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Court of AppealPartially AllowedCivil Appeal 192 of 1996· [1997] KECA 77 (KLR)

THURANIRA KARAURI v AGNES NCHECHE [1997] KECA 77 (KLR)

Court of Appeal of Kenya
16 May 1997
RKR. O. KwachGPG. S. PallSBS. E. O. Bosire
1,142 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out a six-year-late injury claim because the plaintiff couldn't prove a court order allowing it, showing delay can be fatal.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Kwach, Pall and Bosire, JJ.A) allowed the defendant's appeal against a High Court at Meru judgment (Etyang, J.) awarding the plaintiff damages for personal injuries suffered in a 1988 accident involving an Isuzu lorry allegedly owned by the defendant. The suit, filed in November 1994, was prima facie time-barred under section 4(2) of the Limitation of Actions Act. The plaintiff pleaded that leave to sue out of time had been granted on 13th July 1995, but produced no such order and it was never served on the defendant. Holding that limitation goes to jurisdiction, the court found the trial judge erred in proceeding without determining the point; the defence of limitation stood and the plaintiff should have been non-suited forever, rendering the suit incompetent. The court further found the plaintiff had not proved the defendant's ownership of the vehicle, a police abstract being insufficient and a Registrar of Motor Vehicles' certificate of search being required. The medical report of Dr. Maina Ruga was wrongly admitted in breach of section 35 of the Evidence Act, its maker not being called, and it had little probative value given the plaintiff's concealed prior 1983 accident affecting the same leg. The award for loss of earnings, being unpleaded special damage, was also set aside. The court set aside the judgment and decree, struck out the suit, and awarded the defendant costs of the suit and of the appeal.

Key legal issues

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01

Limitation as a jurisdictional bar

Holding

The suit was time-barred under section 4(2) of the Limitation of Actions Act; no order extending time was produced or served, so the defence of limitation stood and the suit was incompetent and should be struck out.

Reasoning

The plaintiff pleaded that leave to file out of time had been granted on 13th July 1995 but produced no such order at trial. The court held the extension order, if obtained, should have been served with the plaint, and failing that the plaintiff's advocate bore the duty of proving it as part of her case. Because limitation goes to jurisdiction, the trial judge erred in proceeding without determining the point, and the plaintiff should have been non-suited forever.

p. 2
02

Proof of ownership of the motor vehicle

Holding

The plaintiff failed to prove the defendant owned the lorry; a police abstract stating ownership is not sufficient proof.

Reasoning

The defendant denied ownership, placing the burden on the plaintiff. The proper proof is a certificate of search signed by the Registrar of Motor Vehicles showing the registered owner. Counsel's submission that the police abstract was sufficient was rejected as not a serious submission. No such certificate was placed before the trial judge, so ownership was never established.

p. 2
03

Admissibility of the medical report under section 35 of the Evidence Act

Holding

The medical report was wrongly admitted because it was produced by the plaintiff herself without consent and its maker, Dr. Ruga, was not called.

Reasoning

Section 35 of the Evidence Act governs the admission of such reports and was breached. The report also had little probative value: the doctor expressed an opinion on injuries sustained six years earlier on a patient he first saw in November 1994, and the plaintiff had concealed a prior 1983 accident affecting the same leg, making it impossible to attribute the injuries to the accident lorry. The award for pain, suffering and loss of amenities was therefore set aside.

p. 2
04

Pleading and proof of loss of earnings

Holding

The award of shs. 324,000 for loss of earnings was set aside because the claim was never pleaded and was unsupported by documentary evidence.

Reasoning

Loss of earnings is special damage which must be pleaded and proved. The claim was not pleaded, so evidence that the plaintiff earned shs. 50,000 per month from a kiosk was legally irrelevant; even documentary evidence would have been of no practical value. There was no legal basis for the award and it was set aside.

p. 2

Legal principles established

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  • Limitation goes to jurisdiction and a time-barred suit is incompetent and must be struck out.
  • An order extending time under the Limitation of Actions Act must be served on the defendant with the plaint, and if not, the plaintiff's advocate must prove its existence at trial.
  • Ownership of a motor vehicle must be proved by a certificate of search signed by the Registrar of Motor Vehicles; a police abstract is insufficient.
  • A medical report may only be admitted under section 35 of the Evidence Act if the maker is not called and the statutory conditions are met; otherwise the maker must be called to produce it.
  • Loss of earnings is special damage which must be both pleaded and proved.

Court orders

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  1. 1.The judgment and decree of the superior court set aside
  2. 2.An order striking out the plaintiff's suit substituted, with costs to the defendant
  3. 3.The defendant awarded the costs of the appeal
On appeal from
High Court of Kenya at Meru
H.C.C.C. No. 146 of 1995
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (appeal from the Judgment & Decree of the High Court of Kenya at Meru)

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, "THURANIRA KARAURI v AGNES NCHECHE [1997] KECA 77 (KLR)", Case Analysis (1997). Civil Appeal 192 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/77/eng@1997-05-16

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