1. The application before me is the notice of motion dated 7/5/2024.
2. It is brought vide order 42 rule 27 of the Civil Procedure Code which states ;
27. Production of additional evidence in appellate court
(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 if—
a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or
b) 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.
3. It seeks an order that the applicant be allowed to produce the judgment in Kilungu PM Traffic Case No. E394/2021 as additional evidence in this appeal.
4. The applicant’s position is that when the trial court heard and determined the matter in PMCC 235/2021 it did not have the benefit of the proceedings, in the traffic case where the respondent was tried and convicted on 17/10/2022 for causing death by dangerous driving contrary to section 46 of the traffic Act Cap 403 of Laws of Kenya.
5. The judgment in the civil suit arising out of the same road traffic accident was delivered on 10/11/2022.
6. That had the lower court been aware of the outcome of the judgment in the traffic case - the apportionment of liability would have been other than the 30:70 the court made in the civil suit in view of section 47A of the Evidence Act.
“ A final judgment of a competent court in any criminal proceedings which declares a person to be guilty of a criminal offence shall after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusion evidence that the person so convicted was guilty of the offence as charged.
7. The applicant further contends that the production of that judgment will enable his court to make a proper determination of the contested issue of liability. In view of the fact that the respondent has not appealed against it.
8. The application is supported by the affidavit of J.N Kirubi sworn on 7/5/2024- annexed plaint and judgment of lower court in the traffic case.
9. The application is opposed vide the replying affidavit sworn by Wilson Muthiani Wambua to the effect that the application of allowed would amount to me violation of his right to fair trial as he never had the chance to address the issue of that judgment in the civil matter in the lower court.
10. That in any event that judgment relates to a different case that was determined on its own merits by a different trial court - and that his appellate court is required to evaluate the facts and evidence before the trial court, and that conviction in a criminal trial does not ipso facts means liability in a civil case.
11. Parties relied on their affidavits.
12. Order 42 Rule 27 provides scenario in which the appellate court will exercise its discretion to allow additional evidence on appeal.
13. It is not submitted that the lower court refused to admit this judgment - it was delivered on 17/10/2022 , the one being appealed from was delivered on 10/11/2022 . The judgment the applicant is seeking to be allowed in this appeal as additional evidence was delivered before judgment being appealed from was delivered in the civil case . It was upon the appellant/applicant to demonstrate any effort made to get the subordinate court to, for example stay its proceedings , pending the outcome of the traffic matter, or any attempt to get the subordinate court to look at that evidence before making this application. So the scenario that the lower court refused to allow the evidence or that there is any other substantive reason has not been demonstrated.
14. Does this court require, REQUIRE the said judgment in order to pronounce its judgment?
15. The issue on liability in the lower court was determined on the evidence that was before court. Does the conviction of the respondent change that? Section 47A of the Evidence Act is clear - it speaks to proof “conclusive evidence that the person so convicted was guilty of the offence as charged.” It does not say that it is conclusive evidence of civil liability.
16. It trite that even where there is a criminal conviction, civil liability where it is alleged must still be proved to the required standard. A conviction perse is not necessarily proof of negligence – that provision of the Evidence would come to play of respondent was denying the conviction/guilt of the offence.
17. Hence on this scenario – I am of the view that I do not require the judgment of the traffic court to determine liability where the evidence was not adduced in the subordinate court.
18. I have pointed out that nothing has been placed before me to show that effort was made to adduce this evidence where the respondent would have had the opportunity to challenge its import on his liability.
19. The nature of an appeal is to review the evidence of the subordinate court and draw my own conclusions alive to the fact that I never heard/ saw witnesses testify.
20. Allowing this application and this evidence at this stage in the manner requested, and for the reason set out would divert this court from that course -
21. The applicant had the opportunity to pursue this in the subordinate court- that opportunity is not available here.
22. The application is declined with costs.
Dated , signed and delivered this 4th April 2025
Mumbua T. Matheka
Judge
Keiro for Appellant
Mwangi hb for Kirubi for respondent
Chrispol Court Assistant