CATHOLIC DIOCESE v ROBERT BOGONKO [2010] KEHC 4027 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

OF KISII

Civil Appeal 17 of 2005

CATHOLIC DIOCESE................................................................APPELLANT

-VERSUS-

ROBERT BOGONKO............................................................RESPONDENT

JUDGMENT

The respondent’s case at the subordinate court was that he was a trainee at St.Francis Borabu Youth Polytechnic and was on 17/7/99 preparing to retire to bed in the dormitory at the institution when the manager of the institution unlawfully assaulted him. He suffered a fracture of the left index finger which led to its amputation. He sued the appellant to be compensated in general and special damages for the injuries, claiming that the injuries were caused by the negligence of the appellant, its servants or agents. He further claimed the appellant owed him a duty of care underSections 4(1) (2) and(3)and 6 of the Occupiers Liability Act (Cap. 34) which duty was breached.

The suit was filed on 2/7/2003. One of the appellant’s defence was that the suit was based on a claim in tort which ought to have been brought within 3 years of its occurrence. The suit was consequently statute-barred, having been brought after three years. This issue was maintained by the appellant throughout the trial. It, however, received no consideration at all in the judgment of the court. It was simply ignored. The court was duty-bound to address this defence. When it did not it fell into serious error. The respondent claim was in tort and he was required bysection 4(2) of the Limitation of Actions Act (Cap.22) to bring the claim within 3 years. The suit was consequently incompetent and should have been struck out with costs.

The appellant’s other defence was that it did not own the Youth Polytechnic whose manager allegedly assaulted the respondent; that the Polytechnic was legally and totally independent of the appellant. On this point, the respondent testified that:-

“The Polytechnic is under Catholic Diocese of Kisii.”

When he was cross-examined, he stated:

“the Polytechnic has a manager. It has also a committee. John Abora was the chairman at material time………I knew that the Committee runs the school……………….the Polytechnic belongs to the Diocese. The committee refused to be involved in the case…………….”

The defence version by Father Joseph Obongo Sagwe (DW1), who is the Vicar General of the Diocese, was that the entity that the respondent has sued cannot sue or be sued. It can only sue or be sued through its Board of Trustees. That is crucial evidence which was not controverted.  The witness then stated that the Diocese did not own the polytechnic. It was only the polytechnic’s sponsor. The Diocese sponsors many other polytechnics and schools in the area. He testified that the Polytechnic has a Board of Governors who who ought to have been sued. This testimony basically agrees with the respondent’s that there is a Committee that runs the Polytechnic. The respondent did not indicate why he did not sue it. He did not show how he came to the conclusion that the appellant owned the Polytechnic, or that it ought to be sued. On the evidence, I find, the trial court ought to have found that it had not been proved on balance that the Polytechnic was owned by the appellant, or that the appellant could legally be sued. The judgment was against the weight of evidence.

I hope I have said enough to show that it would be a futile exercise to consider all the grounds raised in Memorandum of Appeal.

The appeal is allowed with costs.

Dated, signed and delivered at Kisii this 20th day of January, 2010.

A.O.MUCHELULE

JUDGE

20/1/2010

Before A.O.Muchelule-J

Court clerk-Bibu

Mr. Bosire Nicholas for Mr. Nyangosi for Respondent

COURT: Judgment in open Court.

A.O.MUCHELULE

JUDGE

20/1/2010