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Court of AppealDismissedCivil Appeal No. 10 of 1988

Kinyatti v Attorney-General

Court of Appeal
13 July 1988
4,524 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that a lawsuit filed too late fails, no matter how strong the case, and courts can strike it out without a full hearing.

What this practically means

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Executive summary

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The appellant, a university lecturer convicted and sentenced to six years' imprisonment in October 1982, sued the Attorney-General seeking a declaration that the Commissioner of Prisons' decision depriving him of one-third remission of sentence was arbitrary and a nullity, together with restoration of the remission. The High Court (Gicheru J), on a preliminary point raised before evidence, struck out paragraphs 5 and 6 of the reply to the amended defence as an impermissible departure from the pleadings and struck out the whole plaint as time-barred under the Public Authorities Limitation Act. The Court of Appeal unanimously dismissed the appeal. Gachuhi JA, in the leading judgment, held that the reply's allegation that the cause of action accrued on the failure to release the appellant on October 18, 1986 was inconsistent with the plaint, which complained of the Commissioner's letter of February 1983 depriving him of remission; the 'new assign' doctrine did not save it. The cause of action in tort accrued when the letter was communicated, since the legal damage was the termination of the intangible right to remission, and the suit filed in April 1987 was out of time. Apaloo JA, in a separate concurring judgment, analysed the cause of action along the same lines, holding that the appellant confused the right violated in February 1983 with the consequence manifested in October 1986, and observed that limitation is 'a tyrant's axe' unconcerned with merits. Masime JA agreed. The trial judge's ruling was affirmed in its entirety, with costs to the respondent for one counsel only.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether paragraphs 5 and 6 of the reply to the amended defence were an impermissible departure from the pleadings
  2. 2.When the appellant's cause of action accrued - on the letter depriving him of remission (February 1983) or on the failure to release him (October 1986)
  3. 3.Whether the suit was time-barred under the Public Authorities Limitation Act and whether the trial judge was right to allow the preliminary point and strike out the plaint without hearing evidence

Key legal issues

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01

Departure in pleadings

Holding

Paragraphs 5 and 6 of the reply, alleging a new cause of action based on failure to release, were inconsistent with the plaint which complained of the letter depriving remission, and were rightly struck out.

Reasoning

The plaint complained of the Commissioner's letter of February 1983 depriving the plaintiff of remission. The reply instead complained of the failure to release him on October 18, 1986, which was never pleaded in the plaint. Order VI rule 6(1) prohibits raising a new ground of claim inconsistent with a previous pleading; the 'new assign' doctrine does not assist because the pleading system requires precision and amendment rather than departure.

p. 3
02

Accrual of cause of action in tort

Holding

The cause of action accrued on February 16, 1983, when the letter depriving the plaintiff of remission was communicated to him, not on October 18, 1986 when he was not released.

Reasoning

The legal damage was the termination of the intangible right to two years' remission, sustained when the deprivation was notified. The non-release was merely the consequence of that deprivation. Had suit been filed within time and succeeded, the remission would have been restored and the plaintiff eligible for release in October 1986.

p. 6
03

Limitation and striking out on a preliminary point

Holding

The suit, filed April 3, 1987, was time-barred under section 3 of the Public Authorities Limitation Act, and the trial judge was within his right to allow the preliminary point and strike out the plaint without hearing evidence.

Reasoning

Since the cause of action accrued in February 1983, the twelve-month limitation period expired long before the suit was filed. The plaintiff slept on his rights. The preliminary point of law could properly be determined on the pleadings without evidence, as the facts of the letter and its communication were undisputed.

p. 4

Legal principles established

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  • A party may not in any pleading raise a new ground of claim inconsistent with a previous pleading; the remedy for such a departure is striking out the offending paragraphs.
  • In tort, the cause of action accrues when the legal injury is inflicted, not when the consequences of that injury later manifest.
  • A statute of limitation is not concerned with merits; once it has run, a party is entitled to insist on strict legal rights.

Court orders

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  1. 1.Appeal dismissed with costs
  2. 2.Costs awarded for one counsel only

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Delivered the leading judgment: paragraphs 5 and 6 of the reply were a departure from the pleadings and were rightly struck out; the cause of action accrued on the date of the letter depriving remission (February 1983), so the suit was time-barred and the trial judge was right to strike out the plaint.

In my view, paragraphs 5 and 6 of the reply to the amended defence were a departure from the pleadings and could not be accepted as new assign and was rightly struck out.p. 4
AP
concurring

Wrote the judgment

Wrote separately: the reply raised a ground of claim wholly different from the plaint, violating Order 6 rule 6(1); the legal damage was the termination of the right to remission on February 16, 1983, not its consequence in October 1986; appeal must be dismissed.

My conclusion therefore is, that the appellant’s cause of action accrued on February 16, 1983 and that the learned trial judge was right in so holding.p. 6
MA
concurring

Wrote the judgment

Agreed with both judgments: the loss of remission constituted the cause of action, which arose when the appellant was told of it in February 1983; the learned judge did not err in striking out the paragraphs and the plaint.

It was surely the “loss” of remission that constituted the cause of action of the appellant; that being so it is clear that the cause of action arose when the appellant was told of it by the Commissioner of Prisons on 18th February 1983.p. 6
On appeal from
High Court
Jurisdiction invoked
First appellate jurisdiction over an appeal from a ruling of the High Court at Nairobi

Relief refused

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Costs for two counsel

The case was not so complicated as to warrant two counsel

p. 4

Costs

Appeal dismissed with costs to the respondent, costs for one counsel only.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

As Apaloo and Masime JJA so agree, the appeal is dismissed with costs.
p. 4Final orders - dismissal of appeal
In my view, paragraphs 5 and 6 of the reply to the amended defence were a departure from the pleadings and could not be accepted as new assign and was rightly struck out.
p. 4Departure in pleadings
To say that the damage was sustained on October 1986 is to confuse the intangible right which was allegedly violated in February 1983, with the consequence of that violation which occurred much later.
p. 6Accrual of cause of action
But the statute of limitation is not concerned with merits. It has been described as a tyrant’s axe.
p. 6Nature of limitation statutes
The learned trial judge was within his right to allow the preliminary point to be raised. He was also right in striking out the plaint.
p. 4Preliminary point on limitation

Issues in the judgment

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minor

Date the letter was shown to the plaintiff stated inconsistently

minor

Masime JA gives the plaint filing date as 1988, contradicting April 3, 1987 elsewhere

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kinyatti v Attorney-General", Case Analysis (1988). Civil Appeal No. 10 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/136/eng@1988-07-13

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.