[2022] KEHC 16401 (KLR)

Gakara v Chepchieng & another (Civil Appeal 696 of 2017) [2022] KEHC 16401 (KLR) (Civ) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16401 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 696 of 2017

JN Mulwa, J

December 15, 2022

Between

David Njoroge Gakara

Appellant

and

Jeremiah Chepchieng

1st Respondent

Mid-Hill Nursing Home

2nd Respondent

(Being an appeal against the entire Ruling and Order of the Chief Magistrate's Court at Nairobi in Civil Suit No. 443 of 2017 delivered by Hon. G. A. Mmasi on 15th November 2017)

Judgment

1. This appeal arises from Civil Suit No 443 of 2017 instituted by the appellant herein against the respondents claiming damages for alleged medical negligence. The 2nd respondent filed its statement of defence followed by a notice of motion application dated June 8, 2017 in which it sought that the appellant’s suit against it be struck out for being filed in contravention of section 4(2) of the Limitation of Actions Act.

2. Vide a ruling delivered on November 15, 2017, the lower court allowed the 2nd respondent’s application and struck out the appellant’s suit as against the 2nd respondent with costs. Aggrieved by the said decision, the appellant lodged the instant appeal on the following grounds:1. The learned magistrate erred in law and in fact in allowing the respondent's application in the lower court and striking out the suit as against the 2nd defendant.2. The learned magistrate erred in law and in fact in holding that the suit was filed out of time contrary to the facts and evidence on record.3. The learned magistrate erred in law and in fact in failing to hold that in making payments to the appellant, the respondent automatically revived and/or renewed the cause of action and the 2nd respondent was vicariously liable.4. The learned magistrate erred in law and in fact in failing to appreciate and hold that the parties spent time in proceedings before the Medical Practitioners and Dentists Board before the suit was filed and such time must be taken into consideration.5. The learned magistrate erred in law and in fact in failing to hold that the suit is properly before it6. The learned magistrate in law and in fact in failing to consider the appellant's submissions and authorities filed in the lower thus arriving at an erroneous decision.

3. The appeal was canvassed through written submissions. The appellant submitted that he sought treatment at the 2nd respondent's facility on September 17, 2013 at the request of the 1st respondent and was treated continuously until February 5, 2014 when he went to Mama Lucy Kibaki Hospital on the advice of the respondents. He submitted that the respondents mismanaged his treatment and care and beseeched him to have the matter settled out of court with a promise to make good his claim but failed to do so. He instituted quasi-judicial proceedings against the respondents at the Kenya Medical Practitioners and Dentists (KPMD) Board on October 23, 2014 and the board delivered its ruling on March 18, 2016 in which it held the 2nd respondent liable in negligence and inter alia directed the 2nd respondent to undertake mediation with the appellant with a view of compensation within 120 days.

4. He submitted that following the decision of the board, the 2nd respondent admitted liability vide a letter dated June 24, 2016 in which it offered to pay Kshs 50,000/- as part payment of' the claim thus effectively renewing the limitation period. Thereafter, parties engaged in negotiations through correspondence wherein the 2nd respondent acknowledgment liability on four different occasions including its letter of January 31, 2017. According to him therefore, the limitation period started running afresh on January 31, 2017 pursuant to section 23(3) of the Limitation of Actions Act hence the suit was filed within the appropriate timelines. In this regard, the appellant relied on Tekom Kenya Limited v Kenya Railways Corporation [2018] eKlLR. Further, the appellant urged the court to consider and give credence the provisions of article 159(2) (d) of theConstitution, which requires judicial officers to administer justice without undue regard to procedural technicalities.

5. On the other hand, the 2nd respondent submitted that the appellant ought to have filed his suit on or before September 17, 2016. In its view, anything outside the said period is outside the statutory period provided under section 4 [2] of the Limitation of Actions Act. Reliance was placed on the case ofKiamokama Tea Factory Co Limited v Joshua Nyakoni [2015] eKLR where the court held that it is not a question of when time starts running for purposes of the limitation of action but whether the nature of claim is barred by the relevant provisions of the Limitations Act. Further, the 2nd respondent submitted that there no fresh accrual of the right of action since it did not admit any liability and in any event, the ruling by the KMPD board was not binding on the subordinate court. It was also its assertion that the alleged part-payment by the appellant is misplaced and misconceived since the sum of Kshs 50,000/- was in respect of costs for the sittings of the committee and not part payment to the appellant as alleged.

6. It was also the 2nd respondent’s contention that the exception regarding part payment is not applicable as section 23 of the Limitations of Actions Act is only applicable in cases of a contract where the party making part-payment owes a debt under a contract. It submitted that the case of Telkom Kenya Limited v Kenya Railways Corporation [2018] eKLR which the appellant relied is in fact distinguishable it was founded on contract as opposed to an alleged tort of negligence as in the instant case. The respondent asserted that the appellant ought to have filed the suit in the lower court despite negotiations or quasi-judicial proceedings in the KPMD board since such proceedings did not bar the appellant from filing the suit in good time. It relied on the case of Bernard M Mbithi v Mombasa Municipal Council & Another [1993] eKLR and the case of Jones M. Musau v Kenya Hospital Association & Another [2017] eKLR.

7. Additionally, the 2nd respondent submitted that article 159 of theConstitution cannot revive a suit which is extinguished by the Limitations of Actions Act since requirement under section 4 (2) of the Limitations of Actions Act is not a mere technicality.

Analysis and determination 8. There is no dispute that the appellant’s cause of action in the lower court was founded on the tort of negligence. In paragraph 6 of the plaint dated January 25, 2017, the appellant pleaded that on September 17, 2013, as directed by the 1st defendant, he went to Mid-Hill Nursing Home, the 2nd respondent herein where the 1st defendant received him and admitted him for three (3) days. At paragraph 7 thereof, the 1st highlighted the procedure that the 1st respondent herein undertook on his injured leg and the complications that arose therefrom. He then averred at paragraph 9 that on February 5, 2014, he sought further treatment at Mama Lucy Kibaki Hospital where doctors were shocked to see his condition as he was due for an amputation due to the bad state of his right leg. The particulars of negligence attributed to the respondents were then set out in detail under paragraph 12 of the plaint.

9. 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.'

10. When did the appellant’s cause of action accrue? In the court’s view, the cause of action herein accrued on February 5, 2014 as that is the day when the appellant became aware of the alleged negligence. Time therefore begun to run on February 5, 2014 and the appellant had until 5th February 2017, at the latest, to file his medical negligence claim. Further, guided by the decisions of Jones M Musau & another v Kenya Hospital Association & another [2017] eKLR and Bernard M Mbithi v Mombasa Municipal Council & Another [1993] eKLR cited by the 2nd respondent herein, the court finds that it was not necessary to await the outcome of a determination by the medical board in order to institute the claim in court because time did not stop due to that.

11. In addition, the court finds that the provisions of section 23(3) of the Limitation of Actions Act cannot aid the appellant’s case. The said provision states that:

'(3) Where a right of action has accrued to recover a debt or other liquidated pecuniary claim, or a claim to movable property of a deceased person, and the person liable or accountable therefor acknowledges the claim or makes any payment in respect of it, the right accrues on and not before the date of the acknowledgement or the last payment:Provided that a payment of a part of the rent or interest due at any time does not extend the period for claiming the remainder then due, but a payment of interest is treated as a payment in respect of the principal debt.' 12. The appellant’s cause of action in the lower is not based on a liquidated claim. The court has read the orders of the KPMD board. The order on payment of Kshs 50,000/- by the 2nd appellant was in relation to costs for the sittings of the committee and not payment to the appellant herein for compensation. Further, it is well settled that the failure to file the suit within the limitation period is not a mere technicality of procedure that can be remedied by article 159(2) (d) of theConstitution.

13. Consequently, the court finds that the learned magistrate did not err by striking out the appellant’s suit against the 2nd respondent for being time barred.

14. Accordingly, the appeal lacks merit and is hereby dismissed.

Orders accordingly.

DELIVERED, DATED AND SIGNED THIS 15TH DAY OF DECEMBER 2022. J.N. MULWAJUDGE