1.What is before the court for determination is a notice of motion dated September 3, 2018 and filed on June 23, 2021 by the applicant, brought under sections 1A, 1B of the Civil Procedure Act, section 4 (4) of the Limitation of Actions Act, article 159 of the Constitution and order 22 of the Civil Procedure Rules, seeking, “That the honourable court be pleased to grant leave to the applicant to execute the judgement of December 17, 2002 and the decree thereto out of time.”
2.The applicant’s case is that the delay in executing the judgment was occasioned by an error apparent on the face of the record, which was rectified by the ruling of the court of June 6, 2016. The omission of Jamii Wholesalers Limited, from the judgment as the party against whom execution was to be effected upon, and the stay of execution obtained by Lucy Weru, the director of Jamii Wholesalers Limited, made execution impossible. Since the 12 year limitation period has since lapsed, it is in the interest of justice that the applicant is allowed to execute out of time.
3.The respondent filed a notice of preliminary objection (PO) dated November 10, 2021 vehemently opposing the application. It raised 3 grounds that:1.The judgment dated December 17, 2002 is stale, incapable of being executed and statute barred by section 4 (4) of the Limitation of Actions Act and hence the application should be disallowed.2.That 12 years having lapsed since the delivery of the judgment, the plaintiff/applicant is guilty of prolonged and inordinate delay.3.The application is barred in law and an abuse of the court process and ought to be struck out with costs to the defendant/respondent.4.The court (PJO Otieno J) on February 24, 2022 issued the following consent orders as regards the hearing of the application and PO:
5.The applicant did not file any submissions.
6.The respondent filed its submissions on May 18, 2022 urging that the applicant had inexcusably delayed in executing the decree herein, and equity does not aid the indolent. It urged that the reconstruction of a skeleton File was a misuse of precious judicial time and resources owing to the staleness of the judgment sought to be resuscitated. It urged that it was not invited to object to the application for the reconstruction of a skeleton file, and the skeleton record only bore the documents preferred by the applicant, thus biased against it. It urged that the court cannot exercise its discretion in favour of the applicant for want of jurisdiction, as the 12 year limitation period lapsed. It urged the court to dismiss the application in order to bring the litigation herein to an end. It urged that a judgment must be executed within 12 years from the date of its delivery otherwise it becomes legally stale and of no benefit to the decree holder, and relied on the Court of Appeal case of M’Ikiara M’Rinkanya and Another v Gilbert Kabeere M’mbijiwe (2007) eKLR.
Analysis and Determination
7.The applicant sought leave of the court on September 30, 2021 to serve the respondent through substituted service by advertisement in the Daily Nation, as its former advocates had declined service. It cannot therefore be true that the application for reconstruction of a skeleton file was not served upon the respondent. The contention that the skeleton record contains only documents preferred by the applicant is quite unfounded, as the record contains all documents from both parties.
8.The application and the preliminary objection (PO) are two sides of the same coin, in that, if the application is allowed, the PO will automatically stand dismissed and vice versa.
11.It is not in dispute that the judgment whose execution is sought to be extended was delivered in 2002. In that judgment, the applicant was awarded special damages of Kshs 288,677.50 and general damages of Kshs 480,000 less 20% contribution together with costs and interest. The applicant was however unable to execute the decree due to an error in the judgment, and he successfully sought review 8 years down the line on November 1, 2010 which was granted vide the ruling of June 6, 2016. The court file is then said to have ‘gotten wings and flown to an unknown destination’. A skeleton file was subsequently opened in 2016, but it mysteriously got lost. When all efforts to trace it had proven futile, the applicant moved the court on July 21, 2020 for leave to open a skeleton file. The court by its ruling dated February 25, 2021 issued orders that:
12.The record is clear that the applicant intended to execute the judgment herein on/or before 2010 when he discovered the error apparent on the face of the record, which required to be rectified, on application, by the court. When the same was rectified vide the ruling of 2016, the court file subsequently went missing further curtailing the applicant’s desire to execute. It can be seen from the record that the applicant zealously wrote several correspondences to court, in an effort to have the missing court file traced and/ or a skeleton file opened. It would thus be considerably unjust to punish the applicant for mistakes which were beyond his control.
13.The court cannot be the cause or source of an injustice on a party before it!
14.If it were held otherwise, in the circumstances of this case, it would occasion opportunity for judgment debtors to cause a file to disappear for just long enough to avoid the period of statutory limitation on execution.
15.This court is minded that the law of Limitation of Actions Act uses the words “may not” in section 4 (4) quoted above. Those words as used in that section should not be construed to call for mandatory adherence, but to give the court discretion to either allow or disallow execution even after the 12 years period has lapsed. Sections 26 and 27 of the Limitation of Actions Act provide for extension of time in case of fraud or mistake, ignorance of material facts in actions for negligence, etc.
16.It would appear that although no express provision is made, as in sections 26 and 27, for extension of time with regard to execution of a judgment under section 4(4) of the Limitations of Action Act, the principle of access to justice under article 48 of the Constitution of Kenya 2010 which post-dates the statute of Limitation of Actions Act must be taken to modify the limitation on execution in terms of Clause 7 of the Transitional and Consequential Provisions of Sixth Schedule of the Constitution, which requires that all law predating the Constitution to be interpreted with the “alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with the Constitution.” With respect, the decision of the Court of Appeal in M’Ikiara M’Rinkanya and Another v Gilbert Kabeere M’Mbijiwe, supra, related to the period before the Constitution of Kenya 2010.Peculiar circumstances
17.This matter has had peculiar circumstances of loss of file and a comedy of errors on which the court, (F Gikonyo J) addressed in its ruling dated June 6, 2016 at paragraph 10 acknowledging that the applicant was unable to execute his judgment due to the wrong description of the parties when it noted as follows:
18.Taking the unprecedented circumstances of this case into consideration, to forestall an injustice and in dispensing substantive justice to the parties herein, this court will exercise its discretion and extend the time for execution of the valid judgment of the court awarding damages for personal injury to the plaintiff/applicant.
19.Accordingly, for the reasons set out above, the court allows the applicant’s application dated September 3, 2018.
20.As a consequential order, there shall a stay of execution for thirty (30) days to permit the defendant to pay to the plaintiff the decretal sum herein before execution may be applied for.
21.The costs will be in the cause.Order accordingly.