David Mwangi Maina v Simon Sana Kolii & County Council of Narok [2017] KEHC 650 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL CASE NUMBER 333 OF 2012

DAVID MWANGI MAINA ................................................................PLAINTIFF

VERSUS

SIMON SANA KOLII...............................................................1ST DEFENDANT

COUNTY COUNCIL OF NAROK..........................................2ND DEFENDANT

RULING

1. The plaintiff was injured in an accident that occurred on the 11th May 2011 while a passenger on a motorbike Registration No. KMCK 845P along Narok-Aitong road when it collided with the defendants motor vehicle No. KAN 934 U.

He blamed the driver of the said vehicle for negligence and sued the driver and the owner as the 1st and 2nd defendants by his plaint dated 7th May 2012  and filed on the 31st August 2012 as evidenced by a receipt and stamp on the plaint.

2. Upon service of the same, the defendants filed their joint statement of defence denying the plaintiff's claim and attributed negligence to the motor bike rider.

3. The suit was then fixed for hearing. Upon the plaintiff''s conclusion of his, and his witnesses evidence, the defendants closed their case without calling any evidence.  That was on the 12th July 2017.

It is then that the Defence brought it to the court's attention that it had filed a preliminary objection on the 10th May 2017 that had not been heard.  It sought that the same be heard before judgment could be delivered.

4. Upon deliberations, parties agreed that written submissions be filed on  the preliminary objection and the main suit and both be determined simultaneously.

5. A preliminary objection in its very nature ought to be raised at the very earliest opportunity as it may when canvassed dispose off the suit in its entirety.

See Mukhisa Biscuit Manufacturing Co. Ltd -vs- West End Distributors Ltd (1969) EA 696. It was held that:

“--- is in the nature of what used to be a demurrer.  It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.  It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.”

6. The Preliminary objection is dated 10th May 2017 and filed on 11th  May 2017.

It is stated that:

“The plaintiffs claim is statute barred as it offends the mandatory provisions of Section 3(1) of the Public Authorities Limitations Act (Cap 39) and ought to be struck out with costs.”

7. In their submissions on the issue the Defendants urged that the question of time limitation is a jurisdictional question and not procedural, and once raised, the court ought to deal with it before proceeding further. (Ag & Another -vs- Andrew Maina Githinji & Another (2016) e KLR;and Peter Nyamai & 7 Others -vs- VJM Clerke Ltd (2013) e KLR; Daniel Sebastain -vs- Everex Travellers Ltd & Another (2015) e KLR amount otherauthorities.

8. The plaintiff's submission on the issue is that though the suit was filed three (3) months outside the limitation period as stipulated under Section 3(1) Cap 39 Laws of Kenya, and without leave of court, to strike it out would be offending the Constitutional Provisions in Article 159(2) (d) of the Kenya 2010 Constitution that justice should be dispensed without undue regard to procedural technicalities. Citing the case KBS LTD & Another -vs- Minister for Transport & 2 Others NBI HCCC NO 504 of 2008where Majanja J opined that Section 13A of the Government Proceedings Act, Cap 40was an impediment to access to justice as it imposes hurdles on accountability of the government through the court, I was urged to declare the said section unconstitutional, in line with Article 48 of the Constitution.

9. I have considered the rival arguments.  By and large the plaintiff supports current jurisdiction from the various courts that a suit filed out of time against public authorities and without leave of court ought to be dismissed and or struck out, but seeks refuge in Article 159(2) (b) and 48 of the Constitutionthat time limitations on filing of suits bars parties from access to justice.

10. Section 3(1) of the Public Authorities Limitations Act states:

“(1) 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.”

11. TheCourt of Appeal in A.G. & Another -vs- Andrew Maina Githinji & Another (2016) e KLR (Waki, Nambuye and P.O. Kiage, JJA)faced with a similar issue rendered that:

“----The issue of limitation goes to jurisdiction and whenever it is raised the court must deal with it before proceeding further--- if it was legally time barred, that would be the end of the litigation.  There is no room for judicial discretion ---”

See also Peter Nyamai & 7 Others (Supra) where the Court also held that:

“--- the first thing I need to state is that the time limit on filing of a claim is a jurisdictional question and not merely procedural.”

12. Taken together, it is my considered opinion that a claim filed outside statutory limitation is time barred and the court lacks jurisdiction to entertain the same, as it lacks jurisdiction to do so.  Article 159(2) (d) and 48of the Constitution can not cure a jurisdictional issue nor can judicial discretion come into play in such circumstances.

I further add that Article 159 (2) (d) and 48 of the 2010 Constitution should not be used in all manner of circumstances to rubbish clear and unambiguous statutory provisions.  In my view that was not the intention of the drafters of the Constitution.

13. For the above reasons, it is my finding that the plaintiff's claim was time barred by three months when it was filed. Unfortunately,  the plaintiff failed to seek leave of the court to file the suit out of time.

The plaintiff is however not without a remedy. Part III of the Limitations of Actions Act, Cap 22 Laws of Kenya may be invoked for extension of time upon grounds provided therein, including disability, fraud, mistake ignorance of material facts among others.

14. Accordingly the plaintiffs claim filed on the 31st August 2012 is hereby struck out in its entirety.  In view of the unfortunate circumstances of the now fully heard case, and upon my judicial discretion donated to me  pursuant to Section 27 of the Civil Procedure Act (Cap 21), I order that each party shall bear its own costs of the struck out suit.

It is so ordered.

Dated and Signed this ….29th.....Day of…...September.......2017.

J.N. MULWA

JUDGE

Delivered this.....12th............Day of ................October.........2017.

R. LAGAT KORIR

JUDGE