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Court of AppealDismissedCivil Appeal Number 42 of 2016· [2017] KECA 185 (KLR)

Jones M. Musau & another v Kenya Hospital Association & another [2017] KECA 185 (KLR)

Court of Appeal
24 November 2017
3,633 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 confirmed that medical negligence claims must be filed within three years of death — waiting for a Medical Board ruling does not stop the clock.

What this practically means

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Executive summary

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The Court of Appeal (Nambuye, Musinga and Gatembu, JJA) dismissed the appellants' appeal against a ruling of the High Court (Aburili, J) of 10th December 2014 striking out their medical negligence suit in H.C.C.C. No. 527 of 2013. The suit concerned the death of Benjamin Mavyuva Mwangangi on 29th August 2008 following surgery at Nairobi Hospital. The appellants, the deceased's father and widow, filed suit on 19th December 2013, contending that time only began to run on 6th August 2013 when the Medical Practitioners and Dentists Board made its determination following their complaint. The respondents applied to strike out the suit as time-barred under Section 4(2) of the Limitation of Actions Act, which requires tort actions to be brought within three years of accrual of the cause of action. The High Court agreed and struck the suit out as incurable. On appeal, the Court reaffirmed that striking out is a discretionary power to be exercised with the greatest care, and that an appellate court may only interfere where the lower court misdirected itself or was clearly wrong. It held that the cause of action accrued on the date of death; the appellants, having obtained a post-mortem establishing the cause of death, were seized of the material facts by February 2010 and need not have awaited the Medical Board's determination, applying the principle in Mbithi v Municipal Council of Mombasa. Having neither pleaded ignorance nor sought extension of time under Sections 26 and 27 of the Act, the appellants could not escape limitation. The appeal was dismissed with each party bearing its own costs.

Key legal issues

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01

When time begins to run under Section 4(2) of the Limitation of Actions Act in a medical negligence claim

Holding

Time begins to run when the cause of action accrues; the appellants knew the material facts from the post-mortem report and were not required to await the Medical Board's determination, so the suit filed on 19th December 2013 was out of time

Reasoning

The cause of action was founded on the tort of negligence and accrued on the deceased's death on 29th August 2008. The first appellant had engaged a private pathologist who established the cause of death as acute peritonitis due to perforated bowels, and by 3rd February 2010 the appellants were seized of the material facts. Awaiting the Medical Board's determination was not a prerequisite to filing suit; the analogous Mbithi decision confirms that a party's belief that such a determination was necessary does not make it a material fact.

02

Correctness of striking out the suit for being time-barred

Holding

The High Court correctly struck out the suit as it was filed outside the three-year limitation period without leave under Section 27 of the Act

Reasoning

While the Court acknowledged Section 27 permits leave where material facts of a decisive character were outside the plaintiff's knowledge, the appellants neither pleaded ignorance or mistake nor applied for extension of time. Having indicated before the High Court that they did not need an extension, they could not rely on that provision. The appeal therefore failed on the merits of the limitation analysis.

p. 6

Legal principles established

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  • A plaintiff who already knows the material facts of a medical negligence cause of action, such as the cause of death from a post-mortem report, need not await a professional board's disciplinary determination before filing suit; limitation under Section 4(2) runs from accrual of the cause of action
  • A suit founded on tort must be brought within three years of accrual of the cause of action; a time-barred suit filed without leave under Section 27 may be struck out
  • The power to strike out pleadings is discretionary and must be exercised with the greatest care and caution

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party to bear its own costs of the appeal

Authorities

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Legislation

  • Limitation of Actions ActSection 4(2)
  • Limitation of Actions ActSection 4
  • Limitation of Actions ActSection 27
  • Limitation of Actions ActSection 26
  • Civil Procedure Act
  • Civil Procedure RulesOrder 2
  • Constitution of KenyaArticle 50(1)

Cases cited (12)

  • Charles Mugane Njonjo vs. Gucokaniria Kihato Traders and Farmers Company Limited & another
    [2016] eKLR
  • Lalji t/a Vakkep Building Contractors vs. Carousel Limited
    [1989] KLR 386
  • P. M. N vs. Kenyatta National Hospital & 6 others
    [2015] eKLR
  • Time Magazine International Ltd and another vs. Michael F Rotich and another
    [2000] eKLR
  • Kenyan Builders and Concrete Company Limited vs. National Government Constituency Development Fund Committee
    [2017] eKLR
  • Gathoni vs. Kenya Co-operative Creameries Ltd
    [1982] 104
  • Dobbie vs. Medway Health Authority
    (1994) 4 All E R
  • Mbithi vs. Municipal Council of Mombasa and another
    [1990-1994] EA 359
  • IEBC and another vs. Stephen Mutinda Mule & 3 others
    [2014] eKLR
  • Crescent Construction Co. Ltd vs Delphis Bank Ltd
    [2007] eKLR
  • Mbogo and another vs. Shah
    [1968] E. A 93
  • D. T. Dobie & Company (Kenya) Limited vs. Joseph Mbaria Muchina and another
    [1980] eKLR
On appeal from
High Court
H.C.C.C. No. 527 of 2013
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act over an appeal from the High Court (Civil Appeal Number 42 of 2016)

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, "Jones M. Musau & another v Kenya Hospital Association & another [2017] KECA 185 (KLR)", Case Analysis (2017). Civil Appeal Number 42 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/185/eng@2017-11-24

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