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High CourtDismissedCivil Appeal No 24 of 2017· [2020] KEHC 9847 (KLR)

DUNCAN IRUNGU KIMANI v DAVID LIMMY MWANIKI

High Court of Kenya
21 May 2020
RSRuth N. SitatiCMChristine W. Meoli
3,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If your claim is only for property damage, getting permission to file late won't save you if the law requires personal injury.

What this practically means

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Executive summary

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This is a first appeal to the High Court against the judgment of Hon. J. Kitutu, Principal Magistrate, delivered on 2nd February 2017 in Kiambu CMCC No. 234 of 2017, dismissing the appellant's claim for special damages of Kshs.187,000/- for material damage to his motor vehicle KBM 235R caused by a collision with the respondent's vehicle KAU 912M on 9th May 2011. The suit was filed on 23rd September 2014, after the appellant obtained ex parte leave to file out of time. The trial court dismissed the suit as time barred. On appeal, the High Court (Sitati J, delivered electronically by Meoli J) identified two issues: whether the dismissal on limitation grounds was correct despite the leave, and whether the trial magistrate could overturn a ruling of a court of concurrent jurisdiction that had dismissed the respondent's preliminary objection. The court held that section 27(1) of the Limitation of Actions Act permits extension of time only for tort claims where damages include personal injuries; the appellant's claim was purely for material damage, so the leave was granted in error. Further, the only reason for delay - a business trip to Sudan - was not a material fact of decisive character outside the appellant's knowledge. Following Oruta v Nyamato, the court held that ex parte leave can be challenged at trial, and the trial magistrate acted properly. The appeal was dismissed with costs to the respondent.

Key legal issues

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01

Whether the suit, filed over three years after the accident, was saved by the leave granted to file out of time

Holding

The leave was granted in error because section 27(1) applies only to personal injury claims; the claim was for material damage to a motor vehicle, so the suit remained time barred.

Reasoning

Section 27(1) of the Limitation of Actions Act permits extension only for tort claims for negligence, nuisance or breach of duty where damages include personal injuries. The appellant's claim was purely for material damage to his vehicle. Further, the only reason for delay - a business trip to Sudan - was not a material fact of decisive character outside his knowledge. The trial magistrate therefore correctly dismissed the suit as time barred.

p. 4
02

Whether the trial magistrate could revisit the earlier ruling that had dismissed the preliminary objection on limitation

Holding

Yes; leave obtained ex parte can be challenged at the trial on the evidence, as in Oruta v Nyamato, and the respondent had pleaded the limitation challenge in his defence.

Reasoning

Following Oruta & Another v Nyamato, an ex parte order granting leave can only be queried at the trial, not by application to discharge it. The respondent pleaded in paragraphs 6 and 11 of his defence that he would challenge the leave, so the trial magistrate was entitled to deal with limitation during the trial on the evidence adduced.

p. 4

Legal principles established

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  • Extension of time under section 27(1) of the Limitation of Actions Act is limited to tort claims for negligence, nuisance or breach of duty where damages are in respect of personal injuries; it does not cover pure material damage claims.
  • Leave granted ex parte to file suit out of time under sections 27 and 28 of the Limitation of Actions Act can be challenged at the trial, not by application to discharge it or by preliminary objection.
  • A business trip abroad is not a material fact of a decisive character outside the plaintiff's knowledge (actual or constructive) for purposes of section 27.

Court orders

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  1. 1.The appeal is dismissed with costs to the respondent

Authorities

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Legislation

  • Limitation of Actions Actsection 4(2)
  • Limitation of Actions Actsection 27(1)
  • Limitation of Actions Actsection 27(3)
  • Limitation of Actions Actsection 28
  • Limitation of Actions Actsection 30(1), (2) and (5)
  • Limitation of Actions Actsection 31

Cases cited (7)

  • Selle vs Associated Motor Boat Co. Ltd & others
    [1968] EA 123

    Duty of a first appellate court to rehear the case and make allowance for not having seen or heard the witnesses

  • Lucia Wambui Ngugi versus Kenya Railways & Another
    Nairobi HCMC No. 123 of 1989

    Leave to file out of time should not follow as a matter of course; evidence must be carefully scrutinized; such orders can be challenged at trial

  • Gathoni versus Kenya Co-operative Creameries Limited
    [1982] KLR 104

    Plaintiff must exercise reasonable diligence; the Act does not help the dilatory or ignorant; definition of facts outside knowledge and appropriate advice

  • Oruta & Another versus Nyamato
    [1988] eKLR

    Ex parte order granting leave can only be queried at the trial, not by application to discharge it

  • Amos Muthinya Mimungana versus John Gatho & Another
    [2016] eKLR

    Relied on by the trial court that ex parte leave under sections 27 and 28 can be challenged during trial

  • Rosemary Wanjiru Kung'u versus Elijah Macharia Githinji & Another
    [2014] eKLR

    Reason for failure to file in time must meet the threshold of material facts under section 30

  • Mary Osundwa versus Nzoia Sugar Co. Ltd
    [2002] eKLR

    Section 4(2) as read with section 27(1) does not give jurisdiction in contract or causes of action other than tort

On appeal from
Chief Magistrate's Court, Kiambu
Kiambu CMCC No. 234 of 2017
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (duty to rehear a first appeal)

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, "DUNCAN IRUNGU KIMANI v DAVID LIMMY MWANIKI", Case Analysis (2020). Civil Appeal No 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2020/9847/eng@2020-05-21

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