REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC. CIVIL APPLICATION NO. E1620 OF 2025
YONGYIN HUANG (Suing as the registered Donee on the Power of Attorney from LIN GANQIAO)……………..................................................APPLICANT
-VERSUS-
EMMANUEL OTIENO OYOO...........................................1 st RESPONDENT
OCS, EMBAKASI POLICE STATION…...........................2 ND RESPONDENT
RULING
Background
1. Yongyin Huang, who is the Applicant herein, has brought the ex parte Originating Summons dated 28.07.2025 (the Summons) in her capacity as the registered Donee of Lin Ganqiao (hereafter the Donor), pursuant to a Power of Attorney executed on 2.12.2024. The Summons is be brought under Sections 27 and 28 of the Limitation of Actions Act, Cap. 22 Laws of Kenya; Section 3A of the Civil Procedure Act (CPA) and Order 37, Rule 6 of the Civil Procedure Rules (CPR) and seeks the following orders:
(i) Spent.
(ii) THAT this Honourable Court be pleased to grant leave to LIN GANQIAO to institute civil proceedings against EMMANUEL OTIENO OYOO as well as the driver of motor vehicle registration number KCX 235D, make Ford Ranger, out of time, for recovery of general and special damages arising from personal injuries suffered during an accident caused by the driver of motor vehicle registration number KCX 235D, make Ford Ranger and owned by the intended Defendant.
(iii) THAT this Honourable Court be pleased to grant leave to the Plaintiff/Applicant to file their Plaint out of time as per the annexed Draft Plaint and the same be deemed as duly filed upon payment of the requisite Court fees.
(iv) Spent.
(v) THAT costs of the application be in the cause”. (sic).
2. The Summons is supported by the affidavit of the Applicant and which affidavit echoed the grounds present on the face of the Application. In sum, the gist of the grounds supporting the Summons is that sometime on or about 23.11.2021 the Donor was involved in a road traffic accident along Mombasa-Nairobi Highway the result of which he sustained serious bodily injuries resulting in permanent disability.
3. That the accident is attributable to the negligence of the driver of the motor vehicle registration number KCX 235D, make Ford Ranger (the subject motor vehicle) and the 1 st Defendant herein, being the registered owner of the subject motor vehicle at all material times.
4. The Applicant has stated that it is a legal requirement that the police abstract relating to the material accident be obtained before a civil claim for negligence can be instituted. That her efforts to obtain the same from the OCS Embakasi Police Station have been futile, though she is aware that the relevant information is contained in the police file relating to OB83/23/11/2021 pursuant to a report made on 23.11.2021.
5. The Applicant has stated that the timelines for instituting a claim for negligence lapsed on 24.11.2024, hence the instant Summons and that the 1 st Defendant does not stand to be prejudiced if the Summons is allowed, but that if the same is denied, then the Donor and his family stand to suffer grave injustice.
Submissions
6. The Summons proceeded ex parte and was canvassed through written submissions. The Applicant relied on Section 27 of the Limitation of Actions Act which lays out the special instances in which the timelines for filing a claim out of time may be extended, as well as the case of Bosire Ogero v Royal Media Services [2015] KEHC 4728 (KLR) on the subject of limitations and the case of Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR) where the Court of Appeal considered the interpretation of Section 27 of the Limitations of Actions Act.
7. It was submitted that owing to the extensive nature of the injuries sustained by the Donor and resulting in severe brain trauma, permanent disability, and prolonged hospitalization, the said Donor was unable to effectively and expeditiously follow up on the matter and obtain the relevant documentation in good time, to enable him institute a claim for negligence within the statutory timelines.
8. The Applicant has further argued that despite exercising all reasonable diligence, the material facts pertaining to the accident, such as, the identities of the driver and owner of the subject motor vehicle, the outcome of the police investigation, and the motor vehicle records relating to the subject motor vehicle, remained outside of her knowledge and access at all material times.
9. It is therefore the Applicant’s argument that the delay in instituting a claim is excusable and is not inordinate in nature and that the same arose from circumstances beyond the Applicant’s control, as shown herein. The Applicant has consequently urged this court to exercise its discretion in her favour, by extending the timelines for filing suit, citing inter alia, the decision by the Court of Appeal in Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) where it held that the circumstances laid out under Section 27 of the Limitation of Actions Act must be demonstrated by an applicant.
Determination
10. I have considered the Summons and the grounds in support. The Application seeks to file a claim based on the tort of negligence, as can be discerned from the draft Plaint. Pursuant to Section 4(2) of the Limitation of Actions Act , claims founded on tort ought to be brought within a period of three (3) years from the date on which the cause of action accrued.
11. From the averments made by the Applicant and the draft plaint, the cause of action is said to have accrued on 23.11.2021 being the date of occurrence of the alleged accident. As such, it is evident that the timeline for bringing the claim being founded on negligence, has lapsed.
12. The Summons, in seeking an extension of time and/or leave to file a suit out of time, is anchored on Sections 27 and 28 of the Limitation of Actions Act , with the Section 27 providing as follows:
“ Section 4 (2) does not afford a defence to an action founded on tort where—
1. (a) the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and
(b) the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and
(c) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and
(d) the requirements of subsection (2) are fulfilled in relation to the cause of action.
(2) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which -
(a) either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and
(b) In either case, was a date not earlier than one year before the date on which the action was brought.
(3) This section does not exclude or otherwise affect -
(a) any defence which, in an action to which this section applies, may be available by virtue of any written law other than section 4 (2) (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or
(b) the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.”
13. Section 28 on its part, lays out the procedure for seeking leave under Section 27 .
14. From the foregoing, it is clear that in order for an applicant to have a chance at successfully obtaining an extension of time to file any of the claims for which an extension is permissible, it must be demonstrated by way of credible evidence, that the material facts relating to the cause of action in question were outside the knowledge of the applicant at all material times.
15. Section 27 in particular, has been the subject of interpretation in different superior courts. In the case of Bosire Ogero v Royal Media Services [2015] eKLR cited by the Applicant, the court held that:
“ The Law of Limitation of actions is intended to bar plaintiffs from instituting claims that are stale and (is) aimed at protecting defendants against unreasonable delay in bringing of suits against them...”.
16. Similarly, the Court of Appeal offered the following reasoning in the case of Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR) also cited by the Applicants:
“Under Section 27, as can be gleaned from the provisions cited above, time to file suit can only be extended where the action is found on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed should be in respect of personal injuries to the plaintiff as a result of the tort.”
17. Having established that the nature of claim forming the crux of the instant Summons falls within the category of claims upon which an extension of time may be granted, it is now my duty to determine whether the explanation given by the Applicant for not timeously filing the claim, is sufficient to warrant an exercise of discretion favour of the Applicant.
18. As earlier set out, the Applicant is primarily riding on the ground of lack of knowledge of the material facts at all material times, namely, that the outcome of the investigations and other relevant police records were outside the knowledge of the Donor who, following the accident, had sustained severe brain and traumatic injuries, and that there were inconsistencies in the records pertaining to the driver and owner of the subject motor vehicle, thereby making it difficult to ascertain their true identities.
19. The Court of Appeal in the decision in Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) relied upon by the Applicant, stated the following on the subject of ‘material facts’ as elaborated under Section 30 of the Limitation of Actions Act:
“Section 30(3) of the Act provides that for the purposes of Section 27 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) he did not know that fact; and
(b) in so far as that fact was capable of being ascertained by him, he had taken all such steps (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and
(c) in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might 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”.
In Section 30(5) “appropriate advice” is defined as meaning in relation to any facts or circumstances “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”.
20. Upon my consideration of the above-cited authorities and relevant statutory provisions alongside the averments made and material on record, I observed that the Applicant has tendered medical documents supporting her averments on the serious nature and extent of injuries suffered by the Donor. Similarly, the Applicant has tendered a copy of the covering report emanating from Embakasi Police Station which indicates that the subject motor vehicle was a Ford Ranger, though the details of its driver are not mentioned therein.
21. Moreover, from my perusal of the copy of records tendered by the Applicant indicating that the subject motor vehicle is a Toyota Vitz in make and model, it is apparent that the contents thereof support the Applicant’s averment on the possible discrepancy in the make and model of the subject motor vehicle, in the various reports.
22. I am satisfied that the Applicant has reasonably demonstrated the manner in which the material factors may have been outside the knowledge of the Donor as well as the Applicant, the latter of whom ultimately took up a Special Power of Attorney on behalf of the former. In the circumstances, I am persuaded to exercise my discretion in favour of the Applicant.
23. Consequently, I find merit in the Originating Summons dated 28.07.2025 and allow the same in the following terms:
a) Leave be and is hereby granted to LIN GANQIAO to institute civil proceedings out of time against EMMANUEL OTIENO OYOO and the driver of motor vehicle registration number KCX 235D, make Ford Ranger, for recovery of general and special damages arising from personal injuries suffered during an accident caused by the driver of the said motor vehicle.
b) That the Applicant shall file and serve the Plaint within 30 days days from the date of this Ruling.
c) Costs of the Summons shall abide the outcome of the suit.
24. It is so ordered.
Dated. signed and delivered this 22 nd September 2026.
MISC. CIVIL APPLICATION NO. E1620 OF 2025PAGE 2
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC. CIVIL APPLICATION NO. E1620 OF 2025
YONGYIN HUANG (Suing as the registered Donee on the Power of Attorney from LIN GANQIAO)……………..................................................APPLICANT
-VERSUS-
EMMANUEL OTIENO OYOO...........................................1 st RESPONDENT
OCS, EMBAKASI POLICE STATION…...........................2 ND RESPONDENT
RULING
Background
1. Yongyin Huang, who is the Applicant herein, has brought the ex parte Originating Summons dated 28.07.2025 (the Summons) in her capacity as the registered Donee of Lin Ganqiao (hereafter the Donor), pursuant to a Power of Attorney executed on 2.12.2024. The Summons is be brought under Sections 27 and 28 of the Limitation of Actions Act, Cap. 22 Laws of Kenya; Section 3A of the Civil Procedure Act (CPA) and Order 37, Rule 6 of the Civil Procedure Rules (CPR) and seeks the following orders:
(i) Spent.
(ii) THAT this Honourable Court be pleased to grant leave to LIN GANQIAO to institute civil proceedings against EMMANUEL OTIENO OYOO as well as the driver of motor vehicle registration number KCX 235D, make Ford Ranger, out of time, for recovery of general and special damages arising from personal injuries suffered during an accident caused by the driver of motor vehicle registration number KCX 235D, make Ford Ranger and owned by the intended Defendant.
(iii) THAT this Honourable Court be pleased to grant leave to the Plaintiff/Applicant to file their Plaint out of time as per the annexed Draft Plaint and the same be deemed as duly filed upon payment of the requisite Court fees.
(iv) Spent.
(v) THAT costs of the application be in the cause”. (sic).
2. The Summons is supported by the affidavit of the Applicant and which affidavit echoed the grounds present on the face of the Application. In sum, the gist of the grounds supporting the Summons is that sometime on or about 23.11.2021 the Donor was involved in a road traffic accident along Mombasa-Nairobi Highway the result of which he sustained serious bodily injuries resulting in permanent disability.
3. That the accident is attributable to the negligence of the driver of the motor vehicle registration number KCX 235D, make Ford Ranger (the subject motor vehicle) and the 1 st Defendant herein, being the registered owner of the subject motor vehicle at all material times.
4. The Applicant has stated that it is a legal requirement that the police abstract relating to the material accident be obtained before a civil claim for negligence can be instituted. That her efforts to obtain the same from the OCS Embakasi Police Station have been futile, though she is aware that the relevant information is contained in the police file relating to OB83/23/11/2021 pursuant to a report made on 23.11.2021.
5. The Applicant has stated that the timelines for instituting a claim for negligence lapsed on 24.11.2024, hence the instant Summons and that the 1 st Defendant does not stand to be prejudiced if the Summons is allowed, but that if the same is denied, then the Donor and his family stand to suffer grave injustice.
Submissions
6. The Summons proceeded ex parte and was canvassed through written submissions. The Applicant relied on Section 27 of the Limitation of Actions Act which lays out the special instances in which the timelines for filing a claim out of time may be extended, as well as the case of Bosire Ogero v Royal Media Services [2015] KEHC 4728 (KLR) on the subject of limitations and the case of Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR) where the Court of Appeal considered the interpretation of Section 27 of the Limitations of Actions Act.
7. It was submitted that owing to the extensive nature of the injuries sustained by the Donor and resulting in severe brain trauma, permanent disability, and prolonged hospitalization, the said Donor was unable to effectively and expeditiously follow up on the matter and obtain the relevant documentation in good time, to enable him institute a claim for negligence within the statutory timelines.
8. The Applicant has further argued that despite exercising all reasonable diligence, the material facts pertaining to the accident, such as, the identities of the driver and owner of the subject motor vehicle, the outcome of the police investigation, and the motor vehicle records relating to the subject motor vehicle, remained outside of her knowledge and access at all material times.
9. It is therefore the Applicant’s argument that the delay in instituting a claim is excusable and is not inordinate in nature and that the same arose from circumstances beyond the Applicant’s control, as shown herein. The Applicant has consequently urged this court to exercise its discretion in her favour, by extending the timelines for filing suit, citing inter alia, the decision by the Court of Appeal in Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) where it held that the circumstances laid out under Section 27 of the Limitation of Actions Act must be demonstrated by an applicant.
Determination
10. I have considered the Summons and the grounds in support. The Application seeks to file a claim based on the tort of negligence, as can be discerned from the draft Plaint. Pursuant to Section 4(2) of the Limitation of Actions Act , claims founded on tort ought to be brought within a period of three (3) years from the date on which the cause of action accrued.
11. From the averments made by the Applicant and the draft plaint, the cause of action is said to have accrued on 23.11.2021 being the date of occurrence of the alleged accident. As such, it is evident that the timeline for bringing the claim being founded on negligence, has lapsed.
12. The Summons, in seeking an extension of time and/or leave to file a suit out of time, is anchored on Sections 27 and 28 of the Limitation of Actions Act , with the Section 27 providing as follows:
“ Section 4 (2) does not afford a defence to an action founded on tort where—
1. (a) the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and
(b) the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and
(c) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and
(d) the requirements of subsection (2) are fulfilled in relation to the cause of action.
(2) The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which -
(a) either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and
(b) In either case, was a date not earlier than one year before the date on which the action was brought.
(3) This section does not exclude or otherwise affect -
(a) any defence which, in an action to which this section applies, may be available by virtue of any written law other than section 4 (2) (whether it is a written law imposing a period of limitation or not) or by virtue of any rule of law or equity; or
(b) the operation of any law which, apart from this section, would enable such an action to be brought after the end of the period of three years from the date on which the cause of action accrued.”
13. Section 28 on its part, lays out the procedure for seeking leave under Section 27 .
14. From the foregoing, it is clear that in order for an applicant to have a chance at successfully obtaining an extension of time to file any of the claims for which an extension is permissible, it must be demonstrated by way of credible evidence, that the material facts relating to the cause of action in question were outside the knowledge of the applicant at all material times.
15. Section 27 in particular, has been the subject of interpretation in different superior courts. In the case of Bosire Ogero v Royal Media Services [2015] eKLR cited by the Applicant, the court held that:
“ The Law of Limitation of actions is intended to bar plaintiffs from instituting claims that are stale and (is) aimed at protecting defendants against unreasonable delay in bringing of suits against them...”.
16. Similarly, the Court of Appeal offered the following reasoning in the case of Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR) also cited by the Applicants:
“Under Section 27, as can be gleaned from the provisions cited above, time to file suit can only be extended where the action is found on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed should be in respect of personal injuries to the plaintiff as a result of the tort.”
17. Having established that the nature of claim forming the crux of the instant Summons falls within the category of claims upon which an extension of time may be granted, it is now my duty to determine whether the explanation given by the Applicant for not timeously filing the claim, is sufficient to warrant an exercise of discretion favour of the Applicant.
18. As earlier set out, the Applicant is primarily riding on the ground of lack of knowledge of the material facts at all material times, namely, that the outcome of the investigations and other relevant police records were outside the knowledge of the Donor who, following the accident, had sustained severe brain and traumatic injuries, and that there were inconsistencies in the records pertaining to the driver and owner of the subject motor vehicle, thereby making it difficult to ascertain their true identities.
19. The Court of Appeal in the decision in Gathoni v Kenya Co-operative Creameries Ltd [1982] KECA 10 (KLR) relied upon by the Applicant, stated the following on the subject of ‘material facts’ as elaborated under Section 30 of the Limitation of Actions Act:
“Section 30(3) of the Act provides that for the purposes of Section 27 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) he did not know that fact; and
(b) in so far as that fact was capable of being ascertained by him, he had taken all such steps (if any) as it was reasonable for him to have taken before that time for the purpose of ascertaining it; and
(c) in so far as there existed, and were known to him, circumstances from which, with appropriate advice, that fact might 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”.
In Section 30(5) “appropriate advice” is defined as meaning in relation to any facts or circumstances “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”.
20. Upon my consideration of the above-cited authorities and relevant statutory provisions alongside the averments made and material on record, I observed that the Applicant has tendered medical documents supporting her averments on the serious nature and extent of injuries suffered by the Donor. Similarly, the Applicant has tendered a copy of the covering report emanating from Embakasi Police Station which indicates that the subject motor vehicle was a Ford Ranger, though the details of its driver are not mentioned therein.
21. Moreover, from my perusal of the copy of records tendered by the Applicant indicating that the subject motor vehicle is a Toyota Vitz in make and model, it is apparent that the contents thereof support the Applicant’s averment on the possible discrepancy in the make and model of the subject motor vehicle, in the various reports.
22. I am satisfied that the Applicant has reasonably demonstrated the manner in which the material factors may have been outside the knowledge of the Donor as well as the Applicant, the latter of whom ultimately took up a Special Power of Attorney on behalf of the former. In the circumstances, I am persuaded to exercise my discretion in favour of the Applicant.
23. Consequently, I find merit in the Originating Summons dated 28.07.2025 and allow the same in the following terms:
a) Leave be and is hereby granted to LIN GANQIAO to institute civil proceedings out of time against EMMANUEL OTIENO OYOO and the driver of motor vehicle registration number KCX 235D, make Ford Ranger, for recovery of general and special damages arising from personal injuries suffered during an accident caused by the driver of the said motor vehicle.
b) That the Applicant shall file and serve the Plaint within 30 days days from the date of this Ruling.
c) Costs of the Summons shall abide the outcome of the suit.
24. It is so ordered.
Dated. signed and delivered this 22 nd September 2026.
MISC. CIVIL APPLICATION NO. E1620 OF 2025PAGE 2