(Being an appeal against the Ruling by the Hon. S Muchangi (PM) on 16th December 2022)
JUDGEMENT
INTRODUCTION
The appeal in this matter arises from A Ruling delivered on 16th December 2022 by the learned Honourable Magistrate on a preliminary Objection taken by the Appellant. The objection was that the suit in question was filed 2 days after the expiry of the statutory period of 3 years for the filing of tortious claims.
The plaint in the matter was stamped by the court on 25th June 2020 and the accompanying payment receipt for Ksh. 21,885/ is dated the same date.
At paragraph 4 of the plaint the plaintiff stated that the accident occur on 23rd June 2017 along Outering road.
It is therefore clear that the plaint was filed outside the statutory period of 3 years.
ANALYSIS
A preliminary Objection on a point of law is taken purely on the bais of he correctness of the pleadings filed b the parties. It cannot suffice where facts are contested. In the present case it is an uncontested fact that the accident occurred 3 years and two days prior to the filing of the suit. The limitation of Actions Act Section 4 (2) provides:-
“4 (2) An action founded on torto may not be brought after the end of three years from then on which the cause of action arose”.
To my understanding this section permits the institution of suits well after three years from the date the cause of action arose. However, a party who intends to do so must seek leave of court to initiate the suit.
Leave may however be obtained prior to after the commencement of the action. The litigant must however seek that in accordance with the provisions of Section 27 as read together with Section 28 of the Limitation of Actions Act Cap 22 of the laws of Kenya.
The question that arises in this appeal. is whether where a plaintiff institutes suit out of time and does not immediately follow it with an application for leave would such a suit survive a challenge raised by the defendant regarding non compliance with Section 4(2) of the limitation of Actions? This court holds the view that such a suit is incompetent and ought to be struck out.
To strike out a pleading is a drastic remedy but where there is outright violation of the Law a court of Law must be hold and not shy away from restoring to it.
The learned Honourable magistrate was not right in dismissing the preliminary objection even after noting that:-
“The plaintiff did not file an application for extension of time prior to the filing. By this time, the limitation period had not lapsed. The documents were however received and file on 25th June 2020 by the court by which time limitation had set it (in). For the ends of justice to be served, I will direct the plaintiff to file an application for leave to bring this suit out of time”
The statement by the learned magistrate clearly was express admission by the court that the suit was time barred. It is not the function of the court to advise parties on how to wiggle out of the strictures of law.
The law is intended to guide society in its actions. the legislature in enacting the provisions of the limitations of Actions Act must have had in its mind the reasonable period within which parties intended to lodge suits should approach the courts.
The statutes of limitations Act serves a very noble purpose in ensuring certainty in commencement of suits.
Any potential defendant would want to be sure that upon expiry of the statutory period of time provided for in law, any legal action thereafter must be with leave of court. this would avoid file suits long after the event putting the defendant at a discernible disadvantage.
It is common that with passage of time memories fade, witnesses disappear and exhibits may be lost. A defendant would thus be seriously disadvantaged if he were to be dragged to court long after a cause pf action arises and the party doing so does not of his own motion seek leave.
Courts should resist the temptation to offer advice to parties because that deprives the court the face of impartiality that it must always wear.
A preliminary Objection in Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors ltd [1969] E.A 696 was held to be one which raises a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court or of a limitation or plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration”.
In this matter the limitation was discernible from the pleadings. Once the Appellant raised the issue the Respondent should have exercised the legal options available to them at that point in time. The Respondent unfortunately did not take any action.
CONCLUSION
The learned Honourable magistrate having reached the decision that filing of the suit of the suit was done out of time, the only logical determination would have been to uphold the preliminary objection and dismiss the suit.
The courts directive to the Respondent was not proper in law. Flowing from the above this court finds that this appeal has merit and the same is allowed with costs to the Appellant.