Elizabeth Akinyi Ounda v Abubakar Wilberforce [2021] KEHC 4637 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT BOMET

MISCELLANEOUS APPLICATION NO. E005 OF 2021

(In the matter of the Law of Limitations Act, Cap 22 of the Law of Kenya)

ELIZABETH AKINYI OUNDA……….…..PLAINTIFF/APPLICANT

VERSUS

ABUBAKAR WILBERFORCE............DEFENDANT/RESPONDENT

RULING

1. The ex-parte Application before me is brought under Order 37, Rule (2) the Civil Procedure Rules 2010, Section 27 of the Limitations of Actions Act and Section 1A, 1B and 3A of the Civil Procedure Act.  It is dated 11th March 2021 and filed on 9th April 2021. The application is supported by an Affidavit sworn by the Applicant on 7th April 2021. The Applicant seeks leave to file suit out of time against the Defendant/Respondent.

2. The Application is brought on the following grounds:-

(i) That the Applicant was involved in an accident on 4th November 2012.

(ii) That on or about 2014, after gaining stability, the Applicant was invited by the defendant for purposes of settling the claim out of court and was further informed that her documents had been forwarded to the insurance company for purposes of settlement.

(iii) That efforts to have the matter settled have since become futile.

(iv) That in mid-2015, it came to her attention that the defendants had no intentions to reach an amicable settlement and therefore commenced a pursuit to get an advocate to institute legal proceedings.

(v) That her instructions to two different firms to institute legal proceedings did not bear any fruits.

(vi) That on or about 15th February 2021 she was referred to the firm of Ochoki & Company Advocates who have currently taken up the matter and filed the application herein to commence proceedings against the defendants.

(vii) That the Plaintiff has all this while been misled by both the defendants and advocates as mentioned above for a settlement and institution of legal proceedings until the Applicant was time barred under the Limitations of Actions Act, thus could not file a suit within the stipulated period.

(viii) That it was only fair and just that the court grant her leave to file out of time.

3. The only issue for my determination is whether the Application is merited and should be allowed.

4. Order 37, Rule 6of the Civil Procedure Act (Cap 210) provides:-

(1) An application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex-parte by originating summons supported by affidavit.

(2) Any such application made after the filing of a suit shall be made ex-parte in that suit.

5. The Limitation of Actions Act, (Cap 22)provides for extension of limitation period in the following terms:-

Section 27. Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.

(1) Section 4(2) does not afford a defence to an action founded on tort where—

(a) the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or  independently of a contract or written law); and

(b) the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in  respect of personal injuries of any person; and

(c) the court has, whether before or after the commencement of the action, granted leave for the  purposes of this section; and

(d) the requirements of subsection (2) are fulfilled in relation to the cause of action.

(2) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which—

(a) either was after the three-year period of limitation prescribed for that cause of action or was not earlier than  one year before the end of that period; and

(b) in either case, was a date not earlier than one year  before the date on which the action was brought.

6. The principles governing an ex-parte application in respect of leave to file a suit out of time were enunciated in the Supreme Court case of County Executive of Kisumu vs. County Government of Kisumu and 8 Others (2017) eKLR [Civil Application No. 3 of 2016] as follows:-

a) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;

b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court;

c) Whether the court should exercise the discretion to extend time is a consideration to be made on a case by case basis;

d) Whether there is a reasonable reason for the delay.  The delay should be explained to the satisfaction of the court;

e) Whether there will be any prejudice suffered by the respondents if the extension is granted;

f) Whether the application has been brought without undue delay; and

g) Whether in certain cases, like the election petitions, public interest should be a consideration for extending time.

7. In the present case, the cause of action arose 9 years ago, that is 6 years after the limitation period provided in section 4 (2) of the Limitation of Actions Act, which is 3 years.

8. The Applicant in her supporting Affidavit states that the delay to file the suit was threefold: first that she was incapacitated by the accident and had to undergo recovery before taking any legal action. Secondly; that when she recovered, the defendant and his insurance company assured her that they would settle the matter amicably out of court but failed to do so. Lastly, she turned to two different advocates in pursuit of legal recourse who failed her on two occasions. These events led to the long delay in lodging the civil suit and is the basis for the present application.

9. In considering whether the court can grant this Application, the requirements of Section 27 of the Limitations Act must be fulfilled.  See Mwangi Kanyingi vs. Francis Kariuki Kanyingi & Another (2008) eKLR.  Further it is clear that the grant of extension of time is at the discretion of the court.

10. The Applicant has averred that she took various steps to pursue a legal action. The serious injuries and permanent disability that she suffered, coupled with the defendant’s long delay and subsequent failure to honor their promise to have the matter settled out of court amicably was clearly the beginning of her long wait for justice. In the subsequent years, she came upon advocates who were dilatory in pursuing her case; further occasioning further delay. Having noted that the two advocates whom she had approached were lax and slow to act, she sought assistance from the advocates who are presently on record.

11. In the persuasive case of Royal Media Services Ltd vs. Valentine Mugure Maina & Another (2019) eKLR, Ngaa J. explained the application of Section 4(2) of the Limitation of Actions Act as follows:-

“Before I conclude, I must mention that section 4(2) is couched in such terms that the trial court is left with discretion to extend the time within which a claimant can file suit for damages in defamation claims. It may be that the claimant was under disability of some sort and therefore he could not, for that reason, file the claim within the statutory period. Where the court is inclined to extend time, it must have regard to all the circumstances of the case and in particular to such circumstances as the length and the reasons for, the delay on the plaintiff….. the court, in making its discretion will consider the date on which any such facts did became known to him and the extent to which he acted promptly and reasonably once he knew whether or not the facts in question might be capable of giving rise to an action.”

12. It is evident from the supporting affidavit that the Applicant was incapacitated and later upon recovery, endeavoured to pursue her legal rights.  It appears that the counsel she approached displayed disinterest and laxity when they fail to pursue matters expeditiously and aggressively. I am persuaded that she would be prejudiced if the court were to lock her out on account of the omissions of her counsel.  This court must appreciate the challenges that such a person may face after undergoing trauma and injuries emanating from a road accident.

13. Lastly, it would be in the interest of justice for the court to allow the Applicant have her day in court and a chance be heard in order to prove her claim.  In this case, the Applicant claims that she suffered permanent disability, which injuries can only be substantiated through medical reports in the main suit.  A perusal of the annextures shows that the Applicant has an actionable claim.  She would therefore be prejudiced if she was denied an opportunity to file suit.

14. I have taken into consideration the fact that there needs to be an appreciation of the Statute of Limitations Act and the purpose for which it was crafted. In the case of Rawa vs. Rawa (1990) KLR, 275, the Court emphasized that:-

“The object of any Limitation enactment is to prevent a Plaintiff from prosecuting stale claims on one hand and on the other hand protect a Defendant after he had lost evidence for his defence from being disturbed after long lapse of time.”

15. In the present case it has been suggested that the Respondents contributed to the Applicant’s delay.  While the assertion may not be proved in this ex parte application, I am satisfied, on the basis of the affidavit evidences, that the Applicant’s claim is not stale.  She has satisfactorily explained her failure to institute the proceedings within the stipulated time and laid a basis for the court to exercise discretion in her favour.

16. In the upshot, I am persuaded to allow the application.  The Applicant must file the suit within 21 days of this ruling.

17. Orders accordingly.

Ruling delivered, dated and signed this 15th day of July, 2021.

..........................

R. LAGAT-KORIR

JUDGE

Ruling delivered in the presence of Mr. Merebu holding brief for Mr. Ochoki for the Applicant and Kiprotich (Court Assistant).