[2008] KEHC 3162 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA

Misc Civil Appli 104 of 2008

KILLION G. V. OUDU………………………....………….APPLICANT

VERSUS

KENYAPORTS AUTHORITY……………………….RESPONDENT

RULING

By his ex-parte Originating Summons dated 29th February 2008 brought under sections 27 and 28 of the Limitation of Actions Act the applicant Killion G. V. Oudu seeks extension of time within which to bring an action against the respondent Kenya Ports Authority. The applicant has also invoked Order XXXVI Rules 3C and 7 of the Civil Procedure Rules, Sections 3A and 95 of the Civil Procedure Act and Section 66 (a), (b) of the Kenya Ports Authority Act. The application is supported by an affidavit sworn by the applicant on 29th February 2008. In the affidavit it is deponed that the applicant was employed by the respondent on 1st December 1988 until 12th May 2004 when he received a letter from the respondent suspending him from duty on the grounds that the applicant had been arrested while allegedly stealing tins of road making paint from the respondent’s container terminal. In response to the letter of suspension the applicant wrote to the respondent to await conclusion of the criminal case. The applicant further depones that before the case was concluded the respondent dismissed the applicant from its employment with immediate effect by its letter dated 4th October 2004.

The applicant waited for the determination of the criminal case against him, which event occurred on 18th January 2007, when the applicant was acquitted under Section 210 of the C.P.C. He then, on 21st February 2007, sought review of his dismissal through his advocates which request was rejected and communicated to the applicant by the respondent’s letter of 2nd March 2007.

The applicant further swears that on 30th March 2007 he appealed to the respondent’s Managing Director to review the dismissal which appeal was declined on 18th September 2007. The applicant then served a Statutory Notice upon the respondent and threatened to institute proceedings for damages for wrongful dismissal.

On 18th September 2007, the respondent’s Managing Director declined to review the applicant’s dismissal. That refusal seems to have provoked this application.

The applicant’s claim is for a declaration that his dismissal from the respondent’s employment was wrongful and/or unlawful. He also seeks general damages and loss of benefits. By dint of the provisions of Section 66 (b) of the Kenya Ports Authority Act, an action for those reliefs does not lie or should not be instituted against the respondent unless it is commenced within 12 months next after the act, neglect or default complained of. The applicant acknowledges that his cause of action arose on 28th September 2004, when he was dismissed from his employment with the respondent. He should therefore have commenced proceedings within 12 months of that date. He had upto 29th September 2005 to commence proceedings. This application has therefore been brought 2 years 5 months after the said date. He has explained the reasons for the delay. But is there a power to enlarge the time within which the action should have been brought?

There is no provision for such extension under the Kenya Ports Authority Act. Infact the language of Section 66 (b) is mandatory that no action or legal proceeding shall lie after 12 months from the date of the cause of action. The court therefore has no power to extend the period prescribed by Section 66 (b).

Were it not for the operations of the Kenya Ports Authority Act the applicant would have had 6 years to institute action if he were to base his claim on breach of contract and 3 years if he were to base his claim in tort. The latter action would however be statute barred as the applicant should have filed his claim on or before 28th September 2007 as he has not satisfied the requirements of Section 27 (1) of the Limitation of Actions Act which reads as follows:-

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

(a)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

(b)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

(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and

(d)the requirements of Section (2) are fulfilled in relation to the cause of action”.

In the matter at hand, it seems clear that the damages claimed by the applicant are not for the negligence, nuisance or breach of duty consisting of or including damages in respect of personal injuries of the applicant. The damages claimed by the applicant are solely as a result of the alleged wrongful and/or unlawful termination of the applicant’s services with the respondent. The applicant does not claim damages for personal injuries. In those premises he has not satisfied the requirements of Section 27 (1) of the Limitation of Actions Act.

It seems to me that even if damages for personal injuries had been claimed, the applicant has not by affidavit evidence fulfilled the requirements of sub-section (2) of Section 27 of the same Act.

Finally, by dint of the provisions of sub-section 3 of Section 27 of the same Act the respondent’s defence of limitation given it by Section 66 (b) of the Kenya Ports Authority Act is not taken away. The latter Act was not made subject to the provisions of the Limitation of Actions Act.

I have considered the three authorities upon which the applicant placed reliance. They all considered extension of time under Section 27 of the Limitation of Actions Act. The damages claimed were for personal injuries and the said section was properly considered. The claim and the facts in the matter at hand as discussed above are different from those obtaining in the three cases.

The upshot is that the court has no jurisdiction to extend the time prescribed for commencing action under the Kenya Ports Authority Act and in this case the provisions of section 27 (1) of the Limitation of actions Act are not available to the applicant. The applicant’s Originating Summons cannot succeed. It is declined with no order as to costs.

Order accordingly.

DATED AND DELIVERED AT MOMBASA THIS 16TH DAY OF APRIL 2008.

F. AZANGALALA

JUDGE

Read in the presence of:

Kariuki H/B for Oguk for the applicant.

JUDGE

16TH APRIL 2008