Oruta & Another v Nyamato
The bottom line
#Kenya's Court of Appeal ruled that once a court extends time to sue out of time, the defendant must fight the case at trial, not strike it out early.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judge was wrong in granting the ex-parte extension of the limitation period without hearing the defendants
- 2.Whether the High Court was right in dismissing the appellants' application to strike out the suit / discharge the ex-parte order
- 3.Whether a defendant may, before trial, set aside an ex-parte order granting leave under section 27 of the Limitation of Actions Act
Key legal issues
#Whether a defendant can oppose or set aside an ex-parte extension of time under section 27 before trial
No. The application is meant to be unopposed and the defendant's remedy is to raise limitation as an issue at trial.
Sections 27 and 28 of the Limitation of Actions Act and Order XXXVI rule 3C require the application to be made ex-parte; there is no provision for the defendant to be heard or to set the order aside. The court adopted the English Cozens decision, holding that allowing a pre-trial discharge application would render the ex-parte provision nugatory and contradict legislative intent.
Whether the Judge who granted the ex-parte order erred
No. The Judge merely complied with section 27 by reading the affidavit and believing the evidence deponed.
The ex-parte procedure requires the Judge to form a prima facie view on the plaintiff's evidence, following Cozens and Hunter v Tarness. The affidavit detailed ignorance of the driver's identity, incomplete police investigations, ongoing treatment and insurance company promises, satisfying the requirements.
Whether striking out the suit on limitation as a preliminary point is encouraged
No. The Limitation of Actions Act does not encourage striking out a personal injuries claim where ex-parte leave has been granted.
The legislature intended that claims for personal injuries based on negligence, nuisance or breach of duty should not be defeated by a limitation defence; the ex-parte leave mechanism exists precisely to prevent such a defence, and the limitation question is reserved for trial on the evidence.
Legal principles established
#- An ex-parte order granting leave under section 27 of the Limitation of Actions Act to extend time can only be challenged at the trial, not by a preliminary application to set it aside.
- The limitation issue, where leave has been granted ex-parte, is to be decided at trial on the evidence adduced, not as a preliminary point.
Court orders
#- 1.The appeal is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Delivered the principal judgment holding that an ex-parte extension of time under section 27 of the Limitation of Actions Act can only be challenged at trial, not by a preliminary application to discharge it.
The respondent having obtained leave to file action as required by the Law, that order can only be queried at the trial but not by application to discharge itp. 4
- On appeal from
- High Court at Nairobi
- Civil Suit No 4335 of 1983 (ruling on preliminary objection)
- Jurisdiction invoked
- First appellate jurisdiction over a High Court ruling (Civil Appeal No 96 of 1984)
Relief refused
#Appellants' appeal against the refusal to discharge the ex-parte extension order and strike out the suit
The ex-parte order can only be queried at the trial; discharging it otherwise would render the ex-parte provision nugatory
Costs
The appeal is dismissed with costs (appellants to pay the respondent's costs)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It follows that the defendant can only challenge the extension of time in the trial itself and not by a preliminary application.
The order of the court therefore is that the appeal is dismissed with costs.
The respondent having obtained leave to file action as required by the Law, that order can only be queried at the trial but not by application to discharge it otherwise the provision of the Act in providing for obtaining an order ex-parte will be rendered nugatory.
This is an exception to the general rule that the parties affected by an ex-parte order can seek to set it aside under the principles of natural justice.
Issues in the judgment
#Case name spelled inconsistently as 'Cozen', 'Cozens' and 'Cozen's' within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Bonfas Onyango Akoko & 2 others v Joseph Twala Ayot (sued as 1st Defendant and on behalf of the Estate of Odero Delewa)not_applicable30 Sept 2026followed
- Okonjo (Suing as the administrator of the Estate of Michael Okonjo (Deceased) & another v Agola & 6 others[2023] KEELC 18259 (KLR)19 Jun 2023followed
- Ng'ethe & 2 others v Nyandarua Progressive Agencies Company Limited & 5 others[2023] KEELC 16692 (KLR)30 Mar 2023followed
Cite this brief
#Cite this brief
Caselaw, "Oruta & Another v Nyamato", Case Analysis (1988). Civil Appeal No 96 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1988/142/eng@1988-06-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.