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Court of AppealDismissedCivil Appeal No. 37 of 2013

Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR)

Court of Appeal of Kenya
9 December 2014
FAF. AzangalalaOTOtieno-OdekSKS. ole Kantai
2,111 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that judgments must be enforced within twelve years, and courts cannot extend that deadline for decree-enforcement suits.

What this practically means

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Executive summary

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The appellant, Willis Onditi Odhiambo, obtained a decree in 1996 against Mr and Mrs Aoko in Kisumu CMCC No. 55 of 1994 arising from a road traffic accident, and sought to enforce it against Gateway Insurance Co. Ltd. His first declaratory suit (Kisumu CMCC No. 12 of 2009) was struck out as statute barred. He then obtained, by Originating Summons, leave from Chemitei, J. to file suit out of time, and filed Winam SRMCC No. 53 of 2012 seeking the same declaratory relief. The respondent applied successfully to the High Court to review and set aside the extension of time and to declare the new suit time barred; the appellant appealed to the Court of Appeal. The Court framed three issues: whether the review order was an error of law, whether the Judge ignored the reasons for delay, and whether the Judge applied technicalities over substance. Dismissing the appeal, the Court held that Section 27 of the Limitation of Actions Act permits extension of time only for tort actions involving negligence, nuisance or breach of duty with damages for personal injuries, and confers no jurisdiction to extend time for suits to execute a decree. Such enforcement is governed by the twelve-year rule in Section 4(4); the decree of 26th August 1996 should have been executed by 27th August 2008, and both enforcement suits were out of time. Following Mary Osundwa v Nzoia Sugar Company Limited, the Court reaffirmed that parties cannot confer jurisdiction by consent. The High Court correctly set aside the null extension order, and the subsequent suit could not survive. The appeal was dismissed with each party bearing its own 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 order of the High Court reviewing and setting aside the extension of time to file suit amounted to an error in law
  2. 2.Whether the order allowing review was made without considering the reasons for the delay in filing suit
  3. 3.Whether the learned Judge of the High Court relied on technicalities rather than substantive law in allowing the review application

Key legal issues

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01

Whether the High Court had jurisdiction to extend time to file a declaratory suit to enforce a decree under Section 27 of the Limitation of Actions Act

Holding

Section 27 permits extension of time only for actions founded on tort of negligence, nuisance or breach of duty with damages for personal injuries; it does not apply to suits to execute a decree, which fall under Section 4(4).

Reasoning

The court distinguished between the original tort suit (which was filed in time) and the subsequent declaratory suit whose purpose was execution of the 1996 decree. Execution of judgments is governed by the twelve-year rule in Section 4(4). The declaratory suit against the insurer was therefore an action upon a judgment, filed more than twelve years after the decree in 2009/2012, and no jurisdiction existed to extend time under Section 27. The extension order was a nullity.

p. 4
02

Whether the High Court was right to review and set aside its own order extending time

Holding

Yes. Since the original extension was granted without jurisdiction, the Judge was right to set it aside, and the consequential suit filed in reliance on it was properly declared time barred.

Reasoning

The learned Judge had relied on Sections 4(2) and 27 of the Limitation of Actions Act, but Section 27 was inapplicable to a decree-enforcement claim. Without valid leave extending time, the suit filed in Winam Principal Magistrate's Court could not survive, having been plainly filed out of time, and limitation had been specifically pleaded in the defence. The Court of Appeal affirmed the setting aside of the extension and the attendant consequences.

p. 4
03

The precedential force of Mary Osundwa v Nzoia Sugar Company Limited on Section 27(1)

Holding

The Court endorsed and followed the earlier construction of Section 27(1), holding that consent cannot confer jurisdiction.

Reasoning

In Mary Osundwa the court had held that Section 27(1) confines jurisdiction to extend time to tort actions with personal-injury damages, and that even a consented extension granted retrospectively was a nullity because parties cannot confer jurisdiction by consent. This Court expressly adopted that interpretation and found no basis to depart from it, applying it to the present decree-enforcement scenario.

p. 4

Legal principles established

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  • Section 27 of the Limitation of Actions Act does not confer jurisdiction on the court to extend time for filing suit in cases involving execution of decrees; extension of time under that section is available only for actions founded on tort involving negligence, nuisance or breach of duty with damages for personal injuries.
  • An action to enforce a judgment or decree is governed by the twelve-year limitation period in Section 4(4) of the Limitation of Actions Act, not the tort limitation provisions.
  • Parties cannot confer jurisdiction on a court by consent; an extension of time granted without jurisdiction is invalid even if obtained with the parties' consent.

Court orders

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  1. 1.Appeal dismissed in its entirety
  2. 2.Each party to bear his/its own costs in the appeal

The bench

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

FA
majority
OT
majority
SK
majority
On appeal from
High Court of Kenya at Kisumu
H.C. Miscellaneous Civil Appeal No. 245 of 2011
Jurisdiction invoked
First appellate jurisdiction under the Constitution and the Appellate Jurisdiction Act over an appeal from the High Court

Relief refused

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Setting aside of the High Court orders setting aside the extension of time and declaring Winam SRMCC No. 53 of 2012 time barred

The appeal was found to be entirely without merit; the High Court had no jurisdiction to have granted the extension in the first place and correctly reviewed its own order

p. 4

Costs

Each Party shall bear his/its own costs in the appeal.

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.

The section clearly does not give jurisdiction to the court to extend time for filing suit in cases involving execution of decrees.
p. 4Scope of Section 27 Limitation of Actions Act
An action may not be brought upon a judgment after the end of twelve years from the date on which the judgment was delivered.
p. 3Section 4(4) - limitation on enforcement of judgments
That the order was by consent can be neither here nor there; the parties could not confer jurisdiction on the judge by their consent.
p. 4Jurisdiction cannot be conferred by consent
In the result and for reasons we have endeavoured to give above this appeal is absolutely without merit and we order that it be and is hereby dismissed.
p. 4Final orders - dismissal of appeal
Each Party shall bear his/its own costs in the appeal.
p. 4Costs order

Issues in the judgment

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minor

The judgment inconsistently refers to the earlier struck-out declaratory suit, at one point as Kisumu CMCC No. 12 of 2009 and later as Kisumu CMCC No. 12 of 2000

minor

The judgment states the learned Judge reviewed his order on 14th November, 2011, whereas the ruling under appeal was dated 14th November, 2012

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Willis Onditi Odhiambo v Gateway Insurance Co Ltd [2014] KECA 186 (KLR)", Case Analysis (2014). Civil Appeal No. 37 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/186/eng@2014-12-09

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