https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9824

Nassoro v Mwaganda (Administrator of the Estate of Delvan Mutua Bahati) (Civil Appeal E064 of 2023) [2026] KEHC 9824 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9824 (KLR) Republic of Kenya In the High Court at Malindi Civil Appeal E064 of 2023 BK Njoroge, J July 2, 2026 Between Rashid Nassoro Appellant and Kazi Jianga Mwaganda (Administrator Of The Estate Of Delvan Mutua Bahati) Respondent (Being an Appeal from the Judgment/Decree dated 18th April, 2023 in Kilifi MCCC 209 of 2019 (The Honourable J. Kituku, SPM) Judgment 1.Statutory limitation periods are not flexible suggestions; they are non-negotiable legal milestones designed to give finality to human disputes. The law neither rewards systemic slumber, nor can it stretch its boundaries to validate basic administrative neglect. This Appeal from the decision of the Lower Court is principally on the issue whether leave to file a suit out of time was validly given. Background Facts 2.On 25th March, 2015, an 8-year-old boy named Delvan Mutua Bahati suffered fatal injuries when a pillar of building blocks collapsed on him at a property located in Ngoloko, Kikambala. The Respondent, acting as the grandfather and eventual administrator of the child’s estate, intended to sue the property owner, who is the Appellant before this Court. 3.By law, any claim founded on tort must be brought within three years from the date the cause of action accrued. The period for filing the claim expired on 24th March, 2018. The Respondent did not meet this deadline. 4.Instead, on 11th May, 2018, the Respondent filed an ex-parte Originating Summons seeking leave to institute the suit out of time. This was filed in (Kilifi) PMCC NO. 165 OF 2018. The Respondent advanced three reasons for the delay:i.The administrative time required to process and extract a limited grant ad litem from the probate registry took longer than anticipated.ii.The Respondent was entirely unaware that the law imposed a strict three-year time limit for filing tortious actions.iii.The Appellant had verbally indicated an intention to settle the matter out of court, which the Respondent relied upon in good faith. 5.The Trial Court (Hon. L. N. Juma (Mrs) granted the ex-parte leave on 15th May, 2018. The substantive suit was subsequently filed on 8th June, 2018. 6.The Appellant filed a Statement of Defence explicitly challenging the leave as legally incompetent under paragraph 6 of the Statement of Defence as follows;“The Defendant will aver that the action has been filed out of time and leave therefore improperly obtained and shall at the hearing of the suit seek to have such leave set aside and the Plaintiff’s action dismissed as being filed in contravention of Section 4 of the Limitation of Actions Act, Cap 22.” 7.The Appellant later raised a Notice of Preliminary Objection dated 29th June, 2021, seeking to strike out the claim. The Trial Court dismissed that Notice of Preliminary Objection on 15th December, 2021. It ruled that a challenge to ex-parte leave must be deferred to the full trial. 8.The matter proceeded to a virtual hearing where the Respondent testified as PW1. The Appellant and his Counsel were absent at the hearing. Hence, they did not cross-examine the Respondent on the facts of the delay and opted to address the challenge purely through written submissions. 9.In its judgment dated 18th April, 2023, the Trial Court rejected the defence of limitation. The Learned Trial Magistrate held that because the Appellant failed to cross-examine the Plaintiff on the circumstances of the late filing, the ex-parte leave stood unchallenged and properly granted. The Trial Court entered judgment for the Respondent for Kshs. 1,515,550/=. 10.Aggrieved by the Trial Court's decision, the Appellant filed a Memorandum of Appeal raising four structural challenges:i.The Learned Trial Magistrate erred in law by upholding a claim filed outside the statutory limitation window when the underlying grounds did not meet the requirements of Section 27 of the Limitation of Actions Act.ii.The Trial Court erred in failing to find the suit statute-barred based on the material on record.iii.The Trial Court erred in finding the Appellant 100% liable.iv.The Learned Trial Magistrate erred in the calculation of damages under the Fatal Accidents Act and Law Reform Act which was excessive and unsupported by sound principle. 11.The Appellant proposed to ask this Court to allow the appeal, set aside the judgment and decree of the Lower Court, and substitute it with an order dismissing the suit with costs. Issues For Determination 12.The Court has considered the Memorandum of Appeal, the Record of Appeal and the submissions filed by Counsel for the parties. The Court frames three (3) issues for determination as follows;a.Whether an ex-parte order extending time can be challenged strictly as a question of law through legal submissions at trial when the facts explaining the delay are undisputed on the face of the record.b.Whether administrative delays in extracting a Limited Grant, general ignorance of limitation laws, or ongoing verbal settlement discussions constitute "material facts of a decisive character" under Sections 27 and 28 of the Limitation of Actions Act.c.Whether the Respondent proved liability and quantum on a balance of probabilities. Analysis 13.This is a first appeal, and this Court is fully alive to the nature of its statutory mandate. As a first appellate Court, it is this Court’s solemn duty to re-examine, re-evaluate, and systematically re-analyze the entirety of the evidence produced before the Trial Court. This Court is legally obligated to weigh the facts fresh on the scales of justice and draw its own independent conclusions. This review must always be undertaken with a sense of caution. This Court must remain heavily aware that it did not have the distinct advantage enjoyed by the Learned Trial Magistrate of seeing, hearing, or observing the demeanor of the witnesses as they testified in the Court below. This guiding operational principle is deeply rooted in jurisprudence, having been settled in the locus classicus decision of Selle & Another v. Associated Motor Boat Co. Ltd [1968] EA 123. The law expects an Appellate Court to be thorough but disciplined, ensuring that it does not lightly interfere with the judicial discretion or findings of fact of a Lower Court. This is unless the Trial Court clearly misapprehended the weight of the evidence, acted on a wrong legal principle, or arrived at a decision that is demonstrably and plainly wrong. a. Whether an ex-parte order extending time can be challenged strictly as a question of law through legal submissions at trial when the facts explaining the delay are undisputed on the face of the record. 14.The Learned Trial Magistrate fell into a clear error of law by holding that a Defendant can only challenge an ex-parte order of extension of time by cross-examining the Plaintiff at the trial. Cross-examination is a factual tool. It is deployed to unearth hidden facts or to break down a dishonest narrative. 15.Where the facts explaining a delay are already fully admitted, uncontested, and laid out transparently on the face of the Court file, cross-examination becomes a redundant, academic exercise. The Appellant explicitly accepted the Respondent’s reasons for delay exactly as they were written in the supporting affidavit. The issue left for the Trial Court was a pure question of law: Do those admitted facts legally fit within the narrow exceptions of the statute? Put differently, would those grounds stand scrutiny as being valid based on Section 27 and 28 of the Limitations of Actions Act, for extension of time? 16.This Court adopts the timeless principle of the Court of Appeal in Mary Wambui v. Kenya Bus Service [Civil Appeal No. 195 of 1995], where Shah, JA stated:“...the only time when such a defendant can challenge the order granting extension of time is at the trial, either on facts brought out at the trial, or by way of arguments at the trial if circumstances and facts allow such arguments at the trial, that is to say there is no dispute as to facts." 17.The Appellant was fully entitled to accept the record as it stood and argue the point of law using written submissions. The Learned Trial Magistrate erred by ignoring the legal argument simply because no oral cross-examination took place. (b) Whether administrative delays in extracting a Limited Grant, general ignorance of limitation laws, or ongoing verbal settlement discussions constitute "material facts of a decisive character" under Sections 27 and 28 of the Limitation of Actions Act. 18.The Record has the Originating Summons filed by the Respondent. The Court has had a look at the Respondent’s own ex-parte filings. They set out all the reasons advanced for the late fillings. All three reasons put forward to justify the late filing fail to satisfy the strict requirements of the law. 19.Sections 27 and 28 of the Limitation of Actions Act state as follows;27.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); and(b)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; and(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and(d)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; and(b)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; or(b)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.28.Application for leave of court under Section 27(1)An application for the leave of the court for the purposes of Section 27 of this Act shall be made ex parte, except insofar 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; and(b)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; and(b)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. 20.Sections 27 and 28 of the Limitation of Actions Act do not grant Courts a general, sympathetic mandate to forgive late filings. Extensions are strictly limited to instances where "material facts of a decisive character" regarding an injury or its medical attribution were outside the knowledge of the plaintiff 21.Firstly, general ignorance of the limitation period is legally irrelevant. As ruled in Mweu v. Kabai & Another [1972] EA 242, ignorance of the statutory period of limitation can never constitute a material fact under the section. Every citizen is presumed to know the law. See also Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) 22.Secondly, a delay in extracting letters of administration or Limited Grant or a Grant of Probate from the probate registry does not stop the limitation clock. It neither slows nor freezes time. This principle is firmly supported by the Court of Appeal decision in Edward Fondo Kalama & Another v. County Government of Kilifi [2023] eKLR. This decision establishes that a delay within the Court registry to process a grant is not a material fact of a decisive character regarding the cause of action itself. Legal capacity to sue (locus standi) must not be confused with knowledge of the injury. The estate is required to apply for an urgent limited grant ad litem to stop the statutory clock before time runs out. 23.Thirdly, a vague, out-of-court verbal promise by a Defendant to settle a claim carries no legal weight under limitation rules. Section 24(1) of the Limitation of Actions Act explicitly mandates that any acknowledgment of liability or promise to settle must be reduced to an unambiguous writing signed by the party responsible. Ongoing verbal discussions do not freeze a statutory countdown. 24.The Appellant did raise a valid challenge to this leave that was granted exparte. The Trial Court was bound to relook and inquire as to the grounds upon which the leave was granted exparte. This is not an appellate review by the same Court, but rather a merit review of the leave that had been granted exparte. Consequently, the ex-parte leave granted to the Respondent on 15th May, 2018, was founded on legally incompetent grounds and must be set aside. Without valid leave, the substantive suit stands statute-barred. See Mary Wambui Kabugu V Kenya Bus Service Limited [1997] KECA 402 (KLR) 25.This Court has taken note of the decision in John Gachanja Mundia v Francis Muriira & Another [2017] KEHC 1409 (KLR).The Court notes that in the case before it, the facts upon which leave had been obtained exparte were not in dispute or contested. Therefore, there was no need to cross examine upon them again. Suffice to state that the grant of leave exparte was challenged even in the Statement of Defence. This was not a case of a Defendant rising after the fact or a case or an afterthought. All the while the issue of whether the leave granted was on valid reasons was a live issue for determination. On that score the John Gachanja Mundia case is distinguishable to that extent. (c) Whether the Respondent proved liability and quantum on a balance of probabilities.1.Because the suit fails completely on the fundamental threshold issue of limitation, it is dead on arrival. It is therefore unnecessary for this Court to spend judicial time re-evaluating the secondary issues of liability or quantum.2.It is worth noting that the Appellant did not submit on liability or quantum.3.As to costs, the Court notes that the same lie at the discretion of this Court. Costs ordinarily follow the event unless for reasons stated the Court determines otherwise. The decision arrived upon by this Court is drastically changes the fortunes of the deceased family. They lost a child and have equally lost before this Court. A fair order would be let each party bear its own costs. Determination 26.The Appellant’s Appeal succeeds and is allowed in the following terms;a.That the Judgement and Decree dated 18th April, 2023 in KILIFI MCCC 209 OF 2018 is hereby set aside and quashed. It is substituted in lieu thereof with an order and Decree dismissing the Respondent’s suit.b.Each party to bear their own costs of this Appeal and the Court below. 27.It is so ordered. DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Moses Mwakisha for the Appellant.N/A for Miss Omollo for the Respondent.Mr. John Paul - Court Assistant