[2005] KEHC 2336 (KLR)
The court found that the plaintiff had properly obtained an order extending time to file the suit before filing it, as evidenced by the ruling in Miscellaneous Application No. 264 of 2002. The fact that the order was not served on the defendants did not invalidate the suit, as there is no legal requirement mandating...
Source-derived case information.
- Citation
- [2005] KEHC 2336 (KLR)
- Parties
- Plaintiff: Charles Corris Momanyi; Defendant: Board of Governors Nyabururu Girls High School; Defendant: Permanent Secretary Ministry of Education Science and Technology; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 271 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Legal Topics
- Limitation of Actions, Preliminary Objection, Extension of Time, Public Authorities Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Corris Momanyi
Plaintiff
Board of Governors Nyabururu Girls High School
Defendant
Permanent Secretary Ministry of Education Science and Technology
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit against the 2nd and 3rd defendants is time barred under the Public Authorities Act.
- 2 Whether the plaintiff obtained a valid court order extending time to file the suit.
- 3 Whether failure to serve the extension order on the defendants invalidates the suit.
Ratio Decidendi
The court found that the plaintiff had properly obtained an order extending time to file the suit before filing it, as evidenced by the ruling in Miscellaneous Application No. 264 of 2002. The fact that the order was not served on the defendants did not invalidate the suit, as there is no legal requirement mandating such service prior to filing. Therefore, the preliminary objection that the suit was time barred lacked merit and was dismissed.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL CASE 271 OF 2002CHARLES CORRIS MOMANYI ………………………… PLAINTIFF
VERSUS
1. BOARD OF GOVERNORS NYABURURUGIRLS HIGH SCHOOL2. PERMANENT SECRETARY MIN. OF EDUCATION SCIENCE
AND TECHNOLOGY
3. THE ATTORNEY GENERAL..........................…….. DEFENDANTS.RULING
Counsel from the defendant raised a Preliminary Objection and stated that suit against the 2nd & 3rd defendant suit is time barred. He referred court to Public Authorities Act which provides that suits against the Act of Public Authorities should be filed within one year. The cause of action in this case accrued on 25/11/99 and suit filed on 24/10/02. This was after one year. No application to extend time was made or if it was they were not served with the courts order.
Mr. Minda informed court that plaintiff moved the court in Misc. App. No.264 of 2002 and obtained an order extending time to file the suit. This was before the suit was filed. I have considered the Preliminary Objection. It has no merit. Indeed the plaintiff moved the court and on 22nd October 2002 P. K. A. Birech Commissioner of Assize (as he then was) did grant the applicants application. The court ruling was filed together with the plaint on 24th October 2002, two days after the ruling. Even if it was not served on the defendant that does not mean that he filed the suit without leave. In fact there are no specific legal requirements that the order be served.
I therefore find the objection has no merit and the same is dismissed. Dated 14th day of April 2005. KABURU BAUNIJUDGE
c/c. Mobisa Mr. Ogutu H/B for Kimanga for Defendant.