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Court of AppealDismissedCivil Application No. NAI. 246 of 2013· [2014] KECA 632 (KLR)

Aineah Likuyani Njirah v Aga Khan Health Service [2014] KECA 632 (KLR)

Court of Appeal of Kenya
4 April 2014
1,721 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to revive a claim filed years late, confirming that unexplained delay and hopeless appeals will not get more time.

What this practically means

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Executive summary

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This is a single-Judge ruling of the Court of Appeal at Nairobi (Musinga, J.A.) on an application dated 3 September 2013 for leave to file a notice of appeal and record of appeal out of time, in an intended appeal from the judgment of Mutungi, J. in H.C. Appeal No. 275 of 2004 delivered on 22 July 2008. The High Court had allowed the respondent's appeal against the dismissal of its application to strike out the applicant's plaint, holding that the applicant's tort claim was time barred and that he was a beneficiary, not a party, to the medical scheme between the respondent and the United Nations. The applicant attributed the delay to his former advocate's failure to file a notice of appeal. The Court, applying the well-known rule 4 guidelines drawn from Shah v Southern Credit Banking Corporation, noted the delay of nearly six years, that Githinji, J.A. had already found the reasons for delay insufficient in a ruling of 17 December 2009 which a single Judge could not sit on appeal against, the prejudice to the respondent given a cause of action dating to 1996, and the absence of arguability: the tort claim was filed years beyond the three-year limitation period, and subscription to the medical insurance cover could not sustain a tort-based claim outside the statutory period. The application was dismissed with each party bearing its own costs.

Key legal issues

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01

Extension of time under rule 4 of the Court of Appeal Rules

Holding

The application was dismissed because the delay of nearly six years was unexplained, the reasons for delay had already been rejected by Githinji, J.A., the respondent would be prejudiced given the age of the cause of action, and the intended appeal was not arguable

Reasoning

The Court applies the established guidelines: length of delay, explanation, prejudice and arguability. The delay ran from July 2008 to September 2013; a prior application had been dismissed on 17 December 2009 and a reference rejected. A single Judge cannot sit on appeal against a co-Judge's earlier finding on the reasons for delay. The cause of action arose in 1996, making witness and record tracing difficult. The draft grounds, including unspecified constitutional claims never raised below, were unmeritorious.

p. 3
02

Merits of the intended appeal - limitation of tort claims

Holding

The intended appeal had no chance of success because the tort claim was filed well beyond the three-year limitation period, and even if the applicant was a subscriber to the medical insurance cover, that could not sustain a tort-based claim outside the statutory period

Reasoning

The claim arising from the letter of 27 August 1996 was founded on negligence and should have been filed within three years, but suit was only filed on 4 February 2002. Subscription to the medical insurance scheme did not convert the claim into a sustainable one; the respondent's response to the UN's inquiry was not a breach of the doctor-patient relationship apart from the wrong date cited. The claim for damages from the termination of employment was not directed against the respondent and was rightly abandoned.

p. 3

Legal principles established

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  • In an application for extension of time under rule 4, the Court exercises an unfettered discretion which must be exercised judicially, guided by the length of the delay, the explanation for the delay, the prejudice to the respondent, and the merits of the intended appeal

Court orders

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  1. 1.The application for extension of time is dismissed
  2. 2.Each party shall bear its own costs of the application

Authorities

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Legislation

  • Limitation of Actions Actgeneral limitation of tort claims (three years)
  • Court of Appeal RulesRule 4

Cases cited (1)

  • SHAH vs. SOUTHERN CREDIT BANKING CORPORATION
    [2008] KLR 173
On appeal from
High Court of Kenya at Nairobi
H.C. Appeal No. 275 of 2004
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules (application for extension of time to file notice and record of appeal out of time)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Aineah Likuyani Njirah v Aga Khan Health Service [2014] KECA 632 (KLR)", Case Analysis (2014). Civil Application No. NAI. 246 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/632/eng@2014-04-04

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