REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
HIGH COURT CIVIL APPEAL NO. E074 OF 2024
Coram: Andayi W. F., Judge)
NAOMI SALIM KAHONZI (Minor suing through father and next friend
SALIM NGUMBAO KATANA………………………......................APPELLANT
VERSUS
INTERDUNIA MOMBASA LIMITED....................................1 ST RESPONDENT
JULIUS MUTEMBEI KAYBIRU………………………............2 ND RESPONDENT
(Being an appeal from the ruling and order of Hon. I. Thamara, delivered on 13 th May 2024 in Malindi Magistrate’s Court Civil Case No. E077 of 2022)
JUDGMENT
1. On 31 st July 2023, the lower court delivered a judgment dismissing the appellant’s suit. The suit was for general and special damages for injuries sustained by the appellant in a road traffic accident that occurred on 25 th November 2021 along Malindi-Mombasa road at Airport area. The appellant was lawfully travelling as a passenger in motor vehicle registration number KDC 551N registered in the name of the 1 st respondent Interdunia Mombasa Ltd but at the material time in the possession, authority and control of the 2 nd respondent Julius Mutembei Kaybiru. The appellant blamed the respondents for the accident for the negligent manner in which the vehicle was driven.
2. The 1 st respondent did not enter appearance and interlocutory judgment was entered against it on 6 th December 2022. The court delivered a final judgment in the case on 31 st July 2023 dismissing the appellant’s suit on grounds that the appellant had failed to testify in the suit and tender evidence in the form of treatment notes in order to prove the injuries allegedly sustained in the accident.
3. Subsequent to that judgment the appellant filed a Notice of Motion application under Order 45 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, dated 23 rd August 2023 seeking an order for the trial court to review and vary or set aside the judgment delivered on 31 st July 2023 and reopen the appellant’s case to take the testimony of the next-friend of the minor who is the appellant herein or plaintiff in the trial court.
4. The application was based on grounds that that the plaintiff’s advocate inadvertently failed to take the evidence of the plaintiff’s next friend, assuming that he in fact had made him available when he closed the plaintiff’s case. Further that the mistake is genuine and the plaintiff ought not to be punished for the mistake of counsel and that the interests of justice required that the orders of review be granted.
5. The application was supported by the affidavit of Mercy Nyabuto, advocate sworn on 23 rd August 2023 where she reiterated the grounds above. She added that the appellant had filed a witness statement and the failure to make him available as a witness was a genuine mistake. Further that the suit was consolidated with Malindi Magistrate’s Court Civil Suit No. CMCC E075 of 2022 where the plaintiff in the suit under consideration was the eye-witness and the evidence on liability was binding in the present suit under consideration. That learned counsel mistakenly assumed that that witness was the next-friend in the case under consideration and had erroneously indicated the same in her file and therefore closed the case without calling the next friend herein to testify. She went ahead to submit that the next-friend had testified, only for the court to point out in the judgment that in fact the witness had not testified and thus the finding that the case had not been proved on a balance of probability.
6. Learned counsel therefore deposes that the appellant should not be punished for his mistake and no prejudice will be occasioned to the respondents as they will have an opportunity to cross-examine the witness.
7. The application was further supported by the affidavit of Salim Ngumbao Katana, the father and next friend of the minor in this case. He deposes that on 31 st October 2022 he was present in court ready to testify but the defendant’s advocate sought an adjournment which was granted and he was awarded costs of KShs 1,000/= for the day. He therefore believed that his advocate made a genuine mistake when she closed the case without calling him to testify.
8. The application was opposed by the respondent herein Julius Mutembei Kaybiru through a replying affidavit sworn on 22 nd January 2024. He deposed that there was no error apparent on the face of the record that was self-evident so as to warrant the orders sought. He deposed that opening the case to call the witness was beyond the purview of a review under section 80 of the Civil Procedure Act (Cap. 21) Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules as the trial court was functus officio and so the appellant should have filed an appeal against the judgment. Otherwise it would have amounted to the trial court sitting on appeal on its own decision.
9. Learned counsel for the appellant made submissions urging the court to grant the order of review. Learned counsel for the respondent did not file submissions in the lower court.
10. The trial court considered the application and the submissions and dismissed it for the reasons stated above.
11. The appellant has filed the present appeal which is based on grounds that:
a. the learned magistrate erred in law and in fact in applying the wrong principles in finding that the appellant had not shown sufficient cause to warrant the court to re-open the plaintiff’s case;
b. the learned magistrate erred in law in finding that mistakes by an advocate ought to be borne by the appellant;
c. the learned magistrate erred in fact and in law by failing to consider that failure to produce the treatment notes was solely based on an error on the part of the advocate and the appellant should not suffer the consequences;
d. the learned magistrate erred in fact and in law by failing to find that the appellant was injured in the accident and she ought to be awarded damages;
e. the learned magistrate erred in fact and in law by failing to consider that the treatment notes were on record ever since filing of the trial matter and thus failure to adduce the same is an error that can be corrected by the court.
f. the learned magistrate erred in fact and in law by failing to consider that access to justice supersedes procedural technicality.
g. the learned magistrate erred in fact and in law by failing to consider that the respondents would not have in any way been prejudiced should the application to re-open the case had been allowed since they were found to have been 100% liable for the accident.
h. the learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the affidavit sworn by the Appellant;
i. the learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the submissions filed on behalf of the appellant.
j. in all the circumstances of the case, the learned magistrate failed to do justice.
12. The appellant therefore prays for orders that the appeal be allowed and the judgment (should be ruling) be set aside and the court re-opens the appellant’s case, costs of this appeal and all proceedings in court be borne by the respondent or any other relief the court may deem fit to grant.
13. The appeal was disposed of by way of written submissions filed by learned counsels for both parties. The submissions are considered in the evaluation that follows.
14. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
15. I have considered the grounds of appeal herein, the record of appeal, the submissions by learned counsel for the appellant and the ruling of the learned trial magistrate. The issue for determination in this appeal is whether the application by the appellant met the threshold for an order for review to reopen the case for the appellant and admit more evidence before the trial court and whether the learned trial magistrate was right or wrong in the exercise of her discretion in declining to grant the order of review.
16. Section 80 Civil Procedure Act (Cap. 21) Laws of Kenya provides with respect to review that:
S. 80. Any person who considers himself aggrieved—
a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit .
17. Order 45 of the Civil Procedure Rules then provides further that:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
18. From these provisions, in order for a person to succeed on an application for review, he has to show that:
a. there was discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there was some mistake or error apparent on the face of the record; or
c. that there was any other sufficient reason; and
d. that the application had been brought without unreasonable delay.
17. The application for review before the trial court could not have been based on the point of discovery of new and important matter or evidence because the evidence sought to be tendered in the case was available to the appellant all through. It was therefore based on the assertion that there was a mistake or error apparent on the face of the record and that there was sufficient reason to review the judgment it being alleged by learned counsel for the applicant/appellant herein that there was a mistake by counsel in failing to make available the appellant’s next friend as a witness in the matter.
18. Starting with the issue of error apparent on the face of the record, I will refer to the definition of error or mistake apparent on the face of the record in the case of Nyamogo & Nyamogo Advocates vs. Kago (2001) 1 EA 173 , where the Court of Appeal said:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."
19. Further, in the case of National Bank of Kenya Limited vs. Ndungu Njau [1997] eKLR, the Court of Appeal considering the same issue held that:
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review..."
20. In the present case, the appellant states that by mistake of counsel, he was not called to offer his evidence in the matter before the plaintiff’s case before the trial court was closed. Under normal practice, it is not usual that the plaintiff (herein the next friend) in a case is not called upon to testify. I have therefore looked at the trial court record to determine whether what learned counsel for the appellant offers as a reason that caused him not to call the appellant as witness was excusable as alleged.
21. As deposed by the appellant in his supporting affidavit before the trial court, the record shows that on 31 st October 2022 there were two witnesses for the plaintiff present in court ready to testify. The defendant was not ready to proceed and his advocate sought for an adjournment. At the same time, learned counsel for the plaintiff (appellant herein) applied that for purposes of liability the case under consideration be consolidated with another case CMCC No. E075 of 2022. The defence counsel agreed to the application and the trial court made an order that for purposes of liability the hearing of the two cases was consolidated with the other case being the lead file, meaning that proceedings on the issue of liability would be had in that file. That meant that proceedings in the case under consideration were held in abeyance.
22. Further, counsel for the defendant applied for time to file the defendant’s documents in the matter and that too was granted by the court.
23. Indeed, there were no further proceedings in the case under consideration at all apart from entry of judgment in default of appearance against the 1 st defendant on 22 nd December 2022. The next proceedings in that case were on 31 st July 2023 when the judgment was delivered.
24. It would appear that the court failed to keep mentioning the matter under consideration as it proceeded to hear the other case on the issue of liability. Even then, copies of proceedings in the other file should have been placed in the file under consideration in order to keep a tab on it because there were further proceedings for assessment of damages that were to be taken therein after the determination of the issue of liability in the other matter whatever the outcome there. There are no such proceedings in the file under consideration and that means that none were had. That was a mistake made by the court and both the learned counsels involved in the case.
25. The copies of proceedings in the other file were not made part of the record of appeal herein. A glimpse of what proceeded there is provided through the supporting affidavit of learned counsel for the appellant when she deposes that the minor herein was the eye witness in the other case, meaning that the minor herein testified in that case but not the next friend herein. That must have been on the issue of liability. According to learned counsel, that was where the mistake arose because he then thought that the minor was the next friend of the other plaintiff in the lead case and marked his file as though the next friend herein had testified. That cannot qualify to be an error apparent on the court record. It was an inadvertent mistake though on the part of learned counsel for the appellant.
26. However, as pointed out above the error apparent on the court’s record was that the court did not conduct proceedings for assessment of damages in the case under consideration. That is self-evident from the court record. Even then the court went ahead to write and deliver a full judgment on both liability and assessment of damages in the case under consideration. The learned trial magistrate stated that:
“The main issue for determination is on quantum. The court’s finding on liability in the lead file Civil Suit No. E075 of 2022 is that the Defendants are 100% liable for the accident.
The Plaintiff avers that she sustained bruises on the left arm. However, she did not testify. In the lead file the police officer produced the abstract in this suit and the doctor produced the Plaintiff’s medical report ( (emphasis by underlining by this court).
The Plaintiff did not tender any evidence to prove that she sustained injuries. It was not exhaustive for the Dr. Adede to produce the medical report in order to ascertain the injuries (sic). This is for the reason that Dr. Adede did not initially attend to the Plaintiff after the accident happened on 25 th November 2021. Instead he examined her two months after the accident had occurred on 25 th January 2022.
It was crucial for the Plaintiff to testify and produce the treatment notes in order to prove the particulars of the injuries as pleaded under paragraph 6 of the plaint.”
27. The words underlined above where the learned trial magistrate made reference to the evidence adduced in the lead file which evidence was in relation to assessment of damages and no reference to the file in the present case shows that no proceedings for assessment of damages were had in the file under consideration herein.
28. The learned trial magistrate then cited two cases upon which she relied for her finding that the plaintiff (appellant herein) had not adequately proved that she had sustained the injuries as a result of the accident. The cases are TIMSALES LTD v WILSON LIBUYWA [2008] KEHC 460 (KLR) and Peter Migiro v Valley Bakery Limited [2015] KEHC 883 (KLR) . Both cases arise from industrial accidents where the issue of the plaintiff being injured was hotly contested. In the first case, the treatment card produced by the plaintiff was found to be a forgery and the High Court held that in the absence of treatment notes, the plaintiff had failed to prove that indeed he was injured at work on the material day as alleged. In the second case, the plaintiff failed to produce any treatment notes from the employer’s clinic and it was the employer’s case that in fact the plaintiff was not on duty that day.
29. The cases relied upon by the trial court are therefore distinguishable from the case at hand which was a road traffic accident case. In such a case there is usually the police abstract to confirm that the plaintiff was indeed involved in the accident as well as a P3 form completed in a public hospital to confirm that the plaintiff sought for treatment and was indeed attended to there for injuries sustained.
30. The learned trial magistrate in this case acknowledged these documents in her judgment when she stated that:
“Dr. Adede testified that the Plaintiff sustained soft tissue injuries and was to recover with no permanent disability. The treatment notes dated 25 th November 2021 and the P3 form dated 29 th November 2021 indicate the Plaintiff sustained bruises on shoulder and elbow. As per P3 Form the degree of injury was assessed as harm.” (emphasis by underlining by this court).
31. What I find interesting though is that in spite of the learned trial magistrate finding that the next friend herein as plaintiff had not testified and produced treatment notes, she all the same indicated that in fact the treatment notes had been produced and she relied on the same to assess the quantum of damages. It has to be noted that the defendant had not called any evidence at the hearing to counter what had been tendered by the plaintiff’s witnesses both on the issue of liability and as found by the learned trial magistrate on the assessment of damages. It is apparent that the treatment notes had been produced together with the P3 form and so the learned trial magistrate relied upon them to determine the injuries sustained and the degree of harm. Otherwise, how else would she have proceeded to assess damages without proof of injury(ies)? I suppose that Dr. Adede must have produced the treatment notes and the P3 form alongside his medical report as the doctor’s usually do in these types of cases to support their findings on the injuries sustained by a party. The documents having been accepted in evidence, the minor having testified in that case as a witness that she was involved in the accident, the trial magistrate erred in finding that her failure to refer to and produce the treatment notes or that of her next friend’s failure) to testify was fatal to her case. After all her next friend would have produced the same treatment notes and P3 form that Dr. Adede produced and were relied upon by the trial court. That again was an error apparent on the court’s record brought about by the fact that the trial court did not revive the proceedings in the file under consideration in order to take the evidence on assessment of damages after the issue of liability had been determined.
32. In view of the errors apparent on the face of the record committed by the trial court, I find that the trial court made an error to dismiss the application for review as the errors required correction without any prejudice to the respondent herein.
33. There is no doubt that the application was brought without unreasonable delay, the judgment having been delivered on 31 st July 2023 and the application having been filed on 23 rd August 2023.
34. Consequently, the appeal herein has merit and succeeds. The ruling of the learned trial magistrate dated 13 th May 2024 is hereby set aside and substituted with an order allowing the application dated 23 rd August 2023.
35. I note that the trial court properly assessed the damages awardable to the plaintiff/appellant herein. Although an order for reopening the plaintiff’s case is granted, it will serve no useful purpose other than to take up much time and incur further expenses on an issue which was already determined by the trial court and which evidence will not add value to the case. The treatment notes sought to be produced by the next friend were already produced by the doctor and relied upon by the trial court in assessment of damages. Further, the minor had already testified in the lead case and so it cannot be alleged that there was no evidence from the plaintiff to establish that the minor was indeed involved in the accident. For that reason and in order not to repeat the proceedings, it is ordered that the trial court delivered a complete judgment and there will be no need to retake the proceedings.
36. It is therefore ordered that for purposes of expedition, to save time and expenses, the judgment of the trial court delivered on 31 st July 2023 shall remain as the judgment in the case under consideration as if it was delivered today.
37. The assessment of damages remains as made by the lower court. The order dismissing the suit in the lower court is hereby set aside and substituted with an order that the plaintiff/appellant herein proved her case on a balance of probabilities and the same is allowed.
38. There shall be no orders for costs in this appeal and on the application dated 23 rd August 2023 before the lower court. However, the costs of the suit leading to the judgment delivered on 31 st July 2023 shall be borne by the 2 nd defendant/respondent herein.
39. Orders accordingly.
40. Delivered, dated and signed on the Virtual Platform, Teams this 17 th day of September 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Kisotu (Ms) for appellant
Itegi (Ms) for the 2 nd respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
KWALE HC comm. case. No. 1/202412/Review
IN THE HIGH COURT OF KENYA AT MALINDI
HIGH COURT CIVIL APPEAL NO. E074 OF 2024
Coram: Andayi W. F., Judge)
NAOMI SALIM KAHONZI (Minor suing through father and next friend
SALIM NGUMBAO KATANA………………………......................APPELLANT
VERSUS
INTERDUNIA MOMBASA LIMITED....................................1 ST RESPONDENT
JULIUS MUTEMBEI KAYBIRU………………………............2 ND RESPONDENT
(Being an appeal from the ruling and order of Hon. I. Thamara, delivered on 13 th May 2024 in Malindi Magistrate’s Court Civil Case No. E077 of 2022)
JUDGMENT
1. On 31 st July 2023, the lower court delivered a judgment dismissing the appellant’s suit. The suit was for general and special damages for injuries sustained by the appellant in a road traffic accident that occurred on 25 th November 2021 along Malindi-Mombasa road at Airport area. The appellant was lawfully travelling as a passenger in motor vehicle registration number KDC 551N registered in the name of the 1 st respondent Interdunia Mombasa Ltd but at the material time in the possession, authority and control of the 2 nd respondent Julius Mutembei Kaybiru. The appellant blamed the respondents for the accident for the negligent manner in which the vehicle was driven.
2. The 1 st respondent did not enter appearance and interlocutory judgment was entered against it on 6 th December 2022. The court delivered a final judgment in the case on 31 st July 2023 dismissing the appellant’s suit on grounds that the appellant had failed to testify in the suit and tender evidence in the form of treatment notes in order to prove the injuries allegedly sustained in the accident.
3. Subsequent to that judgment the appellant filed a Notice of Motion application under Order 45 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap. 21) Laws of Kenya, dated 23 rd August 2023 seeking an order for the trial court to review and vary or set aside the judgment delivered on 31 st July 2023 and reopen the appellant’s case to take the testimony of the next-friend of the minor who is the appellant herein or plaintiff in the trial court.
4. The application was based on grounds that that the plaintiff’s advocate inadvertently failed to take the evidence of the plaintiff’s next friend, assuming that he in fact had made him available when he closed the plaintiff’s case. Further that the mistake is genuine and the plaintiff ought not to be punished for the mistake of counsel and that the interests of justice required that the orders of review be granted.
5. The application was supported by the affidavit of Mercy Nyabuto, advocate sworn on 23 rd August 2023 where she reiterated the grounds above. She added that the appellant had filed a witness statement and the failure to make him available as a witness was a genuine mistake. Further that the suit was consolidated with Malindi Magistrate’s Court Civil Suit No. CMCC E075 of 2022 where the plaintiff in the suit under consideration was the eye-witness and the evidence on liability was binding in the present suit under consideration. That learned counsel mistakenly assumed that that witness was the next-friend in the case under consideration and had erroneously indicated the same in her file and therefore closed the case without calling the next friend herein to testify. She went ahead to submit that the next-friend had testified, only for the court to point out in the judgment that in fact the witness had not testified and thus the finding that the case had not been proved on a balance of probability.
6. Learned counsel therefore deposes that the appellant should not be punished for his mistake and no prejudice will be occasioned to the respondents as they will have an opportunity to cross-examine the witness.
7. The application was further supported by the affidavit of Salim Ngumbao Katana, the father and next friend of the minor in this case. He deposes that on 31 st October 2022 he was present in court ready to testify but the defendant’s advocate sought an adjournment which was granted and he was awarded costs of KShs 1,000/= for the day. He therefore believed that his advocate made a genuine mistake when she closed the case without calling him to testify.
8. The application was opposed by the respondent herein Julius Mutembei Kaybiru through a replying affidavit sworn on 22 nd January 2024. He deposed that there was no error apparent on the face of the record that was self-evident so as to warrant the orders sought. He deposed that opening the case to call the witness was beyond the purview of a review under section 80 of the Civil Procedure Act (Cap. 21) Laws of Kenya and Order 45 Rule 1 of the Civil Procedure Rules as the trial court was functus officio and so the appellant should have filed an appeal against the judgment. Otherwise it would have amounted to the trial court sitting on appeal on its own decision.
9. Learned counsel for the appellant made submissions urging the court to grant the order of review. Learned counsel for the respondent did not file submissions in the lower court.
10. The trial court considered the application and the submissions and dismissed it for the reasons stated above.
11. The appellant has filed the present appeal which is based on grounds that:
a. the learned magistrate erred in law and in fact in applying the wrong principles in finding that the appellant had not shown sufficient cause to warrant the court to re-open the plaintiff’s case;
b. the learned magistrate erred in law in finding that mistakes by an advocate ought to be borne by the appellant;
c. the learned magistrate erred in fact and in law by failing to consider that failure to produce the treatment notes was solely based on an error on the part of the advocate and the appellant should not suffer the consequences;
d. the learned magistrate erred in fact and in law by failing to find that the appellant was injured in the accident and she ought to be awarded damages;
e. the learned magistrate erred in fact and in law by failing to consider that the treatment notes were on record ever since filing of the trial matter and thus failure to adduce the same is an error that can be corrected by the court.
f. the learned magistrate erred in fact and in law by failing to consider that access to justice supersedes procedural technicality.
g. the learned magistrate erred in fact and in law by failing to consider that the respondents would not have in any way been prejudiced should the application to re-open the case had been allowed since they were found to have been 100% liable for the accident.
h. the learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the affidavit sworn by the Appellant;
i. the learned magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the submissions filed on behalf of the appellant.
j. in all the circumstances of the case, the learned magistrate failed to do justice.
12. The appellant therefore prays for orders that the appeal be allowed and the judgment (should be ruling) be set aside and the court re-opens the appellant’s case, costs of this appeal and all proceedings in court be borne by the respondent or any other relief the court may deem fit to grant.
13. The appeal was disposed of by way of written submissions filed by learned counsels for both parties. The submissions are considered in the evaluation that follows.
14. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
15. I have considered the grounds of appeal herein, the record of appeal, the submissions by learned counsel for the appellant and the ruling of the learned trial magistrate. The issue for determination in this appeal is whether the application by the appellant met the threshold for an order for review to reopen the case for the appellant and admit more evidence before the trial court and whether the learned trial magistrate was right or wrong in the exercise of her discretion in declining to grant the order of review.
16. Section 80 Civil Procedure Act (Cap. 21) Laws of Kenya provides with respect to review that:
S. 80. Any person who considers himself aggrieved—
a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit .
17. Order 45 of the Civil Procedure Rules then provides further that:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
18. From these provisions, in order for a person to succeed on an application for review, he has to show that:
a. there was discovery of new and important matter or evidence which after due diligence, was not within the applicant's knowledge or could not be produced at that time;
b. there was some mistake or error apparent on the face of the record; or
c. that there was any other sufficient reason; and
d. that the application had been brought without unreasonable delay.
17. The application for review before the trial court could not have been based on the point of discovery of new and important matter or evidence because the evidence sought to be tendered in the case was available to the appellant all through. It was therefore based on the assertion that there was a mistake or error apparent on the face of the record and that there was sufficient reason to review the judgment it being alleged by learned counsel for the applicant/appellant herein that there was a mistake by counsel in failing to make available the appellant’s next friend as a witness in the matter.
18. Starting with the issue of error apparent on the face of the record, I will refer to the definition of error or mistake apparent on the face of the record in the case of Nyamogo & Nyamogo Advocates vs. Kago (2001) 1 EA 173 , where the Court of Appeal said:
“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long-drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..."
19. Further, in the case of National Bank of Kenya Limited vs. Ndungu Njau [1997] eKLR, the Court of Appeal considering the same issue held that:
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of the law cannot be a ground for review..."
20. In the present case, the appellant states that by mistake of counsel, he was not called to offer his evidence in the matter before the plaintiff’s case before the trial court was closed. Under normal practice, it is not usual that the plaintiff (herein the next friend) in a case is not called upon to testify. I have therefore looked at the trial court record to determine whether what learned counsel for the appellant offers as a reason that caused him not to call the appellant as witness was excusable as alleged.
21. As deposed by the appellant in his supporting affidavit before the trial court, the record shows that on 31 st October 2022 there were two witnesses for the plaintiff present in court ready to testify. The defendant was not ready to proceed and his advocate sought for an adjournment. At the same time, learned counsel for the plaintiff (appellant herein) applied that for purposes of liability the case under consideration be consolidated with another case CMCC No. E075 of 2022. The defence counsel agreed to the application and the trial court made an order that for purposes of liability the hearing of the two cases was consolidated with the other case being the lead file, meaning that proceedings on the issue of liability would be had in that file. That meant that proceedings in the case under consideration were held in abeyance.
22. Further, counsel for the defendant applied for time to file the defendant’s documents in the matter and that too was granted by the court.
23. Indeed, there were no further proceedings in the case under consideration at all apart from entry of judgment in default of appearance against the 1 st defendant on 22 nd December 2022. The next proceedings in that case were on 31 st July 2023 when the judgment was delivered.
24. It would appear that the court failed to keep mentioning the matter under consideration as it proceeded to hear the other case on the issue of liability. Even then, copies of proceedings in the other file should have been placed in the file under consideration in order to keep a tab on it because there were further proceedings for assessment of damages that were to be taken therein after the determination of the issue of liability in the other matter whatever the outcome there. There are no such proceedings in the file under consideration and that means that none were had. That was a mistake made by the court and both the learned counsels involved in the case.
25. The copies of proceedings in the other file were not made part of the record of appeal herein. A glimpse of what proceeded there is provided through the supporting affidavit of learned counsel for the appellant when she deposes that the minor herein was the eye witness in the other case, meaning that the minor herein testified in that case but not the next friend herein. That must have been on the issue of liability. According to learned counsel, that was where the mistake arose because he then thought that the minor was the next friend of the other plaintiff in the lead case and marked his file as though the next friend herein had testified. That cannot qualify to be an error apparent on the court record. It was an inadvertent mistake though on the part of learned counsel for the appellant.
26. However, as pointed out above the error apparent on the court’s record was that the court did not conduct proceedings for assessment of damages in the case under consideration. That is self-evident from the court record. Even then the court went ahead to write and deliver a full judgment on both liability and assessment of damages in the case under consideration. The learned trial magistrate stated that:
“The main issue for determination is on quantum. The court’s finding on liability in the lead file Civil Suit No. E075 of 2022 is that the Defendants are 100% liable for the accident.
The Plaintiff avers that she sustained bruises on the left arm. However, she did not testify. In the lead file the police officer produced the abstract in this suit and the doctor produced the Plaintiff’s medical report ( (emphasis by underlining by this court).
The Plaintiff did not tender any evidence to prove that she sustained injuries. It was not exhaustive for the Dr. Adede to produce the medical report in order to ascertain the injuries (sic). This is for the reason that Dr. Adede did not initially attend to the Plaintiff after the accident happened on 25 th November 2021. Instead he examined her two months after the accident had occurred on 25 th January 2022.
It was crucial for the Plaintiff to testify and produce the treatment notes in order to prove the particulars of the injuries as pleaded under paragraph 6 of the plaint.”
27. The words underlined above where the learned trial magistrate made reference to the evidence adduced in the lead file which evidence was in relation to assessment of damages and no reference to the file in the present case shows that no proceedings for assessment of damages were had in the file under consideration herein.
28. The learned trial magistrate then cited two cases upon which she relied for her finding that the plaintiff (appellant herein) had not adequately proved that she had sustained the injuries as a result of the accident. The cases are TIMSALES LTD v WILSON LIBUYWA [2008] KEHC 460 (KLR) and Peter Migiro v Valley Bakery Limited [2015] KEHC 883 (KLR) . Both cases arise from industrial accidents where the issue of the plaintiff being injured was hotly contested. In the first case, the treatment card produced by the plaintiff was found to be a forgery and the High Court held that in the absence of treatment notes, the plaintiff had failed to prove that indeed he was injured at work on the material day as alleged. In the second case, the plaintiff failed to produce any treatment notes from the employer’s clinic and it was the employer’s case that in fact the plaintiff was not on duty that day.
29. The cases relied upon by the trial court are therefore distinguishable from the case at hand which was a road traffic accident case. In such a case there is usually the police abstract to confirm that the plaintiff was indeed involved in the accident as well as a P3 form completed in a public hospital to confirm that the plaintiff sought for treatment and was indeed attended to there for injuries sustained.
30. The learned trial magistrate in this case acknowledged these documents in her judgment when she stated that:
“Dr. Adede testified that the Plaintiff sustained soft tissue injuries and was to recover with no permanent disability. The treatment notes dated 25 th November 2021 and the P3 form dated 29 th November 2021 indicate the Plaintiff sustained bruises on shoulder and elbow. As per P3 Form the degree of injury was assessed as harm.” (emphasis by underlining by this court).
31. What I find interesting though is that in spite of the learned trial magistrate finding that the next friend herein as plaintiff had not testified and produced treatment notes, she all the same indicated that in fact the treatment notes had been produced and she relied on the same to assess the quantum of damages. It has to be noted that the defendant had not called any evidence at the hearing to counter what had been tendered by the plaintiff’s witnesses both on the issue of liability and as found by the learned trial magistrate on the assessment of damages. It is apparent that the treatment notes had been produced together with the P3 form and so the learned trial magistrate relied upon them to determine the injuries sustained and the degree of harm. Otherwise, how else would she have proceeded to assess damages without proof of injury(ies)? I suppose that Dr. Adede must have produced the treatment notes and the P3 form alongside his medical report as the doctor’s usually do in these types of cases to support their findings on the injuries sustained by a party. The documents having been accepted in evidence, the minor having testified in that case as a witness that she was involved in the accident, the trial magistrate erred in finding that her failure to refer to and produce the treatment notes or that of her next friend’s failure) to testify was fatal to her case. After all her next friend would have produced the same treatment notes and P3 form that Dr. Adede produced and were relied upon by the trial court. That again was an error apparent on the court’s record brought about by the fact that the trial court did not revive the proceedings in the file under consideration in order to take the evidence on assessment of damages after the issue of liability had been determined.
32. In view of the errors apparent on the face of the record committed by the trial court, I find that the trial court made an error to dismiss the application for review as the errors required correction without any prejudice to the respondent herein.
33. There is no doubt that the application was brought without unreasonable delay, the judgment having been delivered on 31 st July 2023 and the application having been filed on 23 rd August 2023.
34. Consequently, the appeal herein has merit and succeeds. The ruling of the learned trial magistrate dated 13 th May 2024 is hereby set aside and substituted with an order allowing the application dated 23 rd August 2023.
35. I note that the trial court properly assessed the damages awardable to the plaintiff/appellant herein. Although an order for reopening the plaintiff’s case is granted, it will serve no useful purpose other than to take up much time and incur further expenses on an issue which was already determined by the trial court and which evidence will not add value to the case. The treatment notes sought to be produced by the next friend were already produced by the doctor and relied upon by the trial court in assessment of damages. Further, the minor had already testified in the lead case and so it cannot be alleged that there was no evidence from the plaintiff to establish that the minor was indeed involved in the accident. For that reason and in order not to repeat the proceedings, it is ordered that the trial court delivered a complete judgment and there will be no need to retake the proceedings.
36. It is therefore ordered that for purposes of expedition, to save time and expenses, the judgment of the trial court delivered on 31 st July 2023 shall remain as the judgment in the case under consideration as if it was delivered today.
37. The assessment of damages remains as made by the lower court. The order dismissing the suit in the lower court is hereby set aside and substituted with an order that the plaintiff/appellant herein proved her case on a balance of probabilities and the same is allowed.
38. There shall be no orders for costs in this appeal and on the application dated 23 rd August 2023 before the lower court. However, the costs of the suit leading to the judgment delivered on 31 st July 2023 shall be borne by the 2 nd defendant/respondent herein.
39. Orders accordingly.
40. Delivered, dated and signed on the Virtual Platform, Teams this 17 th day of September 2026.
ANDAYI W. F.
JUDGE
In the presence of:
Kisotu (Ms) for appellant
Itegi (Ms) for the 2 nd respondent.
Ummu: Court Assistant.
ANDAYI W. F.
JUDGE
KWALE HC comm. case. No. 1/202412/Review