https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7117

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CIVIL APPEAL NO. E002 OF 2025** **RENTWORKS EAST AFRICA LIMITED ……………APPELLANT** **VERSUS** **MUKTAR KHAMIS SANTUR…………………….1ST RESPONDENT** **THE ATTORNEY GENERAL…………………….2ND RESPONDENT** **KENYA PORTS AUTHORITY……………………3RD RESPONDENT** ***(Being an appeal from the judgment and decree of Hon.*Israel *Ruhu, Principal Magistrate, in Mpeketoni Principal Magistrate`s Court Civil Suit No.E008 of 2024 delivered on 18/12/2024)*** **JUDGMENT** 1. The 1st Respondent herein brought suit against the Appellant claiming general and special damages after his cattle were knocked down and killed in a road traffic accident involving motor vehicle registration No.GKB 657T that is registered in the name of the Appellant. The Appellant after being sued took out third party notices against the 2nd and 3rd Respondents on the ground that motor vehicle registration No.GKB 657T was at the time of the accident being driven by a government employee, an administration police driver. That upon the GK motor vehicle hitting the cattle it was hit from behind by motor vehicle registration No. KCE 700D belonging to the 3rd Respondent which pushed the GK motor vehicle forward thus killing more cattle. The Appellant sought to have the 2nd Respondent being held solely liable for the accident and for 3rd Respondent to indemnity the Appellant for the negligence of their driver. 2. The 2nd Respondent filed a defence and denied the claim. They in addition filed a Preliminary Objection dated 16th September 2024 in which they argued that the third-party notice offends section 3(1) of the Public Authorities Limitation Act. That the driver of the suit motor vehicle is a public officer and consequently as per the provisions of the said section no claim arising out of tort can be brought against him after the lapse of twelve months after the date of the accident. Therefore, that the trial court did not have jurisdiction to hear the third-party notice as it was time barred. 3. The material accident in the case occurred on the 18th September 2021 and the suit was filed on the 9th April 2024. The 1st Respondent argued that as per the provisions of section 3(1) of the Public Authorities Limitation Act, the suit ought to have been filed within one year of the occurrence of the accident which was by 17th September 2022. The Appellant on the other hand argued that they were served with the pleadings on 29th April 2024 and filed a defence on 17th May 2024. That they filed an application dated 19th July 2023 to enjoin the third parties who were enjoined prior to the lapse of 12 months. That they served the third-party notices. That the cause of action as against the 1st Respondent arose when the Appellants were served with the pleadings in April 2024 and time started to run when they were served with the pleadings. 4. The trial court in its ruling found that the suit ought to have been filed within one year from the date of occurrence of the accident as per the provisions of section 3(1) of the Public Authorities Limitation Act. The court upheld the Preliminary Objection and dismissed the third-party notice against the 2nd Respondent. The Appellant was aggrieved by the dismissal and lodged the instant appeal. The grounds of appeal are that: 5. That the learned trial magistrate erred in law and in fact in failing to consider the submissions of the counsel for the Appellant and reached an erroneous conclusion thereby occasioning a miscarriage of justice. 6. That the learned trial magistrate erred in law and in fact in upholding the 2nd Respondent`s Preliminary Objection when the same was without merit and ought to have been dismissed. 7. That the learned trial magistrate erred in law and in fact and misinterpreted the application of section 3(1) of the Public Authorities Limitation Act and its applicability to third party proceedings. 8. That the learned trial magistrate erred in law and in fact in failing to hold that the limitation period as against the third parties began to run after service of pleadings on the Appellant by the 1st Respondent. 9. That the learned trial magistrate erred in law and in fact in failing to hold that the cause of action in third party proceedings arises upon service of pleadings on the defendant. 10. The appeal was canvassed by way of written submissions. **Appellant`s submissions** 1. The Appellant submitted that third party proceedings are procedural in nature which aim to determine liability among parties after the original claim is brought. That the cause of action arose against the 2nd and 3rd Respondents upon the Appellant being sued, meaning that the limitation period should start running from when the Appellant`s claim for contribution as against the third party arose and not from the date of the original accident. 2. The Appellant faulted the trial court in failing to interpret the law on limitations in a way that avoids injustice or in a manner that does not unfairly deny the Appellant the right to seek indemnity or contribution from third parties. 3. The Appellant in support of the above position relied on the holding in the case of **Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others (2015) eKLR** where the Court of Appeal held that the cause of action in third party proceedings in the case where the third parties were public bodies (The Attorney General and the Commissioner of Lands) arose when the defendant was served with the pleadings. Said the court: **Our re-evaluation of the evidence on record leaves us to find that the appellant`s cause of action arose when it came to its actual knowledge that a third party, in this case the 1st , 2nd and 3rd Respondents were laying claim to the suit land. This actual knowledge came into being when the appellant was served with the 1st, 2nd and 3rd Respondents` Statement of Claim in the year 2000. Limitation period against the 4th and 5th Respondents begun to run in the year 2000. We find that the trial court did not err in holding that the appellant`s claim against the 4th and 5th Respondents was statute-barred.** 1. Consequently, it was submitted that in the instant case the cause of action against the third party only arose when the Appellant was served with the pleadings and became aware of the claim against the third party. That the third party was enjoined in the suit prior to the lapse of 12 months. The Appellants urged the court to allow the appeal. 2. The 1st and 2nd Respondents did not file submissions in the appeal. The 3rd Respondent did so. **3rd Respondent’s submissions** 1. The 3rd Respondent submitted that in view of the provisions of section 3(1) of the Public Authorities Act, the suit against the 2nd and 3rd Respondents ought to have been brought on or before 17th September 2022. Reliance in that respect was made in the case of **Francis Njenga v James Muraya & another (2021) eKLR** where the court upheld a decision of the magistrate`s court in dismissing a suit filed in contravention of section 3(1) of the Public Authorities Limitation Act. 2. It was submitted that the holding in the case of ***Benja Properties Limited*** (supra) that was relied on by the Appellant is in fact in favour of the Respondents as it held that the trial court did not err in holding that the appellant`s claim against the 4th and 5th respondents was statute-barred. The 3r Respondent urged the court to dismiss the appeal with costs. **Analysis and determination** 1. This being a first appeal, it is the duty of this court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In **Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123,**this principle was enunciated thus: **"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.../** 1. In the landmark case of **Mukisa Biscuits Manufacturing Ltd vs West End Distributors Ltd Civil Appeal No. 9 of (1969 E.A 696),** a Preliminary Objection was defined as follows:- **“a preliminary objection consists of a point of law which has been pleaded, or which arises from a clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit……It is raised a pure point of law, which, if argued on the assumption that all facts pleaded are correct. It cannot be raised if any fact has to be ascertained or what is sought is the exercise of judicial discretion.’** 1. I have considered the grounds of appeal, the record and ruling of the trial court and the submissions tendered by the counsels for the Appellant and the 3rd Respondent. The issue for determination is whether the trial court erred in holding that the third-party notice issued on the 2nd Respondent (The Attorney General) was statute barred for contravening the provisions of section 3(1) of the Public Authorities Limitation Act. The said section provides as follows: **No proceedings founded on tort shall be brought against the Government or a local authority after the end of twelve months from the date on which the cause of action arose.** 1. The contention by the 2nd Respondent is that the time started to run on the date of the accident on 18th September 2021 and the suit ought to have been filed by 17th September 2022. The Appellant on the other hand contends that time started to run when they were served with the claim by 1st Respondent on the 29th April 2024. 2. It is in the first place to be noted that the Appellant did not file any suit against the 2nd Respondent. The Appellant was sued by the 1st Respondent upon which they took out third party notices against the 2nd and 3rd Respondents. The case cited by the 3rd Respondent of **Francis Njenga v James Muraya & another (supra)** did not involve a third party and no third-party notice was sought in that case. The facts of that case were therefore not similar to the facts in the instant case. The issue in the instant case is as to when the cause of action in a suit in respect of a third party starts to run where the third party is a public entity. 3. In my view, the position of the law in this matter is as was espoused by the Court of Appeal in the case of **Benja Properties Limited v Syedna Mohammed Burhannudin Sahed & 4 others (2015) eKLR.** The case therein involved third parties, The Attorney General and the Commissioner of Lands. The court therein held that the defendant should have filed the third-party proceedings when it was served with the pleadings after being sued. Therefore, that the limitation period started to run from the time of service of the pleadings on the defendant. 4. In the instant case the Appellant (who was the defendant at the subordinate court) was served with the pleadings on 29th April 2024. The limitation period upon the interested parties started to run on the day the Appellant was served with the pleadings. The Appellant served the third-party proceedings before the limitation period of one year was over after they were served with the pleadings. To hold that the limitation period started to run from the date of the accident would defeat the Appellant`s right to indemnity/contribution by the third parties yet they were not the ones to decide when to file the suit. 5. It is therefore my finding that the trial magistrate erred in holding that the limitation period against the 2nd Respondent begun to run from the date of the accident. It is my holding that the limitation period against them begun to run from the 29th April 2024 and they were served with third Party proceedings within one year from that date. The third-party proceedings were thereby not statute-barred. 6. For the above reasons I find merit in the appeal and the same is allowed. Consequently, the ruling and orders of the trial magistrate dated 18th December, 2024 are set aside. The Appellants to have the costs of the appeal as against the 2nd and 3rd Respondents. **Delivered, dated and signed at GARSEN this 21st day of May 2026** **J. N. NJAGI** **JUDGE** # In the presence of: # Miss Simami HB for Miss Wachira for Appellant # Miss Njoki for 3rd Respondent # Court Assistant - Rahma