Oruta & Another v Nyamato
The bottom line
#Kenya's Court of Appeal ruled that once a court extends time to sue out of time, the defendant must fight the case at trial, not strike it out early.
What this practically means
#Executive summary
#Key legal issues
#Whether a defendant can oppose or set aside an ex-parte extension of time under section 27 before trial
No. The application is meant to be unopposed and the defendant's remedy is to raise limitation as an issue at trial.
Sections 27 and 28 of the Limitation of Actions Act and Order XXXVI rule 3C require the application to be made ex-parte; there is no provision for the defendant to be heard or to set the order aside. The court adopted the English Cozens decision, holding that allowing a pre-trial discharge application would render the ex-parte provision nugatory and contradict legislative intent.
Whether the Judge who granted the ex-parte order erred
No. The Judge merely complied with section 27 by reading the affidavit and believing the evidence deponed.
The ex-parte procedure requires the Judge to form a prima facie view on the plaintiff's evidence, following Cozens and Hunter v Tarness. The affidavit detailed ignorance of the driver's identity, incomplete police investigations, ongoing treatment and insurance company promises, satisfying the requirements.
Whether striking out the suit on limitation as a preliminary point is encouraged
No. The Limitation of Actions Act does not encourage striking out a personal injuries claim where ex-parte leave has been granted.
The legislature intended that claims for personal injuries based on negligence, nuisance or breach of duty should not be defeated by a limitation defence; the ex-parte leave mechanism exists precisely to prevent such a defence, and the limitation question is reserved for trial on the evidence.
Legal principles established
#- An ex-parte order granting leave under section 27 of the Limitation of Actions Act to extend time can only be challenged at the trial, not by a preliminary application to set it aside.
- The limitation issue, where leave has been granted ex-parte, is to be decided at trial on the evidence adduced, not as a preliminary point.
Court orders
#- 1.The appeal is dismissed with costs
- On appeal from
- High Court at Nairobi
- Civil Suit No 4335 of 1983 (ruling on preliminary objection)
- Jurisdiction invoked
- First appellate jurisdiction over a High Court ruling (Civil Appeal No 96 of 1984)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bonfas Onyango Akoko & 2 others v Joseph Twala Ayot (sued as 1st Defendant and on behalf of the Estate of Odero Delewa)not_applicable30 Sept 2026followed
- Okonjo (Suing as the administrator of the Estate of Michael Okonjo (Deceased) & another v Agola & 6 others[2023] KEELC 18259 (KLR)19 Jun 2023followed
- Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others[2023] KEELC 16692 (KLR)30 Mar 2023followed
Cite this brief
#Cite this brief
Caselaw, "Oruta & Another v Nyamato", Case Analysis (1988). Civil Appeal No 96 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/142/eng@1988-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.