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Court of AppealDismissedCivil Appeal No. 252 of 2015

SO & another v Nathan M. Murugu & 6 others [2019] KECA 709 (KLR)

Court of Appeal
7 June 2019
William OukoW. OukoASAsike-MakhandiaSKS. ole Kantai
1,954 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a medical negligence suit filed five years late, confirming Kenyan courts cannot hear negligence claims brought after the three-year limit.

What this practically means

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Executive summary

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The appellants, a married couple, sued over a hysterectomy performed in 2005 on the 2nd appellant following a misdiagnosis of invasive cervical cancer, alleging negligence against the treating doctors, hospitals, and the Medical Practitioners and Dentists Board. The respondents raised a preliminary objection that the suit, filed in October 2010, was barred by the three-year limitation period for actions in tort under section 4(2) of the Limitation of Actions Act. The High Court (Mbogholi, J) upheld the objection, holding it lacked jurisdiction to entertain a suit barred by limitation, and struck out the plaint with costs, relying on Iga v Makerere University and the Lillian S Caltex jurisdiction doctrine. On appeal, the Court of Appeal agreed with the Judge. It found that the plaint pleaded a purely negligent cause of action, with 61 particulars of negligence, and that later suggestions of fraud and contract were afterthoughts: fraud had not been specifically pleaded with particulars as required by Order 22 rule 4(1) of the Civil Procedure Rules, and implied contractual obligations were averred without stating how they arose or were breached. Section 26 on discovery did not apply since fraud or mistake was not pleaded, and no application for extension of time under section 27 was ever made. The court also held that the appellants should have sought amendment of the plaint when served with notice of the intended preliminary objection. The appeal was dismissed with no orders as to costs. The judgment binds subordinate courts and the High Court on the point that a purely negligence claim filed outside three years, without extension of time, deprives the court of jurisdiction.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the suit was properly struck out as time-barred under section 4(2) of the Limitation of Actions Act
  2. 2.Whether the cause of action was pleaded solely in negligence or also in fraud and contract
  3. 3.Whether section 26 of the Limitation of Actions Act applied to postpone the running of time
  4. 4.Whether the trial Judge erred in failing to allow an amendment of the plaint to plead fraud

Key legal issues

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01

Whether the plaint was founded solely on negligence

Holding

The court agreed with the High Court that the appellants expressly and purely based their cause of action on negligence, notwithstanding submissions that fraud and contract were also pleaded.

Reasoning

The plaint's paragraphs 42-44 pleaded negligence, and paragraph 46 listed 61 particulars of negligence against the seven respondents. The reference to implied contractual obligations did not state how the obligations arose or were breached, and no particulars of fraud were pleaded as required by Order 22 rule 4(1) of the Civil Procedure Rules. Later suggestions of fraud and contract were therefore afterthoughts.

p. 3
02

Whether the limitation bar extinguished the court's jurisdiction

Holding

A suit founded on tort brought after three years is time-barred and, absent an application for extension of time under section 27 of the Limitation of Actions Act, the court lacks jurisdiction to entertain it.

Reasoning

Section 4(2) of the Limitation of Actions Act bars actions in tort after three years. The alleged negligence occurred in February or March 2005 and the suit was filed in October 2010. Section 26 on discovery of fraud or mistake did not apply as fraud was not pleaded, and no extension of time application satisfying the section 27 conditions was ever made. Following Iga v Makerere University, a suit barred by limitation is barred by law and the court has no jurisdiction.

p. 3
03

Whether the failure to permit amendment of the plaint was an error

Holding

The Judge did not err; the appellants should have sought amendment when served with the notice of the intended preliminary objection.

Reasoning

Counsel conceded the negligence claim was out of time and argued that pleading fraud was a curable defect. The court held that the moment to apply for amendment was upon receipt of the respondents' notice of the intended objection, and no such application was made at that stage.

p. 3

Legal principles established

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  • A cause of action must be established on the facts as pleaded before a court can exercise jurisdiction; a claim based purely on negligence in tort must be brought within three years under section 4(2) of the Limitation of Actions Act, failing which the court has no jurisdiction.
  • Fraud must be specifically pleaded with particulars on the face of the pleading; it cannot be left to be inferred from the facts, and a claim premised on implied contractual obligations without stating how the obligations arose and were breached states nothing.
  • Questions touching on jurisdiction are questions of pure law capable of disposing of the entire suit and may properly be raised as a preliminary objection.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.No orders as to costs, given the circumstances of the case

The bench

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One judgment of the whole court — no separate or dissenting opinions.

William Ouko
W. OukoJA
Currently serving
majority

Wrote the judgment

AS
majority
SK
majority
On appeal from
High Court of Kenya
Civil Case No. 468 of 2010
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal (first appeal from High Court ruling)

Relief refused

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Appeal against striking out of the suit as statute-barred

The cause of action was purely in negligence, filed outside the three-year limitation period, with no application for extension of time

p. 3

Direction that the plaint be amended to plead fraud

The appellants ought to have sought amendment when served with the notice of the preliminary objection

p. 3

Costs

We make no orders as to costs, given the circumstances of the case.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

This appeal is bereft of merit. It is accordingly dismissed. We make no orders as to costs, given the circumstances of the case.
p. 3Final orders - dismissal of appeal and costs
In a civil claim, a cause of action is essential as it must be established before the court can exercise jurisdiction.
p. 2Cause of action as a condition of jurisdiction
It is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading.
p. 3Requirement to plead fraud with particulars
Section 27(1) of the Limitation of Actions Act clearly lays down that in order to extend time for filing a suit the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed must be in respect of personal injuries to the plaintiff as a result of the tort
p. 3Conditions for extension of time in tort actions

Issues in the judgment

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minor

The coram and cause list list the 4th respondent is omitted from the caption (parties jump from 3rd to 5th respondent), yet the judgment refers repeatedly to the 4th respondent; the identity of the 4th respondent is not stated.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "SO & another v Nathan M. Murugu & 6 others [2019] KECA 709 (KLR)", Case Analysis (2019). Civil Appeal No. 252 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/709/eng@2019-06-07

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