Wangwe Muhere v. Mogaya Chacha, Civ. App. 36-M-71, 27/5/72, Kisanga, J.

 

Wangwe Muhere v. Mogaya Chacha, Civ. App. 36-M-71, 27/5/72, Kisanga, J.

The appellant was sued for the recovery of compensation in the sum of shillings 2,000/= for assaulting the respondent. The claim was allowed to the extent of shillings 1,900/= only, the Court taking into account the sum of shillings 100/= which the respondent had recovered as compensation against the appellant during criminal proceeding in respect of the same assault. The appellant now appeal against the award. Item (6) of the First Schedule to the Law of Limitation Act, 1971 provides that the period of limitation in respect of a suit founded on tort is three years. The present suit which is founded on tort was instituted just under five years after the right to sue accrued. The respondent when asked to explain the delay said that after being wounded by the appellant he was in pain and therefore unable to work in order to raise the money which was necessary as Court fees for filing the suit. Following the injury inflicted by the appellant, he was admitted in hospital for a month after which he continued to receive treatment as an out-patient for a further period of one and a half months. Section 15 of the Law of Limitation Act provides that, “If on the date on which a right of action for a suit …..accrues, the person to whom it accrues is under a disability, the action may be brought at any time before the expiry of the period of limitation prescribed for such action computed from the date when the person ceases to be under a disability  ……….”

            Held: (1) “I am prepared to hold that the respondent was under a disability during the one month when he was admitted in hospital because at that time not only was he unable physically to move from one place to another but he was also unable to work in order to raise the necessary Court fees, for filing the action. As regards the one and a half months during which he continued to receive treatment as an out-patient it seems arguable whether he could properly be said to be under disability within the meaning of this section. Because although he might still be in pain and therefore unable to work for money, he could have approached the Court and apply to sue as a pauper. This, however, he did not do. Even if it were to be assumed in his favour that he was under disability during the whole period ………this means that only two and a half months are to be excluded in computing the period of limitation but even then the suit would still be time barred by more than twelve months. And finally, as indicated earlier on, the respondent recovered shillings 100/= compensation against the appellant during the criminal proceedings in respect of the same assault. But the Court fees which he paid to institute this suit is shillings 74/= only. Thus he could have spent part of the compensation money to bring this suit and therefore he cannot properly be heard to say that he did not have the necessary Court fees.” (2) Appeal allowed.