Kibe v Gitaka [2022] KEHC 13467 (KLR)

Kibe v Gitaka (Miscellaneous Case E076 of 2021) [2022] KEHC 13467 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13467 (KLR)

Republic of Kenya

In the High Court at Kiambu

Miscellaneous Case E076 of 2021

MM Kasango, J

October 6, 2022

IN THE MATTER OF LEAVE TO FILE OUT OF TIME

Between

David Njoroge Kibe

Applicant

and

Martin Muhia Gitaka

Respondent

Judgment

1. Section 4(2) provides as follows:-“An action founded on tort may not be brought after the end of three years form the date on which the cause of action accrued.”

2. This court has been moved by David Njoroge Kibe to extend time to file a suit out of time. The originating summons is premised under section 27 of the Limitation of Action Act, cap 22. The originating summons is supported by an affidavit of the advocate acting for the applicant. The advocate by that affidavit sated that the applicant was involved in a motor vehicle accident while he was driving vehicle registration N K*V while the respondent was driving motor vehicle K*E. That accident was investigated and the respondent was found to be at fault. The applicant’s vehicle sustained extensive damage during the accident and the accident was reported to the applicant’s insurance which insurance incurred costs of repairing the applicant’s vehicle. The applicant’s insurance intends to make claim for costs incurred under the doctrine of subrogation. The applicant’s insurance instructed the law firm Merital Law Africa LLP instructing that firm to recover its outlay. The advocate further deponed as follows:-“7. That the advocate handling the matter at the time, filed the suit on July 27, 2020 on which date the applicant had been barred by the limitations of actions act (Annexed hereto and marked FN-4 is a copy of the receipt from the Judiciary confirming filing of the suit and the filed plaintiff’s bundle of documents).8. That the advocate erroneously filed the matter at the Chief Magistrate’s courts at Thika law courts as opposed to Kigumo law courts. (Annexed hereto and marked FN-5 is a copy of the plaintiff’s bundle of documents filed at Thika law courts.)9. That the advocate handling the matter ought to have sought for leave from this honourable court.10. That the advocate thereafter left the firm in without following proper hand over procedures and hence this mistake was never realized by the advocate who took conduct of the matter (annexed hereto and marked FN-6 is a copy of the print-out of email correspondence showing the same);11. That the mistake of the previous counsel was only realized recently when the advocate who took over conduct of the matter was perusing the physical file to effect service upto the defendant, when she learnt of the mistake.12. That it was intended by the applicant’s insurer, that the suit for recovery of its outlay would be filed promptly, before the applicant would be precluded by the provisions of applicable statute.13. That any delay experienced in bringing this application was due to the scale down of activities at the office caused by the Covid-19 pandemic hence precluding the advocate who took over the matter from physically attending the office (annexed hereto and marked FN-7 is a copy of the office memo.)14. That the failure to file the claim was an inadvertent error by the previous counsel with conduct of this matter and the same should not be visited on the applicant.”

3. Section 27 of cap 22 expressly refers to claims in tort where the action is for damages from negligence, nuisance and breach of duty. Section 28 of cap 22 provides for the procedure in extension of time under section 27.

4. Section 27 of cap 22has a heading that states:-“Extension of limitation period in case of ignorance of material facts in actions for negligence.”

5. That heading shows that section 27 is activated when there is ignorance of material facts in an action for negligence.

6. Section 27(1) provides that section 4(2) does not afford defence where under subsection (c) the court has granted leave for a suit to be filed out of time. It is important to note the provisions of section 27(2) which provides:-“(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 wee at al times outside the knowledge (actual or constructive) of the plaintiff until a date which –a.Either was after three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period.”

7. It is useful to cite the case of Peter Gichuki Mwangi v Kenya Copyright Board & 3 Others (2018) eKLR thus:-“12. In the instant application the same is based on section 27 and 28 of the Limitation of Actions Act (cap 22) Laws of Kenya. The aforesaid sections are clear that for an applicant to benefit or qualify for an extension for limitation period the torts claim should be for damages for negligence, nuisance or breach of duty; damages claimed in respect of personal injuries of any person and that the requirement of section 4 (2) are fulfilled in relation to cause of action, if it is proved that material facts relating to the cause of action were or included facts of a decisive character, were at all times outside the knowledge of the applicant until the date either after 3 years period of limitation prescribed for the cause of action was not earlier than one year before the end of that period and either case was a date not earlier than one year before the date on which the action was brought.”

8. The accident, the subject of the proposed action occurred on July 16, 2017. The instructions to file suit, going by the email attached by the applicant were given to the advocate on 9th June, 2020. The advocate ought to have noted that by then, there was only a month before the claim was time barred.

9. The advocates and more importantly the insurance company knew of the material facts relating to the cause. The applicant cannot therefore find solace in section 27 of cap 22 because he did not meet the requirements of subsection (2) of that section. The applicant cannot claim not have known the facts. All the reasons offered by the advocate do not surmount that huddle. All parties hereof that is the applicant and the insurance were aware of the material facts of this case. The applicant has failed to meet the threshold for extension of time to file a suit.

10. In the caseRosemary Wanjiru Kung v Elijah Macharia Githinji & another (2014) eKLR it was held:-“(a)the object of a 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 defense from being disturbed after along lapse of time; (b) unless an applicant shows grounds upon which he could claim exemption, a court shall reject his claim. Counsel submitted that a cause of action that is barred may in certain cases be revived if the conditions set out in section 27 of the Limitation of Actions Act are satisfied.”

11. Also in the case YH Wholesalers Limited v Kenya Revenue Authority (2021) eKLR, the court discussed the following:-“Lord Green MR said it all in Hilton v Sultan S Team Laundry‘But the statute of limitation is not concerned with merits, once the axe falls, it falls and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation is entitled to insist on his strict rights.’”

12. Those two cases show that statutory provision is to ensure the plaintiff files its case within a determined time and they show the defendant needs to be protected from a case being filed when the evidence is not available.

13. The originating summons having failed the test of section 27 and 28 of cap 22 its fate is clear.

14. The applicant erred to have seemed to almost blackmail this court into granting the extension sought by using emotive language. The applicant stated that if the court does not grant the order, it would “effectively exonerate the respondent.” Further, the applicant stated that if the order is not granted, it “shall be tantamount to punishing the applicant.” What the applicant’s advocate failed to do is to look inward at his law firm. How can an advocate leave a law firm and the file he was handling be left to lie fallow in that law firm. That failure was obviously the reason the applicant ran out of time to file the action. The originating summons is defeated by its failure to meet the conditions in section 27 of cap. 22.

Disposition 15. The judgment of this court is that the originating summons dated April 1, 2021 is without merit and is dismissed with no orders as to costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:court Assistant:- MouriceFor Applicant:- Mr. Lumumba HB Mr. SaenecourtJudgment delivered virtually,MARY KASANGOJUDGE