https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9535

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL DIVISION** **CIVIL APPEAL NO. E267 OF 2023** **JANE WAMBUI GITAU.......…………………….……1ST APPELLANT** **GODFREY WAWERU NGIGI…………………………2ND APPELLANT** **-VERSUS-** **IBRAHIM KINUTHIA BORO…..……………............RESPONDENT** ***(Being an Appeal against the Ruling of Hon. Jacinta Orwa delivered on*** ***14th July 2023 in*** ***Kikuyu PMCC No. E338 of 2021)*** **JUDGMENT** 1. This appeal arises from the Ruling delivered on 14th July 2023 in Kikuyu Civil Case No. 338 of 2021. The suit before the trial court was commenced by a Plaint dated 11th November 2021 filed by **Jane Wambui Gitau** and **Godfrey Waweru Ngigi,** suing as the legal representatives and administrators of the Estate of **Peter Kangethe Ngigi** (hereinafter ‘the Appellants’), against **Ibrahim Kinuthia Boro**, the 1st Defendant in the trial court (hereinafter ‘the Respondent’), and **Platinum Credit Limited**, the 2nd Defendant in the trial court, which is not a party to the present appeal. The reliefs sought therein were in the nature of general and special damages amounting to Kshs. 131,550/- arising out of a road traffic accident which occurred on or about 24th July 2018 along Thogoto-Kamangu at Lussigiti area. The Respondent herein was sued in his capacity as the driver and owner of **motor vehicle registration No.** **KCC 112C.** 2. It was alleged that on the material date, the deceased was lawfully walking on the pedestrian footpath along the abovementioned road when the Respondent so negligently and/or carelessly drove, controlled and/or managed the subject motor vehicle that it lost control, veered off the road and hit the deceased, causing him to sustain serious bodily injuries that subsequently led to his death. The particulars of negligence were equally set out under paragraph 6 of the plaint. 3. The Respondent filed a Statement of Defence dated 27th January 2022 denying liability. Simultaneously, the Respondent raised a Preliminary Objection dated 26th January 2022 contending that the suit was statute-barred and therefore incompetent, and prayed that it be struck out with costs 4. Meanwhile, by an Originating Summons dated 4th March 2022, the Appellants sought leave to institute the suit out of time. In a ruling delivered on 19th October 2022, the trial court granted leave to the Appellants to file and prosecute the suit out of time and directed that the suit be filed within thirty (30) days, failing which the leave granted would lapse. 5. Thereafter, the parties filed written submissions on the Preliminary Objection. The Respondents filed their submissions dated 29th May 2023 in support of the objection, while the Appellants filed submissions dated 19th June 2023 opposing it 6. Upon considering the Preliminary Objection and the parties' respective submissions, the trial court delivered the impugned Ruling on 14th July 2023, allowing the objection and striking out the suit. 7. Aggrieved by trial’s court Ruling, the Appellants filed a Memorandum of Appeal dated 27th July 2023 on the following grounds: 8. The Honourable magistrate erred and misdirected herself by failing to be guided by the Spirit of the Provisions of sections 1A, 1B & 3A of the Civil Procedure Act. 9. The Honourable magistrate erred and misdirected herself by failing to give concrete reasons on why she failed to excerscise her discretion in favour of the appellants 10. That the Honourable magistrate failed to consider the reasons advanced by the Appellant for delay in filing the law suit. 11. The Honourable Magistrate erred and misdirected herself by failing to be guided by the spirit of the provisions of article 159 of the Constitution 12. The Honourable Magistrate failed to exercise her discretion to allow the matter be heard and determined on merit even though the Appellants had proved that the Respondent had been convicted in the traffic court for causing the accident which is the basis of this suit 13. The Honourable magistrate failed to give the Appellants the chance to be heard and the case to be determined on Merit 14. That the appeal be allowed and the Ruling of the Honourable Magistrate delivered on 14th July 2023 be set aside. **SUBMISSIONS ON THE APPEAL** 1. The appeal was canvassed by way of written submissions. The Appellants submitted that although the suit was filed approximately four months after the expiry of the statutory limitation period, the trial court ought to have determined the matter in accordance with the principles of substantive justice, having regard to the circumstances of the case and the provisions of Article 159 of the Constitution. They argued that the learned magistrate placed undue emphasis on procedural technicalities instead of determining the dispute on its merits. 2. The Appellants further submitted that the Respondent had admitted liability in the related traffic proceedings by pleading guilty to the offence arising from the accident that resulted in the deceased's death. They contended that, in those circumstances, the estate was entitled to pursue compensation and that the trial court erred in striking out the suit on a procedural ground, thereby denying them an opportunity to have the matter determined on its merits 3. In support of their submissions, the Appellants relied on ***James Mangeli Musoo v Ezeetec Limited* and *Henry JB Kendall & Others v Peter Hamilton*.** 4. The Appellants therefore urged this Court to allow the appeal, set aside the impugned ruling, and reinstate the suit for hearing and determination on its merits 5. The Respondent submitted that the suit was statute-barred, having been founded on tort and filed outside the three-year limitation period prescribed under Section 4(2) of the Limitation of Actions Act. It was argued that the cause of action arose on 24th July 2018, while the suit was instituted on 11th November 2021, approximately four months after the expiry of the statutory period. 6. The Respondent further submitted that the provisions of Section 4(2) of the Limitation of Actions Act are couched in mandatory terms and divest the court of jurisdiction once the prescribed limitation period has lapsed. Reliance was placed on ***Hilton v Sultan S. Team Laundry (1946) KB 61, 81, as cited in YH Wholesalers Limited v Kenya Revenue Authority [2021]*** **eKLR,** for the proposition that where a statute bars an action after a specified period, the court lacks jurisdiction to entertain it. 7. On the Appellants' reliance on Article 159(2)(d) of the Constitution, the Respondent submitted that the provision cannot be invoked to circumvent mandatory statutory limitation periods. It was argued that Article 159 is not a panacea for all procedural and substantive defaults and cannot override express provisions of statute, including the Limitation of Actions Act. 8. The Respondent also contended that the trial magistrate properly exercised her discretion in upholding the Preliminary Objection. It was submitted that judicial discretion cannot be exercised contrary to an express statutory provision and that, once the suit was found to have been filed outside the limitation period, the trial court had no jurisdiction to entertain it. 9. Accordingly, the Respondent urged this Court to find that the trial court correctly upheld the Preliminary Objection and to dismiss the appeal with costs. **ANALYSIS AND DETERMINATION** 1. The court has considered the original record, the record of appeal and the submissions on record and the authorities cited in support thereof. As a first appellate court, the duty of this court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See **Peters v Sunday Post Limited (1958) EA 424; Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123** and **Williams Diamonds Limited v Brown (1970) EA 1**. The Court of Appeal in **Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278** stated that: ***“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”*** 1. This appeal raises a single issue for determination, namely ***whether the learned trial magistrate erred in upholding the Preliminary Objection and striking out the Appellants' suit on the ground that it was statute-barred.*** 2. There is no dispute that the Appellants' claim arose from a road traffic accident that occurred on **24th July 2018** and that the suit before the trial court was instituted on **11th November 2021**. The claim, being one founded on tort, is governed by Section 4(2) of the Limitation of Actions Act, which provides that an action founded on tort shall not be brought after the expiry of three years from the date on which the cause of action accrued. 3. The law on limitation of actions is now settled. Limitation is not merely a procedural technicality but a substantive rule of law that limits the jurisdiction of the court to entertain claims brought outside the prescribed period unless the case falls within the statutory exceptions. In **Divecon Ltd v Samani** **[1995–1998] 1 EA 48,** the Court of Appeal emphatically stated that no court has power to extend time for filing actions founded on tort except as expressly provided under the Limitation of Actions Act. Similarly, in **Rawal v Rawal** **[1990] KLR 275**, the Court observed that limitation statutes are intended to protect defendants against unreasonable delay in litigation and that courts cannot disregard statutory limitation on grounds of sympathy or hardship. 4. The Limitation of Actions Act, however, recognizes limited exceptions. Under Sections 27 and 28 thereof, the court may grant leave to institute an action out of time in claims for damages arising from negligence where the applicant satisfies the statutory conditions. Such leave is ordinarily sought ex parte by way of an Originating Summons before the suit is instituted. 5. The record shows that the Appellants did not obtain leave before instituting the suit. Instead, they filed the suit on **11th November 2021**, approximately four months after the limitation period had expired. It was only thereafter, by an Originating Summons dated **4th March 2022**, that they sought leave to institute the suit out of time. 6. The Appellants have urged this Court to find that once leave was granted on **19th October 2022**, the suit was thereby regularized and the Preliminary Objection ought to have failed. That argument cannot be accepted without examining the legal effect of the order granting leave. The Court of Appeal has consistently held that leave granted ex parte under Sections 27 and 28 does not immunize the suit from challenge by a defendant. In **Mary Osundwa v Nzoia Sugar Company Limited** **[2002] eKLR**, the Court held that the defendant remains at liberty to challenge the propriety of the leave granted, and the trial court retains jurisdiction to determine whether the statutory conditions for extension of time were in fact satisfied. 7. Equally important are the terms of the order made on 19th October 2022. The trial court granted the Appellants leave to file and prosecute the suit out of time and expressly directed that the suit be filed within thirty (30) days, failing which the leave would lapse. In this Court's view, those terms were prospective. They contemplated the institution of a suit after leave had been granted. The order neither stated nor implied that the suit already filed on **11th November 2021** was deemed duly filed or that the leave would operate retrospectively to validate proceedings that were already before the court. 8. The Appellants neither withdrew the suit already on record pursuant to the leave granted on **19th October 2022** nor did they seek an order deeming the existing Plaint as properly filed pursuant to the leave granted. Consequently, the suit that remained before the trial court was the one instituted on **11th November 2021**, at a time when no leave had been obtained. 9. The Appellants further relied on Article 159(2)(d) of the Constitution and urged the Court to determine the dispute on its merits. While Article 159 obligates courts to administer justice without undue regard to procedural technicalities, it does not empower courts to disregard substantive statutory provisions. In **Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others** **[2014] eKLR**, the Supreme Court held that Article 159 is not a panacea for all procedural defaults and cannot be invoked to cure non-compliance with mandatory provisions of the law. Likewise, in **Raila Odinga & 5 Others v Independent Electoral and Boundaries Commission & 3 Others** **[2013]** **eKLR**, the Supreme Court cautioned that Article 159 should not be used to uproot established legal principles or circumvent mandatory statutory requirements. 10. Applying the foregoing legal principles, this Court finds no fault in the learned trial magistrate's conclusion that the suit before the trial court had been instituted outside the limitation period. The subsequent order granting leave did not expressly validate the existing suit but instead authorized the filing of a suit within thirty days from the date of the order. In the absence of compliance with that order, the suit filed on **11th November 2021** remained incompetent. 11. This Court is not oblivious to the prejudice visited upon the Appellants, whose claim appears to have been lost not on its merits but on account of the manner in which the proceedings were instituted. The record suggests that the failure to obtain leave before filing the suit arose from the procedural course adopted by Counsel. Nevertheless, it is a settled principle that a court of law is bound to apply the law as enacted. Where Parliament has prescribed mandatory limitation periods and the conditions under which time may be extended, the Court cannot invoke sympathy or equitable considerations to confer jurisdiction where none exists 12. Accordingly, the appeal lacks merit and is hereby dismissed. The ruling of the trial court delivered on 14th July 2023 is upheld 13. In the circumstances of this appeal, I direct that each party shall bear its own costs. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **MAAINA FOR THE APPELLANT** **KAMAU FOR THE RESPONDENT** **COURT ASSISTANT: JAEL NOSIM**