[2017] KEHC 10132 (KLR)
The court found that the applicant had provided a satisfactory explanation for the delay in filing his claim, namely that he relied on the respondent's repeated assurances that compensation was being processed. The respondent's conduct in giving such assurances and subsequently terminating the applicant's employment...
Source-derived case information.
- Citation
- [2017] KEHC 10132 (KLR)
- Parties
- Applicant: Dismas Tobesi Aura; Respondent: Sukari Industries Limited
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 42 of 2017
- Procedural Posture
- Miscellaneous Civil Suit / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Judges
- DO Ohungo
- Legal Topics
- Extension of Time, Limitation of Actions, Workplace Injury Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dismas Tobesi Aura
Applicant
Sukari Industries Limited
Respondent
Procedural Posture
Miscellaneous Civil Suit / 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 excusable given the respondent's conduct.
Ratio Decidendi
The court found that the applicant had provided a satisfactory explanation for the delay in filing his claim, namely that he relied on the respondent's repeated assurances that compensation was being processed. The respondent's conduct in giving such assurances and subsequently terminating the applicant's employment without compensation justified the applicant's belief that his claim was being handled, and the delay was therefore not deliberate. The court exercised its discretion under the Limitation of Actions Act to grant leave to the applicant to file his claim out of time, finding that the interests of justice required that he be given an opportunity to pursue his claim.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file his claim out of time, to be filed within 14 days.
- The costs of this application shall abide the outcome of the substantive suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT HOMA BAY
MISCELLANEOUS CIVIL SUIT NO.42 OF 2017
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
DISMAS TOBESI AURA........................................CLAIMANT
VERSUS
SUKARI INDUSTRIES LIMITED....................RESPONDENT
RULING
1. By an originating summons dated 30th August 2017, the applicant DISMAS TOBESI AURA seeks leave to file his claim out of time.
He explains that he was an employee of the respondent (SUKARI INDUSTRIES LIMITED) when in the cause of his duties as a console operator in the milling area, on 27/12/2013 when he was hit by a metal object and suffered serious injuries for which he claims compensation.
2. On 04/04/2014, the applicant through the instructions of the respondent, and for purposes of compensation, filed in a Directorate of Occupational Safety and Health Services ML/DOSH/FORM 1. However on 15/3/2017 by an oral notice of termination of contract, the respondent ordered the applicant to stop offering his services. At the time of such termination, the claimant had not been compensated despite several assurances by the respondent that the claim forms had been sent to the Insurer, and payment was being processed.
3. Upon termination of the employment, the respondent completely cut off links with the claimant and did not want to hear from him despite knowing very well that the applicant had not been paid any compensation.
He now realized that the continuous assurances by the respondent were intended to encourage him to wait until the time within which to file suit expires, yet he has a good claim against them.
It is his contention that the delay was not deliberate.
4. The applicant has annexed copies of his treatment notes and the claim for compensation form.
5. From the attached documents and the explanation given, I am satisfied that the applicant deserves a chance to pursue his claim. The application is merited and leave is granted to the applicant to file his claim out of time. The same must be filed within 14 (Fourteen) days hereof.
b) The costs of this application shall abide the outcome of the substantive suit.
c) The orders herein apply mutatis mutandis to HC MISC. CIVIL APPLICATION NO.43 OF 2017.
Delivered and dated this 20th day of November, 2017 at Homa Bay
H.A. OMONDI
JUDGE