Court of Appeal explains material facts and facts of a decisive character within the context of limitation of actions

SUMMARY
The Court of Appeal dismissed an appeal filed by Edward Fondo Kalama and Mary Baya Karisa (the appellants) against the County Government of Kilifi (the respondent) on a question whether a delay in obtaining a limited grant of letters of administration constituted a good ground for allowing a suit to be filed outside the limitation period set in section 3 (1) of the Public Authorities Limitations Act, Cap 39 as read with the Limitation of Actions Act, Cap 22 (the Limitation Act) finding that a delay in obtaining letters of administration did not constitute such a ground. The successful respondent was represented by Okello Kinyanjui and Company LLP.

BACKGROUND
On the 31st of August, 2018, the appellants instituted a suit in the subordinate court in Kilifi, as representatives of the estate of one George Katana Fondo (the deceased), where they sued the appellant for general and special damages for an alleged breach of duty of care in negligence. The suit concerned an accident which occurred on or about 20th of September, 2014, in which, the respondents alleged that the deceased was properly and carefully riding his motor cycle registration number KMDB 940G at Matsangoni along Kilifi - Malindi Road and while trying to make a right turn at Roka junction after indicating his intention to do so the respondent’s servant, driver or employee negligently managed or drove the respondent’s motor-vehicle registered number KBY 967C at very high speed thereby knocking down the deceased. As a result, the deceased succumbed to his injuries.

Before commencement and filing of the suit, the appellants filed an application seeking leave to extend time under the provisions of section 4 (1) of the Limitations Act as read with sections 27, 28, 29 and 30 of the Limitations Act. The reason for seeking to file suit out of time was based on the alleged delay by the High Court in issuing letters of administration to the respondents to enable the respondents file a suit. According to the respondents, this alleged delay was a material fact and a fact of a decisive character within the meaning of the Limitations Act. Leave to file suit out of time was granted ex-parte by the learned magistrate. The grant of leave to file suit out of time was challenged by the respondent as an issue within the trial of the main suit. The learned trial magistrate in her final determination ruled against the respondent and found that the extension of time to have been properly granted. The respondent was aggrieved by the decision as well as the whole judgment and appealed to the High Court. The High Court overturned the decision of the subordinate court and found that the suit was time barred and that leave to file the suit out of time was erroneously granted, but, in dismissing the suit in the subordinate court, upheld the findings of the subordinate court on liability and quantum.

The appellants aggrieved by the decision of the High Court appealed to the Court of Appeal. The High Court decision is discussed on the following link, https://www.okadvocates.com/blog-details.php?title=6db103304e08ccddb46970d5b5a4ff32.

HELD
Twenty grounds of appeal were raised but the appellants reduced and reframed the twenty grounds into four, namely: that the High Court failed to consider, appreciate, and apply all the evidence tendered on record in arriving at its decision; that the High Court failed to appreciate and apply the law on extension of time under the Limitation Act, the Law of Succession Act, Cap 160 the Law Reform Act, Cap 26 and the Fatal Accidents Act, Cap 32 in refusing to confirm the extension of time; that the decision by the Judge offended Constitutional provisions; and that the appellant was lawfully entitled to the dismissal of the appeal before the High Court and confirmation of the award by the magistrate.

In the Court of Appeal’s view, the four issues would be more accurately reframed into one decisive issue falling to be determined on points of law, namely: whether the learned Judge was at fault in allowing the respondent’s appeal against the learned Magistrate’s decision to extend time and allow the appellants to file suit out of time.

The court found that Section 3 (1) of the Public Authorities Limitation Act, was applicable and that the same requires that any claim founded on negligence against a public authority (such as the respondent) be brought before the end of twelve months from the date on which the cause of action accrued. Accordingly, the appellants ought to have brought their suit by 19th September 2015, yet the same was filed in 2018.

The Court of Appeal noted that the appellants attempted excuse for filing the case late, i.e., that they had to seek letters of administration ad litem, was not acceptable, as the appellants had petitioned for letters of administration in November, 2017, after being prompted by the High Court to do so in October, 2017, and obtained the grant in 15th December, 2017. To the Court of Appeal, this spoke to the appellants’ indolence.

The Court of Appeal found that the discretion of a court, could not, in the face of inordinate and unexplained delay, be exercised to aid the indolent.

The Court of Appeal found that the High Court had correctly held that no material facts of a decisive nature were presented before the trial Court to justify extension of time to file the appellants’ suit against the respondent.

The Court of Appeal found that the appellants filed the original application for letters of administration in 2015 and simply sat back and took no further action.

Since the Public Authorities Limitation Act, by section 6 incorporates Part III of the Limitation, the Court of Appeal found that the only way in which the limitation period under section 3 of the Public Limitation Authorities Act could be extended was in the manner provided by Part III of the Limitation Act and what was relevant to the current case was section 27, 28 and 30 of the Limitation Act.

The Court of Appeal found that the excuse that the appellants needed to get capacity to sue under section 82 (a) of the Law of Succession Act could not hold. The Court of Appeal specifically held that the alleged delay in obtaining letters of administration was not a fact of a decisive character falling within section 27 of the Limitation of Actions Act, as defined under section 30 of the Limitation Act.

Citing with approval its decision in Mbithi vs. Municipal Council of Mombasa and another [1990–1994] 1 EA 359 the Court of Appeal held as follows:-

“Material facts are restricted to three categories of fact, namely, (a) the fact that personal injuries resulted from the negligence, nuisance or breach 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 or breach of duty or the extent to which they were so attributable.”
.
The Court went on to observe that the facts should not only be material but of a decisive character, that is to say, they must be such that a reasonable person, knowing them and having obtained appropriate advice with respect to them, would have regarded them as determining that an action would have a reasonable prospect of succeeding and resulting in the award of damages sufficient to justify the bringing of the action. The Court of Appeal was categorical that there were no facts of a decisive character in the present case.

Further, citing with approval its decision in Divecon Limited vs. Shrinkhanu Sadrudin Samani Civil Appeal No. 142 of 1997, the Court of Appeal held that in a case resulting in fatal injuries, such as the present case, the material facts of a decisive character were already within the appellants’ knowledge even before their advocates wrote the demand letter on 26th March 2015, which was some 6 months or so after the cause of action accrued.

Finally, the Court of Appeal held that after finding the suit was time-barred, the High Court should have dismissed the appellants’ suit in its entirety and thus faulted the High Court for upholding the subordinate court’s findings on liability and quantum.

OUR COMMENTS
The judgment, very importantly, clarifies that the Public Authorities Limitation Act is applicable to County Governments and, therefore a suit, in tort, against a County Government must be brought within one year. This is good as it clarifies that the County Governments are entitled to the same rights as the National Government, at least as far as periods of limitation are concerned.

The judgment reiterates what the Court of Appeal has always said with regard to extension of limitation periods. The discretion to extend the limitation periods is tied directly to Part III of the Limitation Act and a court cannot move outside the confines of the said provisions.

In order to succeed in extending a period of limitation in tort, the party seeking a court’s indulgence must prove that there were material facts and facts of a decisive character that were outside the knowledge of the applicant (and in the case of a fatal injury, outside the knowledge of the deceased), until after a period after the period of limitation has lapsed.

The decision of the Court of Appeal is available on the following link, https://1drv.ms/b/s!AoBLduXPOXm3hetgL2qRhvH6CRZwbw?e=PmP5HO.