We can borrow a leaf on limitation law from UK

By Pravin Bowry

The laws of limitation are the statutory time limits for bringing civil (that is non- criminal) court proceedings. 

A litigant cannot generally bring an action to enforce a legal right after the limitation period has expired. The defence, if the opponent spots the issue and takes up the point, is termed as a suit being “time barred.”

The Limitation of Actions Act Chapter 22 Laws of Kenya seeks to strike a balance between protecting defendants from having to defend stale claims and giving claimants sufficient opportunity to enforce their rights.

Different limitation periods apply to different situations.  Land cases must be filed within 12 years, contractual matters within 6 years, tortuous matters within 3 years.  Cases of defamation must be filed within one year as also cases against the Government and the local authorities.  Cases where minors are involved and fraud cases have different time frames.

Hitherto only in exceptional cases could the courts extend the period mainly on grounds of ignorance or fraud.

Time starts to run on the first date on which the claimants ‘cause of action arose’ meaning that date on which factually everything had occurred for a claim to be sustained in law.

Intricate questions often arise as to when the limitation period begins and the matter is not as straight forward as it appears.

The often quoted example is the case of workers wrongfully exposed to asbestos fibers who suffer from undetectable damage many years later.  When does the legally material damage occur to kick – start the limitation clock?

“The Mau Mau UK Torture Ruling” early this month has created a precedent in England which has rocked conventional legal thinking.

The case filed by Kenyans has resulted in an English court ruling that cases can go ahead 60 years after the event and it is important to examine the decision in detail in view of the far reaching consequences.

Commander-in-Chief

A High Court judge used his discretion under the English Section 33 of the Limitation Act 1980 to allow claims from Kenyans tortured by the colonial government during the Mau Mau uprising in the 1950s to go ahead.

Delivering judgment in the case of Mutua and others v Foreign and Commonwealth Office he said: “The events to be investigated at any trial would extend back to   at least, a period of 60 years or more by the likely date of trial”

The judge held that there were compelling reasons why the claims were not issued before June 2009 and a fair trial remained possible and the matters resolved fairly and cogently.

“The outcome would turn, I think, upon the role of Commander-in-Chief in relation to the security forces, the “control” of the detention facilities, the direction of policy towards them by the War Council and the position of the Commander-in-Chief in his responsibilities to the government in London.”

The claimants had argued that documents showed a “persistent pattern of abusive treatment of detainees throughout the period of the emergency, brought to the knowledge of all levels of the Colonial and UK governments, which was met with attempts to suppress independent investigation and to cover matters up rather than in proper attempts to eliminate it”.

Mr Justice McCombe said: “Looking at those claimants’ evidence, I think that it will be quite possible to determine sufficiently clearly where and when they suffered their injuries and the official status of those responsible for inflicting them.

“It will also be possible, on the documents arranged and collated chronologically, together with the other evidence, to determine whether or not the injuries occurred because of a breach of duty on the part of the United Kingdom government.”

McCombe J concluded that three of the claimants, Wambugu Nyingi, Paulo Nzili and Jane Mara, had established a proper case for the court to exercise its discretion under the Limitation Act in their favour.

A spokesman for the Foreign Office when stating that an appeal will ensue said: “The judgment has potentially significant and far reaching legal implications.

The normal time limit for bringing a civil action is three to six years.

Wagalla, Hola Massacre

“In this case, that period has been extended to over 50 years despite the fact that the key decision makers are dead and unable to give their account of what happened.

Our local courts have similarly ruled that where the fundamental constitutional rights of a citizen have been encroached limitation period does not apply.

A recent case is that of Mr Koigi wa Wamwere  dealing with torture which was perpetuated in the  torture chambers  of Nyayo House when he was awarded damages of over Sh2,500,000.

Claimants of past historical abuses such as those involved in the Hola Massacre, or the Wagalla Massacre, will now have a recourse.

A Pandora’s Box has been opened and litigants who have been indolent for years will open up litigations of past decades.

The writer is a lawyer.

bowryp@hotmail.com