THE REPUBLIC OF UGANDA
AT THE HIGH COURT OF UGANDA KAMPALA
Miscellaneous Application No 47 OF 2013
AIG (U) Ltd…………………………… APPLICANT
Robert Mugisha……………………. RESPONDENT
BEFORE HON JUSTICE GEOFFREY KIRYABWIRE
This is an application under Order 46 rules 1, 2 and 8 of the Civil Procedure Rules (CPR); Sections 96, 98, 99 and 100 of the Civil Procedure Act (CPA); Sections 33 of the Judicature Act (Cap 13) and Article 126 (e) of the Constitution of the Republic of Uganda (1995) for Orders that Court
- Reviews its Judgment dated 22nd January 2013 in HCCS No 190 of 2009 and
- Costs of this application are provided for.
The parties were expected to file written submissions at the close of the hearing of the head suit but did not do so within the time agreed to with Court. The applicant/defendant consented to the late filing of the respondent’s/plaintiff’s submissions on the 25th July 2012. The applicant/defendant however filed their submissions on the 2nd January 2013. The Court however gave judgment on the case on the 22nd January 2013 without taking into account the submissions of the applicant.
The applicant prayed that the judgement be reviewed in light of the submissions of the applicant. It is the case for the applicants they have a good chance of success and a review of the judgment will not prejudice the respondent/plaintiff.
The respondent did not object to the application and the parties filed a consent dated 5th February 2013 to that effect.
Issue No 1. Whether the plaintiff inflicted fire on his vehicle deliberately?
It is the case for the applicant that the respondent/plaintiff deliberately and maliciously set fire to his motor vehicle and so his claim was rejected by the applicant insurance company.
The applicant relies on the expert report of Mr Kigo Kariuki dated 29th April 2009. It was the finding of Mr. Kariuki that after subjecting some of the remains to forensic analysis, he formed an opinion that the fire out break was not an accidental occurrence.
It is the case of the applicants that among other things the steering wheel, seat cushions, three tyres and spare tyre were retrieved from the motor vehicle leaving bear rims. It is also the case for the applicants that the hand break was jammed in a free position while the gear lever was in a fresh position indicating that the vehicle had been parked in area with a gradient.
Mr Kariuki also stated in his report that the vehicle had been subjected to fire before the accident and not vice versa.
Counsel for the applicant submitted that under Section 43 of the Evidence Act the opinion of an expert of science are relevant facts. He further referred Court to the case of Gatheru s/o Njagwara V R (1) (1954) 21 EACA 384. He therefore submitted that Court had to take into account the said report.
Counsel for the applicant further submitted that the evidence that the respondent had managed to jump of the car was not believable and the medical reports did not support the allegations of injuries sustained by the respondent. He submitted that the respondent’s testimony had material falsehoods and was therefore unreliable.
Counsel for the applicant submitted that on the balance of probabilities judgment should be entered on behalf of the applicant/defendant insurance company.
The respondent did not file an affidavit in reply as he did not object to the review.
I have considered the submissions of counsel for the applicant/defendant which I am grateful.
The judgment of the 22nd January 2013 extensively refers to the Kariuki Reports and takes them into account. It also notes that the story of the respondent was nothing short of dramatic and therefore Court weighed that evidence too.
It was however the finding of Court that the burden of proof to prove fraud lies with the applicant insurance company (as it is them who allege it) and that burden is not a simple balance of probabilities as has been submitted here; it is higher even though not as high as in criminal cases. It is for the insurance company to show that the respondent committed the fraud and therefore falls within the exceptions and exclusions of the policy but in this case there was no evidence directly linking the respondent to the fraud. Indeed no one testified besides the respondent as to what actually happened that night to pin the respondent directly to burning his car.
Those being my findings the burden of proof still has not been discharged and I therefore find no basis to review the judgment as prayed on this issue.
Issue No 2. whether the plaintiff and is in breach of any policy conditions governing the insurance contract between the parties
Given my findings above I equally find no basis to make a review of the Judgment on the above issue as well.
All in all I find that there is no new and important evidence that has been brought to the attention of the Court. Furthermore I find that there is no mistake or error apparent on the face of the record or any other sufficient reason to review the Judgment of the 22nd January 2013.
I accordingly dismiss this application.
Since the application was made by consent of parties I make no further order to costs in this case.
Justice Geoffrey Kiryabwire
Ruling read and signed in open court in the presence of;
- J. Magezi for Applicant
- Rose Emeru – Court Clerk