[2022] KEHC 10332 (KLR)

Wanja v Kago (Civil Appeal E006 of 2021) [2022] KEHC 10332 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10332 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E006 of 2021

LM Njuguna, J

July 13, 2022

Between

Alice Wanja

Appellant

and

Nancy Wakuthii Kago

Respondent

(Being an appeal from the judgment of Hon. Nyakweba S.P.M. delivered on 05. 01. 2021 in Embu CMCC No. 77 of 2018)

Judgment

1. The appellant herein has appealed to this Honourable Court against the judgment delivered on January 5, 2021 in Embu CMCC No. 77 of 2018 on the following main grounds:-i)That the learned magistrate erred in both in law and fact by dismissing the appellant’s suit on a technicality contrary to the provisions of article 159 (2) (d) of the constitution.ii)That the learned magistrate erred in both law and fact by finding that the appellant’s claim both under Law Reform Act and Fatal Accidents Acts were time barred.

2. For reasons wherefore, this court was urged to allow the appeal, costs of the appeal and that of the lower court.

3. When the appeal came up for hearing, directions were taken that the same be canvassed by way of written submissions which directions the appellant complied with. The respondent did not participate in this appeal as the matter before the trial court proceeded ex parte.

4. The appellant in support of her case submitted that the trial court erred in fact and in law in dismissing her suit on a technicality contrary to Article 159 (2) (d) of the constitution. That the trial court found that the suit was time barred under the Law Reform and Fatal Accidents Acts. It was submitted that the same provisions relied upon by the trial magistrate provide for time limitation period in actions against the estate of a deceased person; that the same provisions are not applicable where an action is brought on behalf of the estate of a deceased person. Reliance was placed on Sections 9 (2) of the Fatal Accidents Act Cap 32 and 2 (3) of the Law Reform Act and on the case of Spin Knit Dairy Ltd & Mwaniki Anderson [2019] eKLR. That the appellant’s suit was an action in tort, where the appellant claims damages on behalf of the estate of the deceased due to injury occasioned by the negligent acts of the respondent. Reliance was made on Section 4(2) of the Limitation of Actions Act Cap 22 and section 4 of the Fatal Accidents Act. That the appellant’s action in the trial court was instituted within the three year limitation period provided in Section 4(2) of the Limitations Action Act and section 4 of the Fatal Accidents Act. That even if the suit were time barred, the same was capable of being cured by seeking leave to cure the defect and therefore, the trial magistrate erred by not taking into consideration Article 159 (2) (d) of the constitution. Reliance was further placed on the cases of Fauzia Shaban & another v Sheilla Properties Limited & another [2020] eKLR; South Sioux Farms Limited v Jane Nyambura Kinuthia [2021] eKLR. In the end, the appellant prayed that the appeal herein be allowed.

5. I have considered the grounds of appeal and the submissions by the appellant. As I have already noted, the respondent did not file submissions in opposing the appeal. It has been restated by the superior courts that the duty of the first appellate court is to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, before drawing a conclusion from that analysis. The court has however, to bear in mind the fact that it did not have an opportunity to see and hear the witnesses first hand. This was the decision by the Court of Appeal in the case of Peter M. Kariuki v Attorney General [2014] eKLR. The appellate court further ought not to interfere with the exercise of its discretion by a lower court unless it is satisfied that its decision is clearly wrong because it has misdirected itself or because it acted on matters which it ought not to have acted or it has failed to take into consideration matters which it ought to have taken into consideration and in so doing, arrived at a wrong conclusion [See Mwanasokoni v Kenya Bus Service Ltd. [1982-88] and Kiruga v Kiruga & Another [1988] KLR 348].

6. In furtherance of the above duty, I have certainly perused and understood the contents of the pleadings, proceedings, grounds of appeal, submissions and the decisions referred to by the appellant. I have indeed re-evaluated the evidence tendered before the trial court.

7. In a nutshell, the appellant in her plaint dated April 23, 2018 had sued the respondent claiming general damages, special damages (Kshs.221, 660. 00) and costs of the suit and interest. Her case was that on January 8, 2017, David Kibocha (deceased) was travelling as a passenger in motor vehicle number KCE 200T Toyota Hilux Pick Up along the Embu – Kiritiri road at Airstrip Road junction when the defendant’s authorized driver caused an accident occasioning the deceased serious bodily injuries from which the deceased died.

8. The particulars of the said negligence were stated in paragraph 5 of the plaint.

9. The defendant/respondent having been served with the copy of plaint and summons to enter appearance and the statutory period having lapsed without the defendant/respondent filing the requisite memorandum of appearance and/or defence, an interlocutory judgment was entered against the defendant/ respondent and the matter proceeded for formal proof and thereafter, a judgment was delivered on January 5, 2021 dismissing the appellant’s suit for the reason that the suit was statute barred and no leave had been sought to file the same out of time.

10. After analyzing the grounds of appeal and the evidence on record, the issue for determination before the court is whether the appellant herein could maintain this suit under the Law Reform and the Fatal Accident Acts.

11. It is trite that there is need for the court to enforce the limitation period so as to discourage litigants from sitting on their rights and from unreasonably delaying in instituting proceedings. Section 2 (3) of the Law Reform Act provides that :“(3)No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either: -a)proceedings against him in respect of that cause of action were pending at the date of his death; orb)proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation.”

12. The above position is mirrored in Section 9 (2) (b) of the Fatal Accidents Act. It is a fact that the grant of representation was obtained by the appellant herein on the July 13, 2017 while the suit was filed on the April 24, 2018 which was three months after the limitation period had lapsed. For the Plaintiff to institute her claim under the Law Reform Act and the Fatal Accident Acts, she needed to commence proceeding pursuant to Section 27 of the Limitation of Actions Act (Cap 22) by seeking leave to file her claim out of time and to give reasons for failing to file her claim within six months from the date of issuance of the Ad Litem. [See Veronica Gathoni Mwangi & another v Samuel Kagwi Ngure & Another].

13. It is outright that for any claim to be maintained under the two Acts (Law Reform Act and Fatal Accidents Act) the same has to be filed not later than six months after the executor or administrator takes out representation= unless the proceedings were pending at the date of the death of the deceased. [See County Government of Kilifi v Edward Fondo Kalama and Another [2021] eKLR].

14. The appellant has urged this court to find that failure to seek leave is a technicality that can easily be cured by this court invoking article 159 (2) (d) of the constitution and then make a finding in favour of the appellant. The court in the case of Lubulellah & Associates Advocates v N K Brothers Limited [2014] eKLRheld that the objective of Article 159(2) (d) of the constitution of Kenya was not to validate actions that are null and void but disguised as procedural technicalities. The court further held that these provisions cannot be invoked by a party who has been indolent and fails to comply with the laid down provisions of the law to ride on a ground of a mere irregularity or procedural technicality.

15. Given the fact that the cause of action was brought under the given provisions of law, it was incumbent upon the appellant to seek leave before filing the suit herein; the same was not done, I therefore hold the view that this court cannot invoke its discretion to cure the defect.

16. In the above premises, I find that the plaintiff suit was statute barred and no leave was sought to have the claim admitted out of time. [See Felix Otieno & 18 others v Kenya Power Ltd [2017] eKLR].

17. For the foregoing reasons, the upshot of this judgment is that the appeal herein is dismissed but with no order as to costs.

18. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF JULY, 2022. L. NJUGUNAJUDGE…………………………………….for the Applicant…………………………………..for the Respondent