[2022] KEHC 14050 (KLR)

Ukwala Trading Co Ltd v Kiprono & 2 others (Civil Appeal E454 of 2021) [2022] KEHC 14050 (KLR) (Civ) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 14050 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E454 of 2021

JK Sergon, J

October 19, 2022

Between

Ukwala Trading Co Ltd

Appellant

and

Demas Tuikong Kiprono

1st Respondent

Ken Njogu Mwangi

2nd Respondent

Elizabeth Wambui Njoroge

3rd Respondent

(Being an appeal against the ruling and order of Honourable B.J. Ofisi (Mrs.) (Resident Magistrate) delivered on 16th July, 2021 in Claim No. 290 of 2021)

Judgment

1. The appellant herein instituted an action before the small claims court at Nairobi by way of the statement of claim dated May 7, 2021 and sought for the sum of 565,475/ plus costs of the suit and interest thereon against the 1st, 2nd and 3rd respondents for loss/damage occasioned to the motor vehicle registration number Kxx 7xxx Mitsubishi Canter ('the claimant’s motor vehicle') and arising out of the tort of negligence.

2. The respondents were sued in their capacity as the registered and/or beneficial owners of the motor vehicle registration number Kxx 0xxx Mazda Demio ('the respondents’ motor vehicle').

3. The appellant pleaded in the statement of claim that on or about the May 7, 2018 while the appellant’s motor vehicle was being lawfully driven along Ring Road Kilimani near Eastlands Hotel, the 1st respondent negligently and/or recklessly drove the respondents’ motor vehicle, causing it to lose control and ram into the appellant’s motor vehicle, resulting in extensive damage. The particulars of negligence are set out under paragraph 4 of the statement of claim.

4. Upon service of summons, the 1st respondent entered appearance and filed his response to the claim dated July 9, 2021 to deny the averments made in the statement of claim.

5. The 2nd and 3rd respondents equally entered appearance and filed their joint response to the claim dated June 23, 2021.

6. Subsequently, the 1st respondent lodged the notice of preliminary objection dated July 9, 2021 premised on the ground that the appellant’s suit is statute barred by virtue of section 4(2) of the Limitation of Actions Act, Cap 22 Laws of Kenya and hence it ought to be struck out/dismissed.

7. Upon hearing the parties on the preliminary objection, the trial court by way of the ruling delivered on July 16, 2021 allowed it and consequently struck out the appellant’s claim with no order on costs.

8. Being aggrieved by the aforementioned ruling, the appellant sought to challenge the same by way of an appeal. Through its memorandum of appeal dated July 29, 2021 the appellant put in the following grounds:i.That the learned magistrate erred in law and in fact by allowing the 1st respondent’s preliminary objection dated July 9, 2021. ii.That the learned magistrate erred in law and in fact by finding that the appellant’s claim was time barred pursuant to section 4(1) (a) of the Limitation of Actions Act Cap.iii.That the learned magistrate erred in law by failing to find that it is the court that delayed the filing of the claim by failing to assess the claim documents forwarded to it on time to enable the claimant pay the court filing fees on time.

9. This court gave directions to the parties to file written submissions on the appeal. From the record, it is apparent that the 2nd and 3rd respondents did not participate at the hearing of the appeal.

10. The appellant vide its submissions argues that the claim was sent to the small claims registry for assessment before the lapse of the statutory timelines but that owing to the delay at the registry, the claim was filed out of time.

11. The appellant further argues that its claim raises triable issues and by striking it out, the trial court condemned it unheard, contrary to the principles envisaged under article 159(2)(d) of the Constitution and reaffirmed by the court in the case of Patricia Cherotich Sawe v Independent Electoral & Boundaries Commission(IEBC) & 4 others [2015] eKLRwhere the Supreme Court stated that the exercise of the jurisdiction under article 159 of theConstitution is unfettered particularly where procedural technicalities pose an impediment to the administration of justice.

12. It is the submission by the appellant that unless the orders made by the trial court are set aside, it stands to suffer irreparable loss and hence urges that the appeal be allowed on merit.

13. In retort, the 1st respondent by way of his submissions dated ….. submits that the statement of claim bears the date on which it became statute barred and hence it is not in dispute that the claim was filed out of time.

14. The 1st respondent further submits that in any case, the filing of the claim was an afterthought and this would explain the delay, which delay is inexcusable.

15. For all the foregoing reasons, the 1st respondent supports the decision by the trial court in striking out the appellant’s claim and further argues that the proviso of article 159 of theConstitution cannot be used to circumvent the substantive law, with reference to the case ofSukari Industries Limited v Ezra Ododi Adero [2020] eKLR where the court determined that:'We do not consider article 159 (2)(d) of theConstitution to be a panacea, nay, a general white wash, that cures and mends all ills, misdeeds and defaults of litigation.'

16. I have considered the contending submissions and authorities cited on appeal. I have likewise re-evaluated the material placed before the trial court. It is clear that the appeal fundamentally lies against the trial court’s decision to strike out the appellant’s claim. I will therefore deal with the three (3) grounds of appeal contemporaneously.

17. As earlier noted, the appellant’s claim was struck out for being statute barred, following the preliminary objection raised by the 1st respondent.

18. Upon considering that the claim in question is a tort in the nature of a road traffic accident claim touching on negligence, the relevant provision is section 4(2) of the Limitation of Actions Act ('the Act') which is clear that claims based on tort are to be brought within a period of three (3) years from the date on which the cause of action arose.

19. Upon my study and consideration of the pleadings and material presented on record, it is not in dispute that the claim was filed out of time to begin with, having been filed sometime on or about the May 10, 2021 whereas the cause of action arose on May 7, 2018 being the date of the material accident.

20. Upon my further study of the pleadings and material, I observed that the appellant explained that the delay was occasioned by the time taken in assessing the claim at the registry. This explanation was considered by the learned trial magistrate who pointed out that the claim was presented for assessment on May 7, 2021 being the date on which the timelines for filing the claim would have lapsed.

21. From the record, it is apparent that notwithstanding the delay in assessment, the appellant waited until the very last minute to file its claim and without offering a reasonable explanation for the delay.

22. In view of all the foregoing circumstances, I agree with the reasoning adopted by the learned trial magistrate that the suit was time barred and hence the only necessary action was to have it struck out on the basis.

23. On the subject of the provisions of article 159(2)(d) of theConstitution which stipulates that justice shall be administered without undue regard to procedural technicalities, I concur with the sentiments raised by the 1st respondent that the above provision cannot and ought not to be used to circumvent the substantive law, as acknowledged by the Supreme Court in the case of Patricia Cherotich Sawe v Independent Electoral & Boundaries Commision(IEBC) & 4 others [2015] eKLR cited in the appellant’s submissions, when it succinctly stated thus:'In the case of Nicholas Kiptoo Arap Korir Salat v The Independent Electoral and Boundaries Commission & 7 Others, Application No 16 of 2014, the court emphasised that, 'where the law provides for the time within which something ought to be done, if that time lapses, one needs to first seek extension of that time before [one] can proceed to do that which the law requires.This court did signal in Law Society of Kenya v The Centre for Human Rights & Democracy & 12 Others, Petition No 14 of 2013, that 'article 159(2) (d) of theConstitution is not a panacea for all procedural shortfalls.' Not all procedural deficiencies can be remedied by article 159; and such is clearly the case, where the procedural step in question is a jurisdictional prerequisite.'

24. From my reading of the above decision, it is apparent that in the present instance, the appellant would have done well to first seek an extension of time within which to lodge its claim or leave to lodge the claim out of time, but did not.

25. Moreover, I note that since the suit was struck out as opposed to suffering a dismissal, the appellant is not left without a remedy.

26. Upon taking into account all the foregoing factors hereinabove, I am satisfied that the learned trial magistrate properly analyzed the material which was placed before her and arrived at a well-reasoned finding on the appellant’s claim. I therefore see no reason whatsoever to disturb her finding.

27. The upshot therefore is that the appeal is hereby dismissed with costs to the 1st respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. ………….…………….J. K. SERGONJUDGEIn the presence of:………………………………... for the Appellant………………………………... for the 1st Respondent………………………………... for the 2nd Respondent………………………………... for the 3rd Respondent