Kavithe Musyoka & 6 others v Bernard Mwendwa Munyasha T/A Safari Njema Safaris & 2 others

JUDGMENT 1. This is an appeal against the judgment and decree in Mombasa Chief Magistrate’s Court Civil Case No. 4045 of 2004 ( Honourable Evans Makori, Chief Magistrate) delivered on 2 May 2018. According to the judgment in the lower court, the appellant sued Benard Mwendwa Munyasha t/a Safari Njema Safaris; Halimu Nuru; and, Buscar Bus Company Limited for both general and special damages following a road traffic accident that is said to have occurred on 27 August 2003. The appellant was said to have been travelling as a lawful passenger in motor vehicle registration no. KAP 597 C when the said vehicle collided with another vehicle registration no. KAQ 954 Q 2. From what I gather in the lower court judgment, the rest of the appellants in that matter were the 1st appellant’s relatives who were travelling with the 1st appellant in the same vehicle. It was their case in the lower court that they all sustained various degrees of personal injuries and thereby suffered loss and damage. They filed sperate suits seeking compensation for loss and damage. 3. The lower court dismissed the appellant’s claim, the learned magistrate holding that liability was not proved. Being dissatisfied with the lower court’s decision, the appellants filed this appeal. In the memorandum of appeal dated 11 June 2018 they have appealed against the learned magistrate’s finding on liability only. 4. Before considering whether there is any merit in questioning the learned magistrate’s decision on liability, it appears that the appeal was filed outside the limitation period without leave of the court. The lower court judgment was rendered on 2 May 2018 but it was not until 11 June 2018 that the appellant filed the memorandum of appeal. The appeal was filed a little over a week after the thirty day limitation period stipulated in section 75G of the Civil Procedure Act, cap. 21. 5. This section reads as follows: 79G. Time for filing appeals from subordinate courts Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery to the appellant of a copy of the decree or order: Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time. 6. In the absence of any order for leave to file the appeal out of time, the appeal is misconceived and incompetent; it would be struck out for having been filed outside the mandatory period of thirty days from the date of the decree. 7. But even if the appeal was properly before court, it would still stand no chance of succeeding for reasons that will become apparent in due course. In dismissing the appellants claim, the learned magistrate held, inter alia, as follows: “ 10. Parties are bound by what they plead. It is difficult from the record I have to know who owned Motor vehicle KAQ 954 (Q)(P). The pleadings to me are poorly done and leaves it to the court to fill the gap which is an uphill task and impossible task to do. What was so difficult in this matter to get certified proceedings from the Makindu Law Courts to show exactly who was the driver https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3329/eng@2026-03-13 2

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of the offending motor vehicle was charged with and the appropriate sentence meted out instead of relying on the police file which in itself is full of errors? What was so difficult to know in whose names the motor vehicle registration number KAQ 954 (Q)(P) would registrar of motor vehicles so as to establish whether it was in the names of the 2nd or 3rd defendants in this matter? Was this vehicle KAQ 954 (Q) or (P). For those reasons I find it difficult to apportion liability on either the 2nd and 3rd defendants too. At the end the plaintiff suit is dismissed for failure to establish liability against the 1st, 2nd and 3rd defendants herein.” 8. In a rather ambitious and audacious attempt to correct, albeit post-judgment, the loopholes identified in the appellants’ case, the appellants filed, in this appeal, an application to amend the plaint and, for an order for this Honourable Court to admit fresh evidence based on the amended plaint (assuming their application for amendment was allowed). T.A. Odera, J. rejected the application. In her ruling of 24 April 2024, the learned judge held as follows: “ The issues of concern in this application are (a) whether after a judgment has been entered, a party can be allowed to amend his or her pleadings and (b) whether an appellate court has power to allow a party to amend pleadings filed in the trial court. Regarding the first issue it is important to first and foremost state that a judgment is the final decision of a court in a claim unless the same is varied by way of a review or an Appeal. Rule 3 herein above gives parties an opportunity to seek leave of the court to amend pleadings at any stage prior the court delivering its judgment so long as the same meets the requirement set out under Rule 5. However, after a court has rendered its Judgement it becomes fanctus official (sic) in so far as the cause(s) action in the suit are concerned unless a party moves it through an application for review under order 45 of the civil procedure rules. The Appellants herein filed their claims against the Respondent back in the year, 2003. 15 years later in 2018 the trial court rendered its final Judgment dismissing the Appellants claim. Gacheru J in the case Francis Wakahiu Theuri v Monicah Njeri & 33 others [2017] eKLR had this to say regarding amendments after a judgment has been delivered to change the character of the subject matter: “...the applicant is asking the court to amend the Plaint after the Judgment. That would be tantamount to changing the agenda in the claim without giving the defendants an opportunity to ventilate on it. The plaintiff is the one who came to court and gave the Land Reference. He referred to it all through. The court did not make any mistake when it referred to the suit property and the Judgment as Ruiru/Ruiru/Block1 witeithie/125 as that was from the plaintiff’s pleadings and evidence in court. It is trite that amendments to pleadings can be done at any stage of proceedings even after the close of the case but before Judgment. The plaintiff did not take advantage of that position. Regarding the Second issue, it is clear in this Application the Appellants have preferred an appeal against the final Judgment of the lower court. This a first Appellate court is restricted to reevaluating and re-viewing pleadings and evidence presented by parties in the lower court with a sole of either affirm, quash, vary or set aside a judgement or even order for a retrial. In so far as a first appellate court has power to allow for introduction of additional evidence under section 78 of the Civil Procedure Act as read together with order 42 rule 27 of the civil procedure rules, it can only do so under exceptional circumstances. I am equally of the view that such exceptional https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3329/eng@2026-03-13 3

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circumstances do not extend to amendment of pleadings filed by parties before trial court with intentions filling up omissions that led to the collapse of their cases at the trial court. I believe additional evidence must be ones that do not diverse the character of the subject matter through amendment of pleadings. In Wanjie & others v Sakwa & others (1984) KLR 275 Chesoni JA observed at page 280 as follows: “This rule is not intended to enable a party who has discovered fresh evidence to import it nor is it intended for a litigant who has been unsuccessful at the trial to patch up the weak points in his case and fill up omissions in the Court of Appeal. The Rule does not authorize the admission of additional evidence for the purpose of removing lacunae and filling in gaps in evidence. The appellate court must find the evidence needful. Additional evidence should not be admitted to enable a plaintiff to make out a fresh case in appeal. There would be no end to litigation if the rule were used for the purpose of allowing the parties to make out a fresh case or to improve their case by calling further evidence. It follows that the power given by the rule should be exercised very sparingly and great caution should be exercised in admitting fresh evidence.” It is quite disturbing that the learned counsel under paragraph 9 of his Affidavit beseeched this Court to re-open the case and hear it de-novo by allowing the Appellants to present further evidence in support of their case upon allowing the amendment in their plaints. This court at the appellate stage might end up assuming the jurisdiction original jurisdiction of the trial court that it does not have. This is a move Justice Chesoni JA as he then was warned this court against in the above case. As correctly submitted by the learned counsel for the Respondents, the Appellants intend to change the motor vehicle from KAQ 954Q to 954P which is an outright departure from the original claim of the suits filed at the trial court entertained and against which the appeal filed in this court was based. Such drastic change as correctly observed by the learned counsel for the Respondent has the possibility of introducing new owners of the motor vehicle as parties other than the respondents. This (sic) wishes to also court expresses concern that the Appellants filed their suits in 2003, got an adverse Judgement in 2018, preferred an Appeal immediately only to show up in May 2023 exactly five years later seeking to change the character of the subject matter of the suit. This is out rightly an unreasonable delay that is court cannot entertain. What disturbs me most and casts doubts in mind whether in deed the Appellants are interested in pursuing this Application and by extension their Appeal, is the averment by the learned counsel under paragraph 11 that he has been unable to trace the Appellants and that’s why he assumed the role of swearing these Affidavit. This Application is an afterthought and the same has been filed after an inordinate delay.” 9. Following the dismissal of the appellants’ application, there is nothing left of their appeal. I would only add that the ill-fated attempt by the appellants to correct the errors identified in their case by the learned magistrate only goes to demonstrate that the learned magistrate was right in his findings. It is illogical, and it does not stand to reason that, on the one hand, the appellants would be seeking to correct errors identified in their case and, on the hand, fault the learned magistrate’s decision for pointing out those errors and, in particular, in concluding that, as result of the errors, the appellants had not proved, on a balance of probabilities, that the respondents or any of them was liable for the accident. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3329/eng@2026-03-13 4

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10. For the reasons I have given, I hold that the appellants’ appeal is devoid of merit; in any event, the appeal is incompetent and fatally defective; it is hereby struck out. 11. It has emerged from the ruling of Teresa, J. that the appellant’s counsel may have been pursuing this appeal on his own to the extent of swearing an affidavit on issues of fact, without the involvement of the appellants. I will not, therefore, condemn the appellants to pay costs. In the circumstances of this case, this burden could very well be borne by their counsel; however, I will spare him that order and instead order parties to bear their respective costs. Orders accordingly. DATED, SIGNED AND DELIVERED ON 13 MARCH 2026 NGAAH JAIRUS JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3329/eng@2026-03-13 5

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