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Court of AppealPartially AllowedCivil Appeal No. 192 of 1996· [1997] KECA 385 (KLR)

Thuranira Karauri v Agnes Ncheche

Court of Appeal of Kenya
16 May 1997
RKR.O. KwachGPG.S. PallSBS.E.O. Bosire
1,134 words in judgment
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The bottom line

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Kenya's Court of Appeal threw out an entire injury claim because the plaintiff couldn't prove an extension of time, vehicle ownership, or properly admitted evidence.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Kwach, Pall, JJ.A. and Bosire, Ag.J.A.) allowed the defendant's appeal against a High Court judgment at Meru (Etyang, J.) which had awarded the plaintiff damages for personal injuries sustained 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 file out of time had been granted on 13th July 1995, but produced no such order at trial. The Court held that limitation goes to jurisdiction, that an extension order should have been served with the plaint, and that failing service the plaintiff's advocate had to prove its existence at trial. The limitation defence therefore stood and the suit was incompetent. The Court further found that ownership of the lorry was not proved, a police abstract being insufficient; a certificate of search from the Registrar of Motor Vehicles was required. The medical report of Dr. Maina Ruga was wrongly admitted, having been produced by the plaintiff herself contrary to section 35 of the Evidence Act, and was of little probative value given the concealed 1983 accident affecting the same leg. The award for loss of earnings failed because it was unpleaded special damage. 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 because no order extending time was produced or proved; the suit was incompetent and should have been 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 order, if obtained, should have been served with the plaint, and failing that the plaintiff's advocate bore the duty of proving it. Since this was not done, the limitation defence stood and the plaintiff should have been nonsuited 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, so the burden lay on the plaintiff. The proper evidence was a certificate of search signed by the Registrar of Motor Vehicles showing the registered owner. Counsel's submission that the police abstract sufficed was rejected as not a serious submission.

p. 2
03

Admissibility of the medical report

Holding

The medical report was wrongly admitted because it was produced by the plaintiff herself contrary to section 35 of the Evidence Act and without consent; its contents also had little probative value.

Reasoning

Dr. Ruga should have been called to produce his report. The doctor saw the plaintiff for the first time six years after the accident and expressed an opinion on old injuries. The plaintiff had also 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 set aside.

p. 2
04

Loss of earnings as unpleaded special damage

Holding

The award of Shs.324,000 for loss of earnings was set aside because the claim was never pleaded, and evidence cannot cure an unpleaded claim.

Reasoning

Special damage must be pleaded and proved. The plaintiff's oral evidence of earning Shs.50,000 per month from a kiosk was unsupported by documents, but even documentary evidence would have been of no value since the claim was not pleaded. There was no legal basis for the award.

p. 2

Legal principles established

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  • Limitation goes to jurisdiction and must be determined before a trial proceeds; where extension of time is relied on, the order must be produced and proved, failing which the suit is incompetent.
  • An order extending time for filing a suit out of time must be served on the defendant with the plaint, and if not served, 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 where ownership is denied; a police abstract is insufficient.
  • A medical report may only be produced by the author or with consent; production by a party in breach of section 35 of the Evidence Act is an error.
  • Loss of earnings is special damage which must be both pleaded and proved; an unpleaded claim affords no legal basis for an award.

Court orders

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  1. 1.The judgment and decree of the superior court set aside
  2. 2.The plaintiff's suit struck out 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 appeal to the Court of Appeal under the Constitution and the Appellate Jurisdiction Act (not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Thuranira Karauri v Agnes Ncheche", Case Analysis (1997). Civil Appeal No. 192 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/385/eng@1997-05-16

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