Peter Gichuki Kabio v Joseph Muturi Chege [2015] KEHC 115 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

MISCELLANEOUS APPLICATION NO.357 OF 2015

PETER GICHUKI KABIO  ………..APPLICANT

VERSUS

JOSEPH MUTURI CHEGE  …….RESPONDENT

RULING

This ruling determines the application dated 18th August 2015 filed by the exparte applicant Peter Gichuki Kaboi.  The application which is  brought under  the provisions of Section 27  of the Limitation of Actions Act  Cap 22 Laws of Kenya and  Order 37  Rules  7and  14 of the Civil Procedure Rules 2010 seeks from  this court orders  that the court be pleased  to grant the  plaintiff an extension of time  to file  suit against  the  defendant Joseph Muturi Chege  for injuries  sustained by the plaintiff  in a traffic  accident on  19th March 2012 due to negligence  of the defendant.

The application is supported by the affidavit sworn by the applicant Peter Gichuki Kaboi sworn on 18th August 2015 and annextures thereto.  The application was argued orally in court by Mr Mureithi advocate for the exparte applicant relying on the detailed affidavit and annextures filed by the applicant.

It is  contended that the failure  to institute   suit against  the defendant  within the  statutory limitation period  was due to the serious injuries  which the plaintiff  sustained  in the road  traffic accident  on 19th March 2012 which injuries  later became complicated  and the plaintiff was  admitted  in hospital for  a long time  as a result he was incapacitated  from giving instructions to  an advocate  to institute suit  on his behalf.  Further, that the  complications  were such that the plaintiff  suffered a heart attack  due to  blood clots  and that he  therefore suffered  a disability  which this court  should consider as shown by the medical documents  annexed  to this affidavit.

That he was in and out of several hospital facilities including Kenyatta National Hospital, Menelik Hospital, Marura Nursing Home, Aga Khan University Hospital, hence he was incapacitated for a long time.  In  the submissions, counsel for  the applicant stated that it is the  applicant’s wife who went to the  advocate’s office seeking legal  advice  and that the advocate  had to visit  the  applicant and take instructions and  present  to  him documents for signature  in support of this  application.  Counsel confirmed to court   that indeed the applicant was under serious disability and hence the delay in filing of suit.

I have carefully considered the application by the plaintiff /applicant as filed by way of originating summons, the supporting affidavit, annextures thereto and the oral submissions in court by the plaintiff’s advocate.

The law relating  to extension of time  to file suit  outside the  statutory  limitation period is  found  in Sections  4,22,27,28,29, 30 and  31 of the Limitation of Actions Cap 22 Laws of Kenya.  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 arose.”

The above  provision is however  qualified  by Section 22 of the same Act  which enacts  that date when a right  of action  accrues  for which a period  of  limitation  is prescribed  by this Act, the  person to whom it  accrues  is under   a disability, the action may be  brought at any time  before the  end of  6 years  from the date  when the person ceases to be under a disability or dies, whichever event occurs first                          notwithstanding  that prescribed  period  of limitation has expired.  There are, however, some exceptions under the above section which are not material to this application.  Section 4(2) of the Act is also qualified by Section 27(1) of the Act which provides that Section 4(2) of the Act 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  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.

Subsection 2 of Section 27 of the Act enacts that

“ (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  were at  all material times  outside  the knowledge ( actual or constructive ) of the plaintiff  until a date which:

Either  was after the three year period of limitation prescribed for that cause  of action  or was not earlier  than one  year before the end of that period and;

In either case, was a date not earlier than one year before the date on which the action was brought?

The above statutory provision was explained in the case of Gathoni V Kenya Co-operative Creameries Ltd [1982] e KLR where the Court of Appeal stated:

………..

For an application to be allowed  under Section  27 of Cap 22 Laws  of Kenya, it must be  shown  to the  satisfaction of the court that failure  to apply  within time  was due  to lack of knowledge of certain  material facts.  The applicant must show to the satisfaction of the court that she had taken all reasonable steps and sought appropriate advice in respect of the facts.

Must bring such action within  one year of the  cession  of the  period  during  which the  decisive  material facts  were outside  his /her knowledge.

The above  position  echoed  Mbito J ( as he then  was ) in Lucia  Wambui Ngugi V Kenya  Railways & Another  HCC  Misc 213/1989.

I have also considered  the originating summons by the  applicant in line with the  decision by the Court of Appeal in Oruta & Another Vs Nyamato [1988] KLR 590 that  in cases  of Limitation, the judge  in chambers  is required  to form, on the plaintiff’s evidence  before him, a  prima facie  view  as the matters  which the  Act contemplates  will be  decided if leave  were granted  only  on the action itself and  these matters are:

Whether  the plaintiff  has a good cause  of action;

Whether the plaintiff has fulfilled the requirements of Section 27(2) of the Act.

In the above  Oruta V Nyamato  cases, the Court  of Appeal  also observed  that from a close  reading of the Act, it  was not the intention  of the legislature  to allow a  claim based on personal injuries  on account  of negligence  and nuisance  or breach of duty to be met  with a defence   of limitation.  In this  case, the cause  of action arose  on  19th March 2012  therefore  the suit  for damages  arising from the tort  of negligence   ought  to  have been instituted  in court  by 19th March 2015  but it  was not. This application for extension of the limitation period was filed on 20th August 2015.  The delay was about five (5) months. That delay has been explained  as being due  to the disability  state that  the plaintiff found  himself  in following  very serious  injuries  that he sustained  in the accident  as a result  of  which he suffered  blood clots and hence a heart  attack.  The medical documents on record indeed reveal very life threatening complications that the plaintiff suffered as a result of the alleged accident.  In addition, there is prima facie evidence that the plaintiff has since the material accident been in and out of hospital.  No court of law can underestimate injuries that result into heart attacks as if a heart attack is anything to be taken lightly.  I take judicial notice of the fact that a heart attack can lead to instant death.  The plaintiff   herein is lucky to be live though his life expectancy has no doubt been shortened by the debilitating complications s arising from the multiple fractures that he sustained in the accident. In Rawal vs Rawal [1990] KLR 275, Bosire J (as he then was) held that:

“ The  object  of any limitation  enactment  is to prevent   a plaintiff from prosecuting  stale  claims   on the  other hand, and  on the other hand, protect  a defendant after  he has lost  evidence for  his defence  from being  disturbed  after a long  lapse of time.  It is not to extinguish claims.”  A similar  holding though differently  can be found in Dhaneser  Vs Mehta Manilal M. Shah [1965] EA 34 that;   …….The effect  of limitation  enactment  is to remove  remedies  irrespective  of the merits  of the particular  case.  In Iga V Makerere University [1972] EA 65 the court held that

“…….Unless  the appellant in this case  had put  himself  within the limitation period   showing  the grounds upon which  he could  claim  exemption the court  shall reject  his claim.”

From the above judicial pronouncement, it is clear that the Law of Limitations does not extinguish claims but operates to bar the claim sought for when the suit or claim is time barred.  Thus, where the suit is statute barred, unless leave is granted to extend the limitation period, the court cannot grant the remedy or relief.

In this  case, the applicant  has sought for  leave to extend  the period  for filing suit  out of  the statutory  limitation  period time  of  3 years.  The application is permissible under Section 27 and 28 of the Limitation of Actions Act.  The cause of action arises from an alleged negligent acts of the proposed defendant(s) in the manner in which the motor vehicle registration No.  KYJ 325 was driven along Thika Super Highway on 19th March 2012 at 6. 45 pm thereby knocking the plaintiff / applicant and seriously injuring him.  It is  the extend  of those injuries  that disabled  the applicant from filing suit in time as he has been in and out of  hospital  with various  complication including   an alleged heart  attack.

Prima facie, this court is satisfied that the applicant herein has a good cause of action and that he has fulfilled the requirements of Section 27(2) of the Limitation of Actions Act.  In addition, the applicant has satisfied this court that he was under a disability to personally from instruct an advocate to institute suit n his behalf for recovery of damages, within the stipulated period.  The court notes that letter of demand was send to the proposed defendants   Insurance on 10th March 2013.  However, the special damages as at that time was shs 1,877,776. 69 to file suit of that figure allow, one would require nearly 70 thousand as initial court fees.  The applicant thereafter was hospitalized from 19th June 2014 when he suffered heart attack. He has notified the defendant’s insurers of the intention to sue and there is evidence of correspondence between the insurance company and his advocates.

In my view, the applicant  has satisfied  this court that he merits  to be granted the orders sought and to deny  him that chance is to oust  him from  accessing  the seat of justice  contrary  to Article  48  of the Constitution.

Accordingly, I allow  the applicant’s  originating summons  dated 18th August  2015  and grant the applicant  extension of time within which  the suit as proposed, against the  proposed  defendant/respondent  should have  been filed.

I order  that the applicant  files suit  against  the  respondent Joseph Muturi Chege or any other person connected  with the motor vehicle registration No.  KYJ 325 in relation to the road traffic accident which occurred on 19th March 2012.  Such suit shall be instituted within 60 days from the date hereof.  The applicant to bear his own costs of this application.

Dated, signed and delivered at Nairobi in open court this 17th day of December 2015.

R.E. ABURILI

JUDGE

17/12/2015