[1988] KECA 142 (KLR)

IN THE COURT OF APPEAL

AT NAIROBI

(Coram: Nyarangi, Platt & Gachuhi JJA)

CIVIL APPEAL NO 96 OF 1984

Between

ORUTA & ANOTHER ...................................................APPELLANT

AND

NYAMATO...............................................................RESPONDENT

JUDGMENT

(Appeal from a Ruling of the High Court at Nairobi, O’Kubasu J)

June 22, 1988, Gachuhi JAdelivered the following Judgment.

By an ex-parteoriginating Summons filed under order XXXVI Rule 3 C(1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, the respondent applied to the court for extension of the Limitation period to enable him to file suit claiming damages for injuries resulting from a road accident. Such extended period is as required by Section 27 of the Limitation of Actions Act (cap 22). The originating summons was supported by an affidavit which set out in detail the grounds for the application. The High Court was satisfied with the reasons given for the delay in filing suit within the period stated in the Act. The Court granted the order as prayed under prayer 1. Prayer 3 was for costs which were ordered to be costs in the cause. A plaint was filed on December 5, 1983 in the High Court Civil Suit No 4335 of 1983.

Summons were served. Appellant entered appearance and filed defence to the suit. Thereafter made an application under Sec 3A of the Civil Procedure Act, Order VI Rule 13 Order XIV Rule 2 and all other enabling provisions of the Civil Procedure Rules and Sections 4, 27, 28, 29 and 30 of the Limitation of Actions Act (cap 22) that the plaintiff’s (respondent) suit against the Defendants (Appellants) be struck out. The application was supported by an affidavit sworn by the Appellant’s Advocate who deponed inter aliathat the plaintiff’s action was statute barred and further stated that the plaintiff failed and / or is unable to show and/or prove or satisfy the requirements of Section 27(2) and 30 of the Limitation of Actions Act both on law and facts and upon full disclosure of all material facts. The High Court after hearing argument from both Counsel for the Defendant and for the plaintiff dismissed the preliminary objection. Hence the filing of this appeal.

The procedure for obtaining the extension of time for the purpose of section 27 of the Act is set out in Section 28. It is also provided for in Order XXXVI rule 3C of the Civil Procedure Rules. The application is to be made ex-parteand the defendant is not in a position to oppose the application. In fact he only becomes aware of the order, if obtained, when the order is served together with the plaint. However, there is no provision for the application to set aside the order in the Act but the defendant can raise the matter as an issue at the trial. Now that the preliminary point has been raised before the trial, it now calls for interpretation of the section as to the reason of the enactment providing for the application to be made ex-parte. Why shouldn’t the defendant be afforded a chance to oppose the application before the order is granted and before the suit is filed so as to minimise costs!

Section 4(2) of the Act provides:

“An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.”

This is the limitation provision. There is an exception to this section in section 27 which provides:

Section 27

(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 requirement of subsection (2) of this section 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 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 years 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 that one year before the date on which the action was brought.

(3)This section does not exclude or otherwise affect:-

a)any defence which, in an action to which this section applies; may be available by virtue of any written law other than section 4(2) of this Act (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or

b)the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.

Section 28.

(The marginal note reads – Application for Leave of Court under section 27)

(1)An application for the leave of the court for the purposes of section 27 of this Act shall be made exparte, except in so far as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.

(2)Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates. If, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would be in the absence of any evidence to the contrary, be sufficient –

a)to establish that cause of action, apart from any defence under section 4(2) of this Act; and

b)to fulfil the requirements of section 27 (2) of this Act in relation to that cause of action.”

Sub-section (3) deals with the application after the commencement of the relevant action while sub-section (4) and (5) deal with interpretation of “relevant action” and “court”.

Mr Dhanji’s complaint is mainly that the extension ought not to have been granted because time had expired and that the Judge was wrong in granting the extension without having regard to the provisions of sections 4, 27, 28 and 30 of the Limitation Act. The same complaint is levied against the Judge who heard and dismissed the preliminary objection.

Why is it that the court is said to have gone wrong in allowing the exparteapplication? Apart from provisions of the Limitation of Actions Act, above Rule 3C of Order XXXVI of the Civil Procedure Rules provides:

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

(3) Any such application made after the filing of a suit shall be made ex-parteby summons in that suit supported by affidavit.

Whether the application was made before or after filing the suit, there is no provision for the defendant to be heard before the order authorising the extension of time is granted because the application is meant to be unopposed. It cannot be firmly argued that the Judge who heard the exparteapplication was wrong in granting the order. The Judge merely complied with the requirement of Section 27 of the Limitation Act. He read the affidavit with annextures and believed the plaintiff on the evidence deponed in the affidavit. When the defendants were served with the summons, they reacted by filing the defence pleading amongst other defences, the defence of Limitation. The defence was followed by the application for setting aside the ex-parteorder. The application was in keeping with the practice that the party should be heard on the application that will affects his rights.

The procedure in cases of limitation as discussed in Cozen v North Devon Hospital Management Committee: Hunter v Tarness (Soham) Ltd[1966] 2 AER 276 a decision that was upheld by the Court of Appeal at page 280 letter F Thompson J said:

“The Judge in chambers accordingly is required to form, on the evidence laid before him on behalf of the plaintiff, a prima facieview as to matters which the Act contemplates will be decided (if leave be granted) only in the action itself. These matters are (i) has the plaintiff a good cause of action (ii) does the plaintiff fulfil the requirements of sub sec (3) of sec 1?”

(Sub-section (3) of sec 1 is the same as Sub-Section (2) of sec 27 of the Limitation Act Cap 22)

In the affidavit, the plaintiff deponed that he was not aware of the name of the driver who was driving the vehicle at the time of the accident against whom negligence will be proved and that the investigation by the police had not been completed at the time of filing suit. He also deponed that he was still undergoing treatment and that his final determination of his injuries had not been made. He further deponed that he passed the matter to the insurance company who made verbal promises that his claim will be met. From the correspondence, it appeared that the insurance company (a broker) is an agent of the plaintiff, an agent of the owner of the car the plaintiff was travelling in, and an agent of the defendant’s vehicle. This is an unhappy situation as the delay could have been attributed to the insurance broker who might have failed to advise the plaintiff of the action he should have taken earlier.

It could have also been that the failure of the insurance company was to protect one of the parties from settling the plaintiff’s claim which after the delay the suit when filed would be met with the defence of limitation. This could have been a possibility O’Kubasu J refused to set aside the ex-parteorder and said that the Judge who granted the ex-parteorder was right. The refusal left the matter to proceed to the hearing where the point of objection could be taken and be decided on the evidence to be adduced at the hearing. It will be up to the Judge presiding at the trial to decide the issue of limitation as one of the issues but not as a preliminary point. The raising of the preliminary issue that would cause the suit for the plaintiff to be struck out is not encouraged by the Limitation of Actions Act particularly where leave to file an action against the defendant has been granted ex-parte.

Reading the Act closely, it is not the intention of the legislature to allow a claim based on personal injuries on account of negligence nuisance or breach of duty to be met with a defence of limitation. To prevent any possible defence on limitation as an exception to section 4(2) of the Act an ex-parteorder for leave to file an action has to be obtained.

The granting of ex-parteorder has been discussed in England in Cozen v North Devon Hospital Management Committee and another[1966] 2 AER 799 where the majority of the Court (Lord Denning MR and Danckwerts JJ ) in dismissing the appellant’s appeal against the refusal to set aside the ex-parteorder (as in the present appeal) held;

“Although it was a general principle in regard to exparteorders that the party affected by the order could apply for it to be discharged, yet it would be contrary to the intention of the Limitation Act 1963 to allow a defendant to apply, before the trial of the action, to set aside an ex-parteorder obtained under section 2(1) giving leave for the purpose of section 1(1)(a).”

The Limitation Act 1963 is an Amendment Act of Laws of England and Wales Limitation Act 1939. Sections 1 and 2 (1) to (3) of 1963 Act are almost identical to Sections 27 and 28 (1) to (3) of the Limitation of Actions Act (Cap 22). Limitation Act (Cap 22) commenced on December 1, 1967. These sections were copies from the English Act. The application of the interpretation in Cozens v North Devon Hospital Management Committee(supra) to these sections would be given the same treatment in interpretation of sections 27 and 28 of Cap 22. In Cozen’scase the court refused to set aside the ex-parteorder though the claim was filed after eight years. Similarly in David Stephen Gatune v The Headmaster Nairobi Technical High School and Attorney GeneralCA No 79/82 the court also in a majority judgment, in interpreting Sec 27 and 28 of the Act allowed an appeal from refusal by the High Court to grant leave for an ex-parteorder extending time to file an action for a claim of total blindness after a period of about eleven years.

The English decision has persuaded me to accept that interpretation as a correct interpretation of the intention of the Legislature. The respondent having obtained leave to file action as required by the Law, that order can only be queried at the trial but not by application to discharge it otherwise the provision of the Act in providing for obtaining an order ex-partewill be rendered nugatory. In my view O’Kubasu J was right in refusing the appellant’s application to discharge the ex-parteorder. Likewise I would refuse the appellant’s appeal. The appellant can raise the objection at the trial and the trial Judge will have to deal with the matter on the evidence to be adduced at the trial.

I would dismiss this appeal with costs.

Nyarangi JA.I am quite clear that the judgment of Gachuhi JA is right.

The order of the court therefore is that the appeal is dismissed with costs.

Platt JA.I agree that this Court should respectfully adopt the reasoning in Cozen v North Devon Hospital Management Committee,[1966] 2 All ER 799. It follows that the defendant can only challenge the extension of time in the trial itself and not by a preliminary application. This is an exception to the general rule that the parties affected by an ex-parteorder can seek to set it aside under the principles of natural justice.

I agree with the result reached by Gachuhi JA and the orders he proposes.

Dated and delivered at Nairobi this 22nd day of  June , 1988

J.O NYARANGI

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

JUDGE OF APPEAL

H.G  PLATT

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

JUDGE OF APPEAL

J.M GACHUHI

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

JUDGE OF APPEAL

I certify that this is a true copy of the original.

DEPUTY REGISTRAR