[2018] KEHC 10270 (KLR)
The court found that the applicant provided a reasonable explanation for the delay in filing his claim, namely, the respondent's continuous assurances of compensation and the request to submit medical records. The delay was not inordinate, and the applicant should not be penalized for relying on the respondent's...
Source-derived case information.
- Citation
- [2018] KEHC 10270 (KLR)
- Parties
- Applicant: Dickson Odiwuor Nyawanda; Respondent: Sukari Industries Limited
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 3 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Judges
- DO Ohungo
- Legal Topics
- Extension of Limitation Period, Workplace Injury Claims, Delay in Filing, Employment Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Odiwuor Nyawanda
Applicant
Sukari Industries Limited
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 a claim out of time under the Limitation of Actions Act.
- 2 Whether the delay in filing the claim was reasonable and excusable given the respondent's conduct.
Ratio Decidendi
The court found that the applicant provided a reasonable explanation for the delay in filing his claim, namely, the respondent's continuous assurances of compensation and the request to submit medical records. The delay was not inordinate, and the applicant should not be penalized for relying on the respondent's representations. The court exercised its discretion under the Limitation of Actions Act to grant leave to file the claim out of time, holding that justice would be served by allowing the applicant to pursue his claim on the merits.
Court Disposition
application allowed
Orders
- The applicant is granted leave to file and serve his pleadings within 14 days of the ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
MISC. CIVIL SUIT NO. 3 OF 2018
IN THE MATTER OF LIMITATION OF ACTIONS ACT CAP 22 LAWS OF KENYA
AND
IN THE MATTER OF AN APPLICATION TO FILE SUIT/CLAIM OUT OF TIME
BETWEEN
DICKSON ODIWUOR NYAWANDA...............................CLAIMANT
VERSUS
SUKARI INDUSTRIES LIMITED..............................RESPONDENT
RULING
1. DICKSON ODIWUOR NYAWANDA (the applicant) has filed this originating summons dated 7th February 2018 seeking leave to file a claim out of time against Sukari Industries. He explains that he was an employee of the said company and claims to have sustained injuries in the course of his duties on 5/11/2014.
2. He reported the accident to the Respondent who through its then Insurance agent one TOM OKECH, advised him to surrender all his medical records to the respondent and exercise patience and await for compensation – he complied, but thereafter nothing positive has been forthcoming.
3. Instead on 15/08/2016 by an oral notice, the respondent terminated his employment contract. It was the continuous assurances from the Respondent that compensation was forthcoming which led to his failing to file his claim within the period allowed in law – yet he has a good claim. It is his contention that the delay was not deliberate.
4. The applicant annexed copies of his treatment notes and a letter from the Respondent’s insurance requiring him to submit to Dr. Otieno for medical examination.
5. The explanation given is reasonable and the delay has not been inordinate. The applicant merits being given a chance to pursue his claim. He is directed to file and serve his pleadings within 14 days hereof.
6. The ruling herein applies mutatis mutandis to MISC. CIVIL APPLICATION NO.4 OF 2018 – NICODEMUS OTIENO OPIYO –VS- SUKARI INDUSTRIES.
Delivered and dated this 08th day of March, 2018 at Homa Bay
H.A. OMONDI
JUDGE
Court:-Ruling read.
H.A. OMONDI
JUDGE