THURANIRA KARAURI v AGNES NCHECHE [1997] KECA 77 (KLR)
The bottom line
#Kenya's Court of Appeal struck out a six-year-late injury claim because the plaintiff couldn't prove a court order allowing it, showing delay can be fatal.
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 plaintiff's suit was time-barred under section 4(2) of the Limitation of Actions Act given the absence of a proved order extending time
- 2.Whether the plaintiff proved that the defendant owned the accident motor vehicle
- 3.Whether the medical report of Dr. Maina Ruga was properly admitted under section 35 of the Evidence Act
- 4.Whether the awards for loss of earnings and general damages were supported by pleaded and proved evidence
Key legal issues
#Limitation as a jurisdictional bar
The suit was time-barred under section 4(2) of the Limitation of Actions Act; no order extending time was produced or served, so the defence of limitation stood and the suit was incompetent and should be struck out.
The plaintiff pleaded that leave to file out of time had been granted on 13th July 1995 but produced no such order at trial. The court held the extension order, if obtained, should have been served with the plaint, and failing that the plaintiff's advocate bore the duty of proving it as part of her case. Because limitation goes to jurisdiction, the trial judge erred in proceeding without determining the point, and the plaintiff should have been non-suited forever.
Proof of ownership of the motor vehicle
The plaintiff failed to prove the defendant owned the lorry; a police abstract stating ownership is not sufficient proof.
The defendant denied ownership, placing the burden on the plaintiff. The proper proof is a certificate of search signed by the Registrar of Motor Vehicles showing the registered owner. Counsel's submission that the police abstract was sufficient was rejected as not a serious submission. No such certificate was placed before the trial judge, so ownership was never established.
Admissibility of the medical report under section 35 of the Evidence Act
The medical report was wrongly admitted because it was produced by the plaintiff herself without consent and its maker, Dr. Ruga, was not called.
Section 35 of the Evidence Act governs the admission of such reports and was breached. The report also had little probative value: the doctor expressed an opinion on injuries sustained six years earlier on a patient he first saw in November 1994, and the plaintiff had concealed a prior 1983 accident affecting the same leg, making it impossible to attribute the injuries to the accident lorry. The award for pain, suffering and loss of amenities was therefore set aside.
Pleading and proof of loss of earnings
The award of shs. 324,000 for loss of earnings was set aside because the claim was never pleaded and was unsupported by documentary evidence.
Loss of earnings is special damage which must be pleaded and proved. The claim was not pleaded, so evidence that the plaintiff earned shs. 50,000 per month from a kiosk was legally irrelevant; even documentary evidence would have been of no practical value. There was no legal basis for the award and it was set aside.
Legal principles established
#- Limitation goes to jurisdiction and a time-barred suit is incompetent and must be struck out.
- An order extending time under the Limitation of Actions Act must be served on the defendant with the plaint, and if not, the plaintiff's advocate must prove its existence at trial.
- Ownership of a motor vehicle must be proved by a certificate of search signed by the Registrar of Motor Vehicles; a police abstract is insufficient.
- A medical report may only be admitted under section 35 of the Evidence Act if the maker is not called and the statutory conditions are met; otherwise the maker must be called to produce it.
- Loss of earnings is special damage which must be both pleaded and proved.
Court orders
#- 1.The judgment and decree of the superior court set aside
- 2.An order striking out the plaintiff's suit substituted, with costs to the defendant
- 3.The defendant awarded the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Meru
- H.C.C.C. No. 146 of 1995
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court (appeal from the Judgment & Decree of the High Court of Kenya at Meru)
Relief refused
#Plaintiff's claim for damages for personal injuries
The claim was time-barred and the alleged order extending time was neither produced nor served, rendering the suit incompetent
Costs
The suit was struck out with costs to the defendant, and the defendant will also have the costs of this appeal.
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.
As the issue of Limitation goes to jurisdiction, we shall deal with it first.
Since this was not done, the defence of limitation raised by the defendant stood, and the plaintiff should have been non suited forever.
it was incumbent on the plaintiff to place before the judge a certificate of search signed by the Registrar of Motor Vehicle showing the registered owner of the lorry.
The claim for loss of earnings is a special damage. It must be pleaded and proved. That is the law.
We set aside the judgment and decree of the superior court, and in view of our finding that the claim was time-bared, which rendered the suit incompetent, we substitute an order striking out the plaintiff’s suit with costs to the defendant. The defendant will also have the costs of this appeal.
Issues in the judgment
#The judgment spells 'time-barred' as 'time-bared' in the final orders passage, an apparent typographical error in the original text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "THURANIRA KARAURI v AGNES NCHECHE [1997] KECA 77 (KLR)", Case Analysis (1997). Civil Appeal 192 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1997/77/eng@1997-05-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.