REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)

STANLEY KIGARA KAGOMBE..................................... APPLICANT

VERSUS

MICHAEL MAINA & ANOTHER............................... RESPONDENT

RULING

This is the defendant's (Judgment debtor) applicationdated 15.10.96 for the main order that the Ruling made by thiscourt on 13.10.93 admitting the plaintiffs suit out of thelimitation period be set aside varied reviewed or otherwisedischarged. The application is brought under Order XLIV rule 1 of the Civil Procedure Rules. The brief background to thisapplication is as follows:

Plaintiff  filed  a suit on 3.8.93  against the twodefendants claiming damages for personal injuries he sustainedon  10.11.91  as  a  result  of  alleged  negligence  by  thedefendants.  On the same day he filed a chamber summonsapparently under S. 27 of the limitation of Actions Act for theextension of the limitation period on the ground that S. 109 ofthe Kenya Posts and Telecommunications Act  (Cap 411).  Thelimitation period was 12 months.  The application was madeexparte by Chamber Summons as authorised by order XXXVI rule3(2) of civil procedure Rules.  After hearing the applicationreach the conclusion that the limitation period in S. 109 ofCap 411 did not prima facie apply to the plaintiffs action asit is the limitation period of 3 years prescribed by S. 4(2) ofthe limitation of Action which applies.  I further concludedthat plaintiff has satisfied the provisions of S. 27 of thelimitation of Action Act and extended the limitation period incase 1 was wrong on the construction of S. 109 of cap 411.

The defendants filed a defence on  12.11.93  (lateramended on 6.1.94 and in paragraph 3 of the defence averred.The defendants state that the suit istime barred by section 109 of the KenyaPosts and Telecommunications corporation

Act Chapter 411 Laws ofKenya and hence should be dismissedwith costs".

On the 20.11.94 the defendants filed a preliminaryobjection to suit on the ground that it was time barred;incompetent bad in law and misconceived I am informed whichfact I cannot verify from the record that Ringera J. ruled thatthe issue of limitation be decided in the main suit.

However the suit was heard by Ringera J. on the meritsMr.  Billing  has  appeared  for  the  defendants  all  throughsubmitted  at  the  conclusion  of  the  trial  that it  is  thelimitation period of 12 months in S.  109 of Cap 411 whichapplied and not the 3 years general limitation period and inany case the extension of the limitation period by this courtwas self defeating. He contended that there was nothingmaterial outside the knowledge of the plaintiff to warrant theextension of limitation period.  The defendants counselreferred to several authorities to show that the limitationperiod of 12 months and not the 3 years applied Ringera J. in afull judgment analysed the several decisions referred to thecourt and concluded thus:

(i)  On the facts of the case, theplaintiffs suit was  not  at inception barred by S. 109 of cap 411

(ii) Had he found that the limitation periodin S. 109 of cap 411 protected thedefendants then he would haveunhesitatingly found that the suit wasstatute barred and was not saved by anyvalid order of extension of time.

Upon that findings of the law Ringera J. then proceeded to award damages to the plaintiff for the personal injuries he had sustained as a result of the defendantsnegligence.

The defendants were not satisfied.  They filed CivilAppeal Ho.  109 - of 1996 against the finding of the court thatthe plaintiff’s suit was not barred by S. 109 of cap 411.  Theyasked the court of Appeal to find that S.  109 of Cap 411applies and therefore the suit was time barred.  The plaintiffcross-appealed. Although i have not seen the plaintiffscross-Appeal, it is clear from the Judgment of the court ofAppeal that the cross appeal was on the finding that there was  valid order extending the limitation period and also on thequantum of damages.

The Court of Appeal was of the view that the firstquestion for determination in the appeal was whether anextension of the limitation period was obtained and if so itslegal effect. After analyzing the circumstances under whichthe order extending the limitation period was made the courtof Appeal without deciding whether the order was erroneous ornot found it to  have been regularly made and concluded.

...... the order  ..... granting an

extension stands and is binding on theparties.  But that means that the orderis valid until it has been effectivelyset aside. And such an order where theobjection to it is of the characterhere set up the appellants, can only beso  set  aside  in  an  action  orproceedings directed to that specialend. The applicant’s complaint that therespondent’s suit was time barred cannotsucceed the provisions of S.  109 ofKenya Posts and Telecommunications,notwithstanding.   In   thesecircumstances it is not necessary forus to determine.  If S. 109 of the saidAct applies to the facts of this case".

The Court of Appeal then proceeded to consider theplaintiffs cross - appeal on quantam and damages and allowedthe cross - appeal on quantum in respect of on head ofdamages. In the end, the Court of Appeal dismissed the appealwith costs, increased the award of damages in respect of oneitem of damages and ordered that the appellants to pay therespondents on half of the costs of the cross - appeal.

The effect of the decision of the Court of Appeal isexpressly that the Appeal on limitation was discussed withcosts and the cross appeal on issue of extension of limitationperiod allowed.  But from the substance of the Judgment, theappeal as to the limitation period in S. 109 of cap 411 was notdecided on merit.  The Appeal was dismissed because there was aregular Order extending the limitation period which made itunnecessary for the Court of Appeal to consider whether or notthe limitation period in S. 109 of cap 411 applied to the factsof the case.  The result of the decision of the Court of Appealwas to leave the decision of Ringera J that limitation periodin S. 109 of cap 411 did not apply and that suit was not timebarred at inception intact.

In the above back ground, the applicants counselcontends that the words in the Judgment of the Court of Appeal that I have underlined gives the applicants the "leg" to file areview application to challenge the exparte order extending the limitation period.  The respondent opposes the application on the grounds inter alia; that the application is res judicataby virtue of the orders of the court of Appeal and Ringera J.and also on the ground that the court is functus officio.  Therespondent prays that the application be dismissed and fororder for the release of part of the decretal sura invested in ajoint account.

For the three grounds of review set out in order XLIVrule 1 (i) the applicant is relying on the ground of " anyother sufficient cause". It is contended that there were threerelevant decisions which were not brought to the attention ofthe court when the application for extension of limitationperiod was made.  Those decisions are: -

Clarke v St Hellens Borough Council - (1916) KB 17Bradford Corp. v Myers HG (1916) AC 242Griffiths v Smith - (1941) AC 170 Edwards v Metropolitan Water Board (1921)1BK 291

Those decision relate to the application of theEnglish Public Authorities Protection Act 1893. They would berelevant on the issue whether or not S. 109 of cap 411 applies to the facts of the case.  By the order of 13.10.93, I heldthat the limitation period in S. 109 of cap 411 did not primafacie apply to the facts of the case.  The same issue was takenat the trial before Ringera J. who made the same finding.  AS Ihave en-devoured to show the decision of Ringera J remainsintact despite the dismissal of the Appeal.  It is apparentfrom the record that Ringera J. considered all the authoritiesI have been referred to before he came to his conclusion.  Theauthorities I have been referred to would have relate to theorder extending the limitation period under S.  27 of thelimitation of the Actions Act.  They do not relate to thatorder and so I find that the applicants have not establishedthat they are any sufficient reason for reviewing the order of13.10.93

Moreover it is contended that the review applicationis incompetent and bad in law.  By order XLIV Rule l(i) (a) and(b) the remedy of review arise where there is a right of appealagainst the decree or order but not legal appeal have beenpreferred or where the civil procedure Act or Rules do not givea right of Appeal against the decree or order.  It appears thatthe applicant seeks to have the order extending the limitationperiod set aside by way of review on the ground that it waserroneous. Ringera J found the order extending the limitationperiod  to be invalid (thus  erroneous).  The Respondent appealed against that finding.  The Court of Appealfound the order extending the limitation period to be regularand binding until it is set aside so, an appeal was preferredby respondent against the order sought to be reviewed and thecourt of Appeal has pronounced its judgment on the order.  Theapplicant must have defended the order of Ringera J. and musthave attempted to convince the court of Appeal that the orderextending the limitation period was invalid.  Respondent failedto convince the Court of Appeal.  The decision of the court ofappeal finally determined the suit and all matters in disputein the suit.  So in my view the matter raised in the application is res judicata.

The application to re-open the issue of limitationwhen no suit is pending having been finally determined by the Court of Appeal is incompetent and an abuse of the process ofthe court.

Nor, do I think that an order extending the limitationperiod can be challenged by a review application under OrderXLIV Rule 1 of the Civil Procedure Rules. The court of Appealdecided that such an order can be set aside in an action orproceedings directed to that special end. There is an earlierdecision of the Kenya Court of Appeal - Yunes K. Oruta andAnother versus Samuel Moses Nyamata - Civil Appeal No 96 of 1984 (Unreported).  That was an appeal from the High CourtOrder dismissing an application by way of preliminary objectionto strike a suit on the ground that exparte leave to file thesuit outside the limitation period was erroneously given by theHigh Court.  The court of Appeal persuaded by the decision ofEnglish court of Appeal in Cozens versus North Devon HospitalManagement committee and another (1966) 2 ALL ER 799 dismissedthe appeal holding that the exparte order granting leave canonly be challenged in the trial itself and not by a preliminaryobjection.

However in Goodchild v Great timber Co. Ltd (1968) Q B 372, theEnglish Court of Appeal allowed a defendant to have issuewhether the plaintiffs medical condition he claimed he was notaware of was a decisive character to be tried as a preliminaryissue without evidence after the pleadings in the action hadclosed in Re Pickles v National Coal Board (intended action)1968 1 WLR 997 Lord Deaning M.R was to say at page 1001 D-

“The grant of leave exparte is onlyprovisional. The defendants will havean opportunity later to argue these points if they so please, either onpreliminary issue or on a full trial"

The applicant in this case challenged the grant ofexparte leave as a preliminary point before trial but issue wasdealt with at the trial.  That was in accordance with thedecision in Yunes K. Oruta case and the English practice.  TheCourt of Appeal as I have indicated before held that the ordergranting exparte leave was binding unless it is set aside by an  action or proceedings directed to that special end.  To thatextent the decision of the court of Appeal in Michael Maina andKenya Posts and Telecommunication Corporation versus StanleyKAGOMBE C.A No. 109 of 1996 is not only inconsistent with itsdecision in Yunes K. Oruta but also revolutionary.  So, if haveto follow the decision in Yunes K.  Oruta and the EnglishPractice, the applicant cannot challenge the grant of leave bya review application He can only do that in trial or by apreliminary objection before trial.  To that extent the  application is incompetent.

The Court of Appeal decision in Michael Maina andKenya Posts and Telecommunication Corporation versus StanleyKagombe may not be necessarily wrong. The Court of Appealwould not logically understand how a regular order grantingleave would be rendered invalid in a judgment after the trialunless it had been set aside through competent proceedingsbefore the trial. More incompetent question as to what is thepurpose of the leave granted exparte.  The English limitation

Act 1963 (found in Halsbury statutes of England 2^nd Editionpage 614) which amends the 1939 limitation Act does no provideeither in S. 1 or S. 2 that the leave granted is provisional orthat leave so granted can be challenged in the defence or attrial of the action or in preliminary proceedings in the suit.The English law on the effect of leave is infact Judge-made lawbased on how the courts have interpreted the limitation Act 1963.

Salmon L.J in the dissenting judgment in Cozens versusNorth Devon Hospital management committee case (supra) said atpage 805 B

The leave in my judgment is leave toset up facts in the action which ifestablished will by virtue of the Actof 1963 knock defence under S. 2(1) ofthe Act of 1939 (which would otherwisebe available from under the defendantsfeet".

And the Thompson J. Sitting in the High Court in Conzens vNorth Devon Hospital Management Committee case (1966)2 ALL ER278 said at page 280 A:-

“The leave for the purposes of Act of1963 is, in my judgment leave to the plaintiff to advance in the action thecontention that he should not belimited by the Act of 1939 and that hiscomplaint should not be restricted tomatters falling within the three yearsprior to the issue of the court".

The English limitation Act 1963 condenses what is S.27, 28. 29, 30 of the Kenya Act, into section 1 and 2 but thetwo acts are similar except that S. 2(4) of the English Actgives a right to an applicant whose application for leave hasbeen dismissed.  It is clear from S. 28(2) and 28(3) of theKenya Act and S. 2(2) and 2(3) of English Act 1963 that beforecourt grants leave it has to be satisfied that there isevidence to satisfied all the conditions in S. 27 of the KenyaAct or in section 1 of English Act of 1963 so that all theconditions are considered later in the action.  According tothe wording of the sections court "shall grant leave only ifthe evidence adduced satisfies the conditions. The court hasno discretion.  If the conditions are satisfied leave isgranted.  If they are not satisfied leave is refused.

The Kenya Act has a Marginal note to section 27(1)which reads:-

Extension of limitation period in casesof ignorance of material facts in action for negligence etc"

And By S. 27(1)

Section 4(2) does not afford a defenceto an action founded on tort where..."

S. 1 of the English 1963 Act has the preamble "Extension oftime-limit for certain actions and S. 1(1) uses stronger words"Shall not afford any defence"

Both Acts extend the limitation periods - in the Kenya case thelimitation period of 3 years in S. 4(2) of the Act and in theEnglish case in S. 2(1) of limitation Act 1939 in the Kenyacase, it is the limitation Act period in S. 4(2) which enactedthe limitation period of 3 years for actions founded on tortotherwise the defence of limitation would not be available to adefendant.  It is the same statute which says in S. 27(1) thatthe 3 years limitation period is not a defence if certainconditions are fulfiled.  The same statute makes provision inS. 28(1) for an application for leave of Court for purposes ofS.  27 to be made to court and the same statute mandatoryrequires the court to give leave if the specified conditionsare in the judgment of the court, fulfilled by evidence.  The leave given for purposes of S. 27 is by the marginal note forextension of the limitation period from the 3 years in S. 4(2)to the period of  3 years should not apply and is infactousted.  The limitation Act is not a procedural Act but asubstantive Law Act.  There is nothing irregular or illogicalin the legislature setting limitation period of 3 years foractions founded on tort and singling out one tort whereplaintiff intends to claim damages for personal injuries andgiving power to the court to extend the limitation periodthrough an application on certain strict onerous conditions.It appears to me that legislature gave the court the statutoryduty of extending the limitation period if an application ismade by the would be plaintiff and if the court is satisfiedthat all conditions in section 27 inclusive of prove that thefacts  constituting  the  cause  of  action  were  outside  hisknowledge and were decisive character (See S.  28(3)  and S.30(2) A plaintiff does not require leave to file an action evenif it is stale.  IN any case there are other cases like thecase  of  disability  (S.22)  and  fraud  (S.26)  where  thelegislature itself extended the limitation period without firstrequiring  that  leave  first  be  granted  by  the  court.  Inparticular By S. 22 (v)(b) of the Act, in action for courtwhere plaintiff is under disability the section has effect asif the words "six years".  By S. 26, of the Act, in case offraud, the period of limitation does not begin to run until the plaintiff has discovered the fraud.  In either of the two cases the plaintiffis not required to apply for leave of the court.  All he needs to do is to plead and prove the facts entitling him to the extension of the limitation period.  It should be noted that itis only in the case where plaintiff claims damages for personal injuries for negligence etc that Act provides for applicationfor leave of the court  If the purpose of the leave was merelyto allow the plaintiff to set up facts which would defeat thelimitation period,  the legislature would have done that byenacting section 27 in similar terms as S. 22 and 26 of the Actthereby avoiding the unnecessary costs of making an applicationfor leave before the Court saving the costs of having to raiseand prove the same matters in the suit.

In my respectful view the exparte leave granted by the court upon an application statutorily and  finally extends the limitation period and ousts the limitation  period of 3 years inS 4(2) of the Act—

For those reasons, I would respectfully agree with thedecision of the Court of Appeal in Michael Maina and KenyaPosts and Telecommunications Corporation versus Stanley Kagombe C.A No.  109 of 1996 that the exparte order extending thelimitation period is binding on the parties and the court trying the action unless it has first been set aside.  That finding is another reason why the application is incompetent.

There is no doubt that when the opportunity arisesagain the court of Appeal will decide which of its twoinconsistent decision correctly interprets the law correctly. 

Lastly the purpose of the application is notexplained. The applicant will not achieve anything by havingthe exparte order extending the limitation period set aside asthe Judgment of Ringera J that the action was not at theinception barred by S.109 of cap 441 still stands. Thejudgment in favour of the plaintiff is still valid inspite ofthe exparte order extending the limitation periods The courtwould be acting in futility if it sets aside the exparte order.

For those reasons, i dismiss the application with

Costs and order that the decretal sum deposited in the bank pursuant to the order of Ringera J dated 27.4.95 be released to J M/S V.  E.  Muguku Muriu and Company advocates by the bank forthwith-

E. M. Githinji

Judge

14.11.96

Mr. Billing and Mr. Muguku - present