1. This is an appeal from the judgment of the Chief Magistrate at Kapsabet in
Kapsabet Civil Case No. 75 of 2014, delivered on 14
th February 2022 in
which the Appellant/ Plaintiff sued the Respondent/Defendant vide the
statement of claim [plaint] dated 15
th June 2015 wherein it was pleaded that
the Defendant was at all material times the owner and/or beneficial owner of
Motor Vehicle Registration No. KAE 311W in which the Appellant/Plaintiff
was on the 23
rd February 2003 lawfully travelling as a fare paying passenger
when it was driven so negligently and recklessly along the Kapsabet-
Chavakali road such that at a place called Denja Corner it lost control and
overturned thereby causing bodily injuries to the Plaintiff.
2. It was further pleaded that the Plaintiff suffered loss and damage as a result
of the accident at a time that he was twenty eight [28] years, young robust
and in good health. That, he was a farmer by occupation involved in the
business of buying and selling cattle and was the sole breadwinner of his
family. He therefore claimed general damages for loss of income, loss of
earning capacity and special damages as against the Defendant/
Respondent.
3. The Defendant denied the claim and the allegations of negligence made
against him by the Plaintiff. He contended that if the accident indeed
occurred, then it was inevitable and was solely caused by reckless and
negligent acts of the Plaintiff. He therefore prayed for the dismissal of the
suit with costs.
4. After trial, the Plaintiff’s suit was dismissed with costs to the Defendant.
Being aggrieved, the Plaintiff preferred the present appeal on the basis of
the eleven [11] grounds set out in the memorandum of appeal dated 4
th
March 2022.
Basically, the Applicant complains that the trial court erred in law and fact by
failing to properly consider the facts of the case and the evidence adduced in
support thereof thereby dismissing the case and failing to appreciate that it
had been proved on the balance of probability.
5. It is the Appellant’s prayer that the judgment and decree of the trial court be
set aside and substituted with a proper finding and award. He also prays for
any other orders that the court may deem just and expedient in the
circumstances together with costs of the appeal.
The Respondent opposed the appeal which was canvassed by way of
written submissions. Both parties filed their respective submissions through
their respective advocates, being Messrs R.M. Wafula & Company
Advocates for the Appellant and Messrs Onyando & Company Advocates
for the Respondent.
6. The rival submissions were duly considered by this court in the light of the
grounds in support of the appeal and those in opposition thereto as may be
deciphered from the Respondent’s submissions. The duty of this court was
to re-consider the evidence and draw its own conclusions bearing in mind
that the trial court had the advantage of seeing and hearing the witnesses
[See, Selle & Another Vs. Associated Motor Boat Company Limited &
Others [1978] EA 123].
7. In that regard, the evidence led by the Plaintiff/ Appellant [PW1], as
supported by that of his witnesses, being a Clinical Officer, Josephat
Lumbeko [PW2], a Traffic Police Officer, PC Christopher Kosgei [W3] and
the Medical Officer, Dr. Paul Kipkorir Rono [PW4], was considered against
that led by the Defendant/ Respondent, Gabriel Mahanu Barasa [DW1],
who did not call any witness.
8. From the evidence and pleading what arose as the basic issue for
determination was whether the material accident occurred as alleged on the
material date and time and whether the accident involved a Motor Vehicle
Registration No. KAE 311W belonging to the Defendant/ Respondent at the
time and if so, whether the accident was caused by the Defendant’s
negligence, if so, whether the Defendant was liable to the Plaintiff in
damages and to what extent or degree.
9. The trial court in its judgment framed what it considered to be issues for
determination. The first two issues were the most relevant in the
determination of the matter. These included whether there were grounds for
filing the suit out of time and whether the Plaintiff proved that an accident
occurred. In that regard, the trial court found in favour of the Defendant by
concluding that the Plaintiff case was filed out of time and that the Plaintiff
failed to prove his case on a balance of probabilities on account of the
Plaintiffs failure to tender evidence to prove the Defendant’s ownership of
the ill-fated vehicle.
10. On the issue of time, the Appellant after referring to the relevant
statutory provisions and case law submitted that the impugned judgment of
the trial court was erroneous and bad in law when the court purported to find
that the Appellant’s case was filed out of time and that the reasons thereof
were not proved. That the court acted oblivious of the earlier ruling made at
the initial stage of the suit. That, the court did not set aside or vary or
review the order allowing the claim out of time and could not therefore sit on
appeal of its own decision. That, discretionary impugned orders ought to be
challenged on appeal but this was not done thereby validating and
sustaining the order allowing the claim out of time.
11. The Respondent on the other hand submitted that the Appellant’s claim
was filed eleven [11] years after the accident and without firstly seeking
leave of the court, therefore rendering the suit time bared.
That, the court had no jurisdiction to subsequently grant leave one year after
the suit had been filed without leave. That, the decision by the trial court to
grant leave to file suit out time was a wrong exercise of discretion as there
were no good grounds given by the Appellant as to why he filed the suit and
subsequently filed an application to seek leave to file the same out of time.
12. The Respondent contended that the Appellant’s act of filing suit without
seeking leave of the court was an abuse of the court process and the court
had no jurisdiction to grant leave to the Appellant to file suit already filed out
of time. That, the leave granted on 10
th March 2015,was contrary to the
provisions of Section 4[2] of the Law of Limitations Act.
It was further contended by the Respondent that the Appellant never gave
any explanation for the delay, but purported to allege that the Respondent
had tried an out of court settlement as a reason for the delay.
13. The Law of Limitation of actions is expressed in the Limitation of
Actions Act [Cap 22 Laws of Kenya] and the claim herein being founded
on Tort may only be brought within a period of three[3] years from the date
on which the cause of action Accrued [See Section 4.[2] of the Act].
However, under Section 27 of the Act, a party may apply for extension of
time whether before or after the commwencement of an action and this may
be done under Section 28 of the Act.
14. Sub-Section [1] of Section 28 of the Act provides that: -
“An application for the leave of the court for the purposes of
Section 27 of this Act shall be made ex-parte, except in so
far as rules of court may otherwise provide in relation to
applications made after the commencement of a relevant
action.”
The parameters for grant of leave for extension of time where an application
is made after the commencement of a relevant action are set out in Section
28 [3] of the Act.
15. It was on the basis of the aforementioned provisions of the Limitation
of Actions Act that the Plaintiff/ Appellant filed the ex-parte notice of motion
dated 30
th June 2014 to file this suit out of time for reasons stated in the
motion as fortified by the Plaintiff’s averments contained in the supporting
affidavit dated 30
th June 2014.
The trial court to which the application was made considered the same and
allowed it in a ruling dated 10
th March 2015 in which the provisions of Article
159 [2] of the Constitution were invoked.
16. However, at a later stage during the hearing of the matter the
Defendant/ Respondent raised a preliminary objection to the suit to the effect
that it was time barred. In essence, the Defendant was challenging the
leave granted to the Plaintiff to file the suit out of time and contended that
the suit ought to be dismissed because it was time barred.
The objection was considered by the trial court which then ruled that the
objection was premature and directed the Defendant to raise it at the hearing
stage of the main suit.
17. In the Defendant’s further amended defence dated 24
th January 2017,
the Defendant pleaded that he would be raising a preliminary objection that
the suit is time barred and ought to be dismissed. Indeed, the trial court
considered the objection and upheld it on the basis of the decision in Rawal
Vs. Rawal [1990] KLR 275 and Kenya Orient Insurance Company Vs.
Senerro Ole Kurrawo & Others [296] eKLR.
In that regard, the trial court stated as follows: -
“The Defendant contested the aspect of the suit having been
filed out of time. The main ground upon which that leave to
file suit of time granted was that the Defendant intended to
settle the matter out of court. His testimony was that he
never engaged the Plaintiff with a view of setting this matter
out of court. The suit herein was filed after such a long
period. The time it took couldn’t be considered as
reasonable. I have perused the statement by the Plaintiff, it
doesn’t indicate the reasons why there was delay in filing
the claim.”
18. It is the opinion of this court that the aforementioned finding was
erroneous as it was against the weight of the evidence adduced by the
Plaintiff when he sought leave to file suit out of time. He averred in his
supporting affidavit that as a result of the injuries sustained due to the
accident he was disoriented for more than three years and has been on
medication since then. He further averred that the delay in filing the suit
was also occasioned by the Defendant’s false promises of settling the matter
out of court.
19. In Rawal Vs. Rawal [1990] KLR 275, it was stated that: -
“The object of any limitation enactment is to prevent a
Plaintiff from prosecution of stale claims on the one hand,
and on the other hand protect a Defendant after he had lost
evidence for his defence from being disturbed after a long
lapse of time. It is not to extinguish claims.”
And, in Iga Vs. Makerere University [1972] EA 65, it was held that: -
“A plaint which is barred by limitation is a plaint “barred by
law.” A reading of the provisions of Section 3 and 4 of the
Limitation Act [Cap 70] together with Order 7 Rule 7 of the
Civil Procedure Rules seems clear that unless the Appellant
in this case had put himself within the limitation period by
showing the grounds upon which he could claim exemption
the court. “shall reject” his claim............... The limitation
Act does not extinguish a suit or action itself but operates to
bar the claim or remedy sought for, and when a suit is time
barred, the court cannot grant the remedy or relief.”
20. Thus, a cause of action that is barred may nonetheless be revived if
the conditions set out in Section 27 of the Limitation Act [Cap 22 Law of
Kenya] are fulfilled. There must be good grounds for the court to exercise
its discretion to grant leave. Herein, the Plaintiff’s application for leave was
lawfully made under Section 27 of the Limitation of Actions Act and Article
159 of the Constitution. It was therefore incumbent upon the Plaintiff to
provide good reasonable grounds for his failure to file the suit within time.
21. Accordingly, the Plaintiff said that he became disoriented for a long
period of time. This could be translated to mean that he was impartially
disabled after the accident and may have been ignorant that he was required
to seek remedy for his injuries within a specified period of time. He
indicated that the delay in filing the suit was also due to misleading
information from the Defendant of having the case settled out of court.
22. Section 30[3] of the Limitation of Act provides that: -
“Subject to Sub-Section [4] of this Section, for the purpose
of Sections 27, 28 and 29 of this Act, a fact shall be taken at
any particular time, to have been outside the knowledge
[actual or constructive] of a person, if, but only if: -
(a).............................................
(b).............................................
(c)In so far as there existed, and were known to him,
circumstances from which, with approriate advice,
the fact night have been ascertained or inferred, he
had taken all such steps [if any] as it was
reasonable for him to have taken before that time
for the purpose of obtaining appropriate advice with
respect to those circumstances.
23. Sub-Section 4 of Section 30 of the Limitation Act, reads as follows: -
“In the application of Sub-Section [3] of this section to a
person at a time when he was under a disability and was in
the custody of a parent, a reference to that person in
paragraph [a], paragraph [b] or paragraph[c] of that Sub-
Section shall be construed as a reference to that parent.”
And Sub-Section 5 of the same provision states as follows: -
“in this Section, “appropriate advice in relation to any fact
or circumstances means the advice of a competent person
qualified, in their respective spheres, to advise on the
medical, legal or other aspects of that fact or those
circumstances, as the case may be.”
24. The limitation of Actions Act does not extinguish a suit or action itself,
but operates to bar the claim or remedy sought for, and when a suit is time
barred the court cannot grant the remedy or relief where circumstances
permit the cause of action which is barred as opposed to being extinguished
is capable of being revived [See the Rawal and Iga cases [supra].
25. The issue pertaining to settlement of claims or negotiations to settle
claims out of court was considered in the case of Rosemary Wanjiru
Kungu Vs. Elijah Macharia Githinji & Another [2014] eKLR, wherein it
was observed that: -
“Where the Defendant or his representative such as the
insurance company leads the Plaintiff to believe that the
claim is capable of being settled and in reliance thereof the
Plaintiff or his advocate refrains from filing the suit until
after the limitation has run its course, that may constitute a
good ground for extending time notwithstanding the
provisions of Section 27 aforesaid.”
26. In Lucia Wambui Ngugi Vs. Kenya Raiulway & Another NBI
HCMA NO. 213 of 1989, the Court stated that: -
“when an application is made for leave under the limitation
Act, a judge in chambers should not grant leave of course.
He should carefully scruitinise the case to see whether it is
proper one for leave. Since it has been decided that the
Defendant’s have no right to go back to the High Court to
challenge such orders, it is particularly important that when
such an application is made the order should not follow as a
matter of course. The evidence in support of the
application ought to be very carefully scrutinized, and if that
evidence does not make quiet clear that the Plaintiff comes
within the terms of the Limitation Act, then either the order
ought to be refused or the Plaintiff ought perhaps to be
given an opportunity of supplementing his evidence.”
27. It was further stated in the case aforementioned that: -
“It must, of course, be assumed for the purpose of the ex-
parte application that the affidavit evidence is true, but it is
only if that evidence makes it absolutely plain that the
Plaintiff is entitled to leave that the application should be
granted and the order made, for such an order may have the
effect of depriving the Defendant of a very valuable
statutory right.”
In this case the necessary ex-parte application was made and after it was
given careful consideration by the trial court it was allowed, thereby implying
that the suit was deemed to have been properly filed upon grant of leave for
extension of time. It was no longer time barred on account of the Limitation
Act.
28. Nonetheless, the Defendant raised a preliminary objection at the
hearing of the suit praying for the dismissal of the suit for being time barred.
The objection was on a point of law, hence capable of disposing of the whole
suit if it was sustained by the trial court. However, the objection was not
sustained and was instead impliedly dismissed by the trial court for want of
maturity. Ideally, the Defendant ought to have appealed the dismissal by
way of an interlocutory appeal before the commencement of the hearing of
the suit, but the trial court gave him an opportunity to revisit the issue at the
hearing of the suit as a whole thereby conferring to itself a jurisdiction it did
not have i.e. to sit on appeal of its own decision.
29. In any event, the preliminary objection having been technically
dismissed and there being no proper appeal to a higher court against the
interlocutory dismissal it could not be said that the suit was time barred.
Therefore, this court disagrees with the finding of the trial court that the suit
was filed out of time, hence time barred.
30. The occurrence of the accident having not been substantially disputed
by the Defendant and having in any event, been established by the Plaintiff’s
evidence coupled with that of the Traffic Officer [PW3] it fell upon the Plaintiff
to prove on a balance of probabilities that the Defendant was the legal
and/or beneficiaries/ owner of the ill-fated Motor Vehicle Registration No.
KAE 311W.
The question of ownership of the vehicle was a contributing factor in the
dismissal of this suit by the trial court.
31. It was the Plaintiff’s evidence that the vehicle was a public service
vehicle belonging to the Defendant and that he was aboard the vehicle as a
lawful fare paying passenger when it was involved in the accident causing
him to suffer serious bodily injury. The police officer [PW3] confirmed that
the motor vehicle belonged to the Defendant and produced a police abstract
[P. Exhibit 3] to establish as much. The abstract showed that the
registered owner of the vehicle was Gabriel Barasa or Baraza Gabriel who
was identified as the Defendant herein.
32. Indeed, even in this suit the defendant was said to be the person
known as Gabriel Baraza. He testified in court [DW1] and identified himself
in his full name of Gabriel Mahanu Barasa. He disowned his alleged
ownership of the accident motor vehicle and attributed his being the
Defendant herein to a case of mistaken identity.
33. The police abstract was the only evidence availed by the
Plaintiff/Appellant to prove that the Defendant was the owner of the ill-fated
motor vehicle at the material time of the accident. It sufficed as proof of
ownership in the absence of any other documentary evidence such as
certificate of search or any record of ownership from the Registrar of Motor
Vehicles and in view of the fact that the Defendant denied ownership but
failed to provide any evidence to disprove the Plaintiff’s allegation that he
was the actual owner of the vehcle given that the Plaintiff was only required
to prove ownership on a balance of probabilities and this was achieved by
production of the police abstract, a formal official document containing
verified information.
34. It was also clear from the Defendant’s testimony that he was not quite
candid and credible enough in denying ownership of the vehicle. During his
cross-examinationhbe alluded to the fact that he was in possession of a
search certificate from the Registrar of Motor Vehicles and that he sold the
vehicle to a third party. Although he stated that he was referring to another
vehicle, he did not produce the search certificate to confirm that he was
referring to a different vehicle other than the material motor vehicle.
35. While production of a certificate of search from the Registrar of motor
vehicle by a Plaintiff as proof of ownership of a vehicle is the most effectors
way of establishing ownership, it is not the only way to do so. A valid and
undisputed police abstract report would be sufficient enough in the absence
of any other evidence. [See, Jotham Mugalo Vs. Telkom [K] Limited
[2005] KEHC 475 [KLR].
36. In Wellington Nganga Mwaura Vs. Akamba Public Road Services
Limited & Another [201] eKLR, the Court of Appeal held that: -
“Where a police abstract was produced and there was no
evidence adduced by the Defendant to rebut it and not even
cross-examination challenged it, the police abstract being a
prima facie evidence not rebutted could be relied on as
proof of ownership in the absence of anything else as proof
in civil cases was within the standards of probability and
not beyond reasonable doubt as in Criminal Cases.”
37. The decision aforementioned is a pointer to the evidentiary value of a
police abstract as regards proof of ownership of a motor vehicle.
Therefore, in this case, this court contrary to the finding of the trial court
would find that the police abstract tendered herein was sufficient and
credible proof of the Defendants ownership of the ill-fated vehicle.
38. Other than ownership of the vehicle, there was sufficient and credible
evidence from the Plaintiff and the police officer [PW3] establishing and
proving that the accident was as a result of the negligence of the ill-fated
vehicle’s driver in the manner of driving the vehicle such that it went out of
control and overturned.
Being a passenger in the vehicle there is no way that the Plaintiff could be
held responsible for the accident unless the Defendant proved otherwise by
necessary evidence which was not the case herein.
39. The Defendant, even if was not the driver of the vehicle at the material
time he could be and was rightly held vicariously liable for the negligent acts
and omissions of his driver/agent and/or servant.
All in all, from the totality of the evidence availed in the trial court, it is the
finding of this court that the occurrence of the accident and the culpability of
the Defendant in respect therefore are factor which were proved by the
Plaintiff on a balance of probabilities.
40. The Defendant was therefore fully liable to the Plaintiff for the loss and
damage occasioned to him [Plaintiff] as a result of the accident.
With regard quontum of damages, the trial court opined that if it had found in
favour of the Plaintiff then it would have awarded the Plaintiff a sum of Kshs.
5[five] million as general damages and proven special damage, in the sum of
Kshs. 1,500/-. The additional claims were declined for want of evidence.
41. The additional claims were specified in the amended plaint dated 15
th
June 2015 and included loss of income and earning capacity and special
damages for replacement of the wheel chair plus future medical expenses.
It was pleaded in the amended plaint that the Plaintiff suffered head injury,
brain concession [sic], cut wounds on the scalp and chin, blunt trauma to
both shoulders and arms, compressed fracture of the lumber spine and
paralysis of both limbs [paraplegia] due to the damaged part of the spinal
cord.
42. These injuries were confirmed by Dr. Aluda in his report dated 16
th
April 2014 in which he indicated that the injuries sustained were very severe
and have yet to heal but for the occasioned pains.
That, the scars would remain permanent, the fracture sustained healed and
both lower limbs were paralyzed resulting in permanent disability such that
the Plaintiff would never be able to stand or walk in his lifetime.
43. No proposal were made by the parties at the trial with regard to the
award of general damages. Although the Defendant filed his submissions he
did not make any proposal in that regard. The Plaintiff appears not to have
filed his submissions an omission he attributes herein to lack of proper
notification by the trial court on the scheduled date for submissions.
Nonetheless, the failure to file submissions by the Plaintiff was in the opinion
of this court not fatal or prejudicial since submissions are simply arguments
to augment and buttress either party’s case which invariably, was to be
decided on the basis of the evidence and not the submissions.
44. Indeed, it was on the basis of the medical evidence availed in court
that the trial court formed the opinion that a sum of Kshs. 5[five] million
would be sufficient compensation as general damages for pain, suffering
and loss of amenities and that what was specifically proved as special
damages was a sum of Kshs. 1500/-.
As for damages for loss of income and loss of earning capacity the trial court
found that these were not proved or justified by necessary evidence.
45. In this appeal, the Appellant did not dispute the trial court’s opinion on
quantum of damages. He submitted that the award spelt out in the
impugned judgment was sufficient to cater for the injuries, suffering and pain
as well as the permanent disability and the high level of dependency caused
to him [Appellant] as a result of the accident.
46. This court cannot agree more with the trial court and the Appellant with
regard to the assessment of damages available to the Plaintiff/Appellant
against the Defendant/ Respondent.
In sum, this appeal is hereby allowed to the extent that the impugned
judgment of the trial court be set aside and substituted for a judgment in
favour of the Plaintiff against the Defendant for the sum of Kshs. 5[five]
million being general damages for pain, suffering and loss of amenities and
Kshs. 1500/- being special damages.
47. The Plaintiff shall have the costs of the suit in the trial court and of this
appeal together with costs and interest.
Ordered accordingly.
Dated and delivered this 11
th day of March 2026
HON. J. R. KARANJAH,
JUDGE
Kapsabet Civil Case No. 75 of 2014, delivered on 14
th February 2022 in
which the Appellant/ Plaintiff sued the Respondent/Defendant vide the
statement of claim [plaint] dated 15
th June 2015 wherein it was pleaded that
the Defendant was at all material times the owner and/or beneficial owner of
Motor Vehicle Registration No. KAE 311W in which the Appellant/Plaintiff
was on the 23
rd February 2003 lawfully travelling as a fare paying passenger
when it was driven so negligently and recklessly along the Kapsabet-
Chavakali road such that at a place called Denja Corner it lost control and
overturned thereby causing bodily injuries to the Plaintiff.
2. It was further pleaded that the Plaintiff suffered loss and damage as a result
of the accident at a time that he was twenty eight [28] years, young robust
and in good health. That, he was a farmer by occupation involved in the
business of buying and selling cattle and was the sole breadwinner of his
family. He therefore claimed general damages for loss of income, loss of
earning capacity and special damages as against the Defendant/
Respondent.
3. The Defendant denied the claim and the allegations of negligence made
against him by the Plaintiff. He contended that if the accident indeed
occurred, then it was inevitable and was solely caused by reckless and
negligent acts of the Plaintiff. He therefore prayed for the dismissal of the
suit with costs.
4. After trial, the Plaintiff’s suit was dismissed with costs to the Defendant.
Being aggrieved, the Plaintiff preferred the present appeal on the basis of
the eleven [11] grounds set out in the memorandum of appeal dated 4
th
March 2022.
Basically, the Applicant complains that the trial court erred in law and fact by
failing to properly consider the facts of the case and the evidence adduced in
support thereof thereby dismissing the case and failing to appreciate that it
had been proved on the balance of probability.
5. It is the Appellant’s prayer that the judgment and decree of the trial court be
set aside and substituted with a proper finding and award. He also prays for
any other orders that the court may deem just and expedient in the
circumstances together with costs of the appeal.
The Respondent opposed the appeal which was canvassed by way of
written submissions. Both parties filed their respective submissions through
their respective advocates, being Messrs R.M. Wafula & Company
Advocates for the Appellant and Messrs Onyando & Company Advocates
for the Respondent.
6. The rival submissions were duly considered by this court in the light of the
grounds in support of the appeal and those in opposition thereto as may be
deciphered from the Respondent’s submissions. The duty of this court was
to re-consider the evidence and draw its own conclusions bearing in mind
that the trial court had the advantage of seeing and hearing the witnesses
[See, Selle & Another Vs. Associated Motor Boat Company Limited &
Others [1978] EA 123].
7. In that regard, the evidence led by the Plaintiff/ Appellant [PW1], as
supported by that of his witnesses, being a Clinical Officer, Josephat
Lumbeko [PW2], a Traffic Police Officer, PC Christopher Kosgei [W3] and
the Medical Officer, Dr. Paul Kipkorir Rono [PW4], was considered against
that led by the Defendant/ Respondent, Gabriel Mahanu Barasa [DW1],
who did not call any witness.
8. From the evidence and pleading what arose as the basic issue for
determination was whether the material accident occurred as alleged on the
material date and time and whether the accident involved a Motor Vehicle
Registration No. KAE 311W belonging to the Defendant/ Respondent at the
time and if so, whether the accident was caused by the Defendant’s
negligence, if so, whether the Defendant was liable to the Plaintiff in
damages and to what extent or degree.
9. The trial court in its judgment framed what it considered to be issues for
determination. The first two issues were the most relevant in the
determination of the matter. These included whether there were grounds for
filing the suit out of time and whether the Plaintiff proved that an accident
occurred. In that regard, the trial court found in favour of the Defendant by
concluding that the Plaintiff case was filed out of time and that the Plaintiff
failed to prove his case on a balance of probabilities on account of the
Plaintiffs failure to tender evidence to prove the Defendant’s ownership of
the ill-fated vehicle.
10. On the issue of time, the Appellant after referring to the relevant
statutory provisions and case law submitted that the impugned judgment of
the trial court was erroneous and bad in law when the court purported to find
that the Appellant’s case was filed out of time and that the reasons thereof
were not proved. That the court acted oblivious of the earlier ruling made at
the initial stage of the suit. That, the court did not set aside or vary or
review the order allowing the claim out of time and could not therefore sit on
appeal of its own decision. That, discretionary impugned orders ought to be
challenged on appeal but this was not done thereby validating and
sustaining the order allowing the claim out of time.
11. The Respondent on the other hand submitted that the Appellant’s claim
was filed eleven [11] years after the accident and without firstly seeking
leave of the court, therefore rendering the suit time bared.
That, the court had no jurisdiction to subsequently grant leave one year after
the suit had been filed without leave. That, the decision by the trial court to
grant leave to file suit out time was a wrong exercise of discretion as there
were no good grounds given by the Appellant as to why he filed the suit and
subsequently filed an application to seek leave to file the same out of time.
12. The Respondent contended that the Appellant’s act of filing suit without
seeking leave of the court was an abuse of the court process and the court
had no jurisdiction to grant leave to the Appellant to file suit already filed out
of time. That, the leave granted on 10
th March 2015,was contrary to the
provisions of Section 4[2] of the Law of Limitations Act.
It was further contended by the Respondent that the Appellant never gave
any explanation for the delay, but purported to allege that the Respondent
had tried an out of court settlement as a reason for the delay.
13. The Law of Limitation of actions is expressed in the Limitation of
Actions Act [Cap 22 Laws of Kenya] and the claim herein being founded
on Tort may only be brought within a period of three[3] years from the date
on which the cause of action Accrued [See Section 4.[2] of the Act].
However, under Section 27 of the Act, a party may apply for extension of
time whether before or after the commwencement of an action and this may
be done under Section 28 of the Act.
14. Sub-Section [1] of Section 28 of the Act provides that: -
“An application for the leave of the court for the purposes of
Section 27 of this Act shall be made ex-parte, except in so
far as rules of court may otherwise provide in relation to
applications made after the commencement of a relevant
action.”
The parameters for grant of leave for extension of time where an application
is made after the commencement of a relevant action are set out in Section
28 [3] of the Act.
15. It was on the basis of the aforementioned provisions of the Limitation
of Actions Act that the Plaintiff/ Appellant filed the ex-parte notice of motion
dated 30
th June 2014 to file this suit out of time for reasons stated in the
motion as fortified by the Plaintiff’s averments contained in the supporting
affidavit dated 30
th June 2014.
The trial court to which the application was made considered the same and
allowed it in a ruling dated 10
th March 2015 in which the provisions of Article
159 [2] of the Constitution were invoked.
16. However, at a later stage during the hearing of the matter the
Defendant/ Respondent raised a preliminary objection to the suit to the effect
that it was time barred. In essence, the Defendant was challenging the
leave granted to the Plaintiff to file the suit out of time and contended that
the suit ought to be dismissed because it was time barred.
The objection was considered by the trial court which then ruled that the
objection was premature and directed the Defendant to raise it at the hearing
stage of the main suit.
17. In the Defendant’s further amended defence dated 24
th January 2017,
the Defendant pleaded that he would be raising a preliminary objection that
the suit is time barred and ought to be dismissed. Indeed, the trial court
considered the objection and upheld it on the basis of the decision in Rawal
Vs. Rawal [1990] KLR 275 and Kenya Orient Insurance Company Vs.
Senerro Ole Kurrawo & Others [296] eKLR.
In that regard, the trial court stated as follows: -
“The Defendant contested the aspect of the suit having been
filed out of time. The main ground upon which that leave to
file suit of time granted was that the Defendant intended to
settle the matter out of court. His testimony was that he
never engaged the Plaintiff with a view of setting this matter
out of court. The suit herein was filed after such a long
period. The time it took couldn’t be considered as
reasonable. I have perused the statement by the Plaintiff, it
doesn’t indicate the reasons why there was delay in filing
the claim.”
18. It is the opinion of this court that the aforementioned finding was
erroneous as it was against the weight of the evidence adduced by the
Plaintiff when he sought leave to file suit out of time. He averred in his
supporting affidavit that as a result of the injuries sustained due to the
accident he was disoriented for more than three years and has been on
medication since then. He further averred that the delay in filing the suit
was also occasioned by the Defendant’s false promises of settling the matter
out of court.
19. In Rawal Vs. Rawal [1990] KLR 275, it was stated that: -
“The object of any limitation enactment is to prevent a
Plaintiff from prosecution of stale claims on the one hand,
and on the other hand protect a Defendant after he had lost
evidence for his defence from being disturbed after a long
lapse of time. It is not to extinguish claims.”
And, in Iga Vs. Makerere University [1972] EA 65, it was held that: -
“A plaint which is barred by limitation is a plaint “barred by
law.” A reading of the provisions of Section 3 and 4 of the
Limitation Act [Cap 70] together with Order 7 Rule 7 of the
Civil Procedure Rules seems clear that unless the Appellant
in this case had put himself within the limitation period by
showing the grounds upon which he could claim exemption
the court. “shall reject” his claim............... The limitation
Act does not extinguish a suit or action itself but operates to
bar the claim or remedy sought for, and when a suit is time
barred, the court cannot grant the remedy or relief.”
20. Thus, a cause of action that is barred may nonetheless be revived if
the conditions set out in Section 27 of the Limitation Act [Cap 22 Law of
Kenya] are fulfilled. There must be good grounds for the court to exercise
its discretion to grant leave. Herein, the Plaintiff’s application for leave was
lawfully made under Section 27 of the Limitation of Actions Act and Article
159 of the Constitution. It was therefore incumbent upon the Plaintiff to
provide good reasonable grounds for his failure to file the suit within time.
21. Accordingly, the Plaintiff said that he became disoriented for a long
period of time. This could be translated to mean that he was impartially
disabled after the accident and may have been ignorant that he was required
to seek remedy for his injuries within a specified period of time. He
indicated that the delay in filing the suit was also due to misleading
information from the Defendant of having the case settled out of court.
22. Section 30[3] of the Limitation of Act provides that: -
“Subject to Sub-Section [4] of this Section, for the purpose
of Sections 27, 28 and 29 of this Act, a fact shall be taken at
any particular time, to have been outside the knowledge
[actual or constructive] of a person, if, but only if: -
(a).............................................
(b).............................................
(c)In so far as there existed, and were known to him,
circumstances from which, with approriate advice,
the fact night have been ascertained or inferred, he
had taken all such steps [if any] as it was
reasonable for him to have taken before that time
for the purpose of obtaining appropriate advice with
respect to those circumstances.
23. Sub-Section 4 of Section 30 of the Limitation Act, reads as follows: -
“In the application of Sub-Section [3] of this section to a
person at a time when he was under a disability and was in
the custody of a parent, a reference to that person in
paragraph [a], paragraph [b] or paragraph[c] of that Sub-
Section shall be construed as a reference to that parent.”
And Sub-Section 5 of the same provision states as follows: -
“in this Section, “appropriate advice in relation to any fact
or circumstances means the advice of a competent person
qualified, in their respective spheres, to advise on the
medical, legal or other aspects of that fact or those
circumstances, as the case may be.”
24. The limitation of Actions Act does not extinguish a suit or action itself,
but operates to bar the claim or remedy sought for, and when a suit is time
barred the court cannot grant the remedy or relief where circumstances
permit the cause of action which is barred as opposed to being extinguished
is capable of being revived [See the Rawal and Iga cases [supra].
25. The issue pertaining to settlement of claims or negotiations to settle
claims out of court was considered in the case of Rosemary Wanjiru
Kungu Vs. Elijah Macharia Githinji & Another [2014] eKLR, wherein it
was observed that: -
“Where the Defendant or his representative such as the
insurance company leads the Plaintiff to believe that the
claim is capable of being settled and in reliance thereof the
Plaintiff or his advocate refrains from filing the suit until
after the limitation has run its course, that may constitute a
good ground for extending time notwithstanding the
provisions of Section 27 aforesaid.”
26. In Lucia Wambui Ngugi Vs. Kenya Raiulway & Another NBI
HCMA NO. 213 of 1989, the Court stated that: -
“when an application is made for leave under the limitation
Act, a judge in chambers should not grant leave of course.
He should carefully scruitinise the case to see whether it is
proper one for leave. Since it has been decided that the
Defendant’s have no right to go back to the High Court to
challenge such orders, it is particularly important that when
such an application is made the order should not follow as a
matter of course. The evidence in support of the
application ought to be very carefully scrutinized, and if that
evidence does not make quiet clear that the Plaintiff comes
within the terms of the Limitation Act, then either the order
ought to be refused or the Plaintiff ought perhaps to be
given an opportunity of supplementing his evidence.”
27. It was further stated in the case aforementioned that: -
“It must, of course, be assumed for the purpose of the ex-
parte application that the affidavit evidence is true, but it is
only if that evidence makes it absolutely plain that the
Plaintiff is entitled to leave that the application should be
granted and the order made, for such an order may have the
effect of depriving the Defendant of a very valuable
statutory right.”
In this case the necessary ex-parte application was made and after it was
given careful consideration by the trial court it was allowed, thereby implying
that the suit was deemed to have been properly filed upon grant of leave for
extension of time. It was no longer time barred on account of the Limitation
Act.
28. Nonetheless, the Defendant raised a preliminary objection at the
hearing of the suit praying for the dismissal of the suit for being time barred.
The objection was on a point of law, hence capable of disposing of the whole
suit if it was sustained by the trial court. However, the objection was not
sustained and was instead impliedly dismissed by the trial court for want of
maturity. Ideally, the Defendant ought to have appealed the dismissal by
way of an interlocutory appeal before the commencement of the hearing of
the suit, but the trial court gave him an opportunity to revisit the issue at the
hearing of the suit as a whole thereby conferring to itself a jurisdiction it did
not have i.e. to sit on appeal of its own decision.
29. In any event, the preliminary objection having been technically
dismissed and there being no proper appeal to a higher court against the
interlocutory dismissal it could not be said that the suit was time barred.
Therefore, this court disagrees with the finding of the trial court that the suit
was filed out of time, hence time barred.
30. The occurrence of the accident having not been substantially disputed
by the Defendant and having in any event, been established by the Plaintiff’s
evidence coupled with that of the Traffic Officer [PW3] it fell upon the Plaintiff
to prove on a balance of probabilities that the Defendant was the legal
and/or beneficiaries/ owner of the ill-fated Motor Vehicle Registration No.
KAE 311W.
The question of ownership of the vehicle was a contributing factor in the
dismissal of this suit by the trial court.
31. It was the Plaintiff’s evidence that the vehicle was a public service
vehicle belonging to the Defendant and that he was aboard the vehicle as a
lawful fare paying passenger when it was involved in the accident causing
him to suffer serious bodily injury. The police officer [PW3] confirmed that
the motor vehicle belonged to the Defendant and produced a police abstract
[P. Exhibit 3] to establish as much. The abstract showed that the
registered owner of the vehicle was Gabriel Barasa or Baraza Gabriel who
was identified as the Defendant herein.
32. Indeed, even in this suit the defendant was said to be the person
known as Gabriel Baraza. He testified in court [DW1] and identified himself
in his full name of Gabriel Mahanu Barasa. He disowned his alleged
ownership of the accident motor vehicle and attributed his being the
Defendant herein to a case of mistaken identity.
33. The police abstract was the only evidence availed by the
Plaintiff/Appellant to prove that the Defendant was the owner of the ill-fated
motor vehicle at the material time of the accident. It sufficed as proof of
ownership in the absence of any other documentary evidence such as
certificate of search or any record of ownership from the Registrar of Motor
Vehicles and in view of the fact that the Defendant denied ownership but
failed to provide any evidence to disprove the Plaintiff’s allegation that he
was the actual owner of the vehcle given that the Plaintiff was only required
to prove ownership on a balance of probabilities and this was achieved by
production of the police abstract, a formal official document containing
verified information.
34. It was also clear from the Defendant’s testimony that he was not quite
candid and credible enough in denying ownership of the vehicle. During his
cross-examinationhbe alluded to the fact that he was in possession of a
search certificate from the Registrar of Motor Vehicles and that he sold the
vehicle to a third party. Although he stated that he was referring to another
vehicle, he did not produce the search certificate to confirm that he was
referring to a different vehicle other than the material motor vehicle.
35. While production of a certificate of search from the Registrar of motor
vehicle by a Plaintiff as proof of ownership of a vehicle is the most effectors
way of establishing ownership, it is not the only way to do so. A valid and
undisputed police abstract report would be sufficient enough in the absence
of any other evidence. [See, Jotham Mugalo Vs. Telkom [K] Limited
[2005] KEHC 475 [KLR].
36. In Wellington Nganga Mwaura Vs. Akamba Public Road Services
Limited & Another [201] eKLR, the Court of Appeal held that: -
“Where a police abstract was produced and there was no
evidence adduced by the Defendant to rebut it and not even
cross-examination challenged it, the police abstract being a
prima facie evidence not rebutted could be relied on as
proof of ownership in the absence of anything else as proof
in civil cases was within the standards of probability and
not beyond reasonable doubt as in Criminal Cases.”
37. The decision aforementioned is a pointer to the evidentiary value of a
police abstract as regards proof of ownership of a motor vehicle.
Therefore, in this case, this court contrary to the finding of the trial court
would find that the police abstract tendered herein was sufficient and
credible proof of the Defendants ownership of the ill-fated vehicle.
38. Other than ownership of the vehicle, there was sufficient and credible
evidence from the Plaintiff and the police officer [PW3] establishing and
proving that the accident was as a result of the negligence of the ill-fated
vehicle’s driver in the manner of driving the vehicle such that it went out of
control and overturned.
Being a passenger in the vehicle there is no way that the Plaintiff could be
held responsible for the accident unless the Defendant proved otherwise by
necessary evidence which was not the case herein.
39. The Defendant, even if was not the driver of the vehicle at the material
time he could be and was rightly held vicariously liable for the negligent acts
and omissions of his driver/agent and/or servant.
All in all, from the totality of the evidence availed in the trial court, it is the
finding of this court that the occurrence of the accident and the culpability of
the Defendant in respect therefore are factor which were proved by the
Plaintiff on a balance of probabilities.
40. The Defendant was therefore fully liable to the Plaintiff for the loss and
damage occasioned to him [Plaintiff] as a result of the accident.
With regard quontum of damages, the trial court opined that if it had found in
favour of the Plaintiff then it would have awarded the Plaintiff a sum of Kshs.
5[five] million as general damages and proven special damage, in the sum of
Kshs. 1,500/-. The additional claims were declined for want of evidence.
41. The additional claims were specified in the amended plaint dated 15
th
June 2015 and included loss of income and earning capacity and special
damages for replacement of the wheel chair plus future medical expenses.
It was pleaded in the amended plaint that the Plaintiff suffered head injury,
brain concession [sic], cut wounds on the scalp and chin, blunt trauma to
both shoulders and arms, compressed fracture of the lumber spine and
paralysis of both limbs [paraplegia] due to the damaged part of the spinal
cord.
42. These injuries were confirmed by Dr. Aluda in his report dated 16
th
April 2014 in which he indicated that the injuries sustained were very severe
and have yet to heal but for the occasioned pains.
That, the scars would remain permanent, the fracture sustained healed and
both lower limbs were paralyzed resulting in permanent disability such that
the Plaintiff would never be able to stand or walk in his lifetime.
43. No proposal were made by the parties at the trial with regard to the
award of general damages. Although the Defendant filed his submissions he
did not make any proposal in that regard. The Plaintiff appears not to have
filed his submissions an omission he attributes herein to lack of proper
notification by the trial court on the scheduled date for submissions.
Nonetheless, the failure to file submissions by the Plaintiff was in the opinion
of this court not fatal or prejudicial since submissions are simply arguments
to augment and buttress either party’s case which invariably, was to be
decided on the basis of the evidence and not the submissions.
44. Indeed, it was on the basis of the medical evidence availed in court
that the trial court formed the opinion that a sum of Kshs. 5[five] million
would be sufficient compensation as general damages for pain, suffering
and loss of amenities and that what was specifically proved as special
damages was a sum of Kshs. 1500/-.
As for damages for loss of income and loss of earning capacity the trial court
found that these were not proved or justified by necessary evidence.
45. In this appeal, the Appellant did not dispute the trial court’s opinion on
quantum of damages. He submitted that the award spelt out in the
impugned judgment was sufficient to cater for the injuries, suffering and pain
as well as the permanent disability and the high level of dependency caused
to him [Appellant] as a result of the accident.
46. This court cannot agree more with the trial court and the Appellant with
regard to the assessment of damages available to the Plaintiff/Appellant
against the Defendant/ Respondent.
In sum, this appeal is hereby allowed to the extent that the impugned
judgment of the trial court be set aside and substituted for a judgment in
favour of the Plaintiff against the Defendant for the sum of Kshs. 5[five]
million being general damages for pain, suffering and loss of amenities and
Kshs. 1500/- being special damages.
47. The Plaintiff shall have the costs of the suit in the trial court and of this
appeal together with costs and interest.
Ordered accordingly.
Dated and delivered this 11
th day of March 2026
HON. J. R. KARANJAH,
JUDGE