Tom Onyango Oketch v Kenyatta National Hospital [2016] KEHC 4593 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL CASE NO.  103 OF 2016

TOM ONYANGO OKETCH (suing on behalf of   the estate of

GEORGE ADONIJAH OKETCH (DECEASED) ………….….PLAINTIFF

VERSUS

KENYATTA NATIONAL HOSPITAL ……………………….DEFENDANT

RULING

This  ruling determines  the Originating  Summons  dated  4th April 2016  taken  out by  Professor  Kiama  Wangai & Company Advocates  on behalf  of the applicant/plaintiff  Tom Onyango Oketch (suing  on behalf   of the estate of the  later Adonijah Oketch.

The Originating Summons  is brought under the  provisions of  Order  37 Rule 6 (2), Order  7 Rule  3(3) of the Civil  Procedure  Rules, 2010, Section 1A,1B and 3A of the Civil Procedure Act  Cap  21 Laws of Kenya, Section 3 of  the  Public Authorities  Limitation Act, Chapter  39 Laws  of Kenya, and the  inherent  powers  of the court and  all enabling  provisions of the law.

The applicant/plaintiff in the exparte Originating Summons seeks for orders:

Spent

That this Honourable court be pleased to grant extension of limitation period.

That costs of this application be provided for.

The application is predicated on the grounds that :

Preliminary inquiry Committee matter PIC case No. 68 of 2013 before the Medical Practitioners and Dentists Board is taking long to conclude.

That the deceased died on 28th December 2008.

That the plaintiffs obtained letters of administration ad litem on 11th December 2008.

That the plaintiff   filed HCC  278  of 2013, that he  withdrew  to allow the process at the Medical Practitioners  and Dentists  Board to  proceed  in good faith, the said suit  had been  filed without  obtaining leave.

That delay in filing this matter is not attributable to the plaintiff.

That in light of the Post Mortem Report  by Doctor  Oduor  Johansen  the case having  overwhelming chance  of success, it is  in the interest  of  justice  that the orders  sought for  extension of time should  be granted.

In the supporting affidavit sworn by the intending plaintiff, he reiterates the grounds in support of the application.

The exparte application was argued orally before me this morning   by professor Wangai counsel for the plaintiff/applicant   reiterating the grounds and contents of the supporting affidavit.

I have carefully considered  the application for  extension of time within  which to file suit  against the  proposed defendant    Kenyatta  National  Hospital, which  is a public/Government  institution.  Under Section 3 of the Public Authorities Limitation Act, Cap 39 Laws of Kenya,

3(1) “No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the  cause of action accrued.”

Under subsection (3) of section 3 above, where the defence to  any proceedings is that the defendant  was  at the material time   acting in  the cause of  his employment  by   the Government or  Local Authority  and the proceedings  were brought after the end of …………..

Twelve months, in the case of proceedings founded on tort…..

…………

From the date on which the cause of action accrued, the court, at any stage if the proceedings if satisfied that such defendant   was at the material time so acting, shall enter judgment for that defendant.”

From the above provisions, it is clear that no suit can be brought against the Government or a local authority, where such cause of action accrued over a period of twelve months.

Section 5 of the said Act provides for extension of Limitation in case of disability.  In such a case,  the action  may be  brought  at any time before  the end of  twelve  months  from the date when the person ceases  to be  under  a disability   ( with some  exceptions not material to this suit  since the applicant has  not raised  any defence of disability).

In this case, in the annexed draft plaint, the plaintiff at paragraph 11 and 12 claims that the deceased died due to the negligent acts of the defendant   and a breach of the contractual obligation.  However, only particulars of negligence are set out. Negligence is a tort.  Nonetheless, Section  3 (1) (b)  is also  clear that  no suit  founded  on contract  can be  brought against the  Government   or Local authority  after  3 years  from the date  when the  cause of action  arose, except  as provided for  under Section   5 of the Public Authorities Limitation Act.

The cause of action in this case arose on 28th December 2008.  It is over 7 years since the cause of action arose.  The reasons for  the delay  are that  the  matter giving  rise to the  cause  of action is still being handled by the PIC  of the Medical  Practitioners and Dentists  Board  bide PIC case No. 68/2013.

However, the applicant has not explained  to this court why no suit  was filed  between 28th December  2008   and  2013  when the matter  was taken up by PIC,  which  was nearly 5 years from the date when the cause of action accrued.  That notwithstanding, this court  notes that  the application  herein   was not brought  under the provisions of the Limitation  of Actions Act Cap 22 Laws  of Kenya  and even if it   was,  then Section 6 of the  Public  Authorities  Limitation Act Cap 39 Laws of Kenya  clearly  stipulates that:

“ Notwithstanding   the provisions of  Section 31 of  the Limitation of Actions Act, Section  22 of  that  Act shall not apply in respect  of the provisions of this Act, and, in Section  27 of the  Limitation  of Actions Act the Reference to Section 4(2)  of that  Act shall  be read and  construed  as a reference  to Section  3(1) of this Act, but subject thereto and notwithstanding  Section 42 of the Limitation of Actions Act Part  III of that Act  shall apply  to this Act.”

Section 31 of the Limitation of Actions Act provided that

“Where a period of Limitation   is prescribed for any action or arbitration by any other written law, that written law shall be construed   as if part III   were incorporated in it.

Part III of the Limitation of Actions Act   deals with extensions of limitation.  A reading  of Section 6  of the Public  Authorities  Limitation Act together  with Section  27(1)  of the Limitation  of Actions  Act  leads to the conclusion  that  where limitation  period has run out Under  Section 3(1)  of the Public  Authorities  Limitation  Act, like in the instant case where the cause of action ought to have been instituted within 12 months from 28/12/2008, the same may  be  extended  under the same  conditions  as stipulated  under Section 27 of the Limitation of Actions Act.

Section 27 of the Limitation of Actions provides that:

27(1) Section  4(2)  does not  afford  a defence  to an action  founded  on tort  where

The action is for damages  for negligence, nuisance or breach of  duty  (whether  the duty exists  by virtue  of a contract  or of  a written  law or  independently  of a  contract  or  written  law; and

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

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 if 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   period  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.

3.  This Section does not exclude or otherwise affect –

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

The operation of any law  which, apart  from this Section, would enable   such action to be  brought  after the  end of  three year   from  the date  on which the cause of  action accrued.

The above  Section  27 of the  Limitation of Actions Act was interpreted  by Mbito J  in Lucia  Wambui Ngugi V Kenya  Railways & Another  Nairobi HCC Miscellaneous  Application  213  of  1989 thus:

“When an application is made for leave under the Limitation Act, a judge in chambers should not grant leave as of course. He should carefully scrutinize the case to see whether it is a proper one for leave. Since it has been decided that the defendants have no right to go back to the High Court to challenge such orders, it is particularly important that when such an application is made, the order should not follow as a matter of course. The evidence in support of the application ought to be very carefully scrutinized, and, if that evidence does not make quite clear that the plaintiff comes within the terms of the Limitations Act, then either the order ought to be refused or the plaintiff ought perhaps to be given an opportunity of supplementing his evidence. It must, of course be assumed for the purposes of the ex parte application that the affidavit evidence is true; but it is only if that evidence makes it absolutely plain that the plaintiff is entitled to leave that the application should be granted and the order made, for, such an order may have the effect of depriving the defendant of a very valuable statutory right. It is not in every case in which leave has been given ex parte on inadequate evidence that the defendant will be able to mitigate the injustice which may have to be done him by obtaining an order for the trial of a preliminary issue…Section 27 of the Limitation of Actions Act…provides that limitation period under section 4(2) of the said Act can be extended in certain circumstances and by the provisions of section 31 of the said Act, all limitation periods prescribed by any other written law is extendable by the provisions of section 27 of the said Act. Consequently this application can only succeed if the applicant can avail herself of the provisions of section 27 of the Act as read with section 31 thereof, which enact that the limiting provision shall not afford a defence to an action founded on tort where the court gives leave on account of the appellant’s ignorance of material facts relating to the cause of action which were of decisive character…Although what amounts to “ignorance of material facts of decisive character” is not always easy to distinguish, by section 30(1) of the Limitation of Actions Act when read with subsection (2) thereof, material facts of decisive character are said to be those relating to a cause of action which would enable a reasonable person to conclude that he had a reasonable chance of succeeding and getting damages of such amount as would justify the bringing of the action.”

In Gathoni Vs  Kenya Co-operative Creameries Ltd [1982] KLR  104 Potter, J  in dealing  with the same    issue stated that:

“ The  disability  relied  on by the applicant being  a physical disability, the nature and the extent  of which  was  not revealed, the learned Judge dismissed  this ground because  disability  in the statutory  context  of  Section 2(2) (b) of the Limitation of Actions Act  does not  include  physical disability……Of course, if  the applicant   were under  a relevant  disability, she would not need the leave   of the court to commence  her  action.  The issue  as to whether  the period of limitation  was extended  in her case   under Section  22 would no  doubt e   raised as a preliminary  issue  at the trial.  The applicant’s application  for leave  was made  under Section 27,where the applicant has to show that  her failure to  proceed in time  was due  to material  facts  of a very decisive  character being outside her knowledge(actual or constructive)…..Section 30(3)  of the Act  provides that  for the purposes of Section  27  a fact  shall be  taken at   any particular   time to have been outside  the  knowledge (actual or constructive) of  a person, if but  only if  (1)  he did not  know  that fact; and (2)  in so far as   that fact   was capable   of being ascertained  by him, he had taken all such  steps  ( if any) as it  was reasonable for  him to have  taken  that time for the  purpose   of ascertaining it; and (3)  in so far  as  there existed, and   were  known to him, circumstances from which, with  appropriate  advice, that fact  might have  been  ascertained  or inferred, he had taken  all such steps   (if any)  as it  was  reasonable  for  him  to have taken  before that time  for the purpose  of obtaining appropriate  advice  with respect  to those circumstances… In Section 30(5) “appropriate  advice” is  defined  as meaning in relation  to any  facts  or circumstances “advice of the competent  person  qualified  in  their respective   spheres, to advice  on the medical, legal or other  aspects of that fact  or those circumstances, as  the case may be……..The  law of limitation of actions is  intended  to protect  defendants   against  unreasonable  delay  in the bringing  of suit against  them.  The statute  expects  the intending  plaintiff  to exercise  reasonable  diligence  and to  take reasonable steps  in his own interest.  Special provision is made  for infacts  and for the mentally unsound.  But rightly  or wrongly, the  Act does not  held persons like the applicant who, whether  through  dilatoriness or ignorance,  do not  do  what the informed citizen  would reasonably have done.”

In Mary Osundwa vs. Nzoia Sugar Company Limited Civil Appeal No. 244 of 2000 the Court of Appeal held:

“Section 27(1) of the Limitation of Actions Act clearly lays down that in order to extend time for filing a suit the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed must be in respect of personal injuries to the plaintiff as a result of the tort.”

From  the above decisions, it is  clear that   extension of time  for filing suit out of the stipulated   statutory  period applies  only in claims made  in tort   and even in such claims, they  must be  for personal  injuries arising from negligence, nuisance  or breach of duty(whether such  duty exists  by virtue of a contract or of a written law  or independently  of a contract  or written law).

And even in cases which fall  under the aforesaid  provisions, Section  27 of the Limitation of Actions Act must be  fulfilled.  The applicant must  satisfy the court 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/applicant).  And for the  party to prove, he must  show that  he did not know  that fact, that in so far as  that fact was capable of  being ascertained  by him, he  had taken all steps  ( if any)  as it  was reasonable  for him to  have taken that time for  the purpose  of ascertaining  it; and that  in so far as these existed, and  were known to  him, circumstances from which, with  appropriate  advise, that fact might  have been ascertained for inferred  he had taken all such steps  ( if any) as it   was reasonable for him to have  taken before  that time  for the purposes of  obtaining “appropriate  advise”  with  respect  to those circumstances.

“Appropriate   advise” is  defined  under  Section 30(5)  as meaning, in  relation to any facts  or  circumstances “ advise  of a competent  person  qualified  in their respective  spheres, to advise on the  medical, legal  or other aspects of that fact  or those circumstances  as the case may be.”

In this case, the tort  claimed  is that of  negligence (medical  negligence). It is  claimed that  the deceased  died  because of  the negligence  of the defendant  in that   its employees  did not  attend to him  in time after  he was taken to the Kenyatta National Hospital, a public Hospital  following  a road   traffic  accident.

The deceased died on 28th December 2008.  The question is whether the plaintiff in this case has taken appropriate advice and whether he was ignorant of material facts of a decisive character, thus, delaying in the filing of the suit.

The only  explanation given by the plaintiff in filing of suit within the stipulated statutory period is from 2013  when PIC case  was opened.  No explanation  has been provided for  the delay prior to 2013, by which time, nearly  4 years  from the  date of death  of the deceased, the time  for filing suit  had already  expired  as stipulated    in Section 3 (1) of the Public  Authorities Limitation Act  Cap  39 Laws of  Kenya.  In addition, there is no evidence  that a complaint   was lodged  to Medical Practitioners   and Dentists Board in 2008  or 2009 but that  the case  was only  opened  in 2013.

Furthermore, it cannot  be  true that   the applicant  has been waiting and is still waiting  for the  determination  of the PIC case in order for him to  file this suit since it is not  known when the PIC  case   will be determined, which PIC  case   was opened nearly four years after the  expiry of the  limitation period.

In addition, this court  refuses to  be persuaded  that only the  PIC  results  would  inform  the filing of a  suit against  the defendant since the  annexed  autopsy report  by Doctor  Oduor  Johansen  done on  31st  December  2008, three days  after the deceased’s demise was clear on the cause of  the deceased’s death.  The Autopsy report  Signed   on 2nd January 2009states that the cause  of  death was :

Immediate  cause of death: left  subdural Haematoma.

Underlying  cause of  death: Blunt  force trauma .

Manner  of death: Motor  vehicle accident.

In paragraphs  4,5,6,7,8 and  9 of the draft  plaint, the plaintiff  avers clearly that  “….the defendant  neglected  or ignored  to properly  diagnose  the injuries  that were suffered  by the deceased  and accord him the necessary  requisite  medical care,…..he negligently refused, failed  and or  neglected  to admit  and put  the deceased  under ICU in effort  to contain the bleeding  that eventually caused  his demise.”

6.  The defendant…….refused  to provide  any proper  diagnostic  equipment  and or facility  to accord the deceased  the requisite  emergency  treatment,……

7.  The deceased   was put on treatment   but his condition   did not improve.  After  three days  of  ineffective  treatment  the deceased developed  a high fever  and difficult in breathing.  He  was put on ventilator  antibiotics.

8.  During the  said treatment  period of  1st defendant negligently and/or without  due care  and /or diligence  delayed  the admission  and /or caused  to be delayed  the admission of  the deceased to ICU  so that  the bleeding  by the deceased  led to los of blood   and blockage  of the respiratory system subjecting  him to  difficult  in breathing, raw  pain for  the entire   five days and death.

9.  Further and without  prejudice  to the foregoing  the deceased  infact  died of  a left subdural haematoma ( intracranial  bleed) that  was  missed  by the  defendant.”

With the  above conclusions by  the plaintiff, following the autopsy  report  signed  in January 2009 by the Mortician, it has not been  demonstrated  that the plaintiff   was ignorant  of any material  facts  of a decisive  character  as to the  cause  of the deceased’s  demise, or that he was waiting for any other appropriate advise.

In my humble  view, the  plaintiff  knew or ought to have known  from the  autopsy  report annexed to this application that he had a  cause of action against the defendant  that gave rise to the  deceased’s  death which  was due to the negligent  acts of  the defendant.

Accordingly,  I find that the requirements  of Section 27(2) of the  Limitation of  Actions Act  have  not been fulfilled by the plaintiff/applicant.

In Rawal Vs 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  a long lapse of time.  It is not  to extinguish  claims.”

In Dhanesvar V Mehta Manilal  M. Shah[ 1965] EA  321 the court stated that:

“the effect of limitation enactment is to remove remedies irrespective of the merits of the particular case.”

And 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…….”

In the instant  case, it is  an undisputed fact that  the cause of  action arose  on 28th December  2008 as per the death certificate and autopsy report annexed to this application, and expired on  28th December  2009.  By the time the PIC case   was opened in 2013, it was over 4 years and it is now over 7 ½ years since the deceased died.  The applicant obtained letters of administration ad litem on 11th December, 2009 before the expiry of the limitation period and  filed suit No.  HCC 278/2013 and withdrew it in July, 2015.  In my view, that was his own undoing, since a suit could still be   filed out of time and leave sought to validate the suit.  See Sections 28, 29-31 of the Limitation of Actions Act).  In this case, the prolonged delay in filing suit within 1 year from the date when the cause of action arose has not been explained. In addition, the requirements under section 27 of the Limitation of Actions Act have not been fulfilled.

For the aforesaid reasons, I find that this application is not merited.  I proceed to dismiss it with no orders as to costs.

Dated, signed and delivered in open court at Nairobi this 30th day of May, 2016.

R.E. ABURILI

JUDGE

In the absence of ProfKiamaWangai advocate for the plaintiff exparte applicant who was in court this morning and argued this application and a ruling set for 2. 30 pm.

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