Milly Glass Works Ltd v Ndichu (Civil Appeal E088 of 2025) [2026] KEHC 11571 (KLR) (24 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E088 OF 2025** **MILLY GLASS WORKS LTD APPELLANT** **-VERSUS-** **NAHASHON NJENGA NDICHU­­­­­ RESPONDENT** **RULING** ***(Being an appeal from the ruling and orders of the Chief Magistrate’s court at Limuru (Honourable J.O Magori SPM) dated 15th May 2025 in Limuru CMCC No. 475 of 2021)*** **RULING** 1. This is an appeal against the ruling delivered by Honourable J.O Magori (SPM) dated 15th May 2025 in Limuru CMCC No. 475 of 2021. The appellant being dissatisfied with the said ruling has preferred this appeal. The appellant has raised two grounds of appeal in urging the court to set aside the ruling and orders made on 15th May 2025. 2. The appellant prays for the following orders:- ***a) That this appeal be allowed with costs.*** ***b) the ruling delivered on 15th May 2025, and the resultant order , be set aside and be substituted with an order allowing the Notice of Motion dated 23rd October 2024 with costs.*** 3. The two grounds of appeal are:- ***i) That the learned magistrate erred in law and fact in failing to find that the respondent’s suit, founded on negligence, was barred by limitations of action.*** ***ii) That the learned magistrate erred in law in failing to consider and find that the respondent’s suit had abated or want of summons.*** 4. Directions were taken and the appeal was canvased by way of written submissions, where both parties complied and relied on various decisions in support of their rival submissions. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court as well as the written submissions filed by the appellant. 5. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court both on points of law and fact and come up with its own findings and conclusions [see Peters -vs- Sunday Post Limited [1958] E.A 424] 6. In *SELLE and Another -vs- Associated Motor Boat Company Ltd & Others [1968] 1. E.A* 123 it was stated as follows:- “…………………….this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 7. The respondent filed his case on 3rd November 2021. In his plaint dated 19th October 2021, he alleged that he suffered loss due to a road traffic accident due to Lactano Kipruto William’s negligence. The allegations were that that the accident motor vehicle Registration number KAN 395 G was registered in the name of Lactano Kipruto William. Through the amended plaint the respondent introduced the name of the appellant in this case. 8. In his grounds in support of the application, the appellant averred that the respondent’s suit ought to have been filed not later than 7th December 2021, and hence by dint of section 4(2) of the Limitations of Actions Act Cap 22 the suit is time barred. Further that the respondent was mandated by Order 5 Rule 1(2) & (5) of the Civil Procedure Rules 2010 to present summons together with the amended plaint and collect them for service within 30 days , but no summons to enter appearance have ever been presented within time at all. Thus by order 5 Rule 1(6) of the Civil Procedure Rules 2010, the suit has abated by operation of the law. 10. In opposing the application, Maryann Karimi in her replying affidavit dated 20th November 2024, deponed that the respondent had sued the registered owner of motor vehicle KAN 375 G as indicated in the motor vehicle search , which was filed in court. That the matter was filed in time on 3rd November 2021 before expiration date of the matter compliance with Section 4 of the Limitation of Actions Act. That further investigations on the registered owner of motor vehicle KAN 395 G established that the defendant herein Milly Glass Works Limited as the registered owner of motor vehicle KAN 395 G as at the time of the accident. 11. At paragraph 14 of the replying affidavit, the respondent averred that the issue raised by the appellant in that application was a procedural technicality and urged the court to dismiss the application, terming it as malicious and made in bad faith. **Analysis and determination.** 12. In his written submissions, the appellant submitted that the trail magistrate erred in failing to appreciate the fact that while the suit was indeed filed on 3rd September 2021, it was against Kiprono and motor Vehicle KAN 395 G. the amendment to introduce the appellate, Milly Glass Works Limited and Motor vehicle KAN 379 G was not done until 21st June 2023. That by that time, the limitation period had kicked in favour of the appellant, and that to permit an amendment to introduce the appellant into the suit some five years was not permissible. Reliance was placed on the case of *Kenya Ports Authority Pension Scheme –vs- John Steven Opiyo- Mombasa High Court Civil Appeal No. 184 of 2019.* 13. It was further submitted that the trial magistrate was in err to treat limitation as a procedural technicality 14. On the issue of summons, the appellant submitted that the respondent, upon introduction of a new defendant in the case, he was bound by law to prepare, lodge, collect and serve summons upon the appellant. That there was no evidence of such summons upon the appellant and the respondent only served the amended plaint upon the appellant. 15. The respondent in his submissions maintained that the suit was not time barred having been filed within the three year statutory period. That the defendant filed a third party notice dated 29th May 2023 seeking to onboard the appellant who was the rightful owner of the blamed motor vehicle. That the third party proceedings do not create a fresh cause of action, as they arose out of the original suit which was filed in time. It was further submitted that the discrepancy between the motor vehicle registration number KAN 395 G and Motor vehicle KAN 375 G does not render the suit time barred. 16. On the issue of summons, the respondent submitted that the appellants vide third party notice dated 29th May 2023 were served when they were invited to enter appearance within 15 days of service of the notice. That once the appellants were served with the third party notice requiring them to enter appearance within the stipulated period,, the appellant became properly seize of the proceedings and was under obligation to respond accordingly. 17. I have carefully perused and understood the contents of the pleadings, proceedings, ruling, grounds of appeal submissions and the decisions referred to by the parties. It is not in dispute that the respondent suit filed on 24th June 2022 was in respect of an accident that took place on 8th Decmber 2018. The suit was filed against Kipruto William, and the accident motor vehicle was indicated as KAN 395G . Both parties in this case are in agreement that the initial suit was filed in time. 18. What is contested in this case is if the case as against the appellant herein, Milly Glass Works Limited was filed with time. 19. It is the view of the appellant that the amendments to the respondent’s suit altered the suit in that they introduced a new party and a different motor vehicle, and hence by the time the respondent was introduced to the case, the suit was already time barred. 20. Having carefully considered the pleadings, and the exhibits in supports of the respondent’s case, the only common denominator is the date of the accident. The initial defendant and the appellant in this case are quite different. The accident motor vehicle are also different. Of note I that the respondent has described the initial defendant , Mr Kiprono as the registered owner of KAN 395 G, and also seems to appreciate that the fact that M.V KAN 375 G is registered in the name of Milly Glass Works Limited. 18. In light of the above amendments, there is no nexus drawn between Kiprono and Milly Glass Works Limited. The subject matter, being the accident motor vehicle is quite distinct. What the respondent seems to have done in this case is to hide behind the amendments to evade the issue of Limitation of time. 19. Having noted that the amendment totally changed the landscape of the suit, the doctrine of limitation as against the appellant comes into to play. I agree with the appellant that the amendments to the respondent’s suit altered the suit in that they introduced a new party and a different motor vehicle, and hence by the time the respondent was introduced to the case, the suit was already time barred. 20. I draw guidance form the case of *Lilian Njeri Muranja & John Muranja vs Virginia Nyambura Ndiba & Kajiado Cointy Council (2014) eKLR* the court held that: “…it would be stretching the law of limitation for one to argue that once a suit is filed time ceases to run. The only rider to a plaintiff being allowed to file another suit if the original suit is dismissed for want of prosecution is if the action is still within the limitation period. Certainly, if this were not so then any suit filed would mean time begun to run on the filing of the suit. Effectively, time would never stop. Secondly, I hold the view that merely bringing a suit does not stop statutory periods from running. If the suit is prosecuted of course time stops to run as the action is complete. If the suit is withdrawn or discontinued then, a fortiori, the parties revert to the same position as if the suit had never been filed. The same position would obtain where a suit is dismissed for want of prosecution. That means that time never stops running by the mere filing of the suit. It was counting.” 21. Order 5 rule 6 states that the summons must be collected within 30 days of issue or notification whichever is later, failing which the suit shall abate. The summons to enter appearance were not taken against Milly Glass limited, and were served. Indeed, it would appear that the issue of summons was forgotten thus the suit has abated. 22. The respondent has urged this Court to be guided by Art 159 2 (d) of the Constitution and disregard procedural technicalities. With respect this Court is of the view that the provisions of Order 5 rules 1 and 2 are not mere technicalities. It provides for the procedure in which a Defendant is called upon to answer to a suit and is thus core to the initiation of a suit as far as the Defendant is concerned. Ours is an adversarial system and the Defendant is not expected to guess the claims of the Plaintiff. Summons are therefore a vital step in initiating a suit against the Defendant and until the summons are properly served on the Defendant there is no valid invitation to the Defendant to defend the suit. 23. In the circumstances, it is my finding that no summons were served on the appellant in the suit within the prescribed period and the suit abated. **Determination** The upshot of the foregoing is that I make the following orders: - ***a) That this appeal be allowed with costs.*** ***b) The ruling delivered on 15th May 2025, and the resultant order , are hereby set aside and be substituted with an order allowing the Notice of Motion dated 23rd October 2024 with costs.*** **DELIVERED, DATED AND SIGNED ON 24TH JULY 2026.** **RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU.** **JUDGE** In the presence of: - N/A for Appellant N/A for the Respondent Court Assistant – Mr.Zadock