Janet Dana Kitsao v Boniface Muoki, Jared Nyamweya & Goefrey Njuguna [2015] KEHC 522 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS CIVIL APPLICATION NO.  676 OF 2014

JANET DANA KITSAO….…………..………………………APPLICANT

VERSUS

BONIFACE MUOKI…….………………………………….1ST DEFENDANT

JARED NYAMWEYA…….……………………………….2ND DEFENDANT

GOEFREY NJUGUNA………………….…………………3RD DEFENDANT

RULING

By an originating summons dated 30th September 2014, brought under the provisions of Sections 4(2) 27 and  28 of the  Limitation of Actions Act, Sections 1A,3A of the Civil Procedure  Act and  Order  37 Rule  6(1)  of the Civil Procedure  Rules,  the applicant Janet Dama  Kitsao seeks from this court leave extending  the limitation period  for the purposes  of  filing a suit which is statute barred.

The originating summons is supported by 7 grounds and the affidavit of Janet Dama Kitsao the applicant. It is alleged that the applicant  was involved in a road traffic  accident on 21st April 2011 involving  motor vehicles  KAX 386L  belonging to Jared  Nyawaya  and motor  vehicle  KBK 746A belonging to  Geoffrey Njuguna  and motor cycle  No.  KMCN 938 Q as a result of which she was injured.  It is also stated that the delay  in filing suit  within 3 years  was  occasioned  by circumstances  beyond her control as she lacked  adequate details pertinent  to the institution of the suit; that no prejudice  will be occasioned on the intended  respondent if  leave is granted  and that it is only fair and just  that the  orders sought  are granted.

In her supporting  affidavit, the applicant  deposes that  she has had  financial  difficulties  and health  problems that  hampered  her pursuing  the anticipated legal action against the  intended  defendants   and that she spend  time trying  to settle  medical  bills  as she  was a student  in High School at the material  time of the  accident and only learnt recently that her  claim was statute barred  after leaving  school as per annexed  leaving certificate  dated  18th April 2014.  She  deposes that she suffered  serious  injuries making  her to  attend  physiotherapy  due to  incapacitation, hence  the delay in bringing  suit and further, that she only recently  learnt of the ownership  of the offending  motor vehicles  and motor cycle  after  seeking assistance  from  the police.

The annexed  medical treatment  notes  show that  the applicant  was admitted  in Aga Khan University Hospital  on 21st April 2011 and discharged  on 1st May 2011.  She had tear of left middle finger tendon, fracture of right maxilla left foot and fracture of left clavicle and she was 18 years then.  Her leaving  certificate  also  show that  she was  born in 1993  and left  school  on 12th November 2012  in form four.

The treatment note/discharge  summary dated  1st May 2011 also shows  that she sustained very serious  injuries  involving  multiple  skull fractures  and had to  undergo reconstruction of multiple facial  fracture  tendon  repair  among others.  The police abstract issued on 16th May 2011 shows that she was a passenger and her nature of injury as grievous harm.

The draft  plaint  lists about 8  fractures  and other soft  tissue injuries  and medical expenses  of kshs  854,487. 18.  The plaintiff alleges that she was a passenger in motor vehicle KBK 746A which collided with KAX 386 L and Motor Cycle KMCN 938Q and blames them for the accident.

The law relating to extension of time is contained in Sections 4,27,28,29, 30 and 31 of the Limitation of Actions Act.  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 however qualified  by Section  22 of the said Limitation of Actions Act which  provides  that if  on that 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 nonetheless sets out exceptions.

Section 4(2) is also qualified by Section 27(1) of the 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  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 I relation to the cause of action.

Subsection 2 of section 27 provides that:

(2) The requirements  of this Sub-Section  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 material times outside  the knowledge  ( actual or constructive )  of the plaintiff  until a date  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 law was set out in Gathoni Vs Kenya Co-operative Creameries Ltd (1982) eKLR where   the Court of Appeal held:

………………

For an application to 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 one year   of the cessation of the period  during which  the decisive  material  facts were  outside his/her  knowledge”

In Lucia  Wambui Ngugi vs Kenya  Railways  & Another HC Miscellaneous Application  213 of 1989, Mbito J observed that:

“ It must of course be assumed  that for purposes  of the exparte  application, the evidence  is true, 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 the appellant’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  Sub-Section (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  the 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, protect a defendant after he  has lost evidence for his defence  from  being disturbed  after along  lapse  of time.  It is not to extinguish claims.”

In Dhanesvar V Menta 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.”

In Iga v Makerere  University [1972] EA 65 the  court held:

“………..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…….”

From the above judicial proo8ncements, it is trite that the Limitation of Actions Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for, and when a suit is time barred, the court cannot grant the remedy or relief.  The extension of time to  file suit where such  time has lapsed  can however, be brought under Section  27 of the Limitation  of Actions Act in tort  in respect  of claims for  personal injuries arising  from negligence, breach  of duty  or nuisance.

In the instant case, it is clear from affidavit evidence availed that the cause of action allegedly arises from  an alleged negligent  acts of  the proposed  defendants  in the manner  in which  they drove/rode, managed  and or  controlled  the accident  motor vehicles/cycle, as a result of  which the  applicant sustained  serious personal injuries  as shown by the  discharge summary from Aga Khan University Hospital.

Nonetheless, even  where the claim falls  under  the aforesaid  provisions  time  will not be extended  unless the  applicant proves that she was  ignorant  of material facts  relating  to the cause of  action which  material  facts must be of  a decisive  character  and which were, at all  times outside  her knowledge, whether  actual or constructive(see Republic  vs Principal Magistrate P. Ngare Gesore  & 2 Others Exparte Nation  Media Group Ltd[2013] e KLR.

In order  to prove the above position as espoused in section 27 of the Limitation of Actions Act, the  applicant is expected to demonstrate  that she did not  know that those facts were capable  of being ascertained by her; she had taken all such  steps  if any, as it was reasonable  for her  to have taken  that time for  the purpose of ascertaining  the facts; and that  so far as  they existed, and were known to her, circumstances  from which, with appropriate  advise, that fact  might have  been ascertained  or inferred, she had taken all  such steps  ( if any) as it was reasonable  for her to have taken before that  time for the purpose  of obtaining  appropriate  advise  with respect to those circumstances.  In Section 30(5) “ appropriate advise” is defined as meaning  in relation to any facts or circumstances  “advise of  a competent person qualified  in their respective  spheres, to advise on medical, legal or other aspects  of that fact on those  circumstances, as the case  may be.”

In the present case, the applicant deposes in her affidavit that at the material time of the accident, she was  a student in High School.  Annexture  JAK 2 is School Leaving certificate  from Angaza Nguluni Academy   showing that  she left form four  on 12th November 2012.  The accident  occurred on 21st April  2011 a year  and a half  before  she  left school.  She also deposed that she did  not know the owners   of the  accident motor cycle. However, a copy of a police abstract  issued to  Kitsao Ngala Chome  who  is recorded  as (father) on 16th May 2011 less than one month       after  the accident  shows that  all the  particulars  of the accident and  owners  of the two motor vehicles  KBK 746A and KAX 386L and  Motor Cycle KMCN 938Q were recorded  therein. It cannot therefore   possibly be true that the applicant herein had any difficulty tracing owners of the accident motor vehicles/Motor cycle.  The applicant was in hospital from 21st April 2011  to 1st May 2011 and discharged  to continue for outpatient at Mr Bodo’s clinic according to the discharge  summary dated 1st May 2011.

This court does appreciate that the applicant at the time of the accident was a student then and had to undergo medication including physiotherapy.  This  court also  appreciates  that the applicant sustained  serious  injuries  and heavy medical expenses   were  incurred  by her father  as shown  by the  attached receipts  some cleared  by Kenya  Power & Lighting  Company  Ltd, others  by cash  and others by Medicins Sans  Frontiers  France/Kenya.

What this court does not appreciate is the fact that the applicant has not been candid with this court.  Her depositions are not in accord with the documents which she annexed to the affidavit in support.  This court, on the first occasion when this application came up for hearing had to satisfy itself as to the merits   of the application.  The first  batch  of documents  had no copy  of police  abstract  which was  filed later on demand by the court and which clearly  show that  it was obtained  hardly a month  after the accident  and had all the details  and particulars  of ownership  of the accident  motor vehicles  and motor cycle  involved.

In addition, all the invoices and or receipts for payment of hospital bills were for the year 2011.  It  can therefore  not be true that  the application  concentrated  on settling  her hospital  bills between 2011 and  2014 October  6th  when this  application (OS)  was instituted and when she was a school leaver that had not disclosed from what sources she was raising the alleged hospital charges.

In my view, the applicant has failed to demonstrate to this court the reasons for her failure to file suit   within three years.  She  has not been sincere in  her depositions  and neither  has she  demonstrated  that she was ignorant  of material  facts of  a decisive character, relating  to the cause  of action.  In Mary Wambui Kabugu V Kenya Bus Service  Ltd CA  195/95, Shah  JA  was categorical  that:

“ The requirements under Section 27  of the Act  are explicit  and the  court cannot  go beyond  the scope  of the requirements  for instance  out of  sympathy because the  applicant did not  know the law.  If the evidence  showing prima facie  that the  requirements  of the Act are  satisfied   leave should be  granted  leaving the defendant  to challenge  the facts in the  action in due course.  The statute  does not  seem by its language  to confer  a discretion but  merely a jurisdiction to decidewhether the requirements  of the statute  are or  are not  fulfilled.  That decision of course involves points on which judicial mind may differ.”

What the  above decision  of the  Court of Appeal and others like  Yunes K. Oruta & Another  V Samuel  Mose Nyamato CA 96/84 establish  is that  where an  order has been made extending  time, such  order is not  final but is  merely  provisional and that  the defendant  will have  every opportunity  of challenging the facts  and the  law afterwards  at the trial  of the suit.  It is  the trial judge  who must rule finally whether  the plaintiff  has satisfied  the conditions  for overcoming the  time  bar and  he is not in the least bound  by the provisional view  expressed  by the judge  in chambers  who granted  leave.  I would, for the aforesaid  reasons  dismiss   this application.  However, I note that all the decisions I have relied on are prior to August  27th 2010.  In this era and times,  I am enjoined to apply the  principles espoused  in the Constitution  of Kenya 2010  which did  not exist when the decisions I have relied on were made , on the right to be  heard pursuant   to Article 50(1)  of the Constitution  which  enacts  that 50(1)  every person has the right  to have any dispute  that can be resolved  by the application of law  decided  on a fair and  public  hearing  before a court  or, If appropriate, another  independent  and impartial  tribunal or body.

The right  to a fair hearing as  espoused  above cannot  be limited, albeit  it  should not  be construed  to mean  that it  ousts  the jurisdiction  of the court to grant  or refuse  to grant  leave based  on the conditions  set out in the Limitation of Actions Act.  The right, in my view is invoked in the circumstances of this case to accord the applicant an opportunity to ventilate her grievances before the trial court so that she does not feel ousted from the judgment seat.

In addition, if the  right to access to  justice  under Article  48 of the Constitution  is to be  realized, then persons  who  have failed to meet the statutory timelines  of filing suit, where  there is  room for extension of such  period, should not  be denied  an  opportunity to access the court  and ventilate  their grievances  since the Law  of Limitation of Actions  does not  extinguish  claims but  bars the filing  of stale claims.  It is  for the above reasons  that I grant the applicant  herein Janet Dama Kitsao extension of time within which to file suit  arising from  a road  traffic  accident which  occurred on 21st  April 2011.

The suit shall be filed within 21 days from the date hereof in default, such leave will automatically lapse.  I make no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 28th day of October 2015

R.E. ABURILI

JUDGE