RCW (Suing on Behalf of MGC – Minor) v Orumba

4. The plainti further averred that as a direct and proximate result of the defendant’s negligence in failing to properly restrain/control his dog which he knew or ought to have known was capable of causing harm, or alternatively under the principle of strict liability for harm caused by his animal, the minor suered bodily injuries, pain, suering, loss of amenities, and other damages. The plainti has also incurred substantial expenses and losses in pursuing justice and caring for the minor. 5. The defendant on the other hand led defence dated 11th May, 2026 denying all the averments contained in the plaint save for expressly admitted. The defendant denied the alleged dog belonged to him and further denied that he kept harboured or exercised control over the alleged dog as pleaded. That the plainti is vague, defective and incapable of sustaining a proper cause of action as it fails to disclose the breed, sex, identifying features or any particulars capable of identifying the alleged dog. That the incident as pleaded is without particulars as required by law, the plainti having failed to disclose the exact date, time and circumstances under which the alleged occurrence took place. 6. That the plainti is incompetent and fatally defective for failure to plead with precision the particulars of the alleged occurrence, injuries sustained and nexus between the defendant and the alleged dog. That the particulars of special damages pleaded are bad in law, remote, unrecoverable and improperly pleaded against the defendant. 7. The defendant averred that the plainti’s claim is statute barred under the provisions of the Limitation of Actions Act, Cap 22 Laws of Kenya, and the alleged cause of action having arisen in the year 2019 whereas this suit was instituted outside the statutory limitation period prescribed for tortious claims. That the plaint oends the mandatory provisions of Order 2 Rule 4 of the Civil Procedure Rules for failure to specically plead material facts necessary to sustain a claim in negligence. That no certied proceedings, judgment or charge sheet in Kehancha SPMC CR NO. E1407 OF 2021 have been annexed to the plaint. That any alleged criminal proceedings against him do not automatically establish civil liability and the plainti must independently prove ownership of the alleged dog, negligence and causation on a balance of probabilities. That the conviction was obtained in circumstances where the defendant was unrepresented and unable to eectively prosecute his defence owing to inadvertent confusion of hearing dates while acting in person, and the same ought not to be relied upon as conclusive proof of liability. The Plainti ’s Case 8. PW1 R.C.W testied that her daughter was born on 15/10/2010. She adopted her written statement dated 13/2/2026 as her evidence in chief in which she reiterated the averments contained in the plaint. She also produced the documents in her list of documents dated 13/2/2016 as exhibits 1-7 respectively. She prayed that her suit be allowed as prayed. The plainti then closed her case. The Defendant’s Case 9. DW1 PETER OKIAGO ARUMBA the defendant adopted his written statement dated 22/7/2026 as his evidence in chief in which he reiterated the averments as contained in the defence. The defendant then closed his defence case. https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/964/eng@2026-09-30 2

page 2 of 4

Determination. 10. The Plainti’s claim seeks for compensation for damages to the plainti arising from a dog bite that occurred sometimes in 2019. The defendant claimed that the plainti’s suit is time barred by dint of section 4(2) of the Limitation of Actions Act which provides as follows; “ (2)An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued: Provided that an action for libel or slander may not be brought after the end of twelve months from such date”. 11. The defendant on his part argued that the plainti’s suit was time barred by virtue of section 4 (2) of the Limitation of Actions Act which stipulates that an action founded on tort may not be brought after the end of 3 years from the date on which the cause of action accrued. 12. In the case of Gathoni vs. Kenya Co-Operative Creameries Ltd [1982] KLR 104, Potter, JA at page 107 expressed himself thus: “ The law of limitation of actions is intended to protect defendants against unreasonable delay in the bringing of suits against them. The statute expects the intending plainti to exercise reasonable diligence and to take reasonable steps in his own interest.” 13. In Anaclet Kalia Musau v Attorney General & 2 Others [2020] eKLR, the Court of Appeal stated that a suit that is statute barred aects the jurisdiction of a court to handle it in the sense that a court cannot entertain it. The appellate court held as follows; “ The solitary issue in this appeal is, whether the suit before the High Court was statutorily time barred. To demonstrate that time limitation is a jurisdictional question and that if a matter is statute-barred a court has no jurisdiction to entertain it, we cite the decision of the Supreme Court in the case of Nasra Ibrahim Ibren v Independent Electoral and Boundaries Commission & 2 others, Supreme Court Petition No. 19 of 2018, where that court stressed the fact that jurisdiction is everything and that a court may even raise a jurisdictional issue suo motu. It said: “ “40A jurisdictional issue is fundamental and can even be raised by the court suo motu as was persuasively and aptly stated by Odunga J in Political Parties Dispute Tribunal & another v Musalia Mudavadi & 6 others Ex Parte Petronila Were [2014] eKLR. The learned Judge drawing from the Court of Appeal precedent in Owners and Masters of The Motor Vessel “Joey” v Owners and Masters of The Motor Tugs “Barbara” and “Steve B” [2008] 1 EA 367 stated thus: “ “25.What I understand the Court to have been saying is that it is not mandatory that an issue of jurisdiction must be raised by the parties. The Court on its own motion can take up the issue and make a determination thereon without the same being pleaded…” We fortify that view by quoting yet another passage from the East African Court of Appeal In The Matter of Iga v Makerere University (1972) E.A 62, where it was stated that; “ “The Limitation Act does not extinguish a suit or action itself, but operates to bar the claim or remedy sought for and when a suit is time-barred, the court cannot https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/964/eng@2026-09-30 3

page 3 of 4

grant the remedy or relief……. The eect then is that if a suit is brought after the expiration of the period of limitation, and this is apparent from the plaint, and no grounds of exemption are shown in the plaint, the plaint must be rejected.” The learned Judge in this appeal, no doubt did not err when she determined whether, by operation of the law, she had to down tools for want of jurisdiction.” 14. In our instant case the cause of action arose in 2019 and the instant suit was led on 4th March, 2026. The three lapsed by end of 2022 within which period this suit should have been led. The plainti has not produced any order granting her leave to le the suit out of time. Having found that the suit is time-barred, the court lacks jurisdiction and the remedies sought by the plainti cannot be granted. I hereby strike out the plainti’s suit with an order that each party to bear own costs of the suit. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KEHANCHA ON THIS 30TH DAY OF SEPTEMBER, 2026 VIRTUALLY VIA MICROSOFT TEAMS. J.P. NANDI SENIOR PRINCIPAL MAGISTRATE In the presence of: Mr. Kigera/Enock…….Court Assistant Plainti………..present Defendant……..Present Advocate for Plainti……..Mr. Muniko present Advocate for defendants….Mr. Kisia present https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/964/eng@2026-09-30 4

page 4 of 4