[2011] KEHC 82 (KLR)
The court found that the applicant's delay in filing suit was occasioned by a court order restraining the filing of suits against Blue Shield Insurance, which insured the vehicle involved in the fatal accident. This order was only lifted on 20/5/2011, after the expiry of the statutory limitation period on 1/12/2010....
Source-derived case information.
- Citation
- [2011] KEHC 82 (KLR)
- Parties
- Applicant: Dionesia Wanjuki Njue; Respondent: Josphat Mutembei Njue; Respondent: John Muriithi Mbogo
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 75 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Extension of Time to File Suit
- Outcome
- leave to file suit out of time granted
- Legal Topics
- Extension of Time, Limitation of Actions, Fatal Accidents, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Dionesia Wanjuki Njue
Applicant
Josphat Mutembei Njue
Respondent
John Muriithi Mbogo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Extension of Time to File Suit
Legal Issues
- 1 Whether the applicant should be granted leave to file suit out of time for compensation for fatal injuries.
- 2 Whether the statutory limitation period can be extended due to a court order restraining suits against the insurer.
Ratio Decidendi
The court found that the applicant's delay in filing suit was occasioned by a court order restraining the filing of suits against Blue Shield Insurance, which insured the vehicle involved in the fatal accident. This order was only lifted on 20/5/2011, after the expiry of the statutory limitation period on 1/12/2010. The applicant had obtained limited letters of administration ad litem and moved the court promptly after the lifting of the order. There being no opposition to the application and the reasons advanced being credible and supported by affidavit evidence, the court exercised its discretion to grant leave to file suit out of time. The applicant was ordered to file suit within 30...
Court Disposition
leave to file suit out of time granted
Orders
- Leave is granted to the applicant to file suit out of time in respect of the estate of Martin Mwaniki Muriithi.
- The applicant shall file suit within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIS OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Miscellaneous Civil Application 75 of 2011
DIONESIA WANJUKI NJUE…………………………………….……..APPLICANT
VERSUS
JOSPHAT MUTEMBEI NJUE.…………………………..........…1ST RESPONDENT
JOHN MURIITHI MBOGO………………………………………2ND RESPONDENT
R U L I N G
This is the Applicant’s Originating Summons dated 13/7/2011 brought under Section 27 and 28 of the Limitation of Actions Act and Order 37 Rule 6 of the Civil Procedure Rules for an order extending time for filing suit to claim compensation for fatal injuries sustained by Martin Mwaniki Muriithi in a road traffic accident that occurred on 1/12/2007 along Kivue – Kithimu road involving motor vehicle Registration No. KAP 449S.
And that the Applicant be granted leave to file suit out of time in respect of the estate of the deceased Martin Mwaniki Muriithi. It’s supported by the Supporting Affidavit of the Applicant.
She explains that the motor vehicle which caused the death of her son was insured by Blue Shield Insurance. And that there had been an order stopping any suits being filed against those insured by Blue Shield vide Nairobi High Court Misc. Application No. 199/09 (DWN3).
The said order was only lifted on 20/5/2011 (DWN4). Her time for filing suit expired on 1/12/2010. The Applicant has been issued with limited letters of Administration Ad Litem (DWN1.
Being an exparte application there is no evidence to contradict what the Applicant has stated in her Supporting Affidavit. The leave sought is therefore granted. The Applicant is to file suit within 30 days.
DATED, DELIVERED AND SIGNED AT EMBU THIS 18TH DAY OF NOVEMBER 2011.
H. I. ONG’UDI
JUDGE