[2022] KEHC 14765 (KLR)

Mashengu & another v Chege & another (Civil Appeal E099 of 2021) [2022] KEHC 14765 (KLR) (1 September 2022) (Judgment)

Neutral citation: [2022] KEHC 14765 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E099 of 2021

SM Githinji, J

September 1, 2022

Between

Isodor Ngure Mashengu

1st Appellant

Attorney General

2nd Appellant

and

Francis Njeru Chege

1st Respondent

Vehicle & Equipment Leasing Limited

2nd Respondent

(Appeal from the ruling delivered in Mpeketoni Principal Magistrate’s Court Civil Case No E008 of 2021 (Hon PE.Nabwana - Resident Magistrate on 26 October 2021)

Judgment

1. By a notice of preliminary objection dated September 8, 2021, the appellants sought to have the 1st respondent’s suit no E008 of 2021 dismissed for being statutory time barred under section 3[1] of the Public Authorities Limitation Act, cap 39. Looking at the record of appeal, on August 24, 2021, the 1st respondent filed a plaint dated August 23, 2021 against the appellants and 2nd respondent herein for what was stated as special damages and general damages for pain and suffering. According to the plaint, on September 15, 2017, the 1st respondent was riding a motorcycle as a pillion passenger along Hongwe Mpeketoni Road when the 1st appellant drove, controlled and or managed motor vehicle registration number GKB 046F negligently causing it to lose control and hit the 1st respondent. The said motor vehicle being a property of the 2nd respondent herein.

2. The learned trial magistrate dismissed the appellants’ preliminary objection noting that the 1st respondent had been granted leave to file the suit out of time on August 6, 2021, in miscellaneous civil application no E001 of 2021.

3. The appellant has appealed against that decision and in the memorandum of appeal dated November 25, 2021 he has raised the following grounds:i.The learned magistrate erred in law and in fact by dismissing the appellants’ notice of preliminary objection dated September 8, 2021. ii.The learned magistrate erred in law and fact by ruling that his ruling of August 11, 2021 in Misc civil application No E001 of 2021 related to the appellants preliminary objection.iii.The learned magistrate erred in law and in fact by finding that leave sought under section 27 and 28 of the Limitation of Actions Act will automatically act as leave sought under section 3[1] of the Public Authorities Limitations Actcap 39 laws of Kenya.iv.The learned magistrate erred in law and in fact by finding that the suit is barred by limitation of action under section 3 [1] of the Public Authorities Limitations Act, but nonetheless allowed the Misc Appln No E001 of 2021. v.The learned magistrate erred in law and in fact by finding that the reasons afforded in Misc Civil Application No E001 of 2021, for the delay in filing the suit were cogent and reasonable.vi.The learned magistrate misdirected himself by failing to appreciate the weight of evidence tendered before the trial court.

4. The Appeal was canvassed by way of written submissions.

The Appellants’ Submissions 5. The Appellants condensed their grounds of appeal to form the following issues:a.Whether leave sought and granted under sections 4[2], 27 and 28 of the Limitation of Actions Act automatically works as leave sought and granted under section 3[1] of the Public Authorities Limitations Act.

6. Quoting section 6 of the Public Authorities Limitation Act, the appellants argued that it was not automatic that leave sought under section 4 [2] of the Limitation of Actions Act will act as leave under section 3 [1] of the Public Authorities Act, cap 39. b.The learned magistrate erred in law and in fact by finding that the suit is barred by limitation of action under section 3[1] of the Public Authorities Limitations Act, but nonetheless allowed the Misc Appl No E001 of 2021 and further that the reasons afforded for lapse of time were compelling and reasonable enough to warrant extension of time.

7. It was the appellants’ submission that section 5 of thePublic Authorities Limitations Act only allowed extension of time to persons who suffered disability within 12 months within which the cause of action accrued. The appellants argued that at the time of hearing the miscellaneous application for leave, no evidence was provided to show that the 1st respondent was under any disability as defined under section 2 of the said Act. To the appellants, the reasons advanced for extension of time were weak and wanting in substance.

8. The appellants relied on the cases of Mbithi v Municipal Council of Mombasa & anor[1990-1994] EA; Amos Muthinja M’mungania v John Gaitho & anor[2016] eKLR.

9. They added that the reason of lack of finances to file the suit within time was neither here nor there. This, they argued, could have been remedied by order 33 on suits by paupers. They relied on the case of George M Ndirangu v Kenya Revenue Authority & another [2016] eKLR.

10. The appellants submitted that the issue of limitation goes to the jurisdiction of a court as it was held in the case ofThuranira Karauri v Agnes Ncheche [1997] eKLR; and inBenjamin Wachira Ndiithi v Public Service Commission & another[2014] eKLR. And for failure to give sufficient reasons, the learned magistrate erred in exercising the discretion to extend time in favour of the 1st respondent.

The 1st Respondent’s Submissions 11. On his part, the 1st respondent identified two issues for determination as follows:

a. Whether the honourable magistrate erred in law and fact by finding that leave sought under section 27 and 28 of the Limitation of Actions Act automatically acts as leave sought under sections 3[1] of the Public Authorities Limitations Act. 12. The 1st respondent answered this question in the affirmative. He relied on the case of Haron Onyancha v National Police Service Commission & another[2017] Eklr where it was held that to the extent allowed by section 6 of the Public Authorities Limitation Act, the Limitation of Actions Act applies to matters related to the Public Authorities Limitation Act.

13. He also relied on the case of Kenya Bus Service Limited & another v Minister for Transport & 2 others[2012] eKLR where Majanja J held that: “The application of the provisions of the LAA for extension to time for limitation under PALA mitigates the rigours of a strict limitation period by providing a window for extension of time and it is my finding that in so far as PALA provides for a period for extension of time it does not run afoul of article 48. ”

14. To the 1st respondent, failure to cite section 3[1] of the Public Authorities Limitation Act did not render the application for leave defective. To buttress this point, the 1st respondent relied on the case ofIndustrial Development Bank Limited v Wab Hotels Limited [in receivership] [2008] eKLR. That such failure was a technicality that could be cured by article 159 [2][d] of the Constitution as it was explained by the Supreme Court inRaila Odinga & others v IEBC & othersPetition No 5 of 2013 [2013] eKLR.

b. Whether the learned magistrate erred in law and in fact by finding that the reasons afforded in Misc Civil App No E001 of 2021, for delay in filing the suit were cogent and reasonable. 14. The 1st respondent submitted that one of the reasons he advanced in his application for leave was that his previous counsel failed to file the suit despite his express instructions. He submitted that the mistake of an advocate should not be visited upon a litigant as it was explained in the cases of Wachira Karani v Bildad Wachira [2016] eKLR; Edney Adaka Ismael v Equity Bank Limited [2014] eKLR; and Kasturi Limited v Nyeri Wholesalers Limited [2014] eKLR.

Analysis and Determination 15. I have considered the memorandum of appeal, submissions by counsel for the parties and the authorities relied on. This being a first appeal, parties are entitled to and expect a rehearing, re-evaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In Abok James Odera t/a AJ Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR, the following was stated with regard to the duty of the first appellate court;"This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

16. The matters for consideration arise from the Limitation of Actions Act, cap 22[LAA] and the Public Authorities Limitation Act, cap 39[PALA]. It would therefore be appropriate to set out the relevant provisions hereunder:

17. Section 3[1] of PALA provides as follows:"1. No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action accrued."

18. Section 4[2] of LAAprovides:"An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued:Provided that an action for libel or slander may not be brought after the end of twelve months from such date.”

19. Section 27 of LAA further provides as follows:"Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.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); andb.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; andc.the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; andd.the requirements of subsection (2) are fulfilled in relation to the cause of action.2. 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; andb.in either case, was a date not earlier than one year before the date on which the action was brought.3. This section does not exclude or otherwise affect—a.any defence which, in an action to which this section applies, may be available by virtue of any written law other than section 4(2) of this Act (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; orb.the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued."

20. Section 28 ofLAAfurther reads:"Application for leave of court under section 271. 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; andb.to fulfil the requirements of section 27(2) of this Act in relation to that cause of action.3. Where such an application is made after 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 the like 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; andb.to fulfil the requirements of section 27(2) of this Act in relation to that cause of action,and it also appears to the court that, until after the commencement of that action, it was outside the knowledge (actual or constructive) of the plaintiff that the matters constituting that cause of action had occurred on such a date as (apart from section 27 of this Act) to afford a defence under section 4(2) of this Act.4. In this section, “relevant action” in relation to an application for the leave of the court, means any action in connexion with which the leave sought by the application is required.5. In this section and in section 27 of this Act “court”, in relation to an action, means the court in which the action has been or is intended to be brought."

21. Prior to filing the suit against the appellants, the 1st respondent sought and was granted leave to file the same out of time in Misc Civil App E001 of 2021. The appellants’ argument in this appeal is that section 27 and 28 of LAAabove does not apply to matters under PALA and that the 1st respondent ought to have sought leave under section 3[1] of PALA.

22. It is therefore pertinent to establish the link between PALAand theLAA. Section 6 of the PALA provides for application of the LAA in certain matters governed by the PALA. It provides as follows: -"Notwithstanding the provisions of section 31 of the Limitation of Actions Act, section 22 of that Act shall not apply in respect of the provisions of this Act; and in section 27 of the Limitation of Actions Act the reference to section 4 (2) of that Act shall be read and construed as a reference to section 3 (1) of this Act, but subject thereto and notwithstanding section 42 of the Limitation of Actions Act, Part III of that Act shall apply to this Act. [emphasis mine]”

23. My understanding of the above provision and as far as section 27 of LAA is concerned, time limited under section 3[1], can be mitigated by the said section 27. In other words, the provisions of section 27 of the LAA and by extension section 28 thereon, on the procedure for filing an application for extension of time, are applicable to the PALA when it comes to time constraints under section 3[1] of the PALA. In any event, the said section 3[1] does not make any provision for extension of time.

24,The fact that the 1st respondent failed to cite or mention section 3[1] in its application for extension of time is in my view a procedural technicality that can be cured by article 159 [2] [d] of the Constitution which provides that:"Justice shall be administered without undue regard to procedural technicalities;”

25. Nonetheless, I note that the preliminary objection as raised would require the learned Magistrate or any court to go further than just the pleadings to call for evidentiary support. I say so because, section 27 of the LAAallows for extension of time in cases of ignorance of material facts in cases of negligence. To determine whether the applicant was ignorant of material facts prior to leave being granted, and/or whether or not leave was granted, the learned magistrate would be required to scrutinize some sort of evidence. The preliminary objection in my view would not in any case stand the test of time. SeeMukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd[1969] EA 696].

26. Given the above, I find no reason to interfere with the learned magistrate’s ruling dated October 26, 2021. The upshot is that the appeal is unmerited and is hereby dismissed with costs to the respondent.

RULING READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 1ST DAY OF SEPTEMBER, 2022. ...................................S.M. GITHINJIJUDGEIn the absence of the parties.Coram: Hon. Justice S.M GithinjiTLO Advocates for the 1st RespondentThe Hon. Attorney General