Pitty Gathigia Baaru & another v Kenya Bus Services Limited also known as Stage Coach Bus International & another [2019] KECA 464 (KLR)
The bottom line
#Kenya's Court of Appeal allowed accident victims to present new medical evidence on appeal because their original claim already covered future medical care.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants should be granted leave to adduce additional evidence on appeal under Rule 29(1) of the Court of Appeal Rules
- 2.Whether the proposed additional evidence is directly relevant and would influence the result of the appeal
- 3.Whether the additional evidence could not have been obtained with reasonable diligence for use at the trial
- 4.Whether the delay in filing the application should defeat it
- 5.Whether the additional evidence introduces a new cause of action never pleaded before the trial court
Key legal issues
#Whether the additional evidence sought was relevant and would influence the appeal
The Court found the additional evidence relevant because the amended plaint contained a plea for future medical care, which encompasses costs associated with medical treatment, and the evidential value of the additional evidence would be assessed at the hearing of the main appeal.
The Court examined the amended plaint under the heading 'Future Prognosis' and found a pleaded claim for future medical treatment by way of prosthesis. It held that future medical care includes not only medical treatment but also the costs associated with that treatment. Since leave was the only issue before it, and the evidential value of the proposed evidence would be determined during the hearing of the main appeal, the respondent would suffer no prejudice.
Whether the delay in bringing the application, the documents dating from 2014, should defeat it
The Court acknowledged the documents were available since 2014 but balanced this against the absence of demonstrated prejudice to the respondent and allowed the application.
The Court accepted the respondents' point that the air tickets and medical bills were incurred in 2014, yet weighed this against the prejudice likely to be suffered if leave were granted. Since the only question at that stage was whether leave should issue, and the respondent could cross-examine on the additional evidence before the High Court, no prejudice was demonstrated.
Whether the additional evidence introduced a new cause of action
The Court held that adducing the additional evidence did not create or introduce a new cause of action because the amended plaint already contained a claim for future medical treatment.
The respondents argued the evidence sought to plead a new cause of action in 'escalating medical bills' never before the trial court. The Court rejected this, noting future medical expenses are anticipatory and their exact figures cannot be known at pleading stage, making it impractical to plead specific sums. The evidence therefore supported an existing pleaded claim rather than a fresh cause of action.
Legal principles established
#- On an appeal from a superior court acting in original jurisdiction, the Court of Appeal may, in its discretion and for sufficient reason, take additional evidence or direct that it be taken by the trial court or a commissioner.
- The power to receive additional evidence must be exercised sparingly and only where the evidence is fresh and would significantly impact the appeal.
- A claim for future medical treatment or expenses is anticipatory and it is impractical to plead a specific sum for such future expenses at the time of pleading.
Court orders
#- 1.Leave granted to the applicants to adduce additional evidence in the appeal
- 2.The matter to be listed before the High Court for purposes of taking the additional evidence
- 3.The applicant to adduce the additional evidence before the High Court and the respondent be at liberty to cross-examine and test the veracity of the additional evidence
- 4.Costs of the application to be costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No. 411 of 2003
- Jurisdiction invoked
- Rule 29(1) of the Court of Appeal Rules - power on appeal from a superior court exercising original jurisdiction to take additional evidence for sufficient reason
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
in its discretion, for sufficient reason, to take additional evidence or to direct that additional evidence be taken by the trial court or by a commissioner.
the unfettered power of the Court to receive additional evidence should be used sparingly and only where it is shown that the evidence is fresh and would make a significant impact in the determination of the appeal.
A claim for future medical treatment or expenses is anticipatory expenses whose exact figures remain unknown at the time of pleading. It is impractical to plead and claim specific sum as future medical expenses.
We grant leave to the applicants to adduce additional evidence in this appeal.
The applicant to adduce the additional evidence before the High Court and the respondent be at liberty to cross-examine and test the veracity of the additional evidence.
Cost of this application be costs in the appeal.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Pitty Gathigia Baaru & another v Kenya Bus Services Limited also known as Stage Coach Bus International & another [2019] KECA 464 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 244 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/464/eng@2019-07-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.