Kinyatti v Attorney-General
The bottom line
#Kenya's Court of Appeal confirmed that a lawsuit filed too late fails, no matter how strong the case, and courts can strike it out without a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Departure in pleadings
Paragraphs 5 and 6 of the reply, alleging a new cause of action based on failure to release, were inconsistent with the plaint which complained of the letter depriving remission, and were rightly struck out.
The plaint complained of the Commissioner's letter of February 1983 depriving the plaintiff of remission. The reply instead complained of the failure to release him on October 18, 1986, which was never pleaded in the plaint. Order VI rule 6(1) prohibits raising a new ground of claim inconsistent with a previous pleading; the 'new assign' doctrine does not assist because the pleading system requires precision and amendment rather than departure.
Accrual of cause of action in tort
The cause of action accrued on February 16, 1983, when the letter depriving the plaintiff of remission was communicated to him, not on October 18, 1986 when he was not released.
The legal damage was the termination of the intangible right to two years' remission, sustained when the deprivation was notified. The non-release was merely the consequence of that deprivation. Had suit been filed within time and succeeded, the remission would have been restored and the plaintiff eligible for release in October 1986.
Limitation and striking out on a preliminary point
The suit, filed April 3, 1987, was time-barred under section 3 of the Public Authorities Limitation Act, and the trial judge was within his right to allow the preliminary point and strike out the plaint without hearing evidence.
Since the cause of action accrued in February 1983, the twelve-month limitation period expired long before the suit was filed. The plaintiff slept on his rights. The preliminary point of law could properly be determined on the pleadings without evidence, as the facts of the letter and its communication were undisputed.
Legal principles established
#- A party may not in any pleading raise a new ground of claim inconsistent with a previous pleading; the remedy for such a departure is striking out the offending paragraphs.
- In tort, the cause of action accrues when the legal injury is inflicted, not when the consequences of that injury later manifest.
- A statute of limitation is not concerned with merits; once it has run, a party is entitled to insist on strict legal rights.
Court orders
#- 1.Appeal dismissed with costs
- 2.Costs awarded for one counsel only
- On appeal from
- High Court
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from a ruling of the High Court at Nairobi
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kinyatti v Attorney-General", Case Analysis (1988). Civil Appeal No. 10 of 1988. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/136/eng@1988-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.