Brian Omae v The County Government of Nyamira

e. It came to the attention that the Defendant had no intentions to reach an amicable settlement and therefore commenced a pursuit to get an advocate to institute legal proceedings. f. On or about September, 2024, he was referred to the firm of Ochoki and Company Advocates who have currently taken up the matter and filed the application herein to commence proceedings against the defendant. g. The Plaintiff has all this while been misled by the defendant for a settlement until the Applicant was time barred under the Limitations of Actions Act, thus could not file a suit within the stipulated period. h. It was only fair and just that the court grant him leave to file out of time. i. It will be in the interest of justice that the orders sought herein be granted. 4. The application was accompanied by a supporting affidavit by the applicant herein, reiterating that he was involved in an accident on the 16th day of December 2022 where he sustained grievous injuries, he was invited by the respondents to an informal settlement which has not been done to date hence the need for this application. 5. The applicant filed a further affidavit indicating that, I was involved in a road traffic accident on the 16th day of December, 2022 involving motor vehicle registration No. 46CG054A which was in care of Nyamira County Government, the Respondent herein. He was lawfully riding on motor cycle registration No. KMFX 066N within Kisii Township at KTRH mortuary gate when the aforementioned motor vehicle knocked the motor cycle a result of which he sustained serious injuries. He then went for treatment and was medically assessed to have suffered a 20% permanent disability, arising directly from the said accident. He also obtained a police abstract dated the 16th day of December, 2022 confirming that the said accident occurred and was reported. In the year 2023, he engaged officers from the Respondent's office who gave assurances that his claim would be settled amicably without the need for court action and that based on these repeated assurances, refrained from initiating legal proceedings genuinely believing that the matter was under administrative solution. While awaiting the promised settlement, he was not aware that the statutory limitation period was running out and only came to understand this after being referred to the firm of Ochoki & Company Advocates sometime in September 2024. 6. The respondents also filed their grounds of opposition stating that; 1. The Application is defective in principle ab initio as: the Application is premised on assertions that, ex facie, are hollow and without factual basis: since the Applicant has, in his application, not attached or tendered any official police abstract or other analogous form of evidence attesting that there was such a road traffic accident as alleged by the Applicant and where such accident occurred; the Applicant has, in his application, not attached or tendered any proof whatsoever of official correspondence or documentation attesting there were such invitations by the Respondent and efforts and attempts towards amicable out-of-court settlement as alleged by the Applicant; It is trite law that parties, and the court itself, are strictly bound by pleadings as are on record; and in this regard - the Application in, its entirety as pleaded, is premised on assertions, allegations and excuses that do not constitute grounds of merit, known and recognised in law, as a valid basis for extension of time under Limitation of Actions Statutes, since: -whereas Section 26 of Limitation of Actions [Cap. 22] makes provision for extension of limitation period in cases of fraud or mistake the Applicant's intended action is not an action based on alleged fraud on the part of the Respondent; the Applicant has, in the entirety of his application, not pleaded any particulars of fraud on the part of the Respondent; the Applicant's intended action is not an action for relief from the consequences of an alleged mistake on the part of the Respondent;whereas Section 27 of https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19785/eng@2025-10-29 2

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Limitation of Actions [Cap. 22] makes provision for extension of limitation period in case of ignorance of material facts in actions for negligence: - the Applicant has, in the entirety of his application, not pleaded or demonstrated that that any material facts relating to the Applicant's cause of action which were or which included facts of a decisive character were at all times outside the knowledge (actual or constructive) of the Applicant; whereas Section 5 of Public Authorities Limitation Act [Cap. 39] makes provision for extension of limitation period in case of disability: -- the Applicant has, in the entirety of his application, not pleaded or demonstrated that he was at any material time under any form of disability known in law; besides fraud, mistake, ignorance of material facts and disability, there is no other ground recognised in law as a valid basis for extension of time under the Limitation of Actions Statutes; the Applicant's hollow allegations and excuses that he was misled by the Respondent into an out of court settlement are not grounds of merit recognised in law as a valid basis for extension of time under Limitation of Actions Statute; contrary to section 28(2) of the Limitation of Actions Act the Application is premised on assertions that, ex facie, are hollow, without factual basis and which would, even in the absence of any defense under section 4(2) of the Limitation of Actions Act [Cap. 22], not be sufficient to establish the Applicant's intended cause of action, since the Applicant has, in his application, not attached or tendered any official police abstract or other analogous form of evidence attesting that there was such a road traffic accident as alleged by the Applicant; the Applicant has, in his application, not attached or tendered any proof whatsoever of official correspondence or documentation attesting there were such invitations by the Respondent and efforts and attempts towards amicable out-of-court settlement as alleged by the Applicant; the Application in, its entirety as pleaded, has not pleaded any ground, valid and known in law, for extension of time under Limitation of Actions Statutes. 7. It was also submitted that the application, dated 17.09.2024, discloses no legal or factual basis for the exercise of judicial discretion for extension of time as prayed by the Applicant. Applicants’ submissions 8. The applicant submitted that however extension of time may be granted under certain exceptions including Under Section 26 of the Limitation of Actions Act (Fraud, mistake or concealment) and Section 27 (Ignorance of material facts). The Court may exercise its inherent jurisdiction and invoke the overriding objective of enabling the just, expeditious and affordable resolution of disputes under Sections IA and AB of the Civil Procedure Act. Whether the Applicant has provided sufficient grounds to warrant extension of time to file suit. The Applicant respectfully submits that sufficient grounds have been demonstrated to justify the extension of time to file suit as hereunder, the Applicant was not aware of the legal requirement to file suit within one year from the date of the cause of action. The Applicant is a layperson with no legal training and was not represented by counsel within the limitation period. That it was only upon obtaining legal advice sometime in September, 2024 that the Applicant learnt of the limitation imposed by the Act. That upon learning of the limitation, the Applicant promptly gave instructions to counsel and whereby the present application was promptly filed. They relied In the case of Eunice Jacquiline Chebukwa Wanjala v Kenya Commercial Bank Ltd and another (2014), Justice A. Mbogholi Msagha stated that; “ There are circumstances that may lead a party to miss the deadlines set by law and that is why the courts should keep an open mind when dealing with applications and objections of this nature. In the case of Aviation Cargo Support Limited vs. St Mark Freight Services Limited (2014) e KLR the Court of Appeal in an application to file and serve a record of appeal out of time stated inter alia,"In the normal vicissitudes of life, deadlines will be missed even by https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19785/eng@2025-10-29 3

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those who are knowledgeable and zealous. The courts are not blind to this fact. When this happens the reason why it occurred should be explained satisfactorily including the steps taken to ensure compliance with the law by coming to court to seek extension of time or leave to file out of time"....in any case, the courts exist to do justice to the parties rather driving them out of the seat of justice. More injustice will be occasioned to the plaintiff if I were to decide otherwise." 9. Also submit that the Applicant's actions demonstrate that he took reasonable steps to resolve the matter through settlement first and once settlement failed, he acted promptly to consult legal counsel. 10. That also in the case of Elizabeth Akinyi Ounda v Abubakar Wilberforce (2021) eKLR, Justice R. Lagat Korir held that; "I am persuaded that she would be prejudiced if the court were to lock her out on account of the omissions of counsel. This court must appreciate the challenges that such a person may face after undergoing trauma and injuries emanating from a road accident. Respondent’s submission. 11. They contend that; It is settled in law that a Court has no jurisdiction (whether inherent or otherwise) to extend statutory timelines under the Public Authorities Limitation Act [Cap. 39] and the Limitation of Actions Act [Cap. 22] on grounds other than those strictly articulated and provided for under the said statutes; An applicant seeking leave to file suit outside the statutory timelines under the Public Authorities Limitation Act Cap. 39] and the Limitation of Actions Act [Cap. 22] must plead and demonstrate that the application falls squarely within, and merits, the grounds for extension strictly articulated and provided for under the said statutes: Extension of statutory timelines does not lie as a matter of absolute legal right but as a matter of equitable right flowing from the Court's discretion which discretion must be exercised judiciously for equity always follows the law and only aids the vigilant. 12. They first, made reference to Raila Amolo Odinga & Another vs. IEBC & 2 Others 92017) eKLR where the Supreme Court conclusively underscores the juristic implication of pleadings on adjudication: "In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings......" 13. Secondly, to the Court of Appeal's seminal holding in Mellen Mbera v James Theuri Wambugu [2020] eKLR: - It is beyond question that parties are bound by their own pleadings. This Court in David Sironga Ole Tukai v Francis Arap Muge & 2 Others (2014) eKLR held that: "The court, on its part, is itself bound by the pleadings of the parties. The duty of the court is to adjudicate upon the specific matters in dispute, which the parties themselves have raised by their pleadings. The court would be out of character were it to pronounce any claim or defence not made by the parties as that would be plunging into the realm of speculation and might aggrieve the parties or, at any rate, one of them. A decision given on a claim or defence not pleaded amounts to a determination made without hearing the parties and leads to denial of justice." 14. This Honourable Court's pronouncements in Alberta Mae Gacie v Attorney General & 4 others [2006] KEHC 1714 (KLR) are insightful: -Section 42 of the said Act, inter alia, provides that the Act https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19785/eng@2025-10-29 4

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does not apply to proceedings to which the Public Authorities Limitations Act applies. The answer to the question posited above will therefore probably be provided by the provisions of Public Authorities Limitation Act whose Section 6 states as follows:"Notwithstanding the provisions of Section 31 of the Limitation of Actions Act, Sections 22 of the Act shall not apply in respect of the provisions of this Act; and in Section 27 of the Limitation of Actions Act the reference to Section 4 (2) of that Act shall be read and construed as reference to section 3 (1) of this Act; but subject thereto and not withstanding Section 42 of the Limitation of Actions Act, part III of that Act shall apply to this Act." Issues for determination. 15. I have considered the application herein, the supporting affidavits, further affidavit, grounds of opposition of the respondents, the submissions by both the applicant and the respondent and the annextures herein, the issue for determination is Whether the applicant has met the threshold for grant of leave to file a suit out of time. Analysis ana determination. Whether the applicant has met the threshold for grant of leave to file a suit out of time. 16. The principles governing an ex-parte application in respect of leave to file a suit out of time were enunciated in the Supreme Court case of County Executive of Kisumu v County Government of Kisumu and 8 Others (2017) eKLR [Civil Application No. 3 of 2016] as follows: a) Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; b) A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court; c) Whether the court should exercise the discretion to extend time is a consideration to be made on a case-by-case basis; d) Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; e) Whether there will be any prejudice suffered by the respondents if the extension is granted; f) Whether the application has been brought without undue delay; and g) Whether in certain cases, like the election petitions, public interest should be a consideration for extending time In considering whether the court can grant this Application, the requirements of Section 27 of the Limitations Act must be fulfilled. 17. In Mwangi Kanyingi v Francis Kariuki Kanyingi & Another (2008) eKLR. It is also clear that the grant of extension of time is at the discretion of the court. Section 3A of the Civil Procedure Act provides that: Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice to be met.” 18. In the case of Bisai & Another v Post Bank Credit (OS) 237 of 2003 the Judge held that extension of time only relates to an action in respect of personal injuries. In the case of Mary Ojundwa v Nzoia Sugar https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19785/eng@2025-10-29 5

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Company Limited Civil Appeal No. 244 of 2000 the Court of Appeal when dealing with a similar Application held: Section 27 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 tort of negligence nuisance or breach of duty and the damage claimed must be in respect of personal injuries to the Plaintiff as a result of the Tort”. Section 27 is a statutory provision which the court has to apply and adhere to whether the Plaintiff has a good claim or not and whether the delay in filing the same was sufficiently explained. It is unfortunate but the court is bound by those legal provisions. 19. On the length of delay, the accident allegedly occurred on 16.12.22 and the instant application was filed on 17.9.24. The limitation period for suits against the Government is one year. The delay is thus essentially of 9 months which is not inordinate. 20. On whether the applicant is entitled to the leave sought he alleged that the delay is caused by the legitimate expectation that the respondent would settle the matter out of the talks he had with its officers. This court appreciates that Alternative resolution of disputes is now enshrined in Article 159 of the Constitution. Though the applicant has not annexed any communication between him and the respondent over the accident, this is a court of equity, the applicant has shown that he has an arguable case against the respondent, the delay is not inordinate and I proceed to exercise my discretion in his favour. 21. In the upshot, I allow the application dated 17.9.24 on thehe following terms; a. The intended suit be filed and served within 14 days from today. b. Costs in the cause. c. File is closed. T.A ODERA JUDGE 29.10.25 Delivered Virtually Via Teams Platform on this 29th day of October 2025 in the Presence of; Mr. Maronga for Respondents CA -Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19785/eng@2025-10-29 6

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