J P S v Aga Khan Health Service Kenya t/a the Aga Khan Hospital & 2 others [2013] KECA 16 (KLR)
The bottom line
#Kenya's Court of Appeal allowed a medical negligence victim to present new evidence of surgery costs, so appeals can include newly discovered expenses.
What this practically means
#Executive summary
#Key legal issues
#Test for admission of additional evidence on appeal under Rule 29(1)(b).
The applicant must at least show that the evidence could not have been obtained by reasonable diligence, that it is weighty enough to have affected the result, and that it is ex facie credible.
The court restated the settled principles, citing Mzee Wanjie v A. K. Saikwa. Rule 29(1)(b) confers a discretion to take additional evidence itself or direct the trial court or a commissioner to take it. The discretion is exercised for sufficient reason upon those three cumulative conditions.
Whether post-judgment medical expenses incurred abroad could be admitted as additional evidence.
Yes. The applicant pleaded future medical costs but could not tender evidence because he and local doctors did not know the condition was reversible through surgery; the subsequent expenses were relevant, credible and unchallenged.
The applicant pleaded a claim and particulars of future medical costs in the plaint but gave no evidence at trial. His explanation for the omission was reasonable and credible and the respondents did not displace it. The evidence was directly relevant and a substantial award could likely have been made had it been available. The one-cause-of-action principle was weighed but did not defeat admission.
Legal principles established
#- A party seeking to adduce additional evidence on appeal under Rule 29(1)(b) must show that the evidence could not have been obtained by reasonable diligence before and during the trial; that it is of such weight that it would likely have affected the result; and that it is ex facie credible.
- Future medical expenses are a form of general damages because they are not capable of precise quantification.
Court orders
#- 1.The application is allowed.
- 2.Additional oral and documentary evidence relating to future medical expenses be taken by the High Court on priority basis.
- 3.The High Court to certify such evidence to the Court of Appeal.
- 4.The respondents are entitled to cross-examine the witnesses and to be heard.
- 5.Costs of the application to be costs in the appeal.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 807 of 2003
- Jurisdiction invoked
- Rule 29(1)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "J P S v Aga Khan Health Service Kenya t/a the Aga Khan Hospital & 2 others [2013] KECA 16 (KLR)", Case Analysis (2013). Civil Appeal (Application) No. 28 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/16/eng@2013-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.