[2022] KEHC 15302 (KLR)

Muriithi (Suing as an Administrator and Legal Representative of the Estate of Stephen Mureithi Warama) v Karanja & another (Civil Case 932 of 2000) [2022] KEHC 15302 (KLR) (Civ) (11 November 2022) (Ruling)

Neutral citation: [2022] KEHC 15302 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Case 932 of 2000

JK Sergon, J

November 11, 2022

Between

Juliana Njeri Muriithi (Suing as an Administrator and Legal Representative of the Estate of Stephen Mureithi Warama)

Plaintiff

and

Veronica Njeri Karanja

1st Defendant

Daniel Njoroge

2nd Defendant

Ruling

1. The defendants/applicants herein have brought the notice of motion dated January 31, 2022 supported by the grounds set out on the body thereof and the facts stated in the affidavit of Daniel Njoroge. The applicant sought for the following orders:a)That this honourable court be pleased to strike out the plaint and dismiss the suit herein for being an abuse of the court process.b)That the costs of this application be provided for.

2. The respondent opposed the motion by filing the replying affidavit sworn on March 29, 2022.

3. When the motion came up for interparties hearing before the court on March 30, 2022 the parties were directed to file and exchange written submissions. I have considered the grounds set out on the face of the motion dated January 31, 2022 and the facts deponed in the rival affidavits.

4. In his supporting affidavit, Mr Daniel Njoroge stated thatthe plaintiff brought this lawsuit on June 19, 2000, against the 1st defendant only as a result of a car accident on July 10, 1997, in which both the plaintiff's and the 1st defendant's husbands died. The lawsuit was brought two years after the 1st defendant had been granted letters of administration over the estate of the deceased on behalf of the 1st defendant.

5. He further stated that the suit herein is time barred by virtue of the provisions of Section 2 (3) of the Law Reform Act and Section 9(2) of the Fatal Accidents Act, which expressly states that“any suit in respect of a cause of action in tort which is brought against the estate of a deceased person shall not be maintainable unless the proceedings are filed not later than six months after his executor or administrator obtained letters of administration”.

6. The applicant avers thatthe claim against the 2nd defendant was already time-barred because the cause of action arose on July 10, 1997, meaning more than 7 years had passed prior to the amendment without permission to join the 2nd defendant into the lawsuit. This was stated in the further amended plaint that the plaintiff/respondent filed on January 31, 2005.

7. The above averments were echoed in the submissions of the applicant,that the suit against the 2nd defendant was therefore time barred by virtue of the provisions of Section 4(2) of the Limitations of Actions Act which states that any action founded on tort may not be brought after the end of three years from the date which the cause of action accrued.

8. The applicant relied on the case of Iga v Makerere University [1972] EA 62“A plaint which is barred by limitation is a plaint “barred by law.” A reading of the provisions of Section 3 and 4 of the Limitation Act ( Cap 70) together with Order 7 Rule 6 of the Civil Procedure Rules seems clear that unless the appellant in this case had put himself within the limitation period by showing the grounds upon which he could claim exemption the court “ shall reject” his claim….the limitation Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for, and when a suit is time barred, the court cannot grant the remedy or relief.”

9. He further submitted that the substantive laws that grants a limited right for a cause of action to be maintained against the estate of the deceased, a right that would ordinarily have expired at the time of the deceased's death because one cannot sue a deceased person.

10. He avers thatin order to prevent the legal representatives of the deceased's estate from being frustrated by litigation or claims being brought long after they have finished the process of administering the estate, which would be unfair to the estate and the administrators, the law imposes a strict time limit of six months only after letters of administration are granted.

11. The applicant relied on the case Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & another[2020] eKLR where the Court held at page 3 that:“The above position is mirrored in Section 9 (2) (b) of the Fatal Accidents Act. It is a fact that the grant of representation was obtained by the Appellant herein on the October 4, 2010 and the suit was filed on the September 18, 2012 which was nearly two years, long after the limitation period had lapsed. For the Plaintiff to institute their claim under the Law Reform Act and the Fatal Accident Act, they needed to commence proceeding Section 27 of the Limitation of Actions Act (cap 22) seeking leave to file their claim out of time and to give reasons for failing to file their claim within six months. In the upshot, this Court finds no fault in the trial Court finding that the Plaintiff suit was statute barred and no leave was sought by the Plaintiff to have its claim admitted out of time.”

12. In response, Ms Juliana Njeri Mureithi stated inter alia, stated that she applied for letters of administrationsad litem which she were granted on June 16, 1998 and at the time she was represented by the firm of Rebiro Nganga & Co Advocates who only managed to file the plaint in or about June 15, 2000 but the said advocate died sometime in the year 2000 though she never learnt of his death until in the year 2002, thereafter she instructed the firm of PK Mureithi & Co Advocates.

13. In her submissions, the respondent submitted that this suit was filed before the expiry of the 3 year period as provided for in the said Section 4 (1) of the Fatal Accidents Act and that it should be noted that the provisions of law relied upon by the defendant/applicant Section 2(3) (b) of the Law Reform Act and Section 9 (2) (b) of the Fatal Accidents Act relate to cause of Action in tort against the Estate of the deceased.

14. The respondent further submitted that the suit herein was instituted after the death of the deceased and therefore is not a cause of action in tort that has survived against the Estate of the deceased.

15. It is the respondent’s contention that the defendants are seeking to have this suit struck out for an apparent breach of a timeline yet themselves are bringing an application 20 years after the summons and plaint were served upon them more than five years after final judgment was entered, and more than two years after they entered appearance after having the said judgment herein set aside against only the 2nd defendant.

16. The respondent further contends that judgment against the 1st defendant was never set aside as she never applied for that, therefoere one wonders how she can be a party to this application yet there is judgment on record against her.

17. I have carefully considered the application, the supporting Affidavit and the Replying Affidavit filed herein by the parties. I have also considered the various submissions made and the authorities cited by Learned Counsel. The Motion is expressed to be brought under Order 2 rule 15 and Order 13 Rule 2 of the Civil Procedure Rules. Order 2 Rule 15 deals with striking out of pleadings and provides as follows;“(1)At any stage of the proceedings the court may order to be struck out or amended any pleading on the ground that—(a)It discloses no reasonable cause of action or defence in law; or(b)It is scandalous, frivolous or vexatious; or(c)It may prejudice, embarrass or delay the fair trial of the action; or(d)It is otherwise an abuse of the process of the court, and may order the suit to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

18. An application to strike out a pleading must be brought with expedition. Where there has been inordinate delay in bringing it, the court will frown upon it and will not exercise its discretion in favour of the applicant. See Meru Farmers’ Co-operative Union vs Abdul Aziz Suleman (No 1)[1966] EA 436 for the proposition that an application to strike out a plaint on ground it discloses no cause of action should be made promptly.

19. The bottom line cannot be better set than in the words of Sir Udo Udoma CJ in Musa Misango Vs Eria Musigire (supra) at 395 when he delivered himself thus;“To my mind, it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to be heard except in cases where the cause of action was obviously and almost incontestably bad”

20. The dictum of Madan JA (as he then was) in D T Dobie & Company (Kenya) Limited v Muchina [1982] KLR 1 is an all-time classic. He said at page 9;“No suit ought to be summarily dismissed unless it appears so hopeless that it plainly and obviously discloses no reasonable cause of action and is so weak as to be beyond redemption and incurable by amendment. If a suit shows a mere semblance of a cause of action, provided it can be injected with real life by amendment, it ought to be allowed to go forward for a court of justice ought not to act in darkness without the full facts of a case before it”.

21. The reason is that at this stage, the court is not fully seized of tested evidence or facts to form a complete opinion of the merits of the case. That is why the power should be exercised sparingly. This principle of restraint was restated recently by the Court of Appeal in Kisii Farmers’ Co-operative Union Limited Vs Sanjay Natwarlal Chauhan Kisumu, Civil Appeal 32 of 2003 (unreported). See also the the Cooperative Bank Limited Vs George Wekesa Civil Appeal 54 of 1999 (Court of Appeal, Nairobi, unreported). In addition, regard must be had to article 159 of the Constitution and sections 1A and 1B of the Civil Procedure Act. The court is now enjoined to do substantial justice to the parties. The overriding objective of the court is clearly laid out in those statutory provisions.

22. I am in agreement with the respondent that it should be noted that the provisions of law relied upon by the defendant/applicant Section 2(3) (b) of the Law Reform Act and Section 9 (2) (b) of the Fatal Accidents Act relate to the cause of action in tort against the estate of the deceased.

23. The defendants are seeking that this lawsuit be dismissed for an apparent timeline violation, but they are doing so themselves 20 years after receiving the summons and plaint, more than five years after the final judgment was rendered, and more than two years after they first appeared after the judgment in this case was reversed against just the second defendant.

24. In my view the statutory period within which to file a suit of this nature is a period of 3 years from the date of the accident and the plaintiff filed this suit within the statutory period and before expiry of the 3 year period provided and such a suit is tenable and properly before this court and should therefore be heard and determined.

25. I therefore dismiss the defendant’s application dated January 31, 2022 with costs to the plaintiff.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. .....................................J. K. SERGONJUDGEIn the presence of:……………………………. for the Plaintiff/Respondent……………………………. for the 1st Defendant/Applicant................................... for the 2nd Defendant/Applicant