Jubilee Insurance Company v Kiguoya (Civil Appeal 474 of 2019) [2024] KECA 1630 (KLR)
The bottom line
#The Court of Appeal upheld a Kshs.4.8 million commission award to an insurance agent, confirming that conduct and correspondence can prove an agency relationship.
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 learned Judge of the High Court erred in law in finding that the respondent had proved his claim of Kshs.4,829,780/= on a balance of probabilities and thus overturned the findings of the trial Magistrate
- 2.Whether the High Court erred in considering a fresh objection to the production of the email dated 7th January 2013 under section 35 of the Evidence Act
- 3.Whether the learned judge overlooked the law of agency and disregarded the respondent's obligation to prove agency
- 4.Whether the learned judge failed to re-evaluate and re-consider the appellant's evidence as the first appellate court
Key legal issues
#Admissibility of the email dated 7th January 2013 under sections 33(b) and 35 of the Evidence Act notwithstanding the absence of its maker, Mr. Steven Mutuma
The email was properly admitted; the maker could not be procured despite witness summons and a warrant of arrest, and the email was authored in the ordinary course of business. However, admissibility did not preclude assessment of the veracity of its contents.
The court construed sections 33(b) and 35 of the Evidence Act. Mr. Mutuma repeatedly ignored witness summons, culminating in a warrant of arrest; compelling his attendance would occasion further expense and delay. The email was written in the ordinary course of business and in discharge of professional duty, and the application to have Mr. Tumbo produce it was unopposed. Yet the trial court and the first appellate court remained entitled to weigh the contents against the totality of the evidence.
Whether the respondent proved that he was the agent responsible for the renewal business from the hotel, entitling him to 11% commission
Yes. The totality of correspondence from the hotel identifying the respondent as contact person, together with his servicing of the account and the appellant's failure to stop his communications, established his agency and entitlement to the commission.
The court weighed the hotel's letters of 27th October 2011, 11th January 2012 and 7th January 2013 identifying the respondent as its liaison, his emails servicing the account, and the fact that the appellant's witnesses could not explain how the earlier commission payment of Kshs.5,934,969/= was made in error. Had the respondent not been the agent, the appellant would have stopped his exchange of communications with the hotel at an early stage.
Whether the learned judge of the High Court properly re-evaluated the evidence as the first appellate court
Yes; the judge properly re-evaluated and re-assessed the evidence and arrived at a correct finding, assigning appropriate weight to the Mutuma email rather than undue probative value.
The Court of Appeal found that the trial magistrate had unnecessarily assigned too much probative value to the Mutuma email and disregarded the totality of the respondent's evidence. The High Court judge corrected that error in the exercise of the first appellate court's duty to re-evaluate evidence, and the Court of Appeal, on second appeal confined to matters of law, found no basis for interference.
Legal principles established
#- In a second appeal, the Court of Appeal confines itself to matters of law only, unless the courts below considered matters they should not have, failed to consider matters they should have, or the decision is perverse.
- A document is admissible under section 35 of the Evidence Act where the maker is dead, cannot be found, is incapable of giving evidence, or whose attendance cannot be procured without unreasonable delay or expense.
- Admissibility of a document does not end the enquiry; the court may still assess the veracity and probative value of its contents.
- The first appellate court has a duty to re-evaluate the evidence tendered before the trial court and make its own conclusions.
Court orders
#- 1.The appeal is dismissed with costs to the respondent
- 2.Orders accordingly
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- Civil Appeal No. 182 of 2015
- Jurisdiction invoked
- Second appeal to the Court of Appeal confined to matters of law (as framed by the court: 'In a second appeal, the Court confines itself to matters of law only')
Relief refused
#The appellant's appeal against the High Court judgment awarding the respondent Kshs.4,829,780/= as renewal commission
The learned judge properly re-evaluated and re-assessed the evidence and arrived at a correct finding; the totality of evidence showed the respondent was the appellant's agent for the renewal business
Costs
The appeal was dismissed with costs to the respondent.
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 a second appeal, the Court confines itself to matters of law only, unless it is shown that the courts below considered matters that they should not have considered, or failed to consider matters they should have considered, or looking at the entire decision, it is perverse.
Our reading and interpretation of the above provision of the Evidence Act is that a document will be admissible if the person making it is dead, cannot be found, has become incapable of giving evidence, their attendance cannot be procured, or even if it can be procured but that would actually occasion expense and delay which, in view of the court, is unreasonable.
However, that did not imply that the contents of the email and the veracity thereof could not be considered by the trial court and reevaluated by the first appellate court.
the inescapable conclusion which we make is that the respondent was instrumental in the acquisition of business from the hotel, the negotiations, discussions, and presentations that took place and the eventual awarding of business to the appellant and the subsequent renewal thereof.
Consequently, this appeal has no merit and we hereby dismiss it with costs to the respondent. Orders accordingly.
Issues in the judgment
#The judgment contains an internal date inconsistency regarding the respondent's letter of appointment: it states the appointment was 'for a period of 12 months with effect from 20th December 2012' although the appointment letter is dated 10th February 2011 and the appointment was said elsewhere to have commenced on 10th February 2011.
The judgment inconsistently refers to the respondent variously as agent, broker and in one passage appears to misname the parties, e.g. describing the respondent as 'a sales executive with the respondent'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jubilee Insurance Company v Kiguoya (Civil Appeal 474 of 2019) [2024] KECA 1630 (KLR)", Case Analysis (2024). Civil Appeal (second appeal from Nairobi Civil Appeal No. 182 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1630/eng@2024-11-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.