assist the court in the retrial.
iv. Costs of this application shall be in the cause.
23. It is so ordered
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
26TH DAY OF JUNE 2025
ADO MOSES
JUDGE
In the presence of: -
C/A – Moses
Kigata…………………..for the Applicant
Manyara….…………....for the Respondent