Hola Youth Polytechnic v Zuberi & 17 others & 2 others (Civil Appeal E005 of 2026) [2026] KEHC 7131 (KLR) (14 May 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CIVIL APPEAL NO. E005 OF 2026** **HOLA YOUTH POLYTECHNIC…………APPELLANT/APPLICANT** **VERSUS** **ZEINABU ZUBERI & 17 OTHERS……………… RESPONDENTS** **VERSUS** **OBELL PHILIP AMARA…………….….1ST INTERESTED PARTY** **EXPLICO INSURANCE COMPANY LTD……2ND INTERESTED PARTY** *(Being an appeal from the judgment and decree of Hon. Edward Too, Principal Magistrate, in Hola Principal Magistrate`s Court Civil Suit No.E117 of 2024 delivered on 6th May 2025)* **JUDGMENT** 1. The Respondents herein brought suit against the Appellants claiming general and special damages after their kin was killed in a road traffic accident while in a motor vehicle belonging to the Appellant/Applicant. The Appellant during the trial argued that the suit was statutorily time barred as it was filed outside the time frame of one year prescribed by section 29 of the Limitation of actions Act. The trial court dismissed the argument and held that: **….it is clear that that the suit was filed within 3 years but without leave of court…..it is in the interests of justice for this court to suo moto grant leave to the plaintiff to enable the matter to proceed for determination. This omission could have been a genuine mistake of a counsel in failing to seek leave …it will be extremely plaintiff (?) for me to dismiss their claim due to procedural technicality on their part. A fault contributed to their counsel. In the interest of justice, I find the issue to be procedural technicality curable with the leave of the court and as such considering the overriding objective I allow the matter to proceed…..”** 1. The Appellant was aggrieved by the holding of the trial court and filed the instant appeal on the grounds that: 2. That the learned trial magistrate erred in law and in fact in granting leave for a suit which had been filed out of time suo moto and justifying it on mistake by plaintiff’s advocate whereas no such ground had been alleged by either party in this matter. 3. That the learned trial magistrate erred in law and in fact in failing to dismiss the suit upon finding out that the suit is statutory time barred. 4. That the learned trial magistrate erred in law and in fact by being subjective as opposed to being objective when dealing with the defence of time limitation put forth by defendant. 5. That the learned trial magistrate erred in law and in fact by positing that filing a suit out of time without leave of court is a procedural technicality curable under overriding objective of court yet it’s a violation of the statute. 6. That the learned trial magistrate erred in law by suo moto granting leave at post trial stage for a suit filed out of time without leave being sought in the first place which violated the principal that parties are bound by their pleadings. 7. That the learned trial magistrate erred in law and in fact by failing to appreciate that an issue of law can be dealt with during trial and that a preliminary objection is not the only way to deal with an issue of law. 8. That the learned trial magistrate erred in law and in fact by failing to comprehend that leave to have suit filed out of time is a discretional remedy upon a party demonstrating a reasonable cause for the delay. 9. That the learned trial magistrate erred in law and in fact in assessing damages under the Fatal Accidents Act and Law Reform Act by failing to apply the correct principles in determining the same hence arrived at a erroneous assessment or estimate of damages which was excessive. 10. That the award given on special damages was not strictly proved so as to warrant the same. 11. That the quantum awarded on loss of dependency was excessive and an arbitrary award. 12. The appeal was canvassed by way of written submissions of the Counsel for the Appellant. Counsel for the Respondents did not file any submissions. **Appellant`s submissions** 1. The Appellant submitted that parties are bound by their pleadings. That in the first place, the issue of leave to file the appeal out of time was not before the court and as such the court had no basis on deciding to grant leave to file the suit out of time. 2. Secondly, that there is no provision in law providing for the court to move suo moto and grant leave to pursue a claim suo moto. 3. Thirdly, that a mistake of an advocate is not a proper ground for grant of leave under sections 27, 28 and 30 of the Limitations of Actions Act. Reference in this respect was placed in the case of **Gathoni v Kenya Co-operative Creameries Limited (1982) eKLR** where the Court of Appeal held that the grounds under which leave may be granted are out of disability of being a minor or of unsound mind as defined in section 2(b) of the Limitation of Actions Act and under section 27 where the applicant has to show that failure to file the suit in time was due to material facts of a decisive character being outside the knowledge of the applicant. The court in that case stated that: **“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 decisive character being outside her knowledge (actual or constructive).”** 1. It was submitted that there was no evidence of disability or lack of knowledge of material fact. That the magistrate was wrong in invoking mistake of counsel as a ground for leave. 2. It was submitted that the cause of action as per the plaint arose on 26th August 2021 and the suit filed on 12th August 2024. That the same being for the benefit of the estate of the deceased for alleged negligence acts the applicable law is the one provided under section 29 of the Limitation of Actions Act which requires the suit to be filed within one year of the death of the deceased. Reliance was placed in the case of **Farmers Choice Company Limited v Dorleen Anyango Wasonga & another (2015) eKLR** where the High Court held that: **“From the above provisions of Section 29 of the Limitation of Actions Act, it is clear that where the person injured as a result of the tortious act of another dies, then his or her personal representatives can only bring an action on behalf of the estate of the deceased person within twelve months from the date when the deceased died.** **Where such period has lapsed, then no cause of actin lies, unless, by application of Sections 22, 27 and 28 of the Act, leave of Court is sought to extend such period for bringing an action.** 1. The Appellant submitted that a suit filed out of time is statutorily time barred. Reliance was placed in the cases of **Spin Knit Dairy Limited & Mwaniki Anderson (2019) eKLR** and **Iga v Makerere University (1972 EA 62**. In the latter case it was held that: *“***A plaint which is barred by limitation is a plaint “barred by law.” A reading of the provisions of Section 3 and 4 of the Limitation Act ( Cap 70) together with Order 7 Rule 6 of the Civil Procedure Rules seems clear that unless the appellant in this case had put himself within the limitation period by showing the grounds upon which he could claim exemption the court “ shall reject” his claim….the limitation Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for, and when a suit is time barred, the court cannot grant the remedy or relief.** 1. Reference was also made to the case of **John Kariuki Maina v Attorney General (2021) eKLR** where the court held that limitation of time is a jurisdictional issue. 2. It was submitted that the trial magistrate having sustained the defence of limitation could not purport to grant leave and hence the suit should have been dismissed. The Appellant urged the court to allow the appeal. **Analysis and determination** 1. This being a first appeal, it is the duty of this court to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing its own conclusions from that analysis and bearing in mind that the court did not have an opportunity to hear the witnesses first hand - see the Court of Appeal case of **[Gitobu Imanyara & 2 Others –vs- Attorney General](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/557%22%20%5Ct%20%22_blank) [2016] eKLR.** 2. I have considered the grounds of appeal, the record of the trial court and the submissions by counsel for the Appellant. The issues for determination are: 3. Whether the suit was statutorily time-barred. 4. Whether the trial court had discretion to grant leave. 5. The trial court held that the suit was filed within three years but that it was filed without obtaining leave of the court. Section 4(2) of the Limitation of Actions Act provides that an action founded on tort may not be brought after the end of 3 years from the date on which the cause of action arose. Section 27 of the Act however gives exemptions to that general rule and gives situations when the court may extend the limitation period. Section 29(1) as read with-subsection 29(4) however provide that where a person has died as a result of negligence and an action is brought for the benefit of the estate of the deceased for alleged negligence, the action shall be brought before the end of 12 months from the date when the deceased died. This position was emphasized in the case of **Farmers Choice Limited v Dorleen Anyango** (supra). 6. In this matter it was pleaded in the plaint that the cause of action arose on 26th August 2021. The suit was filed on 12th August 2024. The same was therefore not filed within the one year from the date the cause of action arose as required by section 29(4) of the Limitation of Actions Act. The suit was thereby filed outside the one-year time frame and was thus time barred by virtue of the provisions of the aforesaid section. 7. It is trite that a suit filed outside the time stipulated by the law and without leave of the court is a nullity unless leave is obtained. In **Spin Knit Dairy imited & Mwaniki Anderson** (supra), it was held that the filing of a suit outside the statutory period is not a procedural technicality that can be cured by the application of overriding objectives of the court as contained in sections 1A and 1B of the Civil Procedure Act or invocation of Article 159(2) of the Constitution. The issue is therefore one of jurisdiction. Consequently, I find that the trial magistrate was in error to reduce the issue to a procedural technicality when the issue was one of jurisdiction. The court had no jurisdiction to entertain the matter once it was clear that the suit was filed outside the stipulated time and without leave of the court. The law is that a court of law lays down its tools once it concludes that it has no jurisdiction to entertain a matter and cannot take one more step in the matter, see **Owners of Motor Vessel Lilian S v Caltex Oil (K) Limited (1989) eKLR**. 8. It is trite law that parties are bound by their pleadings. The issue for grant of leave to file suit out of time was not before the trial court when the trial magistrate purported to grant leave for the matter to be heard out of time. The court had to be moved accordingly. It is only when the court was satisfied that the conditions to file suit out of time were met that the court could grant the leave. The court had no discretion to grant leave *suo moto.* The only alternative was for the trial court to dismiss the suit. 9. The upshot is that I find merit in the appeal. Consequently, the judgment of the trial court is set aside and replaced with an order dismissing the entire suit with costs to the Appellant. **Delivered, dated and signed at GARSEN this 14th day of May 2026.** **J. N. NJAGI** **JUDGE** **In the presence of:** Mr. Kioko holding brief for Mr. Jengo for Appellant Mr. Ndungu for Respondents Court Assistant - Rahma