[2015] KEHC 6079 (KLR)
The court found that the applicant's reasons for delay were not supported by the facts on record. The grant of representation was obtained three years after the accident, and the advocate was instructed two and a half years after the death. The application for extension was filed four months after the grant was...
Source-derived case information.
- Citation
- [2015] KEHC 6079 (KLR)
- Parties
- Applicant: Christine Amoit Barasa (suing as a personal representative and next of kin of the estate of the late Michael Ambuchi); Respondent: Abikar Mohamed
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 26 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- A Ali-Aroni
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Fatal Accident Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christine Amoit Barasa (suing as a personal representative and next of kin of the estate of the late Michael Ambuchi)
Applicant
Abikar Mohamed
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file suit out of time under the Limitation of Actions Act.
- 2 Whether the delay in filing the suit was justified under the statutory exceptions.
Ratio Decidendi
The court found that the applicant's reasons for delay were not supported by the facts on record. The grant of representation was obtained three years after the accident, and the advocate was instructed two and a half years after the death. The application for extension was filed four months after the grant was issued, resulting in a total delay of over four years from the date of the cause of action. The court held that the delay was inordinate and did not fall within the exceptions provided under section 27 of the Limitation of Actions Act. The statutory limitation period for tort actions had expired, and there was no sufficient justification for extension. The court declined to...
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is declined.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. APPL. NO.26 OF 2014
IN THE MATTER OF APPLICATION FOR LEAVE TO FILE SUIT OUT OF TIME
CHRISTINE AMOIT BARASA
(suing as a persona representative and
next of kin of the estate of the late:
MICHAEL AMBUCHI ....... PLAINTIFF/APPLICANT
V
ABIKAR MOHAMED ....... DEFENDANT/RESPONDENT
RULING
1. The application before court is an Ex-parte Originating Summons that was brought under sections 27 & 28 of the Limitation of Actions Act Cap.22, Order 37 rule 6 of the Civil Procedure Rules and sections 3 & 3A of the Civil Procedure Rules and seeks one substantive order; leave to file suit out of time.
2. The application is based on the grounds that; the failure to file suit was not malicious or a witch-hunt, that it took time for the applicant to be issued with a grant, an advocate instructed to file suit on time failed to do so and the claim has high chance of success.
3. The only issue for the court is whether or not to grant leave for the suit to be filed out of time.
4. The facts herein as demonstrated by the documents on record are that the deceased one Michael Ambuchi was involved in a fatal accident on the 2nd day of August 2010 along Malaba -Bungoma road. A Limited Grant was issued to the applicant on the 4th day of December, 2013. The current application on the other hand was filed on 14th March, 2014. There is also a receipt from Mutenyo Wattimah for Kshs.2,000/= for opening a file dated 7th February, 2013. I suppose this receipt is proof of engagement of a lawyer for purposes of taking action.
5. On its own motion, the court perused Succession Cause No.460 of 2013 in which the application for Limited Grant was made. The court notes that the petition for Limited Grant ad litem was filed in court on 11th November, 2013 and was issued on 4th December, 2013. It took about 3 weeks for the court to issue the Limited Grant. It is noteworthy that the application for Limited Grant was filed 3 years after the accident. The lawyer on the other hand was instructed 2 years and 6 months after the death of the deceased. The court also notes that upon receipt of the grant, it again took 4 months before the application for extention was filed.
6. Section 27 of the Limitation of Actions Act deals with extention of limitation period in cases of ignorance of material facts in action of negligence etc. Section 28 on its part deals with the mode of application to be preferred to court.
7. In her application, the applicant cites 3 reasons why the suit was filed that is, it took time for the grant to be issued. A look at the file; Succession Cause no.460 of 2013 gives contrary facts as enumerated above. That an advocate instructed did not file suit on time. A receipt annexed indicates opening of a file 2 years and 6 months down the line. However, it is not obvious that counsel was facilitated in order to file suit. Opening a file per seis no proof of instructions to file suit, the third fried states that there is no malice in filing of the suit out of time.
8. Section 4 (2) of the Limitation of Action Act states:-
“2 An action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued...”
The application before court was brought 4 years and 4 months after the cause of action contrary to the section above quoted. It is also my view that, this is not a proper case to apply section 3 & 3A of the Civil Procedure Act. The delay herein is inordinate and indeed does not fall under section 27 of the Limitation of Actions Act.
In the circumstances, I decline to grant the application. Costs in the cause.
Dated and delivered at Bungoma this10th day of February 2015.
A. ARONI
JUDGE