Patrick S.K. Kimiti v John Ngugi Gachau & Josephine Ndiko Ngugi [2015] KEHC 114 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL   APPEAL NO.  116   OF 2011

PATRICK S.K. KIMITI…….…...………APPELLANT

VERSUS

JOHN NGUGI GACHAU ………..1ST RESPONDENT

JOSEPHINE NDIKO NGUGI..…..2ND RESPONDENT

JUDGMENT

This appeal arises  from the judgment  and decree  delivered /issued  by A.K. Ndungu, Esq. Senior Principal Magistrate ( as he then was )at the  Nairobi Milimani  chief  Magistrates court on 23rd February  2011 in CM CC 3537 of 2005.

The respondents herein John Ngugi Gachau and Josephine Ndiko Ngugi were plaintiffs in the lower court.  They filed suit  against the  appellant  herein Patrick K. Kimiti vide plaint  dated  12th January  2005 claiming for a refund  of kshs 910,000/- allegedly received by the defendant(appellant  from the respondents) plaintiffs  for onward  transmission  to third parties for  purchase  of land  parcel No.  Nairobi/Block 110/846 which transaction could not be  completed  as the title  documents  used for the  transaction  were alleged to have been forgeries and that the  alleged executors  of  the transfer  documents  were  impersonators.  The respondents/plaintiffs also claimed for damages for professional negligence against the appellant who is an advocate of the High Court of Kenya. They also prayed for costs of the suit and interest at 24%.

The appellant advocate filed defence dated 12th July 2005 denying the claim by the respondents. He contended that the suit was statute barred.

In his judgment  delivered on 23rd February 2011 the trial magistrate allowed  the respondents’  claim as prayed, stating that the  respondents  had proved their case  and that  leave  to file suit  out of time  was obtained  before  the suit was instituted against  the appellant.

Being dissatisfied  with the  judgment  and decree of the trial court, the  appellant  lodged  this  appeal  vide  Memorandum of Appeal dated 10th March  2011 and amended  on 20th March 2013 pursuant  to Order 42 Rule  3(1) of the  Civil Procedure  Rules.

The amended Memorandum of Appeal sets out 20 grounds of Appeal namely:

That the Learned  trial magistrate erred in law  and fact by holding  that the appellant  was negligent  in the manner  he drew up  the agreement  relative  to the suit  before the court  notwithstanding  that the  same  was in conformity with the  instructions  given by the respondents.

That  the Learned magistrate  erred in law and fact in holding  that  the appellant  should have  contracted  or added   to or varied  what (sic) the  parties  to the agreement  complained of had already agreed  on  and thereby  contravened  Section 97 and 98 of  the Evidence Act,  Chapter 80, Laws of Kenya  as read with Section 3 of  the Law of Contract  Act Chapter 23 Laws of Kenya.

That the Learned  trial magistrate erred in law  and fact in granting  the  respondents’ claim yet the green card(extract  of title) the title deed and  the official search produced before  him involving  the subject  land  parcel number Nairobi/block 110/846  were in tandem with the agreement  complained  as respects the names of  the proprietors/vendors.

That the learned magistrate further erred  in law and in fact  in  failing to appreciate  that the loss, if any, arising  from an unfounded  suspicion  of forgery or impersonation was  not foreseeable  by the appellant more  so because   the executors  of the transfer were known  to Mr Waweru Gatonye an advocate of the High Court  who gave a  statutory certificate  that he knew the vendors.

That the learned magistrate erred  in fact  and law   in  failing  to appreciate  that the suit was based on alleged forged  documents  and impersonation  which were  not proved.

That  the Learned  trial magistrate further failed to appreciate  that the  suit was  filed prematurely since the  registration  of the transfer  was  shown to have  been pending awaiting   the completion  of investigation by Criminal  Investigation Department (CID).

That the respondents stand to have double benefit if the prayers sought in the suit are given and it turns out that   the transfer is or will ultimately be registered in their favour.

That the appellant having been used as  a conduit for  delivering  the  respondents  cheque to the vendors’ advocates, which  he did, cannot in  law be called  upon to make  a refund  for the proceeds  of the cheque  to the respondents.

That the learned magistrate erred  in law and in fact  in  failing  to appreciate  that the plaint  was not in conformity  with  the then Order VII Rule (e) since it  failed to disclose  the existence  of previous proceedings  in Miscellaneous  case No. 332 of 2004 which is mandatory requirement.

That the third parties  who claim to hold another title  deed and  whose  signatures  were allegedly  forged  were not called  to testify against  the  statutory  certification by Mr. Waweru Gatonye.

That the learned magistrate erred in law and in fact in failing to appreciate that the appellant was not acting for the vendors and therefore could not be able to interview or identify them.

That the learned magistrate erred in speculating that the proceedings exhibited purporting   to extend   the limitation period was an order therefore.

That the alleged order extending time was irregularly obtained in a Miscellaneous Application as opposed to an Originating Summons as required by Order xxxvi Rule 3C.

That the learned magistrate erred  in law and in fact  in  failing  to appreciate  that the respondents’ claim  was time barred  by the Section 4  of the Limitation  of Actions  Act, Cap 22 , Laws of Kenya.

That the learned magistrate erred  in law  in failing  to disregard, set aside  or otherwise  deal adequately   with the issue  of the court’s  jurisdiction to have purportedly  granted  and alleged  order  for extension  of time  in a matter  that did not  fall within  the law allowing  for such extension

That the learned magistrate further erred in accepting extension of time in a matter not involving personal injury as stipulated in Section 27 of the Limitation of Actions Act, Chapter 22 Laws of Kenya.

That the learned magistrate erred  in law in  failing  to appreciate  that the  authorities/cases  cited by the appellant before  him were  binding  on him and that he had no power to overturn  the same.

That the learned magistrate erred  in speculating  the status of the registration  of the transfer  at the lands registry  as the time  of filing suit  and the time  of hearing  and delivery  of judgment   by relying on a  1998 extract  of title  an exhibit  seven years  before the suit  was filed.

That the learned magistrate erred  in law in  failing  to  address himself  to each of the issues  raised  by the appellant   in the court  below  and state his findings/decision  thereon in terms of Order 21 Rules 4  and 5, Civil Procedure Rules .

That the learned magistrate generally misdirected himself in granting the respondent’s claim on the basis   of extraneous   matters in respect  of which he did  not afford  the  appellant an opportunity  of being  heard.

The parties agreed to dispose of the appeal by way of written submissions with some brief oral highlights reiterating the field submissions.

In his  written submissions  filed on 19th December 2014  the appellant contents that he was  approached  by the respondents in the  company of their friend a Mr Kimani, to  draw a sale  of land agreement  which he  did and  that whether  or not  the title  documents  were  forgeries  or that the  vendors  who  executed the documents  of transfer  were impostors, he would not know and neither  would he  be responsible  as he acted  in accordance  with the respondent’s instructions and terms and conditions of the sale agreement.

The appellant  condensed grounds   12,13,14,15, 16  of appeal into one , dealing  with the issue  of whether  the suit  as filed was statute  barred pursuant  to Section 4(1) (a) and 4(2)  of the Limitation  of  Actions Act.

The said Section provides that:

The following actions may not be brought after the end of six years from the date in which the cause of action occurred.

Actions  founded  in contract

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

According   to the appellant, the proceedings produced as P Exhibit 7 at page 180 of the record of appeal was not an order extending the limitation period.  That  in the absence of   an order  which is  extracted  and sealed  by the court, whatever was produced  in the name of  proceedings   was not proof  of  leave having  been granted to extend  the limitation period  hence the suit  was incurably incompetent.

The appellant  further submitted that  it was incumbent   upon the  respondents  to produce  an application allegedly filed  in Miscellaneous Application  332/2004  plus any  supporting affidavits  and that the  so called order stating  “orders as prayed” was insufficient  to prove what  was prayed  for and  or what  had been sought.

In addition, the appellant  submitted  that  the respondents  did not plead  in their plaint that  they had  been granted  leave  extending  the time for filing suit.

Further, that the  application for leave  should in  any event  have been made  by way of originating   summons as required  by Order XXXVI Rule  3 ( c ) (1) now Order  37 Rule 6(1)  of the  Civil Procedure Rules, which  Order and  Rule is  couched  in mandatory terms.  The  appellant  relied on the case of  Ngethe  V Gitau [1999] 1 EA 225 and  Kenyega  Vs Obwori [2001] KLR 103  that failure to  file suits  by way of originating summons  as mandatorily  required  by Order  XXXV1  Rule  3(1) of the Civil procedure Rules rendered  the claims irretrievably non –starters  and incontestably  bad in law.

The appellant  also submitted that  the claim based  on contract  was statute  barred   under Section 4 (1) of the Limitation  of Actions Act as six  years had  elapsed  from 1994 to  2005 when the suit  was filed.  In his view, since the claim was based on contract, it could only have been brought less than 6 years.  He also submitted, relying on the case of Clark & another V Kilby Smith [1964] me ch 506 where it was held that:

“Liability of a solicitor to his client   for negligence was a liability in contract and not in tort where the solicitor had failed to carry out the client instructions.”

The appellant  distinguished  between torts  and contracts  under the  Limitation of Actions Act and submitted that in contracts, the  limitation  was 6 years  and only extendable upon fraud or nuisance  being pleaded  and proved  which was not  the case here  contrary to Section 26 of the Act.  Further, that the respondent’s exhibit 7 does not disclose whether the leave granted applied to contract or tort. Relying  on the case  of Mary Wambui Kabungua  V Kenya Bus Service Ltd  the appellant submitted that  the trial magistrate who hears  the suit   was  the one to deal with the  issue  of exparte  leave granted  extending  the limitation period but that in the instant case there  was no material upon which  the trial magistrate could  have adequately addressed  the objection  raised  on the leave  since it was not clear  what the respondents  submitted on and  or whether  they were alleging that the appellant  herein  is the one  who forged   some document  or whatever  it was.

In the appellant’s view, the exparte  leave obtained  was obtained by deception and hence  the trial magistrate  should have  vacated  that purported order extending  limitation, since the  basis of  the suit  was different  from what the  application  for leave   was.  In the  appellant’s  view,  the trial court  rather dealt  with the said issue  of limitation  casually, noting  that  the respondent’s  counsel’s submissions  in the said application  were  vague  and only referred to forged  documents, which fact of forgery  or fraud was  never pleaded  in the substantive suit.  For that reason, it was argued that the exparte leave obtained by deception had to be vacated.  Further, that PW1’s  evidence at page  156 lines 7,8 and 9 gave reason  for delay  as “ because  I was waiting  for CID officers  to complete  investigations.”  It  was further  submitted that nonetheless, those reasons  did  not meet all the requirements under Section 27(2), 28 and 30 of the Limitation  of Actions Act  in that it was not proved  that delay was due to  ignorance  of material facts  relating to the cause of  action which were of a decisive  nature and  which were at all material  times outside  the  knowledge(actual or constructive) of the plaintiff  until  a later date.

On the merits  of the claim, the  appellant  submitted that the judgment granted the prayer   for kshs  910,000 yet there was no money received  from the respondents by the appellants  capable of being refunded  save for kshs  152,400 which was paid to the  vendor’s  advocate and a cheque for  819,000 in favour of   Waweru Gatonye  advocates  for the vendor who acknowledged  receiving it.  The appellant relied on the case of General Accident Fire and Life Assurance Corporation Ltd & Another V Midland Bank Ltd & Others [1940] KB.

On the issue whether  the appellant  committed any professional negligence, the  appellant submitted that there was  no such proof   of registration of respondents as owners  of the land  and no evidence  was adduced  to show that  the transfer  of land  instrument  was rejected  when it was presented since even stamp duty was paid.  The appellant  contended that  he carried out  the transaction to the best of his ability and that there  was  no evidence  that the money (consideration) for the transaction was paid to impersonators  since parties  agreed to have the money  paid out  and all other provisions  specifically negotiated  between parties and that  the appellant  even asked  the respondent  as to why he  wanted to part with the  money urgently.

On the issue of liability, the appellant submitted that the court had to look at the cause of the injury and that in his view; he was not the cause thereof.  He relied on Buckner V Estiby  & Horn [1941] 1KB.  In his view, no loss or injury was foreseen since to date the Land Registrar has not rejected or returned the transfer form.  He urged the court to allow the appeal with costs.

On behalf  of the respondent, it was submitted by Mrs Guserwa, relying  on  the written submissions filed on 5th February 2015  that the appellant failed to exercise  due care  in conducting  the sale  of land transaction on behalf of the respondent client, the duty of ensuring  that the  consideration  was paid  to the  correct people.  That the appellant advocate failed to  cushion the client  with a security clause  in the agreement  to protect  funds as  the transfer process  progressed  and as a  result, it turned  out that  vendors  were  not actual owners  which fact only  came  to light after the monies   were paid out.  That it was the appellant’s duty to state whether or not documents of transfer came back from Land Registrar since he was the respondent’s advocate.

On the issue of limitation, Mrs Guserwa submitted  that they had  produced  the order or proceedings  with the citation showing the  details of the cause wherein leave  was granted  and if they  were  in doubt, they would have looked for  the court to file  to establish the truth.  Counsel for the respondents also contended that it was not  raised at the trial that  the grounds on  which leave  was granted  was invalid  hence the  appellant  was estopped  from  raising  that issue  now and that  in  any event, albeit  the issue of  time bar  was raised, the trial magistrate  made reference  to forgery issues that delayed  the filing  of suit.  In her view, the respondents   were correct  in seeking for  extension of time as the  contractual  breaches  gave rise to professional negligence  specified in paragraph 8 of the plaint and  that  the appellant  was negligent in relying on the professionalism of Mr Gatonye  advocate in that he should have  caveated  the cheque and neither  did he  call Gatonye  as his witness   nor join  him as a third party.  That failure  to provide  safety  valves  for the money  and call the Land Registrar  to explain  the position  rendered  the appellant liable  as an  advocate  and that therefore  the loss suffered  was occasioned by the professional  negligence  of the appellant who  failed to include a security clause in the sale  agreement, which factor  the trial magistrate considered   but which  had not been  challenged  or faulted in this appeal.

The respondent’s counsel further submitted that the authorities relied on by the appellant can be distinguished as the first one related to premiums paid in respect of a life policy.  She  concluded that  there was no denial that   the cheque  was received by the appellant  and that he  should have  ensured  that the sale  was  completed  before  the money  was released  to the seller.

In a brief rejoinder, the appellant’s counsel Mrs Kimani submitted that   there was a restriction on the title and that there was no evidence of return of the transaction documents.

I have carefully considered  the appeal  herein as filed through a  Memorandum of Appeal, the written  and oral submissions by both  parties  counsels, the authorities  relied  on and the record as  a whole.

In my view, the issues that emerge for determination are:

Whether the respondent’s suit   was competently filed or whether it was statute barred.

Whether  the  advocates duty of care  to a client  is a contractual duty and  where  such  duty is breached  leading  to professional negligence and loss to  a  client, whether  the claim would be  based on tort or contract.

Whether the respondents proved their case against the appellant on a balance of probabilities.

Whether non compliance with procedural requirements invalidated their suit.

What orders should the court make.

Who should bear the cost of this appeal and the court below?

This being  the first appellate court, this  court is bound by the duty imposed  on it  by Section 78 of the Civil Procedure  Act to approach  the whole  of the evidence  on record   from a  fresh perspective and with an open  mind.  The court is enjoined to analyze, evaluate, assess, weigh, interrogate and scrutinize all of the evidence and arrive at its own independent conclusions. However, in doing so, the court must  bear  in mind  that  it  did not  have the  full benefit of hearing  and seeing  the  witnesses   as they testified  and must  therefore give  due allowance   to that  effect.  This principle of law was well settled in the case of Selle V Associated Motor Boat CompanyLimited [1968] EA 123 where Sir Clement De Lestang stated:

“ This court must consider  the evidence, evaluate  it itself  and draw  its own  conclusions though  in doing so it  should always  bear in mind that  it neither  heard witnesses  and should make  due allowance  in this respect.  However, this court  is not bound necessarily to follow the trial judge’s findings  of fact if it  appears  neither that  he had clearly failed  on some point to take account  of particular  circumstances or probabilities  materially to  estimate  the evidence  or if the impression based on the demeanor  of  a witness is inconsistent  with the evidence on the case generally.  (Abdul Hammed Sarigf V Ali Mohammed Solan [1955] 22 EA CA 270. ”

Applying the above  law and  principles, the  respondents’ case  in the lower court  wherein  they  were plaintiffs  was  that they are husband  wife  and they spotted  a plot  advertised in the Daily  Nation in April  1997 and a telephone  number given.  The 1st respondent called the number and one a Mr Kimani answered.  The said Kimani took the 1st plaintiff to the site and told the plaintiff that he had the authority to negotiate the price.  They agreed   at the purchase  price of  kshs  910,000 and the 1st plaintiff went to the  appellant  who was his lawyer  and instructed him and  introduced Mr Kimani  to him  as the agent for the owner.  The agent had a copy of title deed which he showed the appellant. It was relating to Nairobi Block/110/846.  The 1st respondent was also shown the original title.  The 1st respondent told the appellant that he had not met the vendors and that Kimani was to avail them to the appellant’s office.  A sale agreement was later drawn and signed. The 1st respondent did not meet the sellers whom the appellant stated they had their own lawyer.  The respondents paid  the 10% required  as deposit = 91,000 in one cheque together with legal fees and other cheques as  balance was to be  paid after  exchange  of documents and as  per clause  5 and 6  of the agreement.  The vendors’  advocates gave a  duly executed   transfer  and all necessary  consents and clearance  certificate  and the appellant asked the  1st respondent to draw  a cheque  in favour  of Waweru  Gatonye  Advocates cheque  No.  AP/BP/00815 Q for kshs 819,000.  The 1st respondent was  then given  transfer form and  he left and waited for  2 months  and called the appellant who  assured  him that documents  had been lodged  with the Land Registrar  but that  the transfer   was never registered.  The appellant  gave him a  go ahead  to fence the plot   in December 1997  since he had cleared  the purchase price.  Later in February 1998, a caretaker  called the 1st respondent  and  informed him that some people  had destroyed the fence.

The 1st respondent reported to the District  Officer Kasarani  and confirmed that  there had been  a complaint  and  on 25th February  1998  two people  came Stephen Kuria Mwangi  and Lydia  Wanjiku Nduba  the title deed holders who produced the original title deed  to the plot  and an allotment  letter showing they were  owners thereof.  The 1st respondent informed the appellant of the development and they visited the lands office and obtained a green card wherein they found a caution so he reported the matter to the CID for investigations. As he had not  met or known the vendors/ impersonators, the investigations  could not go far  and so he  decided to sue his advocate for professional  negligence and for failing to put a  security clause  that the money  would only be released to the vendor after  transfer   was registered in their names hence  he failed to  protect  his client’s interests by being quick to release  the money to the vendor’s lawyers and that  he did not  act on the authority to identify the alleged vendors  on behalf  of the respondents.

The 1st respondent also testified that he filed suit after lapse of 6 years after seeking leave of court.  That the reason for the delay   was because he was waiting for the CID officers to complete investigations.

In cross examination the 1st respondent stated that the money was released to Waweru Gatonye Advocates and that it was to be held pending   successful registration.  He stated that   he had  not checked with Waweru  Gastonia whether the money was  transferred to the vendors.  He also identified a letter from Waweru Gatonye asking the release of shs 810,000.  He  admitted that a search on the property was conducted   and that the transfer   form signed  indicated  that Waweru Gatonye  knew the vendors but the 1st respondent maintained that he gave the appellant  instructions to  indentify the vendors  and that  the appellant  met the vendors twice, taken to him by the agent Kimani  and that  the appellant  called and  informed him so.

In re-examination the 1st respondent stated that he used to receive  correspondence  from the appellant; the appellant  never  told him that funds  were released  to  the vendors  and that the appellant  had not  enjoined the firm of Waweru Gatonye  as interested parties.

The defendant/appellant testified as DW1 and stated that he was an advocate of the High Court of Kenya. That he received instructions   to act for the respondents in a sale of land transaction in 1997 and drew a sale agreement.  That the respondents approached  him with a lot of  anxiety, introducing  to him a Mr Kimani  whom they identified  as their friend  and agent  for the sellers  and that they  had agreed  on all the terms.  The appellant then drew the agreement  in terms of  the instructions  of the 1st respondent and when he questioned  the 1st respondent  why he  wanted to  part with the money urgently, the 1st respondent said that he wanted to have immediate possession of the property in July to plant K-apple seedlings, taking advantage  of the moisture.  That the 1st respondent  also stated that  the vendors  were poor  and he was  advancing  them some kshs  30,000 to facilitate obtaining rates  and land rent  clearances  certificate  and all that was  included  in the voluntary agreement.  The appellant conducted a search and denied authorizing Gatonye to release money.  He submitted  a duly  signed  transfer form  for registration  and kept a certified  copy produced in  evidence signed  by all parties  and that  the original  had never been returned to him.  He did not investigate signatures.

In cross examination, the appellant stated that the respondents sought   his professional advice and paid for it.  He stated that the respondents asked him to get details for vendors and that he was to act for both purchasers and vendors but the vendors chose to engage Waweru Gatonye.  That the vendors   were   identified by Mr Kimani.  He admitted receiving kshs 910,000 and  more from  the respondent with  the cheque  in favour  of Waweru Gatonye  in favour  of  Stephen  K. Mwangi and Lydia Nduta  and passed it   over to Waweru  against  the completion  documents, in  accordance  with paragraph 5  of the  agreement.

In re-examination the appellant stated that  Mr  Gatonye    was to hold the money  for 7 days  to facilitate  registration  and on being questioned by the court, the appellant stated that  if the registration  was not  successful Mr Gatonye  would refund  the money but Mr Gatonye released  the money to the vendors before registration.

The parties’ advocates filed written submissions which are essentially the same as what has been submitted before this court on appeal, with some modifications.

In the lower court, the appellant who was the defendant submitted urging the court  to dismiss the  suit on the grounds that:

The plaint offended  Order VI Rule 1 (e)  of the Civil Procedure Rule  since it  did not disclose  the existence  of previous  proceedings  in  Miscellaneous  332/2004 which is a mandatory  requirement.

The suit was filed out  time and  the  order extending  time was given without  jurisdiction and  is therefore a nullity.

The order  extending time  was obtained  in a Miscellaneous  Application as opposed to  an originating  summons as required by Order XXXVI Rule  3C of the Civil procedure Rules.

The suit is based on alleged forged  documents  and impersonation which were not proved.

The  suit was filed prematurely since the  registration of the transfer   was and  perhaps  is still pending  awaiting  the  completion  of CID investigations which are  now said to be complete.

The plaintiffs stand  to have  double  benefit  if the prayers  sought in the suit  are given and it turns out  that the transfer is registered  in their favour .

The defendant  having  been used as a conduit for delivering   the plaintiff’s  cheque  to the vendors advocates which he did, he cannot  in law  be called  upon t make a refund  for the proceeds of the cheque.

The loss, if any, arising  from  un unfounded  suspicion of forgery  or impersonation was not foreseeable  by the defendant  more so  because the executors  of the transfer  were  known to Mr Waweru Gatonye  an advocate   of the High Court who gave a  statutory certificate that  he knew the  vendors.

The third parties  who claimed  to hold another title  deed and  whose signatures  were allegedly forged  were not called to testify  against the  statutory certification by Mr Waweru Gatonye  not withstanding  that the plaintiffs  knew their  whereabouts  and yet no attempt  was made to summon them.

The appellant also relied  on several decisions  all considered.

The respondent who were plaintiffs  framed and submitted  on two issues in the lower court namely:-

Whether  there was  any negligence  on the part of the defendant  towards  the plaintiff  in the sale  transaction touching on NRB/Block/110/846 and if so, to what extent?

Whether  the plaintiffs are entitled to any relief   against  the defendant  and if so, to what extent?

The plaintiffs’ submissions  concluded that  on the two issues, they had proved  that the  defendant was  under a duty of care  and to exercise  due skill and diligence  in  drafting  the sale  agreement  between the parties to protect  the plaintiff’s  interests  which he failed to do so as he did not  insert  any security clause to protect  release  of purchase price  upon successful registration  of the transfer   in favour of the  plaintiffs  and that clauses  5 and 6 of the agreement  did not  make adequate  safeguards  in protecting   their interests  since the plaintiffs  did not  know the vendors and  entrusted  the defendant  to identify them.

On issue No. 2 the plaintiffs submitted that  because  they had lost all the money paid  towards the transaction, they were entitled to a refund  by the defendant  who was the cause of  the loss by reason of his negligent  handling of the transaction.

The trial  magistrate vide his  judgment  delivered  on 23rd February 2011 framed  no issues namely, whether  the suit was  time barred  and the effect  of leave of the court  to file suit  out of time  and secondly, whether  the defendant  was professionally negligent  in the manner  he handled  the transaction. On the issue  of  limitation  the trial court  found that there was an order dated  14th December 2004 wherein the plaintiffs  obtained  leave to file suit  out of  time and  in relying  on the case of Mary Wambui  Kabugua V KBS Ltd CA 195/95 that  “ there was nothing  final about  an order of  leave obtained  exparte as the defendant  would have  every opportunity to challenge  the  facts and  the law afterwards  at  the trial  and the judge trying the case  would rule  finally whether the  plaintiff has  satisfied  the conditions  for overcoming the time bar  and is the  least bound  by the provisional view  expressed  by the judge  in chambers who  gave leave.”He then stated:

“ I am satisfied  that in view of the convoluted  issues of  forgery that arose and  the uncertainty about the outcome of  the CID investigations, the plaintiffs  had sufficient  reason to bind  their time before  resorting to the  civil process.  Leave granted  herein is  sound and  founded.  The fact  that the order was  obtained through  a Miscellaneous Application and not in an Originating Summons is in my view just a want of form which is  not fatal to the  order obtained .  This suit  is properly before the court.”

On the second issue, the trial magistrate  found the defendant  negligent for failure  to put a safety clause  in  the agreement  or obtain a professional undertaking  from  the vendors’  advocates  and having failed to do so, was liable   for the loss and he therefore entered judgment  for the plaintiff in  the sum claimed.

That is essentially the  record that  provoked this appeal.

Determination  of the issues framed herein

Whether  the respondent’s suit  against  the appellant  was statute barred  and therefore incapable  of being  revived  by way of extension of  the limitation period.

The Limitation of Actions Act, Cap 22 Laws of Kenya  provides  that certain  causes   of action may not be  brought  after the expiry of a particular period of  time.  In other words,  the Act bars  the  bringing  of particular actions  after the  specified  periods  of limitation.  It does not  necessarily  extinguish causes  of action.

And as  was stated  by Bosire J ( as he then was ) In Rawal V Rawal [1990] KLR 2

“ 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 had lost evidence  for his defence  from being  disturbed  after a long  lapse of  time.  It is  not to extinguish  claims.”

The  same position was earlier  stated  in  Dhamesar  V Melita  V Manilal M Shah [1965] EA 321 and Iga V Makere University [1972] EA 65.  In the latter case, the court  held:

“  A plaint  which is  barred  by  limitation is a plaint ‘barred by law”.  A reading  of the provisions  5 of Sections  3 and 4   of the Limitation Act   ( Cap 70) together with Order 7  Rule 6  of the Civil procedure  Rule seems  clear that  unless  the appellant  in this case  had put  himself  within  the limitation period  by showing  the grounds  upon which  he could  claim exemption  the court “ shall reject” his claim…….The limitation Act does not  extinguish  a suit of action itself, but  operates s to bar   the claim or remedy sought for, and when  the suit it time  barred, the court  cannot  grant  the remedy or relief.”

What  the above principles  espouse is that a cause  of action which  is barred by statute  may in certain  cases that  are specifically provided for, be revived  if the conditions  set out  in the Act  are satisfied or fulfilled.

Section  4 of the Limitation of  Actions Act  Cap 22 Laws of Kenya enacts  that :-

“Actions of contract  and tort  and certain other Actions.

The following  actions may not be brought  after the period  of six years  from the date on which  the cause  of action accrued.

Actions founded  in contract;

Actions  to enforce  a recognizance

Actions  to enforce  an award.

Actions  to recover  a sum recoverable  by virtue  of a written law, other than a penalty or forfeiture  or sum by  way of penalty or forfeiture .

Actions, including actions  claiming equitable  relief, for which no other period  of limitation  is provided by this Act  or by any other  written law.

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.

Provided that  an action for  libel or slander  may not  be brought  after the end  of twelve  months  from such date.

An action for an account may not be brought in respect  of any matter  which  arose more  than six years before  the commencement  of the action….

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The provisions  relating to extension of periods  of limitation  can be found  in part III of the Act, Sections 22,25,24,25,26,27,28,29,30 and  31  of the Limitation of Actions Act.

Under  Section 22 of the Act, 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 six  years  from the  date when  the person ceases to be  under a disability or dies, whichever  event  first occurs, notwithstanding  that the  prescribed  period of limitation has expired.

Provided that:

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………..

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In actions for damages for tort-

This  section does not apply unless  the plaintiff proves  that the person under  disability  was not at the time when the right  of action accrued  to him, in the custody of this parent; and

This section  has effect  as if the words “six years” were replaced  by the words” three years.”

In this case, the respondents claim against the appellant, as per  their plaint  is as follows, material to this appeal:

1……………

2………..

3.  At all material times relevant to this suit, the plaintiffs instructed  and retained   the defendant who agreed  to act  as their lawyer  in the purchase  and transfer  of land parcel  No.Nairobi/Block 110/846 situated  in Nairobi.

4.  In the premises, it was  an implied  term of the  said agreement  and also a duty  of the defendant  to exercise  all  due  care, skill and diligence  in handling  the sale transaction.

5.  The  plaintiffs on lodging  the transfer  documents  for registration discovered that the registration of the transfer  could not be  effected   in their favour  as the presented title deed  was not only forged but the executors  of the transfer  document  were impersonators  and or unknown  as per the official records  at the lands registry.

6.  The defendant  is held by the plaintiff  to be in breach of the aforementioned  duty  or term of the agreement  and by reason of negligence  in the part of  the defendant, his  servants  or agents, the defendant  failed to exercise  any adequate  skill and due diligence  or professionalism in the handling  of the conveyance  aforesaid.

7.  The defendant  is held  professionally negligent to the plaintiffs……..”

Arising  from the above   pleadings, the plaintiffs/respondents  claimed that  they lost  kshs 910,000 being  purchase  price, stamp duty and registration fees of shs 36,400 and refund  of legal fees  paid to the defendant.

But before detrmining the issue of limitation, I must first determine certain important ancilliary questions arising from the issue of limitation. The first ancillary question that  must be  answered  is whether  the relationship between  the appellant  and respondents  was one of  contract  and if so, whether  the claim for  professional negligence  as expressed  in the pleadings  was a claim based on contract or in tort.  Secondly, is such a cause of action whether founded  in contract or tort  capable of being extended  once it  is caught up by the limitation  period?

It is not  in dispute that as pleaded  by the respondents  in paragraph 5 of  their  plaint, that the appellant  was  retained  on or about  23rd July 1997 upon which he was  instructed  to draw  a sale agreement  between the respondents  and third party  vendors   and that money to the  tune of kshs  910,000 being the purchase  price was  given to the  appellant for  onward  transmission to the aforementioned  third  parties  through Waweru Gatonye  advocates.  It is also  not disputed that suit  was filed in 2005 nearly 7 1/2 years later.

From the foregoing, it is clear to me that  the relationship between the advocate and  client   was a contractual one.  Nonetheless where the  advocate  acts negligently in  performing the said contract, then he could  be held liable for  professional negligence  for breach of  duty, which is a tort. In Kinluc Holdings Ltd V Mint Holdings Ltd & another [1998] e KLR, the Court of Appeal per Tunoi, A.B. Shah and E. Owuor  JAA stated:

“ What  the learned Judge  did not  consider  was “ what is  the duty of an  advocate  owes to his  client  when he is  asked to see to it  that he has the money in his client’s  account before  effecting  registration  of transfer?  Had the learned judge considered this he would  well have said that  the client (vendor) has a cause of action against the advocate.  What  we have so far saind shows, at least  prima facie, that  the vendor  has a cause of action against  the advocate  for  breach of contract  as well as  a possible  negligence  and  we are not  prepared to say at this  stage that  the advocate  was not  negligent  or that he was in no breach  of duty.  That must be a matter  for the trial court  after a full hearing.”

The above  case also set out  obligations of an advocate arising  out of a retainer  as set out in Cordery’s  Law Relating  to Solicitors, 7th Edition page  150 where the Learned authors  say:-

B: Obligations arising  out of retainer.

1. 70 BE SKILLFUL AND CAREFUL

“ At  common law  a solicitor  contracts to be  skilful  and careful, for a  professional man  gives an  implied  undertaking to bring to the exercise  of his profession a reasonable  degree of care and skill.  It follows that this  undertaking  is not fulfilled  by a solicitor  who  either   does not  possess the requisite  skill  or does not  exercise  it.  It is  immaterial whether  the solicitor  is retained  for reward   or  volunteers  his services, or whether  or not he  has a practicing  certificate in force  at the time.  A solicitor’s duty is to use reasonable care and  skill  in giving such advise and taking such  action as the facts  of  the particular  case  demand.  The standard of care is that  of  the reasonably competent  solicitor, and the duty is  directly related to  the confines  of the  retainer.  It has  been said that  the court  should beware  of imposing  on solicitors duties  going beyond  the scope of what they are requested  and undertake  to do.  There   is no such thing as  a general retainer imposing  on the solicitor  a duty, whenever  consulted, to consider all aspects  of the  client’s  interest generally.  A solicitor  is not  bound to have  a perfect  knowledge  of the law, but  he  should have  a good knowledge.  eg:  he should know  about the statutes of limitation.Although a solicitor  is not liable  for  mistake  as to the construction of a doubtful statute, difficult  to interpret  or unexplained  by decisions  he may be  liable if  he fails to realize  that the statute presents  difficulties  of  interpretation.  On the question  as to how far a  solicitor  may be liable  in negligence for delay, it has  been said that it would be  wrong to hold a  professional  man guilty of negligence   because everything is not dealt  with by return  of post.”

The House of Lords in Stevenson V Roward 6, English Reports.  668  1830 held that:

“if  an agent  departs from the usual practice of introducing  the double manner of holding, and having neglected to procure  confirmation, he  would be  bound to make  good  the loss.”

The ratio decidendi of  Stevenson case is that   a  law agent  is  bound to obey the instructions given to him by his employer /client and if he exceeds or falls short of  these  instructions, he may be justly made liable  for the damages which result from his  disregard  of them.  Although  the appellant  in this case submitted on the basis  of Clark & Another V Kirby Smith 1963  1158 CD where the court held  that  the  liability  of a solicitor  to his client  for negligence  was a liability  in contract  and not  in tort, I find that decision, which has persuasive authority, not  binding  on this court.  I find that  the aggrieved  client  could sue  either  in contract  or in tort  or combine  both.

Therefore, was the  appellant liable to pay to the  respondents  the claimed sum of money?  The respondents contended that had the  appellant  executed  /discharged the retainer properly, they would  not have lost  the money  to masqueraders.  That  he  owed them a duty of care  and skill.  He therefore  ought to  put them  back to  the same position  that they  were  in before  they lost  their money.  That he  failed to include  a security clause  to the sale agreement to cushion  the purchase  price until the sale was  completed   and by releasing the  money, he was negligent.

The appellant  maintained that  he  executed the instructions  of the clients as detailed. In Kinluck Holdings (supra) case the Court of Appeal  held:

“ We think, the Learned Judge, with respect, erred, when he said, A stakeholder  can only make payments of what he  has received  from the purchase but not  from his pocket.  It is  not as simple as  that.  A retainer  binds an advocate  to act for his client  in such a manner as  to protect his clients, interests and not  to jeopardize his interests.”

In this case, I find that the appellant  herein owed  a duty of care   and skill to his clients, the respondents  who relied  on his professional  knowledge  for advise  on conducting  and concluding  a land transaction on their behalf. The appellant  was therefore duty bound  to consider  all aspects  of the client/respondents interests, taking such reasonable  care and  skill in  advising, as  a reasonable competent  solicitor would, within the  confines of  the retainer.

In this case, however, there is  no evidence  to indicate  that the  appellant  was part of  the syndicate  of fraudsters  that  defrauded the respondents of their money, since it is clear  from PW1  that the appellant  was his  advocate  and it is  PW1 who approached the appellant  to conduct for him the transaction. Nonetheless, the court  finds that the  appellant  in conducting  that conveyance  on  behalf of his clients  owed them a  greater duty  of care.  He ought to have  ensured that the purchase  price was secured   by a clause   in the agreement that would protect their money until the registration of the titles in the respondents’ favour was completed.  It was the appellant’s duty to advise the  respondents  that inclusion of such  a clause   was necessary  to protect  their interests  until the sale  was completed.

Albeit  the appellant contended  that the agreement  was voluntary and that he acted within his client’s instructions, this court takes judicial  notice  that most litigants  do not give  their lawyers  instructions  in writing  to act in a particular   way and  therefore it  is upon the  advocate   retained  to give the best legal advise  expected  of a reasonable  solicitor, to protect  his client’s interests.  In my  view,  a clause  providing for “release of the  balance of  90%  to the vendor’s advocates upon successful completion of the transfer  in favour of the  purchaser”would have  sufficiently taken care  of the interests of  the respondents.  The appellant should also have  procured a  professional undertaking  from Waweru Gatonye  advocates to hold  the money as stakeholder prior to  registration.  Failure to  do any of the above  exposed  the respondents  to a very high risk  of losing  their  hard earned  cash to  unsuspecting  fraudsters.

I must re emphasize  that the duty of  an advocate  in a conveyance  transaction  is to ensure  that his client’s money is  protected  at all times  until the sale  is complete.  Failure to do so renders   the advocate  negligent and in breach of  duty of  care as  set out  in Codrey’s Laws Relating  to solicitors(supra).

It is for the above  reasons that  I find that  the trial magistrate  was  not in error  when he found that  the  appellant  was liable in negligence for  failure to  secure  the client’s  money.  I therefore  would uphold   the trial magistrate’s  findings  on liability and damages for the loss of  shs  910,000/-

Nonetheless, this court must determine  whether  the primary suit  subject of  this appeal could be  filed out of time  with leave  of court, whether  the  claim was based on contract  or in tort.

The appellant submitted  at length, both orally and in writing, citing  several decided  cases, in his proposition that the material   upon which the trial court  granted  leave to file suit  out of time  were not sufficient  and that therefore  Section 27(2) of the Limitation  of Actions Act  were not  fulfilled.  On  the other hand, the respondents through  their counsel  Mrs Guserwa maintained that  the cause of action had been extended  and that  leave granted  was sufficient.

The commencement  point in answering  the question of Limitation of Actions  is Section 4(1)  of the Limitation  of Actions Act  which expressly states:

An action founded  on contract  may not be brought after the end of six years  from the date  on which  the cause of action occurred.

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

On whether  an action founded in contract  and  which is  statute  barred  can be extended, the  relevant  provisions  are Section 22  of the said Act  which provides s that:

“ If  it is proved by evidence that 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, in which case, the action may be  brought  at  any time  before the end of  six  years  from the date  when the  person ceases  to be under  a disability or dies, whichever  event  first occurs, not withstanding  that  the  prescribed period of limitation has expired.”

The exceptions to the above provisions  include:

(IV) In actions for damages  for tort

This  Section does not apply  unless  the plaintiff  proves  that the  person under the disability  was  not, at the time  when the right  of action accrued  to him, in the custody of his  parent; and

This  Section  has effect  as if the  words “ six years” were replaced  by the words “three  years”.

Section  23 of the Act  also  provides  for an action, based  on contract  to accrue a fresh  even if  the same is  caught by the limitation period, where there is  acknowledgement  or part payment.  Section  23(3) provides:-

“ Where  a right of action has accrued  to recover a debt  or other  liquidated  pecuniary claim or a claim to movable  property……and  the person  liable  or accountable  therefore acknowledge the claim or makes any  payment  on respect of it, the right  accrues  on and not before  the date of acknowledgement  or the  last payment…..”

Applying the above  provisions  to this case, and as  earlier stated, it is  not denied  that the respondents  retained  the  appellant  to provide  professional  services  of buying a property, to wit, land on their behalf  and when  they could not get  the property transferred  in their names  after they  had paid  all the considerations (purchase price) due to the  seller’s advocates  through the appellant, they now claim he owed them  a duty of care and skill and that he  breached  that  duty by failing to secure  the purchase price  or for failure to include a safety  clause in the sale agreement.

As indicated  earlier, that relationship  between the appellant and the respondents was a contractual one  but where that  duty of care  was breached, the respondents  could still sue for  professional  negligence  which  is a tort.

The above provisions of Sections  22  and 23  of the Act                             notwithstanding, there is no evidence  on record to show that the respondent’s failure to file suit  within, either  6 years  for breach of contract, or  within 3 years  for professional negligence, was  due to  any of the  conditions  stated in  Section 22 and 23 namely, any form  of disability; acknowledgment  or part payment.

Then there is this  aspect  where  the respondents contend  that the cause of action  was based on the tort of  negligence  and therefore  leave of court  could be  granted extending  the limitation period.

Under Section 4(2) of the Limitation  of  Action Act, 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.

The exemptions  to the above provision are  Sections 22 where extension of limitation period  can be made in case of disability and (v) in actions for damages  for tort if  the plaintiff proves  that the person under disability  was not at the time when   the right of action accrued  to him, in the custody of his parent; and the said  Section  has effect  as if  the words “six years  were replaced  by the words “ three years.” Section  26  would also be  applicable in the exceptions  thus, where the action is  concealed  by fraud , mistake  and ignorance  of material facts.

Again, there was no material  before  the trial court  to show that  the right of action was concealed  by fraud, consequences  of mistake and or ignorance  of material facts and  or when such alleged  fraud or mistake  was discovered.

The law  is clear that the burden  of proof  lies on he  who alleges  the existence  of any fact; and  who would  fail if   no evidence  at all  were given on either side  see Sections 107-109 of the Evidence  Act Cap 81 Laws of Kenya.

Albeit this court is bound by the principle that: “ An appellate court will not  interfere  with the finding  of fact by a trial court,” in this case,  the trial  court’s finding of fact  of proof of leave granted  was based on evidence that since  leave was obtained before filing of  suit, that was sufficient  proof which in my view, was  a misapprehension of the law  and in so doing, the trial court arrived at  a wrong  conclusion.

In my view, the trial court  also failed to take into account  particular circumstances or probabilities of the case herein.  He assumed  that  what the  respondent  needed  to do  was  to merely  throw  to the  court  an order showing  leave was granted to  file suit  out of  time and  no more  which was and in the process arrived at  a wrong  conclusion.  ( See Nkube V Nyamiro [1983] KLR  403].

It is for those reasons  that this  court must  interfere with the  findings   of the trial magistrate as to whether  the ‘leave ‘ granted  was proper or not. The law that permits extension of limitation period places  the burden of  proof entirely on the person seeking extension  to demonstrate  that they  had  satisfied   the conditions for granting  of leave, in order for the order  of leave to be  accepted at the trial of the suit.   It is for that reason that Section 27 of the Limitation of  Action Act is clear that  in case of ignorance  of material  facts  in actions for negligence, the court  may grant  leave whether  before or  after the commencement  of the action, but  Sub Section (2)  thereof  sets out the  requirements  which must  be fulfilled for leave granted to stand.

That  notwithstanding  for leave  of extension to be granted, the applicant must  not only satisfy  the conditions  that  constitute  ignorance of material facts including  facts of  a decisive  character which were at all material times outside  the knowledge (actual or constructive) of the plaintiff until that date, but  that the  damages claimed by the plaintiff  for the negligence, nuisance  or breach  of duty consist  of  or include  damages  in respect of  personal injuries  and that those  personal injuries  were attributable  to the negligence.

Thus, Section 4(2) of the Limitation  of Actions Act does not afford a  defence  only where the provisions of Sections 27(1) and (2)  of the Act  are fulfilled. The above position is further  fortified by the provisions  of Section 28(2) (3)  of the Limitation of Actions Act.

I reiterate  that the court will  only grant an application for leave  to bring an  action based on negligence  after the  expiry of the normal three years  period  of limitation if the plaintiff/applicant  proves that material facts relating  to his cause of action were or included  facts of a decisive nature/character  which were at all  material times outside  the knowledge of the plaintiff until a date which  was either  after the end of the  three year period or not earlier than twelve months before its  end and  was, in either case, not more than  12 months  before the  date on which  the action is brought.

Material facts are restricted to three  categories  of fact namely;

The fact that  personal injuries  resulted from the negligence, nuisance  or breach of duty constituting  the cause  of action.

The nature  or extent  of the personal injury so resulting.

The  fact that the personal injuries  were attributed to the negligence, nuisance  or breach of duty or the extend  to which  they were attributable.

See Bernard Mutonga Mbithi V Municipal Council of Mombasa CA 3/1992 Kwach, Muli and Gicheru JJA.    The Court of Appeal  also added  that it is not  sufficient  that the facts unknown  to the plaintiff  should  be material within the above definition. they  must also be of  a decisive  character, that is to say, they must be such that  a reasonable  person, knowing  them and  having obtained  appropriate  advise  with respect  to them, would  have regarded  them as  determining  that an action would  have a reasonable  prospect  of  succeeding  and resulting  in the award of  damages  sufficient  to justify the bringing  of an action.

Finally, the plaintiff must prove  that a  material fact of a decisive  character  was outside  his knowledge  actual  or constructive .   The Court of  Appeal in the  Bernard Mutonga Mbithi V Municipal Council of Mombasa case also held that  where the appellant  claimed that  he did not  file suit  in time is  because  the thought  he was legally obliged to  await the  outcome  of the inquest, and pleaded  ignorance of the law, it held, relying on Mweu V Kabai & Another  [1972] EA 24- that ignorance  of the law  did not constitute  a material fact within the  Section  27(2) of the Limitation of Actions  Act. Relying on the dicta of Salmon L.J. and Cross JJ in Drink Water  V Joseph Lucas [1970] 8 ALL ER  769.

In conclusion I am in agreement  with the appellant’s contention that there were no sufficient material  before the trial  magistrate  upon which  he could hold that leave to file  suit out of time was proper.   I am equally in agreement  with the appellant  that the proceeding or order thereof was insufficient  to prove  whether leave  extended  was in  respect  of a cause  of action based  on contract  or tort. Since the scribbled proceeding  does not even indicate  what orders  were being  sought and what orders  were being  granted.

In other words, there was insufficient  material upon which the trial court  could hear  submissions on whether  or not the leave granted  was deserved   and therefore, in my humble view, the trial court  erred in law and fact in accepting  the “leave” granted exparte.  The issue of whether or not  the application  for leave  was brought by way of originating summons or Miscellaneous  Application in my view,  was indeed immaterial as that is only  but  an issue of form  which is  a procedural technicality.  What is  material is the justification for granting   of such ‘leave’ which was  not available to the court and therefore the  trial magistrate should have  rejected those  scribbled  proceedings  that were not  supported in any way.  It was not for the  appellant to fish around  for  the file  upon which leave was granted.   The order granting  leave ought to have been  explicit  that the applicant  had satisfied  the condition for grant of  leave as  espoused  in the Limitation of Actions Act.  That  ground alone  is sufficient  to  dispose  of this appeal which I find merited, that the suit in the  court below  was instituted  out of statutory  limitation period and   I would proceed  to strike it  out as being incompetent, which holding settles issue No 1 as framed herein.  I sympathize with the respondents who lost colossal sums  of money.  However, I have no discretion.   See Republic  Vs Principal Magistrate P. Ngare Gesora & 2 others  Exparte Nation Media Group Ltd [2013] e KLR  where  Honourable Odunga J stated, and I agree that:

“However, where a certain cause  of action is disallowed  by law, the issues of the path of justice being clogged  does not  arise since  in that case justice demands  that  a claim should not  be brought.  Justice, it has been said time without  a number, must be done  in accordance  with the law.”

Further that,“……..It must be however  remembers that what the  law of  Limitations Act provides is that  certain causes of action may not be brought after the expiry  of a particular  period of time.  In  other words, the Act  bars the  bringing of  particular actions after the specified  periods  of limitation.  It  does not  extinguish causes of action.”

I add that the effect of a Limitation enactment  is to remove  remedies  irrespective of the merits  of the particular case.  It is  intended  to prevent  a plaintiff  from prosecuting  stale claims.  I am equally unable to find umbrage under Article 159(2) (d)  of the Constitution that courts should endeavour  to  deliver  substantive  justice without  undue  regard to procedural technicalities.  The said  article in my view  is  not available  to the respondents  for reasons that if suits were  to be filed prosecuted and decided  outside  the statutory  limits  without  sanctions of the court, public  policy would fly in the face of the statute  of limitations as was espoused  by the Court  of Appeal in several cases among them, CA Nairobi 228/2013  Nicholas  Kiptoo Arap Korir  Salat  V IEBC & Winfred Rotich Lesan  & 2 Othersper Ouko, Mohammed  & Kiage JJA , Kakuta Maimai Hamisi v Peris Pesi  Tobiko &  2 Others (2013) e KLR, that:

“the right of appeal goes to jurisdiction  and is  so fundamental that  we are  unprepared to hold that absence of  statutory donation or conferment is a  mere procedural  technicality to be ignored by parties  or a court  by pitching  tent at  Article 159(2) (d)  of the  Constitution.  We do not  consider  Article  159 (2) (d) of the Constitution  to be a panacea, nay , a general white  wash, that cures  and mends  all ills, misdeeds and defaults of litigation”.

The same  Court of Appeal in Mumo Matemu  v Trusted Society of Human Rights  Alliance  & 5 Others  CA 290 of 2012  ( five Judge Bench)  stated succinctly  thus, concerning  the issue of taking umbrage  under Article  159(2) (d) of the Constitution.

“In our  view it is a  misconception to claim, as it  has been in recent  times with increased  frequency, that  compliance  with rules of procedure is  antithetical  to Article  159 of the  Constitution and the overriding objective  principle  of Section 1A and  1 B  of the Civil Procedure  Act Cap  221 and Section  3A  and 3B of the Appellate  Jurisdiction Act (Cap 9).  Procedure  is also a hand maiden  of just determination of cases”.

In this case, it is my humble view that  without leave to  institute  suit out  of time, goes to the jurisdiction  and  root  of the very statutory  enactments incurable under the law.

It therefore  matters  not that  the suit it was meritorious.  In  the above  Nicholas Kiptoo case, the Court of Appeal emphasized that the  greater the importance  of a particular  matter, the more  the case and scrupulous  attention an appellant (party) should  take  to ensure  compliance with the Rules (Law) and the court  must be  seen to maintain that consistency.

Thus, despite  the significance of this matter, where the respondents lost colossal sums of money to unsuspecting fraudsters due to the negligence of the appellant advocate, failure to  file suit in time or with leave validly given by the court extending the limitation period invalidated the suit in limine and this court is therefore unable to save an incompetent  suit.

The upshot  of all the above  is that  his appeal is allowed.  The judgment  and decree of the subordinate  court is set aside, and  substituted   with an  order striking  out the  respondent’s suit  as against the appellant.

Costs follow the event and in any case, to the successful party.  This court is aware that the appellant has expended resources to defend the suit from the subordinate court to this appellate stage.  However, for  reasons  that the appellant  was partly to blame  for the misfortune   that befell the respondents, and  that the respondents  relied on  the professional advice  to institute suit, I decline to grant the appellant  costs of   the suit  in the subordinate  court and  of this appeal. I order that each party shall bear their own costs.

Dated, signed and delivered in open coaurt at Nairobi this 23rd day of October 2015.

R.E. ABURILI

JUDGE