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INTRODUCTION
The appellant has appealed against a ruling delivered by the learned Honorable J.P. Omollo resident magistrate/ adjudicator striking out the claimant’s Originating summons 12 th January 2022.
In the said Originating Summons the appellant sought extension of time for the filing of the case out of time over a course of action which arose on 6 th December 2018. In the Originating summons for the extension of time the appellant stated to have filed the statement of claim on 16 th December 2018. If indeed the Originating summons were correct then there would not have been reason to seek extension of time because as of that date the appellant was still within the statutory period for commencing the suit.
Further, in the grounds set out in the motion the appellant stated: “the prescribed time frame for instituting legal proceedings against the respondents in this matter had lapsed on 5 th December 2021”. The appellant goes further to state that the “claimant’s advocates were able to institute the claim on 16 th December 2021 at the time the matter was already time barred”
The statement is a clear material contradiction of the contents on the face of the motion.
The learned Honorable magistrate struck out on 11 th February 2022 prompting the present appeal.
The appellant’s memorandum of appeal dated 25 th February 2021 sets out the following grounds:-
THAT the Honourable Learned Magistrate erred in law and fact by ignoring the practice in the Small Claims Court and in similar cases in the Small Claims Court where suit papers were deemed to be duly filed upon sending them to the court registry email and not upon paying the filing fees.
THAT the learned Honourable Magistrate erred in law and fact by failing to appreciate that the Appellant''s suit papers had already been sent to the court registry by email before the cause of action was statute-barred for assessment and filing as was the procedure before introduction of the e-filing system.
THAT the learned Honourable Magistrate erred in law and fact by failing to appreciate that the delay in paying the filing fees by the Appellant was occasioned by the court registry who took time to assess the Appellant''s suit papers and generate an invoice to enable the Appellant to pay the filing fees in time before the cause of action was statute- barred.
THAT the Learned Honourable Magistrate grossly misdirected herself by failing to exercise her discretion by finding that the failure by the Appellant to pay the filing fees in time was caused by delay in the court registry.
The facts of the matter are that the Claimant was the registered owner and the insured of motor vehicle registration number KAN 546Y which at the time was insured by M/S UAP INSURANCE CO. LIMITED while the 1st Respondent was the beneficial owner and insured of motor vehicle registration number KCH 471B which is registered in the name of the 2nd Respondent.
It is alleged that on or about 6th December 2018, the Claimant''s authorized driver was lawfully and carefully driving motor vehicle registration number KAN 546Y along Waiyaki Way, Westlands when the Respondents'' authorized driver and/or agent so negligently and carelessly drove motor vehicle registration number KCH 471B ramming into the Claimant''s motor vehicle registration number KAN 546Y at the rear and causing extensive damage to the Plaintiff''s vehicle.
The record shows that the appellant filed an Originating summons seeking the extension of time for filing of the claim out of time more than a month after the statutory period allowed for the filing of such claims.
The learned Honorable magistrate struck out the suit on the basis of Section 27 (1) of the Limitation of Actions Act which the adjudicator held does not permit the extension of time in relation to claims falling outside personal injury claims.
The appellant in prayer 2 of his originating summons sought an order that the statement of claim filed on 16 th December 2018 be deemed as duly filed within time. It should be noted upfront that as of the 16 th December 2018 the appellant was still within time thus leave to institute the suit was not necessary.
The originating summons was supported by an affidavit sworn by Manyara Reginald Mworia who deponed that;-
I am an adult male of sound mind, well conversant with the circumstances of this suit thus competent to swear this affidavit.
I am an advocate of the High Court of Kenya employed as an associate at the firm of Kamotho Njomo and Company Advocates, advocates for the Claimant / Applicant herein.
I am aware that the firm of Kamotho Njomo and Company Advocates received instructions to file a recovery suit on behalf of the Claimant on 2nd December 2021. (Annexed hereto and marked MRM-01 is the email dated 1st December 2021)
I personally prepared the relevant pleadings and recorded the Claimant''s witness statement after which I attempted to institute the suit on the court''s e-filing platform.
However, due to technical issues, I faced significant challenges in trying to institute a fresh suit using the e-filing platform.
I then got in touch with the court''s IT team who began attending to the issue. In addition, I directed the firm''s clerk to go to the registry and file the matter in person but it is my understanding that he was restricted from doing so as the court had at this point fully transitioned into online filing.
As a last resort, I attempted to file the matter via email as was the procedure before the introduction of the e-filing system but to no avail. (Annexed hereto and marked MRM-02 is the email sending pleadings to court).
I also sent a follow-up email to the Small Claims Court the next week after receiving no response from the court. (Annexed hereto and marked MRM-03 is the email dated 14th December 2021).
Due to these extenuating circumstances, the suit was filed on or around the 16th of December 2021, at which point the matter was already time-barred. (Annexed hereto and marked MRM-04 is the receipt from the court dated 16th December 2021)
I verily believe that given the circumstances prevailing at the time, the Statement of Claim filed on 16th December 2018 should be deemed as duly filed by this Honourable Court for the reasons that:
a. Given the technical issues with the court''s e-filing platform, we were unable to bring this matter before this Honourable Court in good time.
b. Numerous attempts were made to bring this matter before the court in good time.
c. There has been no delay in bringing this application.
In order to file this claim, leave of the Court must first be sought and granted.
That the delay to prosecute this claim was due to reasons beyond the control of the Claimant and his insurer.
That the Claimant and his insurer are very desirous to prosecute the claim. (Annexed hereto and marked MRM-05 is a copy of the filed Statement of Claim).
That it is in the interest of justice that the Statement of Claim filed on 16th December 2018 be deemed as duly filed to enable the Court to hear and determine the issues to be raised in their true merits.
That a granting of the orders sought will not occasion any prejudice to the Respondents as they too will be accorded a fair chance to be heard.
That I swear this Affidavit in support of the application hereto.
That all that I have deponed herein above is true and correct to the best of my knowledge, information and belief.
The appellant by dint of his application was basically seeking an equitable remedy from the court. He was therefore under duty to demonstrate that he had come to equity with clean hands in order for him to be granted the equitable relief he sought. The originating summons made reference to a statement of claim filed on 16 th December 2018. However, the affidavit in support indicated that the firm of Kamogo Njomo Advocates received instructions to file the claim on 2 nd December 2021. Quite obviously, the claim cannot have been filed on 16 th December 2018 as per prayer 2 of the originating summons.
The appellant’s originating summons was therefore fatally defective in that respect and by extension it was not a candid application with respect to the dates when the claim sought to be validated by an order of extension of time was filed.
A litigant who seeks to be benefit from an equitable relief must demonstrate good faith and all his representations to the court must be manifestly truthful. Equity frowns upon deceit or deliberate misrepresentation of facts. The appellant by his own pleadings was deceptive to the extent that he sought to have orders issued to the effect that a statement of claim was filed on 16 th December 2018 whereas the affidavit of his own advocate indicated that the law firm was instructed on 2 nd December 2021.
Further, the statement of claim annexed to the affidavit is dated 6 th December 2021. It is therefore not in doubt that there never was a statement of claim dated 16 th December 2018 as claimed by the appellant in his originating summons thus even if the learned Honorable magistrate had allowed the originating summons the order would have been in vain.
On that ground alone, the appellant’s appeal is hopeless and commends itself for dismissal.
In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR . The supreme court stated as follows;
“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.
The court went further and set out the conditions that must be satisfied before a party can be granted an order for extension of time to file an appeal as hereunder: -
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;
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
The appellant did not therefore meet the test set by the Supreme Court thus the learned Honorable magistrate was correct in striking out the Originating summons
Further, this court finds and holds that Section 27 (1) of the Limitation of Actions Act under which the appellant sought the extension of time does not contemplate leave to be granted to file claims on material damage as prayed for by the appellant in the lower court.
In Mary Osundwa Vs Nzoia Sugar Company Limited Civil Appeal No. 244 of 2000 cited in John Kimanthi Gikunda Vs Racheal Muthoni Njeru & 2 Others [2020] eKLR the Court of Appeal held:-
“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 and breach of duty and the damages claimed must be in respect of personal injuries to the plaintiff as a result of the tort”
In line with the finding of the Court of Appeal the statement of claim by the appellant sought Repair costs of Ksh. 245,080 and Tracing fees Ksh. 34,000 thus none of the two limps of the claim fell within the category of Personal Injury Claims. The decision by the learned Honorable magistrate in striking out the originating summons was correct.
The upshot of the above is that the appeal is hereby dismissed with no order as to no costs since the same was undefended.
It is so ordered.
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INTRODUCTION
The appellant has appealed against a ruling delivered by the learned Honorable J.P. Omollo resident magistrate/ adjudicator striking out the claimant’s Originating summons 12 th January 2022.
In the said Originating Summons the appellant sought extension of time for the filing of the case out of time over a course of action which arose on 6 th December 2018. In the Originating summons for the extension of time the appellant stated to have filed the statement of claim on 16 th December 2018. If indeed the Originating summons were correct then there would not have been reason to seek extension of time because as of that date the appellant was still within the statutory period for commencing the suit.
Further, in the grounds set out in the motion the appellant stated: “the prescribed time frame for instituting legal proceedings against the respondents in this matter had lapsed on 5 th December 2021”. The appellant goes further to state that the “claimant’s advocates were able to institute the claim on 16 th December 2021 at the time the matter was already time barred”
The statement is a clear material contradiction of the contents on the face of the motion.
The learned Honorable magistrate struck out on 11 th February 2022 prompting the present appeal.
The appellant’s memorandum of appeal dated 25 th February 2021 sets out the following grounds:-
THAT the Honourable Learned Magistrate erred in law and fact by ignoring the practice in the Small Claims Court and in similar cases in the Small Claims Court where suit papers were deemed to be duly filed upon sending them to the court registry email and not upon paying the filing fees.
THAT the learned Honourable Magistrate erred in law and fact by failing to appreciate that the Appellant''s suit papers had already been sent to the court registry by email before the cause of action was statute-barred for assessment and filing as was the procedure before introduction of the e-filing system.
THAT the learned Honourable Magistrate erred in law and fact by failing to appreciate that the delay in paying the filing fees by the Appellant was occasioned by the court registry who took time to assess the Appellant''s suit papers and generate an invoice to enable the Appellant to pay the filing fees in time before the cause of action was statute- barred.
THAT the Learned Honourable Magistrate grossly misdirected herself by failing to exercise her discretion by finding that the failure by the Appellant to pay the filing fees in time was caused by delay in the court registry.
The facts of the matter are that the Claimant was the registered owner and the insured of motor vehicle registration number KAN 546Y which at the time was insured by M/S UAP INSURANCE CO. LIMITED while the 1st Respondent was the beneficial owner and insured of motor vehicle registration number KCH 471B which is registered in the name of the 2nd Respondent.
It is alleged that on or about 6th December 2018, the Claimant''s authorized driver was lawfully and carefully driving motor vehicle registration number KAN 546Y along Waiyaki Way, Westlands when the Respondents'' authorized driver and/or agent so negligently and carelessly drove motor vehicle registration number KCH 471B ramming into the Claimant''s motor vehicle registration number KAN 546Y at the rear and causing extensive damage to the Plaintiff''s vehicle.
The record shows that the appellant filed an Originating summons seeking the extension of time for filing of the claim out of time more than a month after the statutory period allowed for the filing of such claims.
The learned Honorable magistrate struck out the suit on the basis of Section 27 (1) of the Limitation of Actions Act which the adjudicator held does not permit the extension of time in relation to claims falling outside personal injury claims.
The appellant in prayer 2 of his originating summons sought an order that the statement of claim filed on 16 th December 2018 be deemed as duly filed within time. It should be noted upfront that as of the 16 th December 2018 the appellant was still within time thus leave to institute the suit was not necessary.
The originating summons was supported by an affidavit sworn by Manyara Reginald Mworia who deponed that;-
I am an adult male of sound mind, well conversant with the circumstances of this suit thus competent to swear this affidavit.
I am an advocate of the High Court of Kenya employed as an associate at the firm of Kamotho Njomo and Company Advocates, advocates for the Claimant / Applicant herein.
I am aware that the firm of Kamotho Njomo and Company Advocates received instructions to file a recovery suit on behalf of the Claimant on 2nd December 2021. (Annexed hereto and marked MRM-01 is the email dated 1st December 2021)
I personally prepared the relevant pleadings and recorded the Claimant''s witness statement after which I attempted to institute the suit on the court''s e-filing platform.
However, due to technical issues, I faced significant challenges in trying to institute a fresh suit using the e-filing platform.
I then got in touch with the court''s IT team who began attending to the issue. In addition, I directed the firm''s clerk to go to the registry and file the matter in person but it is my understanding that he was restricted from doing so as the court had at this point fully transitioned into online filing.
As a last resort, I attempted to file the matter via email as was the procedure before the introduction of the e-filing system but to no avail. (Annexed hereto and marked MRM-02 is the email sending pleadings to court).
I also sent a follow-up email to the Small Claims Court the next week after receiving no response from the court. (Annexed hereto and marked MRM-03 is the email dated 14th December 2021).
Due to these extenuating circumstances, the suit was filed on or around the 16th of December 2021, at which point the matter was already time-barred. (Annexed hereto and marked MRM-04 is the receipt from the court dated 16th December 2021)
I verily believe that given the circumstances prevailing at the time, the Statement of Claim filed on 16th December 2018 should be deemed as duly filed by this Honourable Court for the reasons that:
a. Given the technical issues with the court''s e-filing platform, we were unable to bring this matter before this Honourable Court in good time.
b. Numerous attempts were made to bring this matter before the court in good time.
c. There has been no delay in bringing this application.
In order to file this claim, leave of the Court must first be sought and granted.
That the delay to prosecute this claim was due to reasons beyond the control of the Claimant and his insurer.
That the Claimant and his insurer are very desirous to prosecute the claim. (Annexed hereto and marked MRM-05 is a copy of the filed Statement of Claim).
That it is in the interest of justice that the Statement of Claim filed on 16th December 2018 be deemed as duly filed to enable the Court to hear and determine the issues to be raised in their true merits.
That a granting of the orders sought will not occasion any prejudice to the Respondents as they too will be accorded a fair chance to be heard.
That I swear this Affidavit in support of the application hereto.
That all that I have deponed herein above is true and correct to the best of my knowledge, information and belief.
The appellant by dint of his application was basically seeking an equitable remedy from the court. He was therefore under duty to demonstrate that he had come to equity with clean hands in order for him to be granted the equitable relief he sought. The originating summons made reference to a statement of claim filed on 16 th December 2018. However, the affidavit in support indicated that the firm of Kamogo Njomo Advocates received instructions to file the claim on 2 nd December 2021. Quite obviously, the claim cannot have been filed on 16 th December 2018 as per prayer 2 of the originating summons.
The appellant’s originating summons was therefore fatally defective in that respect and by extension it was not a candid application with respect to the dates when the claim sought to be validated by an order of extension of time was filed.
A litigant who seeks to be benefit from an equitable relief must demonstrate good faith and all his representations to the court must be manifestly truthful. Equity frowns upon deceit or deliberate misrepresentation of facts. The appellant by his own pleadings was deceptive to the extent that he sought to have orders issued to the effect that a statement of claim was filed on 16 th December 2018 whereas the affidavit of his own advocate indicated that the law firm was instructed on 2 nd December 2021.
Further, the statement of claim annexed to the affidavit is dated 6 th December 2021. It is therefore not in doubt that there never was a statement of claim dated 16 th December 2018 as claimed by the appellant in his originating summons thus even if the learned Honorable magistrate had allowed the originating summons the order would have been in vain.
On that ground alone, the appellant’s appeal is hopeless and commends itself for dismissal.
In Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 others [2014] eKLR . The supreme court stated as follows;
“Extension of time being a creature of equity, one can only enjoy it if he acts equitably: he who seeks equity must do equity. Hence, one has to lay a basis that he was not at fault so as to let time to lapse. Extension of time is not a right of a litigant against a court, but a discretionary power of the courts which litigants have to lay a basis where they seek courts to grant it.
The court went further and set out the conditions that must be satisfied before a party can be granted an order for extension of time to file an appeal as hereunder: -
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;
A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court
Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis;
Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the Court;
The appellant did not therefore meet the test set by the Supreme Court thus the learned Honorable magistrate was correct in striking out the Originating summons
Further, this court finds and holds that Section 27 (1) of the Limitation of Actions Act under which the appellant sought the extension of time does not contemplate leave to be granted to file claims on material damage as prayed for by the appellant in the lower court.
In Mary Osundwa Vs Nzoia Sugar Company Limited Civil Appeal No. 244 of 2000 cited in John Kimanthi Gikunda Vs Racheal Muthoni Njeru & 2 Others [2020] eKLR the Court of Appeal held:-
“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 and breach of duty and the damages claimed must be in respect of personal injuries to the plaintiff as a result of the tort”
In line with the finding of the Court of Appeal the statement of claim by the appellant sought Repair costs of Ksh. 245,080 and Tracing fees Ksh. 34,000 thus none of the two limps of the claim fell within the category of Personal Injury Claims. The decision by the learned Honorable magistrate in striking out the originating summons was correct.
The upshot of the above is that the appeal is hereby dismissed with no order as to no costs since the same was undefended.
It is so ordered.
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