[2025] KEHC 5000 (KLR)

Ouma & 317 others v Flamingo Horticulture Kenya Ltd (Miscellaneous Application E148 of 2023) [2025] KEHC 5000 (KLR) (27 March 2025) (Ruling)

Neutral citation: [2025] KEHC 5000 (KLR)

Republic of Kenya

In the High Court at Naivasha

Miscellaneous Application E148 of 2023

GL Nzioka, J

March 27, 2025

Between

Martin Odoyo Ouma & 317 others & 317 others & 317 others

Applicant

and

Flamingo Horticulture Kenya Ltd

Respondent

Ruling

1. By an originating summons (ex-parte) application dated 22nd September, 2023, brought under the provisions of; Order 50 Rule 5 and Order 37 Rule 6(1) of the Civil Procedure Rules 2010, Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) Laws of Kenya, sections 4(2), 27, 28 and 30 of the Limitations of Actions Act (Cap 22) Laws of Kenya, Articles 48 and 159 (2) of the Constitution of Kenya 2010 and all other enabling provisions of the law.

2. The applicants are seeking for the following orders verbatim reproduced: -a.That this Honourable Court does extend time and leave be granted to the applicant to file a civil suit against Flamingo Horticulture Kenya Limited, out of time.b.That costs of the application be in the cause.

3. The application is supported by the grounds thereto and the affidavit of even date sworn by Martin Odoyo Ouma. He has annexed thereto on authority to plead on behalf of the others

4. The deponent avers that on the night of 21st April 2018, between 2300hrs and 0000hrs, the respondent’s artificial lagoon located at Kingfisher farm broke its banks due to interference of its dykes by the respondent’s agents and/or employees.

5. That water spilled over and flooded Kasarani B labour camp, where the applicants were residing and which consisted of; 392 households, three churches, and several shops.

6. That as a result, the applicants were displaced from their houses for two (2) to three (3) days as they waited for the water to subside and had to seek for shelter at the chief’s camp and market centre. In addition, they survived on humanitarian aid from the local leadership, good Samaritans and the Red Cross.

7. Further, they lost all their household goods, food stuff, clothes, sentimental valuable items and personal documents such as; ID cards and academic certificates. Furthermore, some of them developed health conditions due to the dirty water from the lagoon where refuse from several production process on the farm was emptied

8. The applicants aver that after the incident, they together with government departments and stakeholders from the private sector, engaged the respondent on the way forward and shared a list of the victims for purposes of reparations.

9. However, no progress was made during negotiations as the applicants were side-lined and in the year 2020 the issue went silent. That when the applicants followed up on the matter, the respondent was adamant that it was not liable for any wrongdoing and rejected the applicants’ claims by which time the period for instituting a suit had lapsed on 21st April, 2022.

10. The applicant avers that, the delay of two (2) years that has lapsed from time of filing the suit and of filing the present application was not inordinate or deliberate but is excusable as it was occasioned by their inability to hire any law firm to represent them, as they were rendered jobless in the year 2019 when their employer Sher Karutui was liquidated and that they were casual workers earning weekly meagre wages.

11. Further, that on several occasions they approached different law firms and legal organizations for legal aid but were turned down due to the massive costs of filing a class action suit of this nature. Furthermore, they were required to pay legal fees upfront.

12. That they have now been afforded pro-bono legal services by the firm of Messrs. San Advocates Kenya thus giving them an avenue to present their grievances for adjudication and access justice.

13. That suit against the respondent is for reparation and/or compensation for substantial loss of and/or damage of household goods and displacement and that it is not vexatious but raises triable legal issues for determination by the court and in any event the respondent will have an opportunity to file its defence and the case heard on merit.

14. However, due to the lapse of time, leave of the court is required to extend the time for filing a suit against the respondent, thus necessitating the present application which is brought in good faith and they stand to suffer irreparable damage and prejudice if the application is not allowed.

15. However, the respondent filed grounds of opposition dated 1st December, 2023 opposing the application in which it is stated that:-a.The application in incompetent, misconceived and a gross abuse of the court process.b.This Honourable Court has no jurisdiction to grant the orders sought in the application because-:i.Sections 27 and 28 of the Limitation of Actions Act do not provide for extension of time in respect of a material damage claim. It limits extension of time in respect of personal injury claims only.ii.Sections 27 and 28 of the Limitation of Actions Act mandatorily require the Applicants to demonstrate that the material facts relate to the cause of action, those facts being of a decisive nature, relating to the cause of action and relating to the Applicants injuries were at all material times outside the knowledge of the Applicant.iii.Sections 27 and 28 of the Limitation of Actions Act do not recognise financial inability as a ground for extension of time to institute a statutory barred claim.c.Section 3A of the Civil Procedure Act does not apply as it is trite law that Equity follows the Law and Equity aids the vigilant and not the indolent.

16. The application was disposed of by way of written submissions. The applicants in submissions dated, 30th January, 2024 argued that section 4 (2) of the Act was exempted under section 27 (1)(a) of the Act. Further, section 27(2)(a) and (b) of the Act provides that for the exemption to come into operation, it must be shown that the material fact relating to the cause of action was outside the plaintiff’s/applicant’s knowledge until a date after the three (3) year period of limitation or not earlier than one (1) year before the end of that period, and was not earlier than one (1) year before the date the action was brought.

17. That the afore provisions give the court discretion to determine applications of the nature herein based on the reasons and explanations offered for the delay. The applicants relied on the case of; County Executive of Kisumu vs County Government of Kisumu & 8 others (2017) eKLR where the Supreme Court of Kenya laid out principles to consider considering an application for leave to file a suit out of time. That the principles are inter alia that; extension of time is an equitable remedy available to a deserving party at the discretion of the court, and such discretion is considered on a case to case basis.

18. The applicants reiterated their averments that the delay in filing the suit was occasioned by the fact that they were in negotiations with the respondent on the welfare and humanitarian needs of the applicants, and it was only after the respondent had reinforced its dykes and the lapse of three (3) year limitation that the respondent denied liability.

19. The applicants further submitted that, the objective of limitation of actions is to prevent a plaintiff from prosecuting a stale claim while protecting a defendant who may have lost evidence due to a long lapse in time. However, the present intended suit is not stale, nor is it intended to scandalize the respondent as it raises triable issues and will not prejudice the respondent, who has a right to file a defence.

20. Furthermore, the intended suit is not for a claim of material loss but is founded on the tort of negligence and strict liability whose remedy lies in damages assessed by the court.

21. The applicant argued that the delay of two (2) years in filing the present application was not inordinate in the circumstances of the case and that they have met the threshold for the court to exercise its discretion in their favour and prayed that the application be allowed.

22. However, the respondent in submissions dated; 2nd February, 2024 argued that the applicants have not satisfied the mandatory criteria set out in law for leave to file the claim out of time.

23. That under section 27 of the Act the mandatory pre-conditions for grant of leave are, firstly, the claim must be based on torts of negligence, nuisance or breach of duty. Secondly, damages being sought must be in respect of personal injuries. Thirdly, material facts of a decisive nature relating to the suit were at all material times outside the applicant’s knowledge and only became aware of such material facts within the preceding one (1) year before the limitation period. Fourthly, the claim is brought within one year of the applicant becoming aware of such material fact.

24. The respondent argued that the applicants had only satisfied the fact that the claim is based on a tort as aforesaid. However, it is clear from paragraphs 8, 12 and 15 of the applicants’ supporting affidavit that the application relates to material damage and not personal injuries.

25. The respondent distinguished the facts in the present case and those in the case of; Elizabeth Akinyi Odundo vs Abubakar Wilberforce (2021) eKLR relied on in the applicants’ submissions arguing that the plaintiff therein in the said case had suffered personal injuries. Further, the case of Royal Media Services Limited vs Valentine Mugure Maina & Another (2019) eKLR relied on by the court in the Elizabeth Akinyi case cannot stand in view of the decision of the Court of Appeal in Mary Osundwa vs Nzoia Sugar Company Limited [2002] eKLR.

26. It was further submitted that the applicants have not demonstrated the existence of any material fact that they became aware of. Furthermore, despite the applicants averring that the respondent went quiet in the year 2020, they filed the present application in 2023 after three (3) years.

27. That in the circumstances, the court lacks jurisdiction to grant the application as held by the Court of Appeal in the case of; Mary Osundwa vs Nzoia Sugar Company Limited [2002] eKLR quoted with approval by the same court in the case of; Willis Onditi Odhiambo vs Gateway Insurance Co. Ltd [2014] eKLR.

28. The respondent further submitted that, the applicants’ reliance on their inability to raise funds for litigation as a ground for leave is misconceived and cited the case of; Peter Gihuki Mwangi vs Kenya Copyright Board & 3 others [2018] eKLR where the High Court stated that section 27 and 28 of the Act does not recognize sickness or financial inability as grounds for extension of time in a statutorily barred claim.

29. The respondent argued that the applicants had failed to satisfy the mandatory provisions of section 27 and 28 of the Act, and therefore the application must fail and be dismissed with costs to the respondent.

30. At the conclusion of hearing of this matter and taking into consideration the pleadings and submissions of the parties, I find that the only issue for consideration is whether the prayers sought should be granted. The entire matter rests on the provisions of section 4(2) and 27 of the Limitation of Action Act.

31. In that regard section 4 of the Act states that an action in tort should not be brought after the end of three (3) years. Therefore, based on the applicants’ averment that, the incident herein took place on 21st April 2018, the suit should have been filed on or before 21st April 2021. That was not done.

32. Subsequently the application herein was filed on 25th September 2023, a period of two (2) years and five (5) months after the expiry of the limitation period. The question is what explanation have the applicants advanced?

33. In that regard, I note that at paragraph 13 of the supporting affidavit, the applicants state that they were negotiating a settlement of the matter. However, from all the documents annexed to the supporting affidavit, there is no evidence availed of such negotiation.

34. The applicants also aver at paragraph 17 of the subject application that they tried to approach several organizations to assist in vain. Again there is no shred of evidence to support that allegation. Similarly, their allegation of meagre earnings is not substantiated.

35. Be that as it were, even if the negotiation (if any) collapsed in the year 2020 then the applicant should have moved the court immediately or earlier than 2023.

36. Further, even if the court were to give the applicants the benefit of doubt, the provisions of section 27 of the subject Act, clearly provided that the cause should be founded on a tort of negligence, nuisance and breach of duty.

37. In this matter the cause of action is founded on tort hence that element is met. However, the additional requirement is that, the damages claimed must be in respect of or include personal injuries.

38. In the instant matter the applicants aver at grounds 2, 3 ,4, 5, 6, that as a result of the water spillage from the respondent’s artificial lagoon, their houses were flooded and they had to relocate to the market place. That, they could not salvage any of their goods. Further their academic/professional certificates, personal identity cards and other valuable documents were destroyed. Finally, that some developed health conditions occasioned by the dirty refuse from several production processes.

39. However, whereas the photos availed show flooding and provisions of humanitarian aid, there is no evidence of degenerated medical conditions.

40. The provision of court section 28 of the subject Act herein states that an order of extension of time will be granted if on evidence adduced by or on behalf of the plaintiff it appears to the court that, if such an action were presented it will establish a prima facie case and met requirement of section 27(2).

41. In the case of; Oruta & Another vs Nyamato KECA 142 (KLR) (1988) the Court of Appeal citing Hunter vs Tarness (Soham) Ltd [1966] 2 AER 276, the court observed and I concur, that the applicants in a case as herein are required to prove inter alia that, the plaintiff has a good cause of action and fulfils the requirements of section 27(2) of the Act.

42. It is noteworthy that the applicants have not availed any draft plaint. The applicants concede at paragraph 16 of their submissions that they inadvertently failed to attach a draft plaint. How then can court appreciate whether they have a prima facie case or not and whether their claim for damages of personal injuries.

43. The argument that, the matter is brought under the strict liability rule established in Rylands –vs Fletcher case does not exempt the applicants from establishing the requirements of section 27(a) of the Act. In the given circumstances I find that the applicants have not met the threshold for grant of orders sought

44. Consequently, the applications disallowed with no orders as to costs.

DATED, DELIVERED AND SIGNED THIS 27TH DAY OF MARCH 2025. GRACE L. NZIOKAJUDGEIn the presence of:Mr. Ochweri H/B for Mr. Sichangi for the applicantMs. Kirimi H/B for Ms. Mulwa for the respondentMs. Hannah: court assistant