[2010] KEHC 531 (KLR)
The court found that although the application for leave to file suit out of time was made beyond the statutory period and the additional twelve months typically allowed for extension, the applicant was a lay person who may have been unaware of the running of time due to ongoing negotiations and medical treatment....
Source-derived case information.
- Citation
- [2010] KEHC 531 (KLR)
- Parties
- Applicant: Amina Anyango Juma also known as Magdalene Litunya; Respondent: Samuel Aloyo Otsula; Respondent: Julia Awinja Otsula; Respondent: Irene Aloyo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 64 of 2009
- Procedural Posture
- Miscellaneous Application / Judgment
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Limitation Periods, Personal Injury, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Amina Anyango Juma also known as Magdalene Litunya
Applicant
Samuel Aloyo Otsula
Respondent
Julia Awinja Otsula
Respondent
Irene Aloyo
Respondent
Procedural Posture
Miscellaneous Application / Judgment
Legal Issues
- 1 Whether the applicant should be granted leave to institute a suit out of time for damages arising from assault.
- 2 Whether the delay in filing the suit was excusable under the circumstances.
Ratio Decidendi
The court found that although the application for leave to file suit out of time was made beyond the statutory period and the additional twelve months typically allowed for extension, the applicant was a lay person who may have been unaware of the running of time due to ongoing negotiations and medical treatment. The delay was not deliberate or inordinate. In the interests of justice, the court exercised its discretion to allow the application, granting the applicant leave to file the suit out of time within 14 days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file suit out of time.
- The plaint to be filed in the court possessed of jurisdiction within 14 days.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT
AT BUNGOMA MISC. CCIVIL APPL. NO.64 OF 2009
AMINA ANYANGO JUMA also known as MAGDALENE LITUNYA.........................APPLICANT
~VRS~
SAMUEL ALOYO OTSULA................................................................................1ST RESPONDENT JULIA AWINJA OTSULA...................................................................................2ND RESPONDENT IRENE ALOYO......................................................................................................3RD RESPONDENT
JUDGMENT
The Applicant Amina Anyango alias Magdalene Litunya in her application dated 18/02/2009 seeks for orders for leave to institute a suit out of time. The facts giving rise to this application are that the Applicant was assaulted by the Respondents on 10/01/2005. She sustained serious injuries as shown in the medical report attached. The Respondents were charged and convicted of the offence in Butere Court. The case was finalized on 02/07/2007. The Applicant filed this application on 24/03/2009.
The grounds supporting the application are that the three (3) year period within which a suit for damages should be filed has expired. The parties have been negotiating compensation the arrangement did not materialize. Further that, the Applicant was undergoing treatment for the serious injuries sustained which took time.
I have looked at the annexures including the charge sheet and the medical records. There is no correspondence attached to show the negotiations for compensation. It will be assumed that the negotiations were not reduced in writing and that parties did not communicate in way of letters. The cause of action arose on 10/01/2005 and the three (3) year period allowed by the law expired on 10/01/2008. This application was filed in court on 24/03/2009 which was about one year after time expired. This period is beyond the twelve (12) months within which extension of time ought to be sought. However, considering that the Applicant is a lay person, she may have waited for compensation for long not knowing that time was running out.
The delay was not therefore deliberate and I allow the application as prayed. The plaint to be filed in the court possessed of jurisdiction within 14 days.
F. N. MUCHEMI JUDGE
Judgment delivered and dated at Bungoma this 30th day of November, 2010 in the presence of Mr. Kakoi for Chunge for the Applicants.
F. N. MUCHEMI JUDGE