Whether a delay in obtaining letters of administration to file suit constitutes a good ground for leave to file a suit out of time

SUMMARY
The High Court of Kenya allowed the appeal of the County Government of Kilifi (the appellant) 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 4 (2) of the Limitations 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 appellants were represented by Okello Kinyanjui and Company LLP.

BACKGROUND
On the 31st of August, 2018, Edward Fondo Kalama and Mary Baya Karisa (the respondents) instituted a suit, 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 appellant’s servant, driver or employee negligently managed or drove the appellant’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 respondents 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, as required by law, granted ex-parte by the learned magistrate. The grant of leave to file suit out of time was challenged by the appellant as an issue within the trial of the main suit. The learned trial magistrate in her final determination ruled against the appellant and found that the extension of time to have been properly granted. The appellant was aggrieved by the decision as well as the whole judgment and appealed to the High Court.

HELD
The issues before the High Court were, broadly-speaking, the following, firstly whether the suit in the subordinate court was time barred and whether leave to file the suit out of time had been properly granted, secondly, whether the High Court should interfere with the subordinate court’s finding on liability and lastly, whether the High Court should interfere with the subordinate court’s finding on quantum.

On the three broad issues, the High Court fund as follows:

Whether the suit in the subordinate court was time barred and whether leave to file the suit out of time had been properly granted.

The High Court found that the operative provisions regarding time bar in negligence suits and whether leave was properly granted are to be found in sections 4 (2), 27, 28 and 30 of the Limitations Act.

According to the High Court, ignorance of the law was not an excuse and as such ignorance of the existence of the statutory period of limitation does not qualify as a material fact within the scope of section 27 of the Limitation Act. The High Court cited with approval the binding decision of the Court of Appeal in Bernard Mutunga Mbita v. Municipal Council of Mombasa & another CA No. 3 of 1992, where the Court of Appeal said:

“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.”

The High Court also found that it was not sufficient that the facts unknown to the respondent should only be material, within the definition given in the Bernard Mutunga case, but that they must also be of a decisive character. The High Court found that the learned trial magistrate pronounced herself on the claim under the tort of negligence without giving proper interpretation to the provisions of section 27 on material facts or facts of a decisive character and section 30 of the Act and that the respondents failed to show that their failure to file the cause of action within time was due to material facts or facts of a decisive character. The High Court found that the language used in sections 27 and 30(3) of the Limitation Act does not import an open guarantee of discretion to be exercised at whim or caprice by the trial court.

Whether the High Court should interfere with the subordinate court’s finding on liability.

The High Court found that the respondent had the burden to prove the element of tort of negligence on a balance of probabilities. Having found that, he continued to say that the trial court did consider fully the case prosecuted by the respondent and that the trial court did justice in a balancing act of competing interest of the parties as to who between them was to blame for the accident. The High Court, therefore found no new evidence to warrant interference with the decision on liability

Whether the High Court should interfere with the subordinate court’s finding on quantum.

The High Court found that there was no evidence to interfere with the assessment by the trial court.

The High Court thus, granted the appellants appeal with no order as to costs.

OUR COMMENT
This judgment dealt with the issue of what is a good reason to grant leave to file a suit out of time. Specifically, it looked at whether a party claiming to have experienced delay in receiving letters of administration can be heard to say that such delay was a material fact or a fact of a decisive character within the meaning of the Limitations Act. The High Court unequivocally found that the delay in obtaining letters of administration was not a material fact or a fact of a decisive character. We would proceed to add that, sections 27, 28, 29 and 30 of the Limitation Act must be strictly construed. This is not only in keeping with the rule of law as provided in article 10 if the Constitution of the Republic of Kenya but also, as the High Court pointed out, there are important policy reasons for keeping a strict construction of the said sections, such as, firstly, “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,” per Peart J. in Byrne V Minister for Defence [2005]1 IR 577, 585, secondly, the effects of delay on the fairness of civil trials and lastly, limitation periods represent legislature’s judgement that a democratic society governed by the rule of law is best served by causes of actions litigated within the prescribed time.

The decision is available http://www.okadvocates.com/blog/wp-content/uploads/2021/07/County-Government-of-Kilifi-vs-Edward-Fondo-Kalama-and-another.pdf