Peter Butali Sabwami and Ida Nekoye Sabwami (suing as the legal representatives of the estate of the late Jennifer Njeri Butali (Deceased) v Registered Trustees, Archdiocese of Nairobi Kenya, . Lillian Wangui & Muchai M. Gachago [2016] KEHC 4611 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  399 OF 2010

P B S AND I N S

(suing as the legal representatives of the estate of the late

J N B (Deceased)……………...............………...........................….…PLAINTIFFS

VERSUS

REGISTERED TRUSTEES, ARCHDIOCESEOF NAIROBI KENYA ……1ST DEFENDANT

DR. LILLIAN WANGUI………….……….…………….…...........................2ND DEFENDANT

DR. MUCHAI M. GACHAGO……................…….……………...................3RD DEFENDANT

RULING

1. By an application dated 15th July 2015 the plaintiffs Peter Butali Sabwami and Ida Nekoye Sabwami seek from this court orders;

i. That this court deem it just  and fit to extend  the period  within  which this  suit should have  been filed for purposes of Section  29(4)  of the Limitation of Action Act.

ii. That this suit be deemed, the period for its filing has been so extended, to have been duly filed within time.

iii. That the suit  having proceeded  to hearing and the period  for its  filing  having been  so extended, all documents s duly filed and all procedure  steps  and proceedings to have been  duly taken and conducted  from the date of filing suit.

iv. Any other or further orders as the court may deem just in the circumstances.

v. Costs be provided for.

2. The application is supported by the affidavit of Peter Butali Sabwami sworn on 15th July 2015 and the grounds on the face of the application.

3. When this  application  was first  brought before me for  determination  exparte, I directed  that the same  be served upon the  defendants  to accord  them an opportunity to be heard on  the issue of  extension  of time within  which the suit herein  ought to  have been filed  since they would not  have any other  opportunity to be heard   challenging  leave if  granted in the suit. This was in line with the general rule that the parties affected by an ex-parteorder can seek to set it aside under the principles of natural justice. 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. However, since the same Act does permit the application for leave after filing of suit, and as the defendants by choice did not participate in the hearing of this suit before such discovery was made, for they did not raise that defence of limitation in their defenses, the only opportunity that they had to challenge such leave if they so wished would be now Rule 3C of Order 37 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-parte by originating summons supported by affidavit.

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

4. Today, I have seen the affidavit  of  service filed  and sworn by  a court process server one Carolyne  Mbithi  on 11th April 2016  with an acknowledgement  on a hearing  notice  for today dated 22nd February 2016  showing that  the application  dated  15th July 2015  and hearing  notice dated 22nd February 2016  were on 22nd February 2016  served upon the Attorney General who entered  an appearance and filed defence on behalf of the  2nd  and  3rd  defendants Dr Lilian Wangui and Dr Muchai M. Gachago  but who never participated in the  hearing of this matter.

5. The Attorney General has not filed any replying affidavit to challenge the application for extension of time within which this suit ought to have been filed and validation of the proceedings on record.

6. The plaintiff’s counsel submitted  in support of the application  relying on the grounds and the  supporting affidavit of the  1st plaintiff contending that the failure to lodge  the suit herein  out of  time  was occasioned by the process  through  which the plaintiff had  to undergo a hearing on the complaint he lodged before  the Medical Practitioners  and Dentists Board, which  was to determine  whether the death of Jennifer Njeri Butali at the  1st defendant’s  Hospital while being attended to  by the 2nd and 3rd defendants was as a result of the negligence of the defendants.  That the process  was lengthy which had  great emotional, physical  and financial strain on him and that he believed that  he could only have filed suit  based on negligent  acts of  the defendants  if  it  was indeed established by the Medical Practitioners  and Dentists Board that the defendants  were negligent  in the manner  in which they handled the deceased Jennifer  Njeri Sabwami  leading  to her death on  14th August  2008.

7. Further, that  it was only after  the determination of the said  inquiry and the finding that the  deceased died due to the  negligence of the defendants that he instituted this suit  on 17th August 2010 which   was about  two years  later and therefore   beyond the one year  period  allowed by  section 29 of the Limitation  of Actions Act.  Finally, that it is in the interest of justice that this application be allowed since the discovery was made after the hearing of the plaintiff and his witnesses.

8. I have carefully considered the plaintiff’s application and the   submissions by their counsel.  Indeed this suit   was heard and before judgment, the court made a discovery that the suit was instituted out of the prescribed Limitation of Actions Act and granted the plaintiffs leave to file an application for extension of time which they have dutifully done. The defendants have not opposed the application although they were given an opportunity to challenge the same.

9. The law relating to extension of time  for filing of suit or for  validating a suit that    if filed   out of the statutory  limitation period  is Sections  4,22,27,28,29,30 and  31  of  the Limitation  of Actions Act. Section 4(2) of the said Act stipulates   that an action founded on tort may not be brought after the end of three years from the date   when the cause of action arose. However, the above provision is qualified  by Section 22 of the  said Act  which enacts   that if  on the date when a right of  action accrues  for which a  period  of limitation is prescribed  by the 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 occurs  first, not withstanding   that the prescribed period of  limitation has expired. Pursuant to Section 27(1) of the Act, 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 in relation to the cause of action.

10. 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 facie view 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 fulfill 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).

11. In the instant case, it is clear that the cause of action arises from the alleged negligence of the defendants in the manner in which they handled the deceased Jennifer Njeri Butali resulting in her untimely death. The Medical Practitioners and Dentists Board received a complaint from the 1st plaintiff (spouse) and carried out investigations which revealed that the deceased’s death was due wrongful and illegal use of Cytotec drug on the deceased. The defendants were found liable and reprimanded. He 2nd defendant also received suspension for six months. The Cytotec drug was ordered to be destroyed.

12. The final report of the Board   was released to the plaintiffs vide letter   of  20th July 2009 when the time for filing  suit  was nearly expiring  and the  plaintiffs  had to petition  for grant of letters of  administration which  were granted on 20th April 2010 by which time  one year   was over.

13. In my view, the plaintiffs could not  have instituted  suit herein without  knowing whether  or  not the defendants  could have been negligent especially, bearing in mind  the circumstance under which  the deceased died   while she had gone for  pre-natal check up. Determination of wrongful and or illegal administration of the drug Cytotec on the deceased could only have been determined by a technical professional body like the MPDB and not by this court in the first instance. In my view, therefore, the applicant has satisfied this court that delay in filing suit within the statutory limitation period was due to ignorance of due  to lack  of knowledge  of certain material facts, and has shown to the satisfaction of the court that he had taken all reasonable  steps  and sought  appropriate  advise  in respect  of the facts.

14. 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.”

15. Accordingly, I find the application for extension of time within which suit herein ought to have been filed merited and meeting the conditions under Section 27(2) of the Limitation of Actions Act.  I therefore grant leave extending the period within which the suit herein should have been filed.  As the leave sought is  within the  suit, I hereby order that  the suit as filed  is deemed to have been filed  within the prescribed  statutory period of  one year from the date  when the cause  of action arose.

16. Further, as the suit has been heard and concluded and is only pending delivery of judgment, I order that the proceedings are hereby deemed to have been validly taken within the validated suit. I make no orders as to costs of this application.

Dated, signed and delivered in open court at Nairobi this 14th day of April, 2016.

R.E. ABURILI

JUDGE

In the presence of :

Miss Chege for the applicants/plaintiffs

1st Plaintiff/applicant  Mr Peter Butali Sabwami present

N/A for the Defendants/ Respondents

Henry: Court Assistant