MARY WAMBUI KABUGU v KENYA BUS SERVICE LIMITED [1997] KECA 402 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that a court order allowing a late lawsuit can only be challenged at trial, and unproven negligence claims fail.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant proved on a balance of probabilities that the respondent's driver was negligent and caused the accident
- 2.Whether an ex parte order granting leave under sections 27 and 28 of the Limitation of Actions Act to file suit out of time can be challenged by way of preliminary objection, review, or only at the trial
- 3.Whether the trial judge was entitled to revisit and declare erroneous the earlier ex parte order granting leave to file suit out of time
- 4.Whether the decision of this Court in Michael Maina & K.P. & T. Corp. v Stanley Kigara Kagombe was correctly decided
- 5.Whether common law principles may be applied in Kenya to modify the clear provisions of the Limitation of Actions Act
Key legal issues
#Proof of negligence on a balance of probabilities
The appeal fails because the appellant, the sole witness, adduced no evidence establishing negligence by the respondent's driver.
The appellant did not witness the accident and learned of it from nurses who were not called. No eyewitness or other evidence from which negligence could be inferred was adduced, and the respondent therefore called no evidence. The age-old principle that he who alleges must prove was not satisfied, so the trial judge was bound to dismiss the suit on that ground alone.
Mode of challenging ex parte leave under the Limitation of Actions Act
Leave granted ex parte under section 28 can only be challenged at the trial, not by preliminary objection, application to set aside, or review.
Section 28(1) mandates that the application be made ex parte and Order XXXVI rule 3C reinforces this. Parliament deliberately denied the defendant a hearing at that stage. The English authorities in pari materia (Cozens, Skingsley) and the Kenyan decisions in Oruta and Mbithi establish that the leave is provisional and the defendant's remedy is to challenge the facts at trial. The trial judge does not sit in appeal over the judge who granted leave.
Status of Michael Maina v Stanley Kigara Kagombe
Michael Maina, which held that an ex parte limitation order stands until set aside in a dedicated proceeding, was decided per incuriam and should not be followed.
Cozens, Oruta and Mbithi were not cited to the court in Maina, and Maina relied on Craig v Kanseen, an English case decided before the 1963 English Limitation Act and our own Act, which did not deal with limitation and was inapt on whether the ex parte order was void or voidable. Shah JA also noted all cases relied on in Maina predated the Kenyan Act.
Ranking of common law against Kenyan statute
Common law principles cannot be applied slavishly to modify the clear provisions of a Kenyan statute.
Under section 3(1) of the Judicature Act the Constitution and local statutes rank above the common law, doctrines of equity and statutes of general application in England as at 12th August 1897. English courts may read common law rights into limitation statutes because there common law and statute are of equal standing; in Kenya that is not so, so the defendant has no common law right to be heard at the ex parte stage.
Legal principles established
#- An ex parte order granting leave under sections 27 and 28 of the Limitation of Actions Act to institute proceedings out of time can only be challenged at the trial of the suit, not by preliminary objection or by an application to set it aside.
- The decision in Michael Maina & K.P. & T. Corp. v Stanley Kigara Kagombe on the setting aside of ex parte limitation leave was decided per incuriam and does not bind courts in preference to Oruta and Mbithi.
- Where an applicant satisfies the conditions in section 27 of the Limitation of Actions Act, the court has no discretion and must grant leave under section 28; the section confers jurisdiction, not discretion.
- In Kenya, common law principles are subordinate to local statute law under section 3(1) of the Judicature Act and may not be applied to modify the clear provisions of a local statute such as the Limitation of Actions Act.
- A trial judge who reopens the issue of leave granted under section 28 acts ultra vires the Act; the High Court has no jurisdiction to sit on appeal against decisions of judges of the same court.
Court orders
#- 1.Appeal dismissed
- 2.Appellant to pay costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Agreed with Shah and Bosire that the appeal be dismissed because the appellant had not proved her case on a balance of probabilities. Wrote separately on the limitation point, holding that leave granted ex parte under the Limitation of Actions Act can only be challenged at trial, that Cozens, Oruta and Mbithi state the correct position, and that the decision in Michael Maina was per incuriam because it relied on the inapt English authority of Craig v Kanseen.
For these reasons, I would venture to say that the decision of this court in Maina was per incuriam.p. 2
Wrote the judgment
Agreed with the end result but disagreed with Bosire on how an ex parte order extending time under sections 27 and 28 of the Limitation of Actions Act may be challenged. Held that the application must be made ex parte, the defendant can challenge the grant of leave only at the trial, and the trial judge does not sit on appeal over the judge who granted leave. Respectfully disagreed with the ratio of Michael Maina and would follow Oruta and Mbithi.
Speaking for myself I would go by the ratios decidendi of the decisions in ORUTA and MBITHI cases and say that the issue as to whether or not leave to file suit out of time was granted properly or not is a matter to be challenged at the trial stage and not by a review application.p. 7
Wrote the judgment
Delivered the leading judgment. Held that the appellant, as sole witness, failed to prove negligence on a balance of probabilities and the appeal must be dismissed on that ground alone. On limitation, held that the judge hearing a section 28 application exercises no discretion but a jurisdiction, that the trial judge erred in revisiting the grant of leave, and that under the Judicature Act common law principles cannot be applied to modify the clear provisions of a local statute.
To my mind, therefore, apart from merits of the suit authorised, which is one of the factors the Judge handling the application for leave has to generally consider to discern whether a cause of action is disclosed and which in any case a Plaintiff is under a duty to establish, a trial court has no right of reactivating the issue of leave.p. 11
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 4045 of 1988
- Jurisdiction invoked
- First appellate jurisdiction over the High Court under the Constitution and the Court of Appeal's appellate jurisdiction (appeal from H.C.C.C. No. 4045 of 1988)
Relief refused
#Reversal of the dismissal of the negligence claim
The appellant was the only witness and adduced no evidence of negligence; the nurses and any eyewitnesses were not called
A ruling that the ex parte extension of time could be challenged by preliminary objection or review
The court held that leave granted under section 28 can only be challenged at the trial, following Oruta and Mbithi
Costs
Appeal dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I have already alluded to the conclusions contained in the judgments of My Lords Shah and Bosire and the reason thereof, that the appeal be dismissed with costs with which I have already agreed. It is therefore now so ordered.
In the result and for the reasons I have endeavoured to give above I would dismiss the appeal with costs.
Where leave is granted to file suit out of time it can only be challenged at the trial not by way of preliminary objection but on evidence and submissions
the question whether or not the plaintiff was entitled to the extension can only be challenged in the proceedings. This is one of the exceptions to the general rule that a party against whom an ex parte order has been made can only apply to the court which made the order to set it aside.
For these reasons, I would venture to say that the decision of this court in Maina was per incuriam.
In Kenya therefore, a common law, principle or practice of English courts is subordinate to local statute law and may only be applied if it does not conflict with the statute.
Once the evidence satisfied the statute, the judge must grant leave. But it must be remembered that it is ex parte. So, in due course, the defendants will have an opportunity of challenging the facts and fighting the case.
Issues in the judgment
#Duplicated/garbled sentence in Akiumi JA's judgment text
The judgment records that two prior decisions of this Court (Oruta and Michael Maina) express conflicting views on the same question, which the court resolves by declaring Maina per incuriam; the conflicting passage is quoted within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (7)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muthamia v Mwitu (Sued in her Capacity as the Legal Representative of the Estate of the Late Martin Miriti Mukira - Deceased) (Environment and Land Appeal E026 of 2025) [2026] KEELC 4980 (KLR)[2026] KEELC 4980 (KLR)27 Jul 2026followed
- Walili v Dwa Estate Limited (Civil Case 43 of 2017) [2026] KEMC 92 (KLR)[2026] KEMC 92 (KLR)31 Mar 2026followed
- Kiraga (Administrator to the Estate of Nzai Kiraga) v Ganiwalla & 3 others (Environment and Land Case E036 of 2022) [2025] KEELC 7337 (KLR)[2025] KEELC 7337 (KLR)15 Oct 2025applied
- Bhandari t/a Chetambe Jaggery v Juma (Civil Appeal 246 of 2019) [2025] KECA 1441 (KLR)[2025] KECA 1441 (KLR)31 Jul 2025applied
- Mogoi v Makori (Civil Appeal 71 of 2019) [2025] KECA 418 (KLR)[2025] KECA 418 (KLR)28 Feb 2025applied
- Hajar Services Limited v Mwita (Appeal 5(B) of 2020) [2025] KEELRC 1029 (KLR)[2025] KEELRC 1029 (KLR)23 Jan 2025
- Karin Anne Challis (Suing through the Attorney Isaac Ntongai Samwel) v Attorney General & 4 others [2022] KEELC 1412 (KLR)[2022] KEELC 1412 (KLR)17 Feb 2022applied
Cite this brief
#Cite this brief
Caselaw, "MARY WAMBUI KABUGU v KENYA BUS SERVICE LIMITED [1997] KECA 402 (KLR)", Case Analysis (1997). Civil Appeal No. 195 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/402/eng@1997-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.