David Stephen Gatune v Headmaster,Nairobi Technical High School & another [1986] KECA 97 (KLR)
The bottom line
#Kenya's Court of Appeal let a blinded teacher sue years late because the State kept him negotiating instead of filing suit.
What this practically means
#Executive summary
#Key legal issues
#Date of knowledge of material facts of a decisive character under section 27(2)
The appellant's knowledge of the decisive fact (total loss of eyesight) was fixed at 2nd January 1977, when he received the medical report, so time ran from that date and the action should have been brought by 2nd January 1980
The medical report dated 6th August 1976 stated 100% loss of eyesight, but there was no evidence it was sent to or read out to the appellant. The respondents filed no replying affidavit to challenge his sworn evidence that he learned of it only in 1977. The court therefore accepted his evidence, and in the absence of a stated month and date, took the earliest plausible date, 2nd January 1977, as the start of the limitation period.
Effect of negotiations with the Attorney-General on the limitation defence
Good-faith negotiations with the Attorney-General from 1977 to 1981 constituted a disability or at least reasonable conduct such that the respondents would be barred from setting up the limitation defence
The court held the Attorney-General occupies a crucial role in litigation and protracted negotiations are taken seriously, including by educated claimants. Continuing negotiations reasonably implied an appreciation by the Attorney-General of the substance of the claim and invited the claimant to delay court proceedings. Having caused the claimant to continue negotiating without advising him to file, the State could not now rely on the limitation bar.
Whether the trial judge erred in construing 'disability' under section 22
The trial judge erred by treating the material facts too narrowly; the appellant was under a disability until he knew the contents of the medical report and while negotiating with the Attorney-General
The majority found that knowledge of the injury alone from May 1970 did not constitute the material facts of the cause of action, because the decisive fact of total blindness was established only by the later medical report. Reasonable pursuit of medical treatment before obtaining legal advice was not a lapse, and the failure to consider the negotiations was prejudicial error.
Legal principles established
#- Knowledge of the material fact of the nature of a personal injury, including facts of a decisive character, may be fixed at the date the plaintiff actually received the medical report establishing the injury where uncontroverted by replying affidavit
- Protracted negotiations with the Attorney-General for payment of damages are not to be taken lightly and a claimant negotiating in good faith may be held to have been reasonably delayed and under a disability for purposes of extending limitation
- Where the Attorney-General's continued negotiations caused a claimant to delay filing suit, it is unfair to penalise the claimant by upholding a limitation defence
Court orders
#- 1.The appeal was allowed
- 2.The order of the High Court dismissing the application was set aside
- 3.Leave was granted to the appellant to file his case against the respondents at any time before the end of six years from the 16th October 1981 (section 22 of the Act)
- 4.No order as to costs of the appeal
- On appeal from
- High Court at Nakuru
- null
- Jurisdiction invoked
- First appeal to the Court of Appeal against an interlocutory order of the High Court (appeal against dismissal of a section 28 Limitation of Actions Act application)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "David Stephen Gatune v Headmaster,Nairobi Technical High School & another [1986] KECA 97 (KLR)", Case Analysis (1986). Civil Appeal (from High Court at Nakuru). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1986/97/eng@1986-04-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.