https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9067

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E824 OF 2021** **LUCAS OTIENO ONDONG suing on his own** **behalf and on behalf of the estate of** **WILLIA ODHIAMBO ONDONG (Deceased) ……………………………APPELLANT** **VERSUS** **KENYATTA NATIONAL HOSPITAL………………….…………………RESPONDENT** *(Being an appeal against the Judgment of Hon. A.M. Obura, Chief Magistrate, delivered on 29th November 2021 in Milimani CMCC No. E7963 of 2013)* **JUDGMENT** **Background** 1. This is an appeal arising from the Judgment of Hon. A.M. Obura, Chief Magistrate, delivered on 29th November 2021 in Milimani CMCC No. E7963 of 2013 whereby the trial Magistrate dismissed the Appellant’s suit on the ground that it was time barred. 2. The deceased had passed away on 4th September 2008 and the Appellant sought damages against the Respondent alleging that the cause of death was medical negligence. The deceased was the brother to the Appellant. 3. The Appellant instituted the suit on 17th December 2023 in which he sought general damages for loss of expectation of life, exemplary damages, costs and interest from the date of the deceased. 4. The Respondent filed a Defence to the suit on 10th March 2014 in which they generally denied liability. Importantly for this case, the issue of Jurisdiction was not denied at paragraph 9 of the Defence. 5. The matter proceed to full hearing where the Appellant called two witnesses whilst the Respondent called one witness. The natural consequence of a full hearing would be that a Judgment date would be set after parties submit either orally or in writing. 6. Judgment was therefore set for 5th November 2021 but on the said date, the learned Magistrate asked the parties to file Supplementary Written Submissions on the issue of limitation of the action. 7. The Appellant filed the Supplementary Submissions dated 10th November 2021 in which he annexed the certified copy of the order of 17th October 2013 and the handwritten ruling in Misc. Application No. 895 of 2013 which had granted leave to file the suit of out of time. 8. The trial Court then delivered the impugned Judgment on 29th November 2021 in which the Court held that the suit was time barred. At paragraph 24 of the Judgment, the trial Magistrate held as follows: *“It is noteworthy that the Plaintiff did not file a copy of the order allegedly issued in the alleged Miscellaneous Application No. 895 of 2013 to assist the Court in determining whether leave to sue out of time was ever granted.”* 1. The Appellant raised the following Grounds in the Memorandum of Appeal that was filed against the decision 2. *The Honourable Learned Chief Magistrate erred in fact and law by finding that the suit was statute time barred despite the Appellant having applied and obtained leave to file the suit out of time vide Miscellaneous Application No. 895 of 2013 - Lucas Otieno Ondong' suing as the administrator of the estate of William Odhiambo Ondong' versus The Kennya National Hospital.* 3. *The Honourable Learned Chief Magistrate erred in fact and law by considering the issue of the suit being statute time barred despite the Respondent having not pleaded the issue n its statement of defence or raised a preliminary objection on a point of law on the suit being statute time barred.* 4. *The Honourable Learned Chief Magistrate erred in fact and law by failing to consider the Appellant's supplementary submissions on the issue of the suit being statute time barred.* 5. *The Honourable Learned Chief Magistrate erred in both fact and law in disregarding the Ruling and order of the Court given on 17 October, 2013 in Miscellaneous Application No. 895 of 2013 – Lucas Otieno Ondong' (suing as the administrator of the estate of William Odhiambo Ondong' versus The Kennya National Hospital which allowed the Appellant leave to file the suit out of time* 6. This appeal proceeded by way of written submissions and in his submissions the Appellant notes that the Respondent never pleaded limitation contrary to Order 2 Rule 4 of the Civil Procedure Rules, which requires limitation to be specifically pleaded. 7. The Appellant also submits that the Respondent did not file a Preliminary Objection on limitation as required by the principles in ***Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696***. The Respondent also did not also contest limitation during the hearing. Instead, the Respondent raised limitation for the first time in its submissions, according to the Appellant 8. The Appellant notes that this is important since the trial Court should only have decided on what had been pleaded. He cites that case of ***Galaxy Paints Co. Ltd v Falcon Guards Ltd [2000] eKLR*** where the Court of Appeal held: ***"It is trite law, and the provisions of O.XIV of the Civil Procedure Rules, are clear that issues for determination in a suit generally flow from the pleadings, and unless pleadings are amended in accordance with the provisions of the Civil Procedure Rules, the trial court, by dint of the provisions of O.XX rule 4 of the aforesaid rules, may only pronounce judgment on the issues arising from the pleadings or such issue as the parties have framed for the court's determination."*** 1. The Appellant contends in his submissions that the trial court gravely erred in disregarding the leave order granted in Miscellaneous Application No. 895 of 2013. The said order was expressly brought to the attention of the court through the Appellant's supplementary submissions filed pursuant to the trial court's own directions. Having invited the parties to address the issue, the court was duty-bound to consider the material placed before it. Its failure to do so amounted to a misdirection in law and fact, and an improper basis for finding that the suit was statute time-barred. He implores that the trial court ought to have applied Article 159(2)(d) of the Constitution of Kenya on substantive justice. The court instead dismissed the suit purely on a technicality, which is contrary to the principles in Article 159(2)(d) that justice shall be administered without undue regard to technicalities. 2. The Respondent on the other hand was happy with the decision of the trial Magistrate. In their submissions, they contend that the onus was on the Appellant to prove that he had obtained valid extension of time to institute the suit under Sections 27 (1)(c) and 28 of the Limitation of Actions Act. These provisions make it mandatory that the Plaintiff must obtain and produce the order granting leave before or at the commencement of the suit. The order forms the jurisdictional foundation for hearing a claim filed out of time. 3. On the issue of the Appellant producing the order attached to the submissions, the Respondent submits that Submissions are not evidence and cannot be relied upon to prove facts or introduce documents. They rely on the case of the Court of Appeal in ***Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR*** in which it was held: ***“Submissions are generally parties’ “marketing language”, each side endeavoring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all.”*** 1. The Respondent insists they first raised the issue of time bar at the hearing and not just at the submissions stage. The Appellant was cross-examined on the issue of time of filing of the suit and he responded as follows: ***“My brother died in 2008. I filed the suit on 17th December, 2013. I confirm I filed it 5 years after my brother’s death. Paragraph 10 of plaint: I have not produced the order granting me leave to sue out of time”.*** **Issues for Determination** 1. Having considered the Memorandum of Appeal, the record and the rival submissions, the issues that fall for determination are: 1. *Whether the trial court erred in considering the issue of limitation when there was no Preliminary Objection or pleading on the same.* 2. *Whether the failure to include the leave in the Bundle of Documents was fatal;* **Analysis and Determination** 1. This being a first appeal, the Court is obligated to consider the evidence that was tendered before the trial court, to evaluate it afresh and to then proceed to draw own conclusions. 2. The principle is firmly settled in ***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123*** in which the Court stated ***“An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound to follow the trial judge’s findings of fact if it appears that either he clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally. (Abdul Hameed Saif –Vs- Ali Mohamed Sholani (1955) 22 EACA 270)”*** 1. I have had a look at the Record of Appeal and note the invitation by the Respondent Counsel to strike out certain pages from the said Record. 2. The reason for this invitation is simple – the Appellant did not have this documents at the beginning of the suit in the trial Court. These documents were only brought out at the submissions stage and indeed one can note that two of the pages in the Record of Appeal being pages 20 and 437 are the same. It would not be right to consider documents that were not part of the trial Court but which are introduced at the Appellate level. For this reason, the Court expunges pages 5 to 20 of the record of Appeal from the record. 3. The Court then proceeds to consider the first issue that relates to whether the trial Court was wrong to consider a matter that had not been pleaded and to which no Preliminary Objection had been taken. The Appellant avers that the issue of the time bar first arose when it was raised in the Respondents Submissions. 4. It is important that the Court gives parties the opportunity to respond to all matters that are in contention. This avoids the ambush litigation that was mentioned in the case of ***Mohamed Abdikadir Mohammed v Sammy Kagiri & another [2016] KEHC 6502 (KLR)*** where Justice Gikonyo held as follows: ***In my understanding, our law on pleading, as encapsulated in Order 2 rule 4 of the CPR, is that, the party relying on limitation should specifically plead it. He may or may not do so for any or no reasons at all. Thus, the plaintiff is entitled to wait to hear from the defendant whether limitation is taken up as a defence. If the defence is taken, it is up to the plaintiff to bring his case within any of the exceptions to the Limitation of Actions Act or other statute of limitation as may be the case. There are good reasons for the position of the law that the defence of limitation should be pleaded specifically. First, it is intended to avoid ambush upon or taking the plaintiff by surprise on such a fundamental issue as limitation of actions. Second, the Plaintiff is notified of the defence of limitation; in effect he is told that his claim is not maintainable in law. And, third, the plaintiff gets the opportunity to plead such facts as are necessary to bring his claim within the exception of Section 27 of the Limitation of Actions Act. Ordinarily, he will do so in his reply to defence. Accordingly, a party who wishes to invoke or rely on a defence of limitation must specifically plead it in his defence or any other subsequent pleading, if he is to rely on limitation as a basis of defeating the plaintiff’s claim.*** 1. In the above case, just like in the present case the challenge to extension of time was raised during cross-examination and then in the submission of parties. The Respondents did not amend their pleadings to plead limitation. In the instant case, the Respondents did also not amend their pleadings to plead the issue of limitation. It is true that they raised it at the cross examination stage of the matter and also in their submissions. 2. The Court cannot close its eyes to matters brought to its attention when it is the same Court that invites parties to ventilate on the same matter. Once the Court raised the issue of limitation and told the parties to submit on the same, it gave a window to the parties to explain. This is the safety valve opened by the Court to a party much like the safety valve that is open the parties that wish to file matters out of time. 3. The argument made that a preliminary objection ought to have been raised is within reasonable expectations. According to the [*Black Law Dictionary*](https://www.worldcat.org/title/blacks-law-dictionary/oclc/877371635) a Preliminary Objection is defined as being: *“In case before the tribunal, an objection that if upheld, would render further proceeding before the tribunal impossible or unnecessary…….”* It is trite law that a preliminary objection can be brought at any time at least before the final conclusion of the case. Ideally, all facts remaining constant, it should be filed at the earliest opportunity of the subsistence of a case, in order to pave way for the smooth management and determination of the main dispute in a matter. 1. The Respondent did not take such steps to raise the Preliminary Objection and so it was not handled as a pre trial issue. It was only later that the Court seemed top being it out a *suo moto* issue to be addressed. 2. The Record of Appeal captures the directions that were made by the judicial officer at the time when the realization was made that the matter should be first be determined by whether or not it was filed within time. The Directions issued on 5th November 2021 that are found at page 459 of the Record of Appeal when the matter was called out at 11.00am, indicate that the following transpired: Court: Directions given. Judgment on 29/11/21 at 2.30pm. Further, the Directions in full are then detailed at page 464 of the Record of Appeal where the Plaintiff Counsel was asked to file submissions in response to the issue of the suit being time barred. 1. From the submissions made before this Court, the said Counsel than attached an order that had been given earlier in Miscellaneous Application 895 of 2013. Indeed, the learned Magistrate referenced this order at page 462 of the Record of Appeal where she indicated as follows: *During cross examination of PW1 he confirmed that he bought the suit 5 years after his brothers death. He also testified that he had obtained leave of the court to sue out of time in Nairobi Milimani Chief Magistrates Court Misc Application No. 985 of 2013 as pleased in paragraph 10 of his Plaint.* 1. The said paragraph 10 of the Plaint stated that the suit was filed pursuant to leave given by the Court and mentioned the specific Miscellaneous Application. 2. This was not an after thought that was brought out by the Appellant. Indeed, the submission by the Respondent that the court order attached to submissions is evidence does not hold water. A portion of a court record, in this case an order obtained from a court is not just evidence but also a court decision just like any authority that may be filed and attached to written submissions. It is decree of the court process and the court should take judicial cognizance of the existence of the order. The exception would be if the verifiability of the order is in question which is not the case in this instance. 3. In the grand scheme of things, the Appellant went out of his way to demonstrate that he sought leave as he had indicated in the Plaint at paragraph 10 and as he later clarified in the cross examination and in the submissions made. 4. The Appellants Counsel may have been a tad careless not to have the documents that ought to have been in the pre trial bundle but there was a litany of other errors that were not confined to the Appellants Counsel. Need a for instance? Whilst the Appellants Counsel was careless, the Respondent counsel was also slow and slept on his rights to raise the appropriate Objection to the lack of the defining documents to prove the leave or to subject it to the trial process or examination. Further, the trial Court also wasn’t keen to notice the omission and proceeded to almost the final stages only to realize that the issue had not been addressed. Everyone fluffed their lines. 5. At this stage, no one had challenged the leave that was obtained to say that it was wrongly obtained. 6. One cannot treat the Appellant as a person who had not taken any steps to seek leave and the fact that the same was attached to the submissions is merely because it was not a matter in contention. 7. This appellate Court will rather it doesnt treat a party, the Appellant, who has been diligent enough to seek leave by going before another court and then filing the suit and place him on the same level with one who never sought leave. 8. The Respondent can have an opportunity during a retrial to interrogate this leave. 9. Having re-evaluated the record for myself, I arrive independently at a different conclusion as the one taken by the trial court. **Disposition and Orders** 1. The upshot is that the appeal succeeds. I consequently make the following orders: 1. The appeal is hereby allowed. 2. The matter is remitted back to another trial Magistrate other than the Magistrate who heard and determined the matter for fresh consideration. 3. The costs of this appeal are in the cause. **It is so ordered.** **DATED, SIGNED AND DELIVERED at Nairobi this 25th day of June 2026.** **BENARD WAFULA MURUNGA** **JUDGE** *In the presence of:* *Tollo instructed by Munyao Muli for the Appellant* *Ms Njiru instructed by Mulondo & Co. for the Respondent* *Kevin Babu - Court Assistant*