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Court of AppealDismissedCivil Appeal No. 116 of 1997

Mary Wahito (a minor suing through next friend Gladys Wairimu Waiguru) & Another v Kenya Posts & Telecommunications Corporation & Another

Court of Appeal of Kenya
11 December 1997
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The bottom line

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Kenya's Court of Appeal ruled that a claim against Kenya Posts & Telecommunications was filed too late because a special 12-month deadline applied.

What this practically means

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Executive summary

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The Court of Appeal dismissed an appeal against the High Court at Nyeri (Ang'awa, J.), which had struck out a damages claim arising from a road accident of 1 January 1991 in which the second respondent, a driver employed by Kenya Posts & Telecommunications Corporation, allegedly drove negligently while transporting technicians and equipment for the installation of an STD exchange line. The sole issue was whether section 109 of the Kenya Posts and Telecommunications Corporation Act (Cap 411), which requires actions against the Corporation to be commenced within twelve months, barred a suit filed one year and four months after the accident. The appellants, relying on Githinji J's decision in Stanley Kigara Kagombe and the House of Lords decision in Bradford Corporation v Myers, argued that negligence is not a statutory duty and that section 109 protects only intra vires acts done in execution of a public duty. The court agreed with the general proposition that not all acts of the corporation are protected and that all drivers owe a general duty of care to road users. However, on the facts, the driver was officially assigned duties involving installation of telecommunications equipment for public use, was not on a frolic of his own, and his driving was directly a duty connected with the corporation's statutory operations. Section 109 therefore applied and the suit was time-barred. The court also rejected the appellants' reliance on an ex parte order extending time, which the trial judge had found should not have been granted. The appeal was dismissed with no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the negligent driving of the second respondent, a driver of the first respondent corporation, was an act done in pursuance or execution of a public duty or authority so as to attract the 12-month limitation period in section 109 of the Kenya Posts and Telecommunications Corporation Act (Cap 411)
  2. 2.Whether the trial judge erred in ignoring the ex parte order extending time to institute the suit

Key legal issues

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01

Scope of protection under section 109 of Cap 411

Holding

The section protects only acts done in pursuance or execution of a public duty or authority; the negligent driving of a corporation driver engaged in installing telecommunications equipment for the public was such an act, so the suit filed one year and four months after the accident was time-barred.

Reasoning

The second respondent was officially assigned duties by his employer involving installation of telecommunications equipment for public use, a public duty provided for by the Act. He was not on a frolic of his own, did not deviate from the normal route, and his driving was directly a duty required by the corporation in connection with its statutory operations, not merely incidental. The court distinguished Kagombe, agreeing with Githinji J's general proposition but holding that on these facts the section applied. Cap 411 is not inferior to any other statute, and limitation statutes are to be construed liberally as beneficial statutes.

p. 3
02

Validity of the ex parte order extending time

Holding

The ex parte extension order was properly disregarded by the trial judge because it was challenged at trial and found to have been wrongly granted.

Reasoning

The order extending time was obtained ex parte. Its validity was challenged during the trial and the learned judge considered the issue at length, holding that the extension should not have been granted. The Court of Appeal therefore rejected the appellants' ground of appeal on this point.

p. 3

Legal principles established

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  • Section 109 of the Kenya Posts and Telecommunications Corporation Act is a special limitation statute that protects the corporation and its employees where the act complained of is done in the execution of a public duty, notwithstanding the general three-year period under the Limitation of Actions Act
  • Not all duties of a public officer are public duties; drivers owe a general duty of care to all road users, and the legislature did not intend to protect all proceedings against the corporation

Court orders

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  1. 1.Appeal dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
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On appeal from
High Court of Kenya at Nyeri
H.C.C.C. No. 89 of 1992
Jurisdiction invoked
First appellate jurisdiction under the Court of Appeal Act (appeal from a judgment and decree of the High Court)

Relief refused

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Appellants' claim that the suit was not time-barred under section 109 of Cap 411

The driver was performing a public duty under the Act when the accident occurred, so the 12-month limitation period applied

p. 3

Reliance on the ex parte order extending time to institute the suit

The order was challenged at trial and the trial judge correctly held it should not have been granted

p. 3

Costs

No order as to costs

Quotable passages

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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 must follow therefore that the respondents are protected by Section 109 of the Act.
p. 3Limitation protection for corporation's statutory operations
His driving was not merely an incidental act or something subsidiary thereto but directly a duty which the second respondent was required by the first respondent corporation to undertake and that duty was in connection with the latter's statutory operations.
p. 3Test for acts done in execution of a public duty
Cap 411 is not inferior to any other statute.
p. 3Hierarchy of special limitation statutes
For these reasons we dismiss the appeal with no order as to costs.
p. 3Final orders

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Wahito (a minor suing through next friend Gladys Wairimu Waiguru) & Another v Kenya Posts & Telecommunications Corporation & Another", Case Analysis (1997). Civil Appeal No. 116 of 1997. Source: 

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.