Francis Mburu Njuguna v Khan Shakil & Olivejoy Suppliers Limited [2016] KEHC 4615 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MISCELLANEOUS CIVIL APPL. NO. 282’A’ OF 2015

FRANCIS MBURU NJUGUNA …………....................APPLICANT

VERSUS

KHAN SHAKIL……………………...…………1ST RESPONDENT

OLIVEJOY SUPPLIERS LIMITED……………2RD RESPONDENT

RULING

This ruling  determines  the exparte  applicant’s  application  dated       2nd May 2015  which seeks for leave of court  to file   suit out of  the statutory  Limitation period.  The application is brought under the provisions of Section 38 of the Limitation of Actions Act Cap 22 Laws of Kenya.  The  application is supported  by an affidavit  sworn by Mbiyu Kamau advocate  sworn on 2nd May 2015  to the  effect that  she  was  instructed to  apply for  letters of administration  ad litem on behalf  of the applicant  and  the same  were applied  for  on 26th October  2009 and the grant  was only issued on  30th July 2012 and that  despite  efforts  to ascertain the status of the matter through the Deputy Registrar  of the High Court, nothing  much was  forthcoming and they only  learnt of the issuance   on 8th October  2014  when it  was  collected from the registry  over  5 years  since  issuance  of the grant as shown by the date  stamp.

That the deponent then tried to contact the applicant on phone but they had changed telephone contacts and their whereabouts   unknown and that it was only upon invitation that he went to her office.  That no  prejudice  will be occasioned to the respondents and that  the court should  exercise  its discretion and grant extension of time, since  the deceased  was only  40 years and left  behind a widow and  4 dependants who relied on him and  that he  died in a road traffic accident  at his prime age.  That the applicant has not been indolent.

The applicant  also annexed  copy of  draft plaint, limited grant and  application  for grant and police abstract   of the accident  which occurred   on        23rd April  2006  along Mombasa  Road near  Polythene  Industries  involving motor vehicle  KAS 607C ZC  1096 Renault  Trailer  and pedestrians  who all died.

The application was argued orally in court by Ms Njuguna holding brief for Ms Mbiyu Kamau for the exparte applicant.  In her submissions, Miss Njuguna reiterated the contents of the application and the supporting and supplementary affidavit filed on 28th January 2016.

I have carefully considered the application by the exparte applicant as argued by his counsel Miss Njuguna.  I have also considered the supporting and supplementary affidavit and the annextures thereto.

The law applicable  for granting  of extension of time within which  to file suit  is Sections 4, 22,27,28,29,30 and  31 of the Limitation of Actions Act  and the procedural provisions  are Order  37 Rule  6  of the Civil  Procedure Rules.

Section 4(2) of the Limitation of Actions Act provides that:

“(2) An action founded on tort may not be brought after the end of three years from the date of which the cause of action arose.

The above provision is nonetheless  qualified  by Section 22 of the  said Act  which provides  that if on  the date   when a right  of action  accrues for which  a period  of limitation is prescribed by this  Act, the person to whom  it accrues is under a disability, the action may be brought at  any time before the end  of 6 years  from the date  when the  person ceases  to be under a disability  or dies, whichever event  occurs first, not withstanding  that the prescribed period  of  limitation has expired.

The Section also sets out some exceptions. Section 4(2)  above is also  qualified by Section 27(1)  and (2)  of the Limitation of Actions Act which provides that Section 4(2)  does not  afford  a defence to an action founded  on tort  where:-

……

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

The court has, whether before  or after the commencement  of the action, granted leave for  the purposes of  this Section; and

The requirements of Subsection (2) are fulfilled in relation to the cause of action.

Under Section 27(2); it is provided that:-

“(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 concluded facts of  a decisive  character   which were at  all material  times outside  the knowledge  (actual or constructive) of the plaintiff until  a date to  which –

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;

In  either  cases, was a date  not earlier  than one year before  the date on which the action   was brought

The above  legal  enactments were succinctly  brought  out in the  case  of Gathoni V Kenya  Co-operative  Creameries  Ltd [1982] e KLR  where the  Court of Appeal  pronounced that:

…..

For an application t be  allowed  under Section  27 of Cap 22 Laws of  Kenya, it must  be shown  to the satisfaction of the court that  failure to apply within time  was  due to lack  of knowledge  of certain  material  facts.  The applicant  must show to the satisfaction  of the court  that she had taken all  reasonable  steps  and sought  appropriate  advise  in respect  of the  facts.

Must bring such action within on one year of the cessation of the period during which the decisive material facts were outside his/ her knowledge.”

In Lucia Wambui Ngugi V Kenya Railways & Another HC Miscellaneous Application213 of 1989, Mbito J (as he then was observed that:

“  it must of course  be  assumed that  for purposes of the  exparte  application, the evidence  is  time, but it is  only if that  evidence makes  it absolutely  plain that   the plaintiff is  entitled to leave that  the application should be  granted and the  order made, for such  an order  may have  the effect   of depriving  the defendant  of a very valuable  statutory  right.  It is not  in every case  in which leave  has been  given  exparte  on inadequate  evidence  that the defendant  will be  able to mitigate    the injustice  which may have to be   done to him by  obtaining  an order for   the trial.  Consequently, this  application can only  succeed  if the  applicant can avail  herself  of the provisions  of Section 27  as read  with Section 31  of the Act  which enact  that the limiting  provision shall not  afford  a defence  to an action  founded on tort  where the  court gives  leave  on account of  applicant’s ignorance  of  material facts  relating  to the cause of action  which were of the decisive  character.  Although  what amounts to “ ignorance   of material  facts of   decisive  character “ is not  always  easy  to distinguish , by Section 30(1)  of the Act, when read   with Subsection (2) thereof, material facts  of a decisive  character  are said  to be those relating  to a cause  of action which would enable a reasonable  person to conclude that he had  a reasonable  chance of succeeding  and getting  damages  of such amount  as would  justify  the bringing  of action.”

In Rawal V Rawal [1990] KLR 275, Bosire J (as he then was) stated that:

“ the  object of any limitation  enactment is to prevent   a plaintiff  from prosecuting  stale  claims   on the one  hand, and on the other hand, and   protect  a defendant  after  he has   lost evidence  for his  defence  from being  disturbed  after a  long lapse  of time.  It is not to extinguish claims.”

In Dhanesvar V Mehta Manilal M. Shah [1965] EA 321 the court stated that:

“……..the effect of limitation enactment is to remove remedies irrespective of the merits of the particular case.”

Similarly in Iga V Makerere University [1972] EA 65 the court stated that :

“……unless the appellant in this case had put himself   within the limitation period showing the grounds upon which he could claim exemption the court shall reject his claim.”

Arising  from the many judicial  pronouncement  that I have  carefully selected  and which are  relevant  to the instant case, it is  trite that    the limitation of  Actions Act  Cap 22 Laws of  Kenya does not  extinguish  claims  but operates  as a bar to  claims  which are  time barred .  The extension  of time to  revive  a statute  barred  suit can, however, be brought under Section 27  of the Act  in tort  with regard  to claims for  personal  injuries  arising from negligence, breach of  duty or  nuisance.

In the instant case, the cause of action arises  from a traffic road accident  which  occurred on 23rd April  2006  involving  the deceased  Wanyoike  Njuguna  who sustained  fatal injuries  following  the accident.

The applicant herein presented  a petition for grant of letters  of administration ad litem  on 26th October  2009  before  Nairobi High Court  Succession Cause No. 2279 of 2009,which  was   three years  after the  deceased’s demise.  In that petition, a copy which is   annexed to the supporting affidavit of Mr Francis Mburu Njuguna, as “MKJ,” the petitioner presented the petition in his capacity as the son to the deceased Wanyoike   Njuguna.  In the affidavit in support of the said petition, he listed   himself, John Kamau and James Kengethe   Njuguna as his dependants. However, in the draft plaint annexed to the supplementary affidavit annexed to the affidavit of Ms Mbiyu advocate, the petitioner/applicant is listed as a brother to the deceased.

The limited grant of letters of administration ad litem   was granted on   30th July 2012.  According to Ms Mbiyu Kamau, by her affidavit, the delay  in filing suit  was due to the delay  in collection of the grant and that her  firm only learnt   of its issuance  on 8th October  2014  two  years later  and even then, from  8th October 2014, it  was  until 1st  July 2015, nine months  later  that this application   was filed. In total, from the date of accident to the time of filing of this application is a period of 9 years and 5 months.

The applicant’s counsel claims in her affidavit   that upon receipt of the grant, her efforts to trace the applicant were futile as he had changed  his mobile number and she  only managed to get him  upon  visitation at his home and informing  him of the issuance of the grant and that it   was at that  visitation  that the  applicant  expressed  interest  in pursuing the suit on behalf of his late brother’s  estate.

In my most humble view, the explanation by the applicant’s lawyer is laughable and unacceptable before this court.  The long delay of over 9 years in filing this application does not disclose any ignorance of any material fact of a decisive character or at all on the part of the applicant as stipulated in Section 27(2) of the Limitation of Actions Act.  The explanation given by the applicant’s advocate for the long delay only goes to support the inference that the applicant lacked interest in pursuing the claim and had to be visited by his advocate many years later to cause him to develop interest in the matter.  That kind of lethargical attitude is not permitted in the law.  The applicant has not attempted by way of affidavit, to demonstrate that any of the grounds upon which he could claim for exemption from the delay are available to him.  It is for that reason that I find that irrespective of the merits of the intended suit, the remedy is effectively removed due to the long delay.  In this case, the case of Rawal V Rawal (supra) is applicable.  The applicant’s claim is stale.  It is now almost ten years since the accident occurred.  There is no evidence that the respondent was ever notified of any intention to sue for damages.  The defendant  must be  protected from an injustice  of having to defend a suit  after  he has  probably  lost evidence  for his defence  and from being  disturbed after a long  lapse of time.  In this case, the applicant has not availed any evidence   that he is absolutely entitled to leave to file suit out of time.  If  this court  were  to grant such  leave, in the circumstances  of this case, it would  have the effect  of depriving   the defendant (assuming he is still alive) of a very valuable  statutory  and  Constitutional right  of access to justice.  Justice delayed is justice denied.  In this case, the application has been brought after an inordinately and excessively and unsatisfactorily unexplained long period of time and without sound logical and rational grounds for such delay.  Delay defeats equity.

The applicant  by simply  sitting at  home and  changing  his telephone  contacts such that  his advocate  could not  reach him is not  any form of disability.  It was the applicant’s duty to get in touch with his lawyer on the progress of his case and   not to keep away and be sought after by his advocate.  This is not   the kind of case where the court can exercise discretion in favour of the indolent applicant and extend   the limitation period.  I am not persuaded to hold that   despite the long delay, justice can still be done. It is trite that a case belongs to a litigant and not to his advocate. A litigant has a duty to pursue the prosecution of his or her case. There is absolutely no material that the advocate had her client’s express instructions to file suit but that the advocate failed to do so in time. An advocate would not sign verifying affidavit on behalf of her client in as much as she could sign pleadings on his behalf. It is the duty of the litigant to constantly check with his advocate the progress of his case. (see Odunga J in Alphonse Kondi Diaga V Commissioner of Cooperative Development (2016)eKLR. In the instant case, the party went to sleep and had to be awakened by a less vigilant advocate, as the facts narrative show. It would in my view, be a traversity of justice if I was to grant such a party leave to file suit out of time after nearly ten years of slumber on his part.

Accordingly, I reject the application  by the exparte  applicant for  leave to extend  the period  within which  suit ought  to have been  filed from 24th March  2006  and dismiss  the application  for want of merit. I make no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 15th day of March 2016.

R.E. ABURILI

JUDGE

In the presence of:

Miss Njuguna h/b for Miss Mbiyu for the applicant

N/A for Respondent

Adline: Court Assistant