[2018] KEHC 4837 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL SUIT NO.179 OF 2001

E B(minor suing through the next friend C K M......PLAINTIFF/APPLICANT

-VERSUS-

NELEO (K) LIMITED..........................................DEFENDANT/RESPONDENT

R U L I N G

1. This is an application by the plaintiff/ applicant brought under Order 1rule 10(2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act and all other enabling provisions of law. The applicant seeks the following orders;

i. That judgment entered herein against the defendant be set aside.

ii. This Honorable court do order that the name of the defendant be struck out and the same be substituted with the name PAMBA INDUSTRIES LIMITED.

iii. That the plaint herein be amended to accommodate the substitution.

iv. That upon granting prayers (1) (2) and (3) above this matter be transferred to the subordinate at Kisii for hearing and determination.

v. That any other suitable orders be made.

vi. That cost of this application be in the course.

The application is grounded on the following grounds;

a) That the name of the 1st defendant had been improperly joined herein as defendant.

b) That it is necessary to struck out the name of the defendant in the amended plaint and enjoin PAMBA INDUSTIES LIMITED so that the court may effectually and completely adjudicate upon and settle all questions involved in the suit.

c) That judgment was entered herein on 16th day of August 2003 against the defendant who failed to enter appearance nor file defense but upon filing a declaratory suit against the insurance company it was discovered that the insured was PAMBA INDUSTRIES LIMITED who had the control use and/or management of the motor vehicle that was involved in the accident.

d) That no prejudice will be caused to the defendant as it did not participate at the hearing of the suit.

e) That the anticipated award in the event that the matter goes for trial cannot exceed the jurisdiction of the Senior Principal Magistrate’s Court at Kisii.

f) That the plaintiff/applicant has been under the impression that the first defendant is the proper defendant.

2. The application is supported by the annexed affidavit of C K M dated the 29th March 2007. She deposes as follows that; she is the maternal mother and next friend of the plaintiff herein. On 7th November 2001 she filed a suit against the defendant herein Neleo (K) Limited for an accident that occurred on 20th December 2000 involving the plaintiff. She strongly believed then that motor Vehicle registration No.TZH 2099 which caused the said accident was owned by the defendant as the police has issued her with an abstract bearing the name of the defendant as the owner. On 16th August 2003 a default judgment was entered against the defendant. She was informed by her advocates on record that on 14th December 2006, they were served with replying affidavit which established that the defendant was not the insured but PAMBA INDUSTRIES LIMITED as the owner of Motor Vehicle Registration No.TZH 2099. She annexed a copy of the log book and copy of Policy document marked C.K.M.-1 and 2 respectively. That in view of the foregoing it is important that this Honorable Court does grant leave to the plaintiff/applicant to enjoin the said defendant PAMBA INDUSTRIES LTDas the defendant herein and the defendant’s name be struck-out. The application has been brought without delay. The defendant shall not suffer any prejudice if the orders sought herein are granted as it did not participate in the proceedings giving rise to the judgment in question. The judgment entered against the defendant ought to be set aside for the matter to be heard afresh.

3. The application was an exparte application. I have perused the court file and this is what I note. The plaint was filed on the 7th of November 2001. The alleged accident occurred on the 20th of December 2000 along Oyugis-Kisii road. There is an affidavit of service showing that the defendant herein Neleo (K) limited was served by way of registered post on the 20th of November 2001. On the 14th December 2001 the plaintiff sought judgment against the defendant. On the 18th June 2002 the plaintiff filed an amended plaint adding Kapur Daresh Kumar as the 2nd defendant. Paragraph 3a of the amended plaint states that the 2nddefendant was the owner of motor vehicle reg. no.TZH 2099. The matter was heard and an exparte judgment entered on the 11th of August 2003. The plaintiff filed an application on the 17th of December 2003 seeking to have the proceedings and the judgment set aside. As per the court records this application was fixed for hearing on the 12/7/04, the respondent was to be served. The application was heard on the 12/7/04 and was set for ruling at 2pm same day. I am unable to find the ruling as it is not in the court file. The plaintiff filed a declaratory suit in the Chief Magistrates Court and on the 14th December 2006 the judgment that had been again entered exparte was set aside. According to Mr. Bosire Gichana for the applicant the said suit has not been heard.

4. The plaintiff filed another application on the 29th of March 2007 seeking to have the judgment of 16th August 2003 set aside and that the defendant’s name be struck out and it be substituted with the name of Pamba Industries. The court record shows that the said judgment was delivered on the 11th of August 2003 and not 16th August 2003.

5. At the hearing of the application dated the 29th March 2007 Mr. Gichana argued that the court can grant the orders sought notwithstanding the limitation period and that the suit should be transferred to the subordinate court.

DETERMINATION

6. The cause of action in this matter arose on the 20th of December 2000. The plaintiff’s claim is based on negligence on the part of the defendants, she claims damages for personal injuries accompanied by pain and suffering. Section 4 (2) of the Limitation of actions Act, provides that, “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 cause of action accrued on the 20th of December 2000 and time expired on the 19th of December 2003. Any action in the matter on substitution should have been done before the time expired; therefore the intended suit against Pamba Industries limited is so time barred. Even if this court sets aside the judgment of 11th of August 2003, it will serve no purposes as the suit against the proposed defendant is time barred. I find no merit in the application dated the 29th of March 2007. It is dismissed with no orders as to costs. It is so ordered.

Dated signed and delivered this 9th day of August 2018

R.E.OUGO

JUDGE

In the presence of;

Miss Momanyi h/b Mr. Bosire Gichana For the Plaintiff/ Applicant

Rael Court/ Clerk