[2007] KEHC 1008 (KLR)
The court found that the applicant failed to provide any explanation for the delay in filing the suit nearly four years after the cause of action arose, as well as for the delay in bringing the present application after the suit was dismissed. The statutory limitation period for tort actions is three years, and the...
Source-derived case information.
- Citation
- [2007] KEHC 1008 (KLR)
- Parties
- Plaintiff: Charles Nyaga Philiph; Defendant: Bernard Gachoki Mukono
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 49 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal/order
- Outcome
- application dismissed with costs
- Legal Topics
- Limitation of Actions, Personal Injury Assault, Extension of Time, Dismissal for Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Nyaga Philiph
Plaintiff
Bernard Gachoki Mukono
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal/order
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing the suit beyond the statutory limitation period.
- 2 Whether the application to set aside the dismissal or extend time should be granted despite the inordinate delay.
Ratio Decidendi
The court found that the applicant failed to provide any explanation for the delay in filing the suit nearly four years after the cause of action arose, as well as for the delay in bringing the present application after the suit was dismissed. The statutory limitation period for tort actions is three years, and the applicant did not demonstrate any sufficient cause or exceptional circumstances to warrant extension of time or setting aside the dismissal. The court concluded that the application was without merit and that the delay was both inordinate and unexplained, justifying dismissal of the application with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Misc Civil 49 of 2006
CHARLES NYAGA PHILIPH…………….....……………………………PLAINTIFF
VERSUS
BERNARD GACHOKI MUKONO…………………..………….……DEFENDANT
RULING
The applicant filed a plaint in Resident Magistrate’s court at Gichugu. The cause of action was injuries caused by assault committed on the applicant on 10. 3.2000.
The plaint was filed on 2/2/2004. This was 3 years and 11 months after the incident. The Trial Magistrate found that the suit was barred under Limitation of Actions Act. The Trial Magistrate also found that the applicant had failed to prove the case against the Respondent and therefore dismissed the same. The applicant did not file an appeal against the Judgment of the Trial Court. Instead he has filed this application under Order VI A rule 3 (1) and 8 CPC. He has not shown why he was delayed in filing the suit within the prescribed time of 3 years. The Respondent has filed a Replying Affidavit opposing the application. He points out that the said case was dismissed on 18/5/2001 and this application was not filed until 17/5/2006. This is inordinate delay which is not explained.
Upon perusing this application and the record, I find that the applicant has delayed this application and has not explained the delay in filing suit and this application. I see no merit in the application the same is dismissed with costs.
Dated this 1st February, 2007.
J. N. KHAMINWA
JUDGE.
1/2/2007
Khaminwa – Judge
Njue – Court Clerk
Bernard Defendant – present
Ruling read in open court.
J. N. KHAMINWA
JUDGE.