Anaclet Kalia Musau (suing on behalf of the estate of Vincent Mangalo Kalia (Deceased) v Attorney General, Inspector General of Police & John Kiptarus Kipkeryo [2015] KEHC 532 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  30 OF 2013

ANACLET KALIA MUSAU (suing  on behalf of the estate of

VINCENT  MANGALO KALIA(deceased...........................................PLAINTIFF

VERSUS

THE HONOURABLE  ATTORNEY GENERAL..................................DEFENDANT

THE INSPECTOR GENERAL OF POLICE..............................2ND DEFENDANT

JOHN KIPTARUS KIPKERYO................................................3RD DEFENDANT

JUDGMENT

1. The plaintiff Anaclet Kalia Musau is suing on behalf of the estate of the deceased Vincent Mangalo Kalia as the administrator of the estate.   He claims  for general damages, costs  of the suit  and interest, against  the defendants  Honourable  Attorney General who  is sued as  the principal Government  legal  advisor  to the Government, on behalf  of the Inspector  General of Police  and John Kiptarus  Kipkeryo, a Government  of Kenya employee.

2. The  plaint filed  on 8th February 2013  claims that on or about  the 30th day of June 2011, the deceased  Vincent Mangalo Kalia (deceased) was standing off Langata  Road area the  Southern by-pass  near when the third defendant  John Kiptarus  Kipkeiyo   who was the driver, agent, servant  then driving, managing, controlling  motor vehicle  registration No. GKA 376(S) so negligently controlled the said motor vehicle that he negligently lost control and hit the deceased as a result of which the deceased sustained fatal injuries.

3. The particulars of negligence attributed to the 3rd defendant are:

a. Driving at an excessive speed under the circumstances.

b. Driving without sufficient care and attention.

d. Driving recklessly, carelessly and without due regard to the Highway Code.

d. Failing to slow down, swerve, break or in any other way control the said motor vehicle to avoid the accident.

e. Causing the accident.

4. The plaint also seeks to hold the 2nd defendant vicariously liable for the negligent acts of the 3rd defendant.

5. The 1st defendant and  2nd defendants  entered  an appearance  and filed joint  defence  denying  the plaintiff’s  claim and contending  that if at all there  was  an accident  involving  the Deceased  and the motor vehicle  registration  GKA 376 S  then the deceased was wholly  to blame for the  accident.  They also denied that the deceased’s estate had suffered any loss or damage   and prayed for dismissal of the plaintiff’s suit with costs.

6. The plaintiff filed a reply to defence on 22nd April 2013   joining issues with the 1st and 2nd defendant’s defence and reiterating the contents of the plaint as pleaded.  The 3rd defendant neither entered appearance nor filed any defence to the plaintiff’s claim.  Interlocutory judgment in default   was entered   against him on 12th November 2013.

7. The plaintiff  complied  with pre-trial  requirements  and had the suit certified  as read for trial on 14th May  2014  after  the 1st and 2nd  defendants  failed  to file any documents  to support  their defence.

8. The suit was heard on 13th May 2015 with the plaintiff testifying and calling one witness.

9. The plaintiff testified as PW1 relying on his witness statement filed on 13th May 2015 which the court adopted as his evidence in chief.  In his sworn  testimony, the  plaintiff  testified  that the deceased  was his son and that on 30th  June 2011 while at  his home  in Nunguini  area  of Makueni County he was called and informed that  his son  had been involved  in a road accident  involving  motor vehicle GKA  376S and that he  had died.  He further testified that he learnt that the 3rd defendant   was the driver of the accident motor vehicle which belonged to the government of Kenya, Inspector General’s Office.  The said  3rd defendant was  charged before the city  Court Traffic court in Case  No. 20179 of 2011  with causing death by dangerous driving and that PW1  testified  in that court  against the  said  defendant but that the case   was still pending determination  as  at  the time he  recorded  his statement.

10. The plaintiff further testified that  his son was  aged 25 years, leading  a normal healthy life, employed as a mason  earning a monthly salary of 20,000 survived by the plaintiff and  his wife ( the deceased’s mother). That the deceased was the sole provider of the family and gave him kshs 14,000/- every month.  He was also in the process of getting married.  He used to give money   for education of his younger siblings.  The plaintiff stated that when he met the 3rd defendant the latter apologized for causing the death of his son.

11. The plaintiff prayed for damages  and produced his  list of documents  which included   copy of police abstract, limited  grant of letters of Administration letters of employment, death certificate, letter from the chief and  copy of death certificate  for  the accident  motor vehicle  as P exhibit 1-6.

12. The plaintiff also called  PW2 Nicholas Kyalo Kimae who testified  on oath  that he lived along  Langata Road and recorded  and signed  a statement  which  was filed which was adopted as his  evidence in chief.

13. PW2 testified that on 30th June 2011 he was walking  along Langata  Road on the left  side of the road facing  Langata  at 7. 00pm and that there  was a car parked at the  Southern by-pass  junction.  A police vehicle came from Langata direction towards town on the wrong side of the road at a very high speed.  Another  motor vehicle coming from town nearly collided  head on with the GK which swerved  and hit the  parked car   and the latter  car flew  and hit the deceased who was ahead of PW2 off the road  on the pedestrian  walk way and  2 feet from the  main road  and threw him on  the side and the GK vehicle fell in a ditch.  The victim bled and died on the spot while being assisted.  The witness checked in the deceased’s pocket and found an identity card reading Vincent Kalia.  He blamed the driver of the GK vehicle for driving on the wrong side of the road and that because of that, the deceased could not have avoided the accident.

14. The plaintiff’s case closed and as the defence never attended court, the plaintiff filed and served them written submissions.

15. Parties appeared before me on 15th June 2015 when the 1st and 2nd defendants were represented by Mr Moya holding brief for Miss Kasim and intimated that they wished to recall the plaintiff for cross examination.  The court gave them the liberty to do so pending the delivery of this judgment but as at today, no such application has been lodged.

16. The plaintiff’s counsel filed written  submissions  on 8th June 2015  reiterating the plaintiffs testimony  that of his witness and the pleadings, and urging  this court to find the  defendants  jointly and severally  liable  in  damages  to the plaintiff at 100%.  He also  prayed for the  quantified damages  under the Fatal Accidents  Act and  Law Reform Act to the tune of  kshs  9,900,000, costs and interest.

17. I have carefully considered the plaintiff’s claim, the pleadings, testimonies and documents produced in court, the written submissions and the cited authorities.

18. The only issue for my determination is whether the plaintiff’s suit as filed is competent and if not, what orders I should make.  The death certificate  No. 207241 produced as P exhibit 4  shows that the deceased Vincent  Mangalo  Kalia died on 30th June 2011 aged 25  years, which  date  of death agrees with the date  of  accident as recorded  in the police abstract  form P exhibit 1  issued on 28th July 2011.  The plaint dated 30th January 2013  was filed on  8th February 2013 and paragraph 6 therefore  clearly states  that the cause of action arose  on 30th June 2011.

19. Proceedings  against the Government  or Public  authorities  are governed  by the Government Proceedings  Act  Cap 40 ( Laws of Kenya) and  the  Public Authorities  Limitation Act, Cap  39 Laws of Kenya.

20. Under Section 3(7 ) of the Public Authorities  Limitations Act.

“ No proceedings founded  on tort shall be brought  against   the Government  or Local Authority after the end  of twelve months  from the date  on which the cause of action accrued.”

21. The material accident having occurred on 30th June 2011, the plaint or claim against the Attorney General and Inspector General of Police ought to have been instituted on or before 30th June 2012.  It is trite  that the claim  having been  instituted  on 8th February 2013, it  was caught   by the statutory limitation period, as the  claim is against  the Government  and therefore  Section 4(2)  of the Limitation Actions  Act does not  apply.  Under Section  4(2) of the Limitation of Actions  Act (Cap 22 Laws of Kenya), an Action founded  on tort may  not be  brought  after the  end of  three years  from the date  of which the  cause of action accrued. However, the said  Act, Under Section  42 excludes  certain proceedings  and in this regard, Section 42(1) (e) is clear, material to this suit that:

i.  This Act  does not apply to

a. …………..

b. ……………

c. ……………

d. …………….

e. Proceedings  to which the Public  Authorities Limitation Act (Cap 39) applies.”

22. In other words  where the  period of Limitation  is provided by another statute  like the Public  Authorities Limitation Act, which  is twelve months, then the  3 years  period for  bringing suit  in an action for tort  of negligence  as contemplated  under Section 4(2) of the Limitation of Actions  Act, Cap 22  is inapplicable.

23. Accordingly, I find that  the suit herein and  therefore the claim as instituted against the Government of Kenya and its employees in their official capacity was  instituted outside  the statutory limitation  time and  is therefore incompetent.  Once the statutory time lapses under Cap 39, not even leave of the court under Section 27 and 28 of the Limitation of Actions Act would be granted to revive the claim.  This position was clearly  stated in the case of Bernard  Mutonga Mbithi V Municipal Council of Mombasa  & Ali Mbaraki t/a Mbaraki Contractor’s CA  No. 3  of 1992( Kwach, Muli & Gicheru JJA) where the Court of Appeal  was categorical that Sections 27  and 28 of the Limitation  of Actions Act  does not  apply to Local Authorities.

24. For the  foregoing reasons, it would be  a waste of judicial time  to delve into  the  merits and demerits  of this suit  as against the 1st and the court’s jurisdiction to determine  this suit  would only crystallize where  the suit  was filed within the  statutory period.

25. Albeit  the issue of  the suit being  statute  barred  was not raised by the  defendants s who  did not  participate  in these proceedings, that matter  goes to the jurisdiction of  the court  to determine whether it can entertain a claim which is  statute barred.

26. The locus classicus  on jurisdiction is the case  of the Owners  of the Motor Vessel “ Lilian S” V Caltex (K) Ltd (1989) KLR 1  where  the Court of  Appeal.  Nyarangi JA held, inter alia;

“ I think that it is  reasonably plain that  a question of  jurisdiction  ought  to be raised  at the  earliest  opportunity  and the  court sized  of the matter is then obliged  to decide  the issue  right away  on the material  before it.  Jurisdiction is everything.  Without it, a court of law has no power to make one more  step.  Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.  A court of law downs its tools in respect of the matter before it the moment it  holds  the opinion that it  is without  jurisdiction.”

27. In Dhanesvar Vs Melita Manilal M Shah (1965) EA 321, the court  was  clear that:

“ The object  of Limitation enactment  is to prevent  a plaintiff from prosecuting  stale claims…….the effect of a  limitation enactment  is to remove  remedies  irrespective of the merits of  the particular  case.”

28. I also agree with  Odunga J in Republic  Vs Principal  Magistrate  P. Ngare  Gesora & 2 Others Exparte Nation Media Group Ltd (2013) e KLRstated:

“ However , where  a certain cause of action  is disallowed  by law, the issues  of the path of justice  being clogged  does not  arise since  in that case  justice demands that  a claim should  not be brought. Justice, it has been said time without a number, must be done in accordance with the law……….”   It must  however be  remembered  that what the law of Limitation  Act provides  is that certain causes of  action may  not be brought  after expiry  of a particular  period of time.  In other words, the Act bars   the bringing of particular actions after the specified periods of Limitation……”

29. The above principles of law are in my view applicable to this case.  Irrespective  of the merits of the claim, the law is  clear  that such action shall not be brought  against  the Government  after the  expiry of twelve  months  and upon  such expiry, the claim is extinguished  such that  the Limitation  of Actions Act  which allows similar  causes  of action against  private  individuals  to be filed out of  the stipulated  statutory period  with leave  of court  does not apply.

30. In addition, it cannot be said that the matter of Limitation of Actions is a procedural technicality curable by Article 159(2) (d)  of the Constitution or the overriding objectives principles espoused  under  Sections 1A and 1B of the Civil Procedure  Act.   In my view, statutory  provisions  limiting time   within which a  substantive  cause of action  should be brought  cannot be  equated  to procedural  technicalities  envisaged  under Article  159(2) (d)  of the Constitution.  They  are not procedural lapses  that do  not go to  the root or  substance  of the matter under  consideration such as filing suit  by way of Notice of Motion instead of  plaint or citing  wrong provisions  of the law.

31. I therefore  find that  in as much as the court would  have wished  to assist the  plaintiff to access justice  in the court for the  sad  and sudden regrettable loss of  his  beloved  son, failure to institute  suit  against the  Government  within the  stipulated  statutory period  of one  year  or twelve  months from the  date when  the cause of action arose, extinguished   the suit in limine.

32. Consequently, I proceed and strike out the incompetent suit against the 1st ad 2nd defendants and I make no orders as to costs.

33. However, as against the 3rd defendant driver, albeit he was sued in his official capacity, he nonetheless would be liable in his own capacity as an individual driver of the accident motor vehicle. The only problem is that he was sued by virtue of his driving of the accident motor vehicle which belonged to the Government of Kenya in his capacity as an employee and agent or servant of the Government of Kenya who owned the offensive motor vehicle. Accordingly, this court would be acting in vain if it was to delink the 3rd defendant from the 1st and second defendant since the motor vehicle that was carelessly or dangerously driven belonged to a party that the suit herein is unsustainable against and who would be vicariously liable for acts of the 3rd defendant. In the end, the suit against all the defendants is struck out with no orders as to costs.

Dated, signed and delivered at Nairobi this 24th day of September 2015.

R.E. ABURILI

JUDGE