https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/821

**REPUBLIC OF KENYA** **IN THE CHIEF MAGISTRATES COURT AT MOMBASA** **MAGISTRATE COURT CIVIL** **MCCC NO. 592 OF 2019** **ARTHUR OTIENO OWUOR(Suing as Administrator of the Estate of** **Robert Owuor Otieno – Deceased)………………………………PLAINTIFF/APPLICANT** **VERSUS** **H. YOUNG & CO. (EA) LTD ...............................................................1ST DEFENDANT** **NATIONAL TRANSPORT & SAFETY AUTHORITY ............................2ND DEFENDANT** **AND** **MOTREX LIMITED .................................INTENDED 3RD DEFENDANT/RESPONDENT** **CEBIT CARGO LIMITED ..........................INTENDED 4TH DEFENDANT/RESPONDENT** **RULING** **Introduction** 1. Before Court is the Plaintiff/Applicant’s Originating Summons dated 20th January 2026, brought principally under sections 27 and 28 of the Limitation of Actions Act, Order 37 Rule 6 of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and all other enabling provisions of the law. 2. The Applicant seeks, in substance, leave to institute and/or pursue his claim out of time against Motrex Limited and Cebit Cargo Limited, the Intended 3rd and 4th Defendants respectively, together with costs of the application. 3. The application arises from a road traffic accident which occurred on 27th April 2016 and which resulted in the death of Robert Owuor Otieno. The Applicant, Arthur Otieno Owuor, is the father of the deceased and sues as administrator of his estate. 4. I have considered the Originating Summons, the Supporting Affidavit, the Replying Affidavit sworn on behalf of the 4th Intended Defendant, the Applicant’s Further Affidavit and annexures, the draft Amended Plaint and the written submissions and authorities placed before Court. The Applicant’s Case 1. The Applicant’s case is that his son, Robert Owuor Otieno, was involved in a fatal road traffic accident on 27th April 2016 along the Mombasa–Nairobi Highway. The documents subsequently placed before Court describe the location as near Kibarani dump site, while the Supporting Affidavit initially referred to Kibunani Junction. The vehicle involved was a Scania prime mover registration number KAP 938M, which was pulling trailer registration number ZD 4678. 2. The Applicant states that following the accident he instructed M/S Anaya & Company Advocates to institute proceedings for recovery of damages. The original suit was filed within the prescribed limitation period against parties then believed to bear responsibility, including the County Government of Mombasa and H. Young & Co. (EA) Ltd. 3. The Applicant explains that his then advocates relied upon information contained in the police abstract and motor vehicle records available at the time. According to him, the police abstract indicated that the County Government of Mombasa owned the subject motor vehicle. 4. The Applicant further states that the suit subsequently stalled and, upon its revival, H. Young & Co. (EA) Ltd denied ownership of the vehicle and stated that it had previously disposed of it. A motor vehicle copy of records relating to KAP 938M showed H. Young & Co. (EA) Ltd as registered owner as at 8th September 2018. Thereafter H. Young & Co. (EA) Ltd made inquiries with the National Transport and Safety Authority regarding the ownership history of the vehicle. 5. By a letter dated 30th July 2024, H. Young informed NTSA that it had received a demand relating to an accident involving KAP 938M on 27th April 2016. It stated, inter alia, that an official search conducted on 8th September 2018 reflected it as the registered owner but that it disputed that position. 6. H. Young further stated that another search undertaken on the same date reflected Cebit Cargo Limited and H. Young & Co. (EA) Ltd as registered owners and requested clarification of the true ownership history. 7. NTSA subsequently responded by a letter dated 29th August 2024. It stated that, upon reviewing its records, it had established that the transaction transferring ownership of the vehicle from the original registered owner, Motrex Limited, to H. Young & Co. had not been registered in its system. NTSA stated that Motrex Limited was registered on 24th March 2002 and that there had been no transfer of ownership from Motrex Limited to another entity in its records. 8. The Applicant contends that these matters became apparent only after the original suit had already been instituted and that justice therefore requires that Motrex Limited and Cebit Cargo Limited be brought into the proceedings. Response by Cebit Cargo Limited 1. The application is opposed by the Intended 4th Defendant, Cebit Cargo Limited, through the Replying Affidavit of Kyalo Kathenge, its Managing Director, sworn on 20th April 2026. Cebit Cargo denies any involvement in the accident and disputes the factual basis upon which the Applicant seeks to join it. It contends that a prime mover and a trailer are distinct motor vehicles, each having its own registration, logbook and insurance. 2. Cebit further states that it has never transacted with H. Young & Co. (EA) Ltd, Motrex Limited or the County Government of Mombasa, whether as business partners or otherwise, and that it has never hired or leased its trailers to those entities at any material time. It also states that it has never insured its trailers with GA Insurance. 3. Cebit argues that the Applicant ought to have produced evidence showing who insured the trailer and who paid for its insurance cover, particularly given the dispute concerning ownership. 4. It further contends that no evidence has been placed before Court showing that the trailer, as opposed to the prime mover, caused or contributed to the accident. 5. Cebit initially complained that the Applicant had failed to attach a draft Plaint showing the cause of action proposed against it. That omission was subsequently addressed when the Applicant annexed a draft Amended Plaint to his Further Affidavit. 6. Cebit nevertheless maintains that the Applicant has failed to demonstrate that it owned trailer ZD 4678 on the date of the accident, namely 27th April 2016. Applicant’s Further Affidavit 1. In his Further Affidavit, the Applicant responds that the police abstract demonstrates that KAP 938M was attached to trailer ZD 4678 at the time of the accident, and that the prime mover and trailer were consequently involved in the accident as a combined unit. 2. The Applicant also states that it was not his responsibility to investigate Cebit Cargo’s insurance arrangements because he was not privy to its insurance contract. More significantly, the Applicant produced an NTSA Motor Vehicle Copy of Records for trailer ZD 4678. 3. The document identifies the vehicle as a DOLL skeleton trailer, manufactured in 2010, registered on 23rd September 2010, and identifies Cebit Cargo Limited as the current owner as at 8th September 2018.The Applicant relies on that document as evidence that Cebit Cargo owned the trailer being pulled by the prime mover. 4. He explains that the 3rd and 4th Intended Defendants were not initially joined because his advocates relied upon the police abstract, which indicated ownership by the County Government of Mombasa. According to him, it was only subsequently discovered that the County Government had hired the vehicle from H. Young. 5. He therefore asks the Court, in the interests of justice, to allow the Intended Defendants to be joined so that the conflicting questions of ownership and liability may be fully ventilated at trial. Proposed Amended Plaint 1. The draft Amended Plaint seeks to remove the County Government of Mombasa and proceed against H. Young & Co. (EA) Ltd, NTSA, Motrex Limited and Cebit Cargo Limited. 2. It pleads that H. Young and Motrex were the registered, insured, controlling and/or beneficial owners of KAP 938M, while Cebit Cargo was the registered and/or beneficial owner of trailer ZD 4678. 3. The proposed pleading alleges that on 27th April 2016 at about 6.00 p.m., the deceased, then aged 14 years and a Class Seven pupil, was lawfully walking along the Mombasa–Nairobi Highway near Kibarani dump site when KAP 938M, pulling trailer ZD 4678, was recklessly driven and/or controlled, lost control and knocked him, causing fatal injuries. 4. Negligence is pleaded in respect of excessive speed, reckless and careless driving, dangerous driving, failure to brake in sufficient time, failure to adhere to traffic rules and failure to slow down or otherwise avoid the accident. The Plaintiff also proposes to rely upon the doctrine of res ipsa loquitur. 5. The persons stated to benefit from the claim under the Fatal Accidents Act are Arthur Otieno Owuor, the father of the deceased, and Maggie Mghoi, the deceased’s mother. The proposed reliefs include damages under the Law Reform Act and Fatal Accidents Act, special damages, costs and interest. Submissions of the 4th Intended Defendant 1. Cebit Cargo filed written submissions dated 23rd June 2026. It frames two principal issues: whether the Originating Summons has merit and who should bear the costs. Its principal submission is that the proposed claim is statute barred. Cebit relies upon section 4(2) of the Limitation of Actions Act, which provides a limitation period of three years for actions founded on tort. 2. Since the accident occurred on 27th April 2016, Cebit submits that the ordinary limitation period expired on 27th April 2019. It accepts that section 27 of the Act provides a limited avenue for extension of time in negligence actions, but argues that the Applicant has not shown ignorance of material facts of a decisive character within the meaning of sections 27 and 30 of the Act. 3. Cebit contends that the Applicant was aware from the outset of the registration numbers KAP 938M and ZD 4678, and could therefore have conducted searches regarding both vehicles before limitation expired. 4. It also argues that the Applicant cannot rely upon investigations subsequently undertaken by H. Young as a substitute for his own due diligence. 5. Cebit relies, among other authorities, on YH Wholesalers Limited v Kenya Revenue Authority [2021] eKLR, where the Court emphasized the statutory nature of the jurisdiction to extend limitation and the requirement that the prescribed statutory conditions be satisfied. 6. It also relies on an Environment and Land Court decision concerning the importance of disclosing the intended cause of action in an application for leave. 7. Cebit further submits that the NTSA search subsequently produced in relation to trailer ZD 4678 establishes ownership only as at 8th September 2018, more than two years after the accident, and does not establish ownership as at 27th April 2016. Lastly, Cebit submits that even proof of ownership would not by itself establish that the trailer caused or contributed to the accident. **Issues for Determination** 1. Having considered the application, affidavits, annexures, draft Amended Plaint and submissions, the following issues arise for determination: 2. Whether the proposed claims against the Intended 3rd and 4th Defendants are outside the statutory limitation period. 3. Whether the Applicant has satisfied the statutory requirements for extension of time under sections 27, 28 and 30 of the Limitation of Actions Act. 4. Whether the subsequent production of the draft Amended Plaint and ownership documents warrants the grant of leave. 5. What orders should be made as to costs. Whether the Claim is Statute Barred 1. There is no dispute that the cause of action arose from a road traffic accident which occurred on 27th April 2016. The proposed claim is founded upon negligence and therefore falls within section 4(2) of the Limitation of Actions Act. An action founded on tort must ordinarily be brought within three years from the date on which the cause of action accrued. The ordinary limitation period consequently expired on or about 27th April 2019. The present application was made on 20th January 2026, almost ten years after the accident and more than six years after the expiry of the ordinary limitation period. 2. It follows that, insofar as the Applicant proposes for the first time to pursue Motrex Limited and Cebit Cargo Limited as defendants to the tortious claim, such claim is outside the ordinary statutory period unless the Applicant brings himself squarely within the exception provided by section 27 of the Limitation of Actions Act. Principles Governing Extension Under Section 27 1. Section 27 does not confer upon the Court an unrestricted discretion to enlarge the limitation period whenever it considers such enlargement fair. It is a statutory exception to the limitation imposed by section 4(2). For the exception to apply, the action must be one for damages for negligence, nuisance or breach of duty and the statutory requirements concerning ignorance of material facts of a decisive character must be satisfied. 2. The Court must therefore interrogate not merely whether the Applicant has an arguable case, but whether the facts relied upon satisfy the statutory conditions. The Court of Appeal in Oruta & Another v Nyamato [1988] eKLR emphasized that an application of this nature requires the Court to form a prima facie view as to whether the applicant has fulfilled the requirements prescribed by section 27. Leave is consequently not granted as a matter of course. 3. Similarly, in YH Wholesalers Limited v Kenya Revenue Authority [2021] eKLR, the High Court underscored that limitation legislation serves substantive purposes and that a court cannot extend limitation merely on broad notions of justice where the conditions prescribed by Parliament have not been met. What Was Unknown to the Applicant? 1. The Applicant does not contend that he was unaware of the accident, the death of the deceased or the identity of the offending prime mover and trailer. Indeed, the original claim was instituted within time. The Applicant's difficulty concerns the identity of the persons legally responsible for the vehicles. 2. The police abstract apparently led the Applicant to the County Government of Mombasa. An NTSA search relating to KAP 938M subsequently reflected H. Young & Co. (EA) Ltd. Thereafter H. Young disputed ownership. Its correspondence with NTSA led to further information implicating Motrex Limited, while documentation relating to trailer ZD 4678 identified Cebit Cargo Limited. 3. I accept that the documentary record reveals genuine inconsistencies concerning the ownership history of the prime mover. The NTSA letter dated 29th August 2024 is particularly significant. NTSA stated that Motrex Limited was registered on 24th March 2002 and that its records did not reflect a subsequent transfer of ownership from Motrex Limited. There is therefore material on the record capable of establishing a prima facie connection between Motrex Limited and KAP 938M. Similarly, the NTSA copy of records for ZD 4678 identifies Cebit Cargo Limited as the current owner as at 8th September 2018. 4. I therefore do not accept the broad proposition that the application is wholly devoid of evidential material or is necessarily a mere fishing expedition. There is documentary material raising questions which, absent limitation, could properly call for an answer. That, however, is not the end of the matter. Actual and Constructive Knowledge 1. The statutory question is not simply whether the ownership information was complicated. The Court must consider when the relevant information became known, or could with reasonable diligence have become known, to the Applicant. 2. The Applicant knew from the police documentation that the combination involved in the accident was KAP 938M together with trailer ZD 4678. 3. There is no explanation before Court as to why a search was conducted in respect of the prime mover but an equivalent search concerning trailer ZD 4678 was not obtained before filing the original suit. 4. The NTSA record now relied upon by the Applicant for ZD 4678 is itself a record reflecting the position as at 8th September 2018, which was before expiry of the three-year limitation period on 27th April 2019. That does not necessarily mean that the Applicant actually possessed that particular document in 2018. Nevertheless, it demonstrates that the registration particulars were matters capable of being the subject of inquiry at that time. 5. More importantly, by 30th July 2024, H. Young's correspondence had expressly raised questions concerning the involvement of Motrex and Cebit Cargo. By 29th August 2024, NTSA had provided a direct response identifying Motrex Limited in the ownership history. 6. Therefore, even if I were to give the Applicant the benefit of the doubt and hold that the true ownership information could not reasonably have been discovered before expiry of the initial limitation period, the Applicant's own documents establish that the alleged material facts had come to light by July/August 2024. The Originating Summons was nevertheless not brought until 20th January 2026. That interval is material. 7. Section 27(2) does not permit an applicant who discovers the decisive facts after expiry of limitation to approach the Court at any future point of his choosing. The statutory provision incorporates a further temporal requirement linking discovery of those facts to the date when the action is brought. 8. The Applicant has not explained why, having obtained or become aware of the material ownership information in 2024, no application for extension was made until January 2026. That delay is fatal to the application under the statutory framework. Are the Ownership Questions Sufficient “Material Facts”? 1. There is a further difficulty. Sections 27 and 30 employ the expression material facts relating to the cause of action in a particular statutory context. The exception is directed to personal injury claims arising from negligence, nuisance or breach of duty and to ignorance of decisive material facts relating to such cause of action. 2. The Applicant knew that a fatal accident had occurred, knew the registration numbers of the prime mover and trailer, knew that negligence was alleged, and indeed commenced the original action on precisely that basis. What later emerged was uncertainty concerning which entity was legally connected to the vehicles. 3. That uncertainty may be highly relevant to the proper constitution of the suit, but section 27 does not constitute a general power to cure every difficulty arising from failure to identify the proper defendant before limitation expires. The Court’s jurisdiction remains confined by the Act. The Position of Motrex Limited 1. Motrex Limited did not, from the material placed before me, advance the detailed opposition that was presented by Cebit Cargo Limited. That does not relieve the Applicant of the burden of satisfying the statutory conditions for leave. 2. Indeed, as against Motrex, the Applicant relies principally upon NTSA's letter of 29th August 2024, which states that Motrex was registered in relation to KAP 938M on 24th March 2002 and that no subsequent transfer appeared in NTSA's system. That evidence raises a prima facie question concerning Motrex's legal connection to the prime mover. However, the Applicant became aware of that information in August 2024 and did not bring the present application until January 2026. Accordingly, the statutory impediment applies notwithstanding the apparent strength of the documentary connection. 3. The fact that an intended defendant has not opposed an application cannot confer jurisdiction upon the Court where the statutory requirements for extension have not been established. The Position of Cebit Cargo Limited 1. As regards Cebit, the Applicant has now supplied the NTSA search that was missing when the Originating Summons was initially filed. That record identifies Cebit Cargo Limited as owner of trailer ZD 4678 as at 8th September 2018 and records the trailer's original registration date as 23rd September 2010. I agree with Cebit, however, that the search does not expressly state that Cebit was the registered owner on 27th April 2016. The Court cannot infer from ownership in September 2018, without more, that ownership was necessarily identical in April 2016. Whether Cebit owned the trailer on the accident date would therefore remain a matter requiring evidence. 2. I would not, however, dismiss the application merely because the Applicant has not finally proved ownership at this preliminary stage. The merits of ownership and liability would ordinarily be questions for trial if leave were otherwise properly available. The more fundamental obstacle remains limitation. Whether Attachment of the Draft Plaint Cured the Earlier Omission 1. The 4th Intended Defendant also objects that the Originating Summons was initially filed without a draft Plaint. The Applicant subsequently annexed a draft Amended Plaint to his Further Affidavit. The purpose of a draft pleading in an application of this nature is practical and substantial: it enables the Court to understand the cause of action proposed against the intended defendants and to determine whether the statutory jurisdiction invoked is applicable. In the present matter, that information is now before Court. 2. I am therefore not persuaded that the original absence of a draft Plaint, standing alone, should dispose of the application where a draft was subsequently supplied and the Respondent had an opportunity to address it in written submissions. Courts should ordinarily determine disputes on their substance rather than elevate a curable procedural omission above the real controversy. I therefore decline to dismiss the application solely on that ground. Alleged Defects in the Draft Plaint 1. Cebit also points to inconsistencies in the draft Plaint, including the reference to the previous advocates and what it terms collective pleading of negligence. Those are matters capable of amendment or being addressed through ordinary pleading procedures. At this stage, I am not determining whether the proposed Plaint would ultimately succeed against any particular defendant. Nor is this Court presently called upon to determine whether Cebit Cargo, Motrex or H. Young was in fact the legal or beneficial owner of either vehicle at the material time. Those questions would ordinarily require evidence at trial. 2. The present application fails for a more fundamental reason: the Applicant has not brought himself within the statutory conditions upon which the Court may deprive an intended defendant of a limitation defence. Interests of Justice 1. I have considered the Applicant's plea that the Intended Defendants should be joined so that the true ownership and liability may be ventilated. The Court is not insensitive to the circumstances of the claim. It concerns the death of a 14-year-old child, and the Applicant has plainly attempted to trace the entities associated with the vehicle combination involved in the accident. There is also evidence of inconsistency in the registration information concerning KAP 938M. However, sections 1A, 1B and 3A of the Civil Procedure Act cannot be invoked to override an express statutory limitation regime. The inherent power of the Court supplements the law; it does not authorize the Court to dispense with substantive statutory conditions. 2. Limitation creates a substantive defence for a defendant. Sympathy for the circumstances of a claim, however compelling, cannot substitute for satisfaction of the statutory threshold. **Conclusion** 1. Upon considering the totality of the evidence, I find as follows: First, the cause of action accrued on 27th April 2016, and the ordinary three-year limitation period expired on or about 27th April 2019. 2. Second, although the Applicant originally commenced proceedings within time against other parties, the proposed claims against Motrex Limited and Cebit Cargo Limited are being introduced outside the ordinary limitation period. 3. Third, there is documentary material raising bona fide questions regarding ownership. NTSA's correspondence links Motrex Limited to KAP 938M, while an NTSA copy of records identifies Cebit Cargo Limited as owner of ZD 4678 as at 8th September 2018. 4. Fourth, the material presently produced regarding Cebit does not itself establish ownership specifically as at 27th April 2016. 5. Fifth, and decisively, the Applicant's own documentary material demonstrates that the relevant ownership dispute and the potential involvement of the Intended Defendants had become known by July and August 2024. The application for leave was not filed until 20th January 2026. 6. Sixth, the Applicant has therefore failed to satisfy the temporal and substantive requirements under sections 27, 28 and 30 of the Limitation of Actions Act necessary for extension of the limitation period. 7. The Court consequently has no basis upon which to grant leave merely on the broader ground that it would be desirable for all questions of ownership to be determined at trial. **Orders** 1. Accordingly, I make the following orders: 2. The Originating Summons dated 20th January 2026 seeking leave to file and/or pursue the claim out of time against Motrex Limited and Cebit Cargo Limited is hereby dismissed. 3. Consequently, leave to institute and/or pursue the proposed claim out of time against the Intended 3rd Defendant, Motrex Limited, and the Intended 4t Defendant, Cebit Cargo Limited, is declined. 4. The proposed Amended Plaint shall not be deemed as duly filed pursuant to the present application. 5. The substantive suit shall proceed, subject to the law, against the parties properly before Court. 6. Considering that the application arose from genuine inconsistencies in the motor vehicle registration documentation and that the Applicant produced material which required judicial consideration, each party shall bear its own costs of the application. It is so ordered. **DELIVERED VIA MICROSOFT TEAMS AT MOMBASA THIS 27TH AUGUST 2026.** **………………………..** **HON.E.M. MWAMUYE** **SENIOR RESIDENT MAGISTRATE**