[2022] KEHC 10134 (KLR)

Madheu (Suing as the administrator of the estate of Nyiwalla Peter Lau-Deceased) (Suing as the administrator of the estate of Nyiwalla Peter Lau-Deceased) v Kenya School of Flying & another (Civil Appeal E304 of 2020) [2022] KEHC 10134 (KLR) (Civ) (1 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10134 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E304 of 2020

JK Sergon, J

July 1, 2022

Between

Peter Lau Madheu

Appellant

Suing as the administrator of the estate of Nyiwalla Peter Lau-Deceased

and

Kenya School of Flying

1st Respondent

Ahmed Hussein Alkama

2nd Respondent

(Being an appeal against the ruling and order of Honourable A.N. Ogonda (Ms.) (Senior Resident Magistrate) delivered on 3rd March, 2020 in MILIMANI CMCC no. 1304 of 2019)

Judgment

1. The appellant in his capacity as the administrator of the estate of Nyiwalla Peter Lau (“the deceased”) moved the trial court by way of the ex parte Originating Summons (“the Summons”) dated 11th November, 2019 and sought for leave to file the suit out of time and a further order that the plaint annexed therein be deemed as having been duly filed upon payment of the requisite court fees.

2. The record shows that the intended suit against the 1st and 2nd respondents was that of a fatal accident claim resulting from alleged negligence on the part of the respondents.

3. Upon considering the ex parte Summons, the trial court dismissed it vide its ruling delivered on 3rd March, 2020.

4. Being aggrieved by the above decision, the appellant sought to challenge the same by way of an appeal. Through his memorandum of appeal dated 30th July, 2021 the appellant put in the following grounds:i.That the learned trial magistrate erred in law and fact in failing to consider the appellant’s reasons for delay in instituting a suit.ii.That the learned trial magistrate erred in law and fact in failing to appreciate the circumstances presented by the appellant which hindered his ability to file a claim within the statutory timelines, which error denied the appellant the right to be heard and proceeded to condemn the appellant unheard which is a breach of natural justice.iii.That the learned trial magistrate erred in law and fact in failing to appreciate the appellant’s evidence of events occasioning delay.iv.That the learned trial magistrate erred in law and fact in putting more weight on the travel documents to show the appellant’s availability within Kenya, when the appellant had sworn his absence in the country, which absence cannot be proven by travel documents.v.That the learned trial magistrate erred in law and fact in ignoring the mitigating factors on behalf of the appellant and going ahead to dismiss the application.vi.That the learned trial magistrate erred in law and fact by failing to appreciate that the intended respondents had expressed willingness to settle the appellant’s claim, which contributed to further delay in filing the claim.vii.That the learned trial magistrate misdirected herself on the law and its application to the facts before her thereby arriving at a manifestly unjust decision.

5. The respondent retorted to the memorandum of appeal by putting in the replying affidavit sworn by a Director of the 1st respondent, Joseph Martin Ririani on 18th October, 2021 essentially supporting the decision by the trial court to dismiss the Summons.

6. This court issued directions to the parties to file written submissions on the appeal.

7. The appellant on the one hand argues that the trial court adjudicated the case at the interlocutory stage and without granting him the opportunity to be heard, thereby shutting him out of the seat of justice. To buttress this point, the applicant has made reference to various cases. For purposes of this ruling, I will cite the case of CIS v Directors, Crawford International School & 3 others [2020] eKLR where the court held that:“I understand the learned Judge to be saying that the Court should not sheath the constitutional sword if the other available remedies are inadequate. In other words, a litigant should not be cast into the wilderness and left bereft of remedy in the enforcement of the principles enunciated in Gabriel Mutava & 2 others (supra). I am of the view that in the quest to do substantive justice as commanded by the Constitution, courts should not unnecessarily deny litigants the constitutional route to the garden of justice.”

8. The appellant further argues that while it is true that there was a delay in filing the suit, the same was well explained and hence the trial court ought to have taken into consideration the reasons afforded by the appellant coupled with the fact that the respondents did not stand to suffer any prejudice; and upon doing so, ought to have granted leave for filing the suit out of time.

9. For all the foregoing reasons, the appellant urges this court to find that he has presented an arguable appeal which ought to be allowed, with costs to the appellant.

10. The respondents retorted by submitting that the provisions of the Limitation of Actions Act (“the Act”) are clear as to the timelines for filing respective claims and that the reasons given by the appellant for not filing the claim within the stipulated timelines are not catered for under the Act, and hence the trial court acted correctly in dismissing the Summons.

11. The respondents further submit that the appellant also failed to tender sufficient evidence to support his reasons for not filing the suit in good time and hence there would have been no basis for granting him an extension of time within which to lodge his claim in any event.

12. Finally, it is the submission by the respondents that the proviso of Article 159(2)(d) of the Constitution which the appellant rides on and which provides that justice shall be done without undue regard to procedural technicalities, ought to be read holistically in order to ensure that every party has an equal standing and benefit under the law. This submission has been made with reference to the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 6 others [2013] eKLR in which the Court of Appeal stated as follows:“I am not in the least persuaded that Article 159 of the Constitution and the oxygen principles which both command courts to seek to do substantial justice in an efficient, proportionate and cost-effective manner and to eschew defeatist technicalities were ever meant to aid in the overthrow or destruction of rules of procedure and to create an anarchical free-for-all in the administration of justice. This Court, indeed all courts, must never provide succour and cover to parties who exhibit scant respect for rules and timelines. Those rules and timelines serve to make the process of judicial adjudication and determination fair, just, certain and even-handed. Courts cannot aid in the bending or circumventing of rules and a shifting of goal posts for, while it may seem to aid one side, it unfairly harms the innocent party who strives to abide by the rules.”

13. In the end, the respondents have urged this court to dismiss the appeal with costs.

14. I have considered the contending submissions and authorities cited on appeal. I have likewise re-evaluated the material placed before the trial court. It is clear that the appeal lies principally against the trial court’s decision to decline to grant the appellant leave to file his claim out of time. I will therefore deal with the grounds of appeal contemporaneously.

15. In support of the Summons, the appellant stated that the fatal accident involving the deceased took place on 7th April, 2016 following which he was engaged in negotiations with the respondent with a view to settling the matter amicably and which negotiations fell through sometime in April, 2019.

16. The appellant also stated that he subsequently filed an application for issuance of grant of letters of administration in respect to the estate of the deceased and which letters were granted on 13th February, 2019.

17. It was stated by the appellant that at the time of issuance of the letters of administration, he was away in South Sudan where he is based and was therefore unable to give further instructions to his advocates and that for security reasons, he was unable to return to the country in good time.

18. The appellant also swore a further affidavit in which he stated inter alia, that the delay in bringing the suit was also occasioned by the time taken in following up on the ownership details of the aircraft which was involved in the accident resulting in the death of the deceased and that Kenya Civil Aviation Authority (KCAA) only responded to him three (3) years later on 11th April, 2019, during which time he had been unwell and bedridden for some time.

19. In her ruling, the learned trial magistrate reasoned that the requirements for the extension of time had not been met in the present instance and that the appellant had not demonstrated by way of evidence that the negotiations between the parties herein had been ongoing for the three (3) years within which he was required to file the claim.

20. The learned trial magistrate also reasoned that the appellant did not support by way of evidence the assertion that he was out of the country and therefore unable to give proper instructions to his advocates to file the suit within the stipulated timelines and that there is also no evidence to support the assertion that correspondences had been made to KCAA.

21. For the foregoing reasons, the learned trial magistrate stated that she was not satisfied that a case had been made out for granting an extension of time for the appellant to institute the claim.

22. This being an appeal arising out of leave to file a suit out of time and given that the claim in question is a tort in the nature of a fatal accident claim touching on negligence, the relevant provision is Section 4(2) of the Limitation of Actions Act (“the Act”) cited in the submissions by the respondents, which is clear that claims based on tort are to be brought within a period of three (3) years from the date on which the cause of action arose.

23. Going by the facts presented on the record, it is apparent that the cause of action in the present instance arose on 4th April, 2016 and would therefore have lapsed three (3) years therefrom. It is also apparent that the Summons was brought before the trial court under the provisions inter alia, of Section 27 and 28 of the Act.

24. Section 27(1) of the Act stipulates as follows:“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 subsection (2) are fulfilled in relation to the cause of action.”

25. Section 27(2) expresses that:“The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which—(a)either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and(b)in either case, was a date not earlier than one year before the date on which the action was brought.”

26. Section 28 on the other hand reads as follows:“(1)An application for the leave of the court for the purposes of section 27 of this Act shall be made ex parte, except in so far as rules of court may otherwise provide in relation to applications made after the commencement of a relevant action.(2)Where such an application is made before the commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on evidence adduced by or on behalf of the plaintiff, it appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be sufficient—(a)to establish that cause of action, apart from any defence under section 4(2) of this Act; and(b)to fulfil the requirements of section 27(2) of this Act in relation to that cause of action.”

27. I am persuaded by the court’s reasoning in Rawal v Rawal [1990] KLR 275 cited in the impugned ruling, as laid out in the case of Kenya Orient Insurance Ltd v Senenerro Ole Kurraro & 7 others [2016] eKLR thus:“The object of any limitation enactment is to prevent a plaintiff from prosecuting stale claims on one hand, and on the other hand protect a defendant after he had lost evidence for his defence from being disturbed after acting lapse of time. It is not to extinguish claims.”

28. On the principles for consideration in enlarging the time for filing a claim, I borrow from the case of Mbukoni Services Limited & another v Mutinda Reuben Nzili & 2 others [2021] eKLR cited in the appellant’s submissions on appeal, where the court rendered itself thus:“As to the principles to be considered in exercising the discretion whether or not to enlarge time in First American Bank of Kenya Ltd vs. Gulab P Shah & 2 Others Nairobi (Milimani) HCCC NO. 2255 of 2000 [2002] 1 EA 65 the Court set out the factors to be considered in deciding whether or not to grant such an application and these are (i). the length of the delay; (ii) the explanation if any for the delay; (iii). the merits of the contemplated action, whether the matter is arguable one deserving a day in court or whether it is a frivolous one which would only result in the delay of the course of justice; (iv). Whether or not the Respondent can adequately be compensated in costs for any prejudice that he may suffer as a result of a favourable exercise of discretion in favour of the applicant.”

29. Upon my re-examination of the record, I note that whereas it is apparent that the abovecited provisions of the Act may not be applicable in the present instance in the extension of time; as the learned trial magistrate rightly noted; I am of the view that the appellant herein brought credible evidence to explain the delay in lodging the claim within the stipulated timelines.

30. Upon my further re-examination of the record, I also note that the delay in question was not so prolonged as to be deemed inordinate and as I have indicated hereinabove, the same has been reasonably explained.

31. Upon my study of the record and draft pleadings, it is clear that the claim is that of a fatal accident resulting from alleged negligence and hence brought for the benefit of the estate of the deceased herein. To my mind, this would be considered a valid and arguable claim in law.

32. Further to the foregoing, there is nothing on the record to indicate that the respondents herein stand to be prejudiced at all or in such a grave manner that an award of costs would be futile.

33. Ultimately, I wish to point out that the learned trial magistrate ought to have appreciated that courts of law are also courts of justice and are therefore enjoined to promote the interest of substantive justice and to ensure that as much as is reasonably possible, parties are not driven out of the seat of justice unheard.

34. In so finding, I draw from the case ofCIS v Directors, Crawford International School & 3 others(supra) where the court rendered itself thus:“I understand the learned Judge to be saying that the Court should not sheath the constitutional sword if the other available remedies are inadequate. In other words, a litigant should not be cast into the wilderness and left bereft of remedy in the enforcement of the principles enunciated in Gabriel Mutava & 2 others (supra). I am of the view that in the quest to do substantive justice as commanded by the Constitution, courts should not unnecessarily deny litigants the constitutional route to the garden of justice.”

35. In view of all the foregoing circumstances, I am persuaded to disturb the finding arrived at by the learned trial magistrate.

36. In the end, the appeal is found to be meritorious and is allowed. Consequently, the ruling delivered on 3rd March, 2020 is hereby set aside and is substituted with an order allowing the Originating Summons dated 11th November, 2019. The appellant should file the suit within 21 days from today’s date.

37. A fair order on costs in the circumstances of this case is to order which I hereby do that each party meets its own costs on appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 1ST DAY OF JULY, 2022. ............................J. K. SERGONJUDGEIn the presence of:................................... for the Appellant........... for the 1st and 2nd Respondents