[2013] KEHC 6728 (KLR)
The High Court determined that, according to section 28(5) of the Limitation of Actions Act, the proper court to hear an application for leave to file suit out of time is the court in which the action is intended to be brought. Since the intended suit was for damages for personal injuries arising from an industrial...
Source-derived case information.
- Citation
- [2013] KEHC 6728 (KLR)
- Parties
- Applicant: Andrew Muli Mwinzi; Respondent: Kay Construction Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 240 of 2012
- Procedural Posture
- Miscellaneous Application / Preliminary Ruling on Application for Leave to File Suit Out of Time
- Outcome
- Application struck out as incompetent.
- Judges
- DW Mbuteti
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Industrial Accident Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Muli Mwinzi
Applicant
Kay Construction Co. Ltd
Respondent
Procedural Posture
Miscellaneous Application / Preliminary Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the High Court has jurisdiction to grant leave to file suit out of time for an industrial accident claim.
- 2 Whether the application should have been made before the Industrial Court.
Ratio Decidendi
The High Court determined that, according to section 28(5) of the Limitation of Actions Act, the proper court to hear an application for leave to file suit out of time is the court in which the action is intended to be brought. Since the intended suit was for damages for personal injuries arising from an industrial accident, the appropriate forum was the Industrial Court, not the High Court. The application before the High Court was therefore incompetent and could not be entertained. The court struck out the application with no order as to costs.
Court Disposition
Application struck out as incompetent.
Orders
- The application is struck out with no order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC APPLICATION NO 240 OF 2012
ANDREW MULI MWINZI..................................................... APPLICANT
VERSUS
KAY CONSTRUCTION CO. LTD......................................RESPONDENT
PRELIMINARY RULING
1. In the application herein (originating summons dated 2nd April 2012) the Applicant seeks leave to file suit out of time. The intended suit is for damages for personal injuries received in an industrial accident. Such suit would of course have to be filed before the Industrial Court, though in the draft plaint annexed to the application the indicated court is the Chief Magistrate’s Court.
2. The application is brought under sections 27and28 of the Limitation of Actions Act, Cap 22(theAct).Section 28(5) of the Act provides –
“28. (5) In this section and in section 27 “court”, in relation to an action, means the court in which the action has been or is intended to be brought”.
3. The court to hear the Applicant’s application to file suit out of time is thus the Industrial Court and he should have applied there. Let him apply before that court. As far as this court is concerned the application is incompetent and is hereby struck out with no order as to costs. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF OCTOBER 2013
H. P. G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 9TH DAY OF OCTOBER 2013