(Being an Appeal against the Judgment by Hon. R.K. LANGAT (PM) in Sirisia PMCC No. E015 of 2020, Delivered on 13th December, 2023).
JUDGEMENT OF THE COURT:
1. Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. Lord Simon’s speech in Watt Vs. Thomas [1947] AC, 484 at p. 485 is recorded that an aappellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight. Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123, it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.
4. In Bundi Marube Vs Joseph Omkoba Nyamuro[1982-88]IKAR, Hancok J A said that a court of appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence, or on a representation of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching he findings he did.
5. In the case of Rahma Tayab & another Vs Anna Mary Kinamu [1982-88]1KAR 90 Law JA stated that an appellate court will be shown to interfere with a judge’s findings of fact based on his assessment of the credibility and demeanor of witnesses who have given evidence before him.
6. On 27th day of October, 2020, the Respondent filed a Plaint following the death of one Robinson Simiyu Wanjala perished in a road traffic accident on the 19th March, 2017. The Respondent prayed for entry of Judgement against the Appellant for general damages, special damages for Kshs83,180/, costs of the suit, interest and any other relief that the court deems fit to grant.
7. Michael Parker Wanjala(PW1) adopted his statement as evidence in the matter and said that the deceased Robinson Simiyu Wanjala was his son who died in an accident on the 19th March, 2017. He produced death certificate as Exhibit 1, Grant ad litem as Exhibit 2, a receipt of KKshs20,000/ as fees to an Advocate, as Exhibit 3, post mortem as Exhibit 4, police abstract as exhibit 5, coffin costs as exhibit 6, receipt of kshs20,000/ being transport of the body, a receipt of kshs7,630/ for post mortem as exhibit 8, chief’s letter as exhibit 9, search of the accident vehicle as exhibit 9, demand letters as exhibit 12© as well as certificate of postage as exhibit 12(a)(b) respectively.
8. Under cross examination, the witness said that he did not have a certificate nor a driving licence. He had no evidence that the deceased earned a sum of Kshs30,000/.
9. The evidence of Eliud Sikuku(PW1) in Civil Suit No.12 of 2020 was adopted in this matter where the witness said that he witness the accident that occurred on 19th March, 20217. He said that the Motor Bike the deceased was travelling on was knocked down by a motor which was speeding.
10. PC Mark Baraza’s evidence was adopted from in Civil Suit No.12 of 2020 wherein the witness produced a P3 Form as exhibit. Under cross examination, he said that he was not an Investigation officer and so he neither had police file nor a sketch map. He was not able to tell the circumstances of the case.
11. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the learned Trial Magistrate erred in law and fact by failing to appreciate the correct position regarding limitation of actions in tort causes under section 4(2) of the limitations of Actions Act.
b. That the learned Trial Magistrate erred in law and fact in holding that actions under Fatal Accidents Act and the Law Reform Act must be brought within 6 months from the time of taking out administration and over looked the provisions under limitations of Actions Act.
c. That the learned Trial Magistrate erred in law and fact in his interpretation and reliance on the decision in County Government of Kilifi Vs Edward Fondo Kalama & Ano (2021) eKLR.
d. That the learned Trial Magistrate erred in law and fact by failing to appreciate the actions contemplated by section 2(3) of the Law of Reform Act and section 9(2) of the Fatal Accidents Act are Actions against the estate of a deceased person and not actions for the benefit of the estate of a deceased person.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. I have with singleness of mind looked at the four lamentations by the Appellant and to my understanding, they can be collapsed into one issue of determination. Whether or not, the action is time barred by the statute. To get a handle of the matter, I find it apt from the outset to sample the principles upon which the courts approach matters of this nature.
14. In the case of Bernard Mutunga Mbita Vs Municipal Council of Mombasa & another CA No. 3 of 1992 the court said that the court will grant an application for leave to bring an action after the expiry of the normal three years limitation period if the plaintiff proves that material facts relating to his cause of action, were or include facts of a decisive character hence were at all times outside the knowledge of the plaintiff until a date which was earlier after the end of the three year period or earlier than twelve months before its end and was, in earlier case, not more than twelve months before the date on which the action was brought. Material facts are restricted to three categories of fact, namely; - a) The fact that personal injuries resulted from the negligence, nuisance or break of duty constituting the cause of action. b) The nature or extent of the personal injury so resulting and c) The fact that the personal injuries were attributable to the negligence, nuisance, breach of duty or the extent to which they were so attributed.
15. In the case of Ronex Properties Ltd Vs John Lang Construction Ltd & Others [1983] QB 398 where Stephenson L J said that there are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases, it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiffs claim as frivolous and vexatious and an abuse of the process of the court on the ground that it is statute barred. Then the plaintiff and the court know that the statute of limitation will be pleaded, the defendant can, if necessary, file evidence to that effect. The plaintiff can file evidence of an acknowledgement or concealed fraud or any matter which may show the court that his claims is not vexatious or an abuse of process, and the court will be able to do, I suspect most cases what was done in Riches V Director of Public Prosecutions [1973]1 W.L.R strike out the claim and dismiss the action.
16. Peart J. in Byrne V Minister for Defence [2005]1 IR 577,585 said that a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up valuable and important time of the Courts and thereby reduce the availability of that much used and need resource to plaintiffs and defendants who have acted promptly in their litigation, as well as increase the cost to the Courts Service and through that body to taxpayers, of providing a service of access to the Courts which serves best the public interest.
17. In Donovan Vs Gwentoys Ltd [1990]1WLR 472, the Court observed that the primarily principle of the limitation period is to protect a defendant form the injustice of having to face a state claim that is a claim with which he never expected to have to deal.
18. It is without hesitation therefore, I hold which I do, that failure to seek leave to file a cause of action outside the statutory time frame, renders the action, stale. This is captured well under section 4(2) of the Act, that an action founded on tort shall not be brought after the expiration of three (3) years from the date in which the cause of action occurred as against the defendant. However, section 28 of the Act provides that the lodging of the claim can only permitted upon leave being sought of that trial court or any other Court with concurrence jurisdiction to extend the limitation period for filing the suit.
19. Back to the matter at hand, there is a Notice of Motion dated 17th July, 2020 which was came before Honourable C.M. Wattimah (SRM) on 16th December, 2020. It was argued and the ruling was delivered on 3rd March 2021. The effect of the ruling was that the action had been regularized and as it were, time was extended in terms of section 28 of the Limitation of Actions Act.
Disposal:
20. The court makes a finding that the appeal lacks merit and it is dismissed.
Delivered virtually this 16th June, 2026 in the presence of the Appellant, the Respondent and Brian- Court Assistant.
Orders Accordingly.
Hon. R.K. Ondieki.
Judge.
JUDGEMENT OF THE COURT:
1. Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. Lord Simon’s speech in Watt Vs. Thomas [1947] AC, 484 at p. 485 is recorded that an aappellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight. Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.
2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.
3. In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123, it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.
4. In Bundi Marube Vs Joseph Omkoba Nyamuro[1982-88]IKAR, Hancok J A said that a court of appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence, or on a representation of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching he findings he did.
5. In the case of Rahma Tayab & another Vs Anna Mary Kinamu [1982-88]1KAR 90 Law JA stated that an appellate court will be shown to interfere with a judge’s findings of fact based on his assessment of the credibility and demeanor of witnesses who have given evidence before him.
6. On 27th day of October, 2020, the Respondent filed a Plaint following the death of one Robinson Simiyu Wanjala perished in a road traffic accident on the 19th March, 2017. The Respondent prayed for entry of Judgement against the Appellant for general damages, special damages for Kshs83,180/, costs of the suit, interest and any other relief that the court deems fit to grant.
7. Michael Parker Wanjala(PW1) adopted his statement as evidence in the matter and said that the deceased Robinson Simiyu Wanjala was his son who died in an accident on the 19th March, 2017. He produced death certificate as Exhibit 1, Grant ad litem as Exhibit 2, a receipt of KKshs20,000/ as fees to an Advocate, as Exhibit 3, post mortem as Exhibit 4, police abstract as exhibit 5, coffin costs as exhibit 6, receipt of kshs20,000/ being transport of the body, a receipt of kshs7,630/ for post mortem as exhibit 8, chief’s letter as exhibit 9, search of the accident vehicle as exhibit 9, demand letters as exhibit 12© as well as certificate of postage as exhibit 12(a)(b) respectively.
8. Under cross examination, the witness said that he did not have a certificate nor a driving licence. He had no evidence that the deceased earned a sum of Kshs30,000/.
9. The evidence of Eliud Sikuku(PW1) in Civil Suit No.12 of 2020 was adopted in this matter where the witness said that he witness the accident that occurred on 19th March, 20217. He said that the Motor Bike the deceased was travelling on was knocked down by a motor which was speeding.
10. PC Mark Baraza’s evidence was adopted from in Civil Suit No.12 of 2020 wherein the witness produced a P3 Form as exhibit. Under cross examination, he said that he was not an Investigation officer and so he neither had police file nor a sketch map. He was not able to tell the circumstances of the case.
11. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the learned Trial Magistrate erred in law and fact by failing to appreciate the correct position regarding limitation of actions in tort causes under section 4(2) of the limitations of Actions Act.
b. That the learned Trial Magistrate erred in law and fact in holding that actions under Fatal Accidents Act and the Law Reform Act must be brought within 6 months from the time of taking out administration and over looked the provisions under limitations of Actions Act.
c. That the learned Trial Magistrate erred in law and fact in his interpretation and reliance on the decision in County Government of Kilifi Vs Edward Fondo Kalama & Ano (2021) eKLR.
d. That the learned Trial Magistrate erred in law and fact by failing to appreciate the actions contemplated by section 2(3) of the Law of Reform Act and section 9(2) of the Fatal Accidents Act are Actions against the estate of a deceased person and not actions for the benefit of the estate of a deceased person.
12. The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.
Analysis and Determination:
13. I have with singleness of mind looked at the four lamentations by the Appellant and to my understanding, they can be collapsed into one issue of determination. Whether or not, the action is time barred by the statute. To get a handle of the matter, I find it apt from the outset to sample the principles upon which the courts approach matters of this nature.
14. In the case of Bernard Mutunga Mbita Vs Municipal Council of Mombasa & another CA No. 3 of 1992 the court said that the court will grant an application for leave to bring an action after the expiry of the normal three years limitation period if the plaintiff proves that material facts relating to his cause of action, were or include facts of a decisive character hence were at all times outside the knowledge of the plaintiff until a date which was earlier after the end of the three year period or earlier than twelve months before its end and was, in earlier case, not more than twelve months before the date on which the action was brought. Material facts are restricted to three categories of fact, namely; - a) The fact that personal injuries resulted from the negligence, nuisance or break of duty constituting the cause of action. b) The nature or extent of the personal injury so resulting and c) The fact that the personal injuries were attributable to the negligence, nuisance, breach of duty or the extent to which they were so attributed.
15. In the case of Ronex Properties Ltd Vs John Lang Construction Ltd & Others [1983] QB 398 where Stephenson L J said that there are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases, it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiffs claim as frivolous and vexatious and an abuse of the process of the court on the ground that it is statute barred. Then the plaintiff and the court know that the statute of limitation will be pleaded, the defendant can, if necessary, file evidence to that effect. The plaintiff can file evidence of an acknowledgement or concealed fraud or any matter which may show the court that his claims is not vexatious or an abuse of process, and the court will be able to do, I suspect most cases what was done in Riches V Director of Public Prosecutions [1973]1 W.L.R strike out the claim and dismiss the action.
16. Peart J. in Byrne V Minister for Defence [2005]1 IR 577,585 said that a public interest, which is independent of the parties, in not permitting claims which have not been brought in a timely fashion, to take up valuable and important time of the Courts and thereby reduce the availability of that much used and need resource to plaintiffs and defendants who have acted promptly in their litigation, as well as increase the cost to the Courts Service and through that body to taxpayers, of providing a service of access to the Courts which serves best the public interest.
17. In Donovan Vs Gwentoys Ltd [1990]1WLR 472, the Court observed that the primarily principle of the limitation period is to protect a defendant form the injustice of having to face a state claim that is a claim with which he never expected to have to deal.
18. It is without hesitation therefore, I hold which I do, that failure to seek leave to file a cause of action outside the statutory time frame, renders the action, stale. This is captured well under section 4(2) of the Act, that an action founded on tort shall not be brought after the expiration of three (3) years from the date in which the cause of action occurred as against the defendant. However, section 28 of the Act provides that the lodging of the claim can only permitted upon leave being sought of that trial court or any other Court with concurrence jurisdiction to extend the limitation period for filing the suit.
19. Back to the matter at hand, there is a Notice of Motion dated 17th July, 2020 which was came before Honourable C.M. Wattimah (SRM) on 16th December, 2020. It was argued and the ruling was delivered on 3rd March 2021. The effect of the ruling was that the action had been regularized and as it were, time was extended in terms of section 28 of the Limitation of Actions Act.
Disposal:
20. The court makes a finding that the appeal lacks merit and it is dismissed.
Delivered virtually this 16th June, 2026 in the presence of the Appellant, the Respondent and Brian- Court Assistant.
Orders Accordingly.
Hon. R.K. Ondieki.
Judge.