|Civil Appeal 53 of 2006
|MATHEW OYOO OGONDO v PIUS MUKANZI (suing as the Administrator of the estate of Desterio Mukanzi and Florence K. Imbenzi)
|14 Apr 2011
|High Court at Kakamega
|MATHEW OYOO OGONDO v PIUS MUKANZI (suing as the Administrator of the estate of Desterio Mukanzi and Florence K. Imbenzi)  eKLR
|The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 53 OF 2006
V E R S U S
PIUS MUKANZI (suing as the Administrator of the estate of Desterio..........RESPONDENT
J U D G M E N T
i) The learned trial magistrate erred in failing to hold that the respondent’s suit was barred by limitation of Actions Act Cap 22 Laws of Kenya.
2. There were two other grounds relating to quantum of damages but they were abandoned, at the hearing of the Appeal.
4. In his judgment delivered on 14.6.2006, M.N. Gicheru Esq., Senior Principal Magistrate found that the claim had been proved on a balance and in awarding damages he rendered himself as follows;
5. On ground (i) and (ii) of the Appeal, it is submitted on behalf of the Respondent that although the suit before the lower court may have been filed out of time, leave to do so was granted and so the issue is moot. That in fact, there was sufficient evidence put before the court to show that such leave was obtained and the Appellant’s appeal was therefore without substance and should be dismissed with costs.
“S. 4 (2) – An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.
7. In the instant case, the accident occurred on 24.1.1995 but the suit was filed on 12.10.1998 and therefore it was out of time by 8 months and 16 days. From the judgment, the learned magistrate was alive to the issue because he stated partly as follows;
8. I have also taken time to look at P.Exh.13, it is an Application by way of Originating Summons under Order XXXVI Rule 3(1) of the Civil Procedure Rules seeking orders that “the application be and is hereby granted leave to file intended suit herein out of time.” The summons was undated but was filed (from the court stamp on it) on 22.7.1998. There is no record anywhere that the said summons was ever heard and there is no specific order “for leave to file intended suit …out of time” as was prayed. Can the mere filing of an application for certain orders be deemed to be grant of such orders? Of course not. Orders are granted upon parties being heard and an order is extracted upon being granted and not upon an application being filed. The decision of the Court of Appeal in Divecon Ltd. Vs Samani C.A. 142/1997 (U.R.) was in tandem with the present suit because in it, the Court of Appeal held that where a suit was filed out of time, it was not open to the trial court to condone a breach of statute in that regard.
10. In submissions before me, the advocate for the Respondent has made the following point;
While giving his testimony, the Respondent was categorical that he sought and obtained leave to file suit out of time. He gave particulars of the case in which leave was sought and obtained. The same was produced as Exh. No.13. If the Appellant was doubting that leave was so granted the easiest option available to him would have been to call evidence through production of the Court file in respect of Exh. No.13 and demonstrate that no such leave was obtained. He opted not do so. He cannot be allowed to contend that no such leave was granted. He should be stopped from raising the issue through submissions.”
12. Lastly, one may sympathize with a party who has been waiting for all these years (from 1995 to 2011) to get some form of justice in an accident that left the children of the deceased persons as orphans at an instance. However, the sword of justice is often times quite merciless and this case is proof of such fact.
14. Both grounds of appeal as filed are clothed with merit and the Appeal must be allowed with the consequence that the suit before the subordinate court is struck off and the judgment and decree thereby set aside.
15. The nature of the case necessitates that each party should bear its costs of the suit and of the appeal.
16. Orders accordingly.
J U D G E