[2004] KEHC 1187 (KLR)
The court found that the applicants' failure to file suit within the limitation period was due to their ignorance of the need to institute a separate civil claim, as they believed the ongoing traffic proceedings would address their compensation. Upon realizing the necessity of a civil suit, they acted promptly to...
Source-derived case information.
- Citation
- [2004] KEHC 1187 (KLR)
- Parties
- Applicant: Francis Nyoike Maiwa; Applicant: Joseph Mutinda Muli; Applicant: David Nganga Mugwimi; Applicant: John Muraya Mwangi; Respondent: Mastermind Tobacco (K) Ltd; Respondent: Michael Mulel Kasyoko
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 302 of 2001
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application granted
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Personal Injury Claims, Road Traffic Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Nyoike Maiwa
Applicant
Joseph Mutinda Muli
Applicant
David Nganga Mugwimi
Applicant
John Muraya Mwangi
Applicant
Mastermind Tobacco (K) Ltd
Respondent
Michael Mulel Kasyoko
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to file a suit for damages arising from a road traffic accident outside the limitation period.
- 2 Whether ignorance of the need to file a civil suit constitutes sufficient reason for extension of time under Section 27 of the Limitation of Actions Act.
Ratio Decidendi
The court found that the applicants' failure to file suit within the limitation period was due to their ignorance of the need to institute a separate civil claim, as they believed the ongoing traffic proceedings would address their compensation. Upon realizing the necessity of a civil suit, they acted promptly to seek leave. Although there was subsequent delay by their advocates in prosecuting the application, the court held that such delay should not be visited upon the applicants. The court, applying Section 27 of the Limitation of Actions Act and the principles in Oruta & Another v Nyamato, determined that the applicants had shown sufficient cause for extension of time and that denying...
Court Disposition
application granted
Orders
- Leave is granted to the applicants to file the intended suit within 14 days from the date of the ruling, failing which the orders will lapse and be of no effect.
- The applicants shall bear their own costs for this application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAKURU
CIVIL SUIT 302 OF 2001(OS)
FRANCIS NYOIKE MAIWA ………………….1ST APPLICANT
JOSEPH MUTINDA MULI……………………2ND APPLICANT
DAVID NGANGA MUGWIMI………………..3RD APPLICANT
JOHN MURAYA MWANGI……………..…….4TH APPLICANT
VERSUS
MASTERMIND TOBACCO (K) LTD……....1ST RESPONDENT
MICHAEL MULEL KASYOKO……………2ND RESPONDENT
RULING
This is an application for leave to institute a suit for damages arising from a road traffic accident on 23/8/97 outside the limitation period. The failure by the applicants to file suit in time was due to ignorance. In the affidavit sworn by one of the applicants in support of their application he deposed that after the said accident, the driver of the motor vehicle that caused the accident was charged in a traffic case and the applicants were summoned to give evidence in the traffic case. The applicants thought that the case they were attending would lead to their compensation until it dawned on them that a civil suit had to be filed in court and they became aware of that position in August, 2001, it was deposed.
I have considered the application and perused the provisions of Section 27 of the Limitations of Actions Act. In ORUTA & ANOTHER VS NYAMATO [1988] K.L.R. 590 the Court of Appeal stated that in cases of Limitation, the judge in chambers is required to form, on the Plaintiff’s evidence before him, a prima facie view as to the matters which the Act contemplates will be decided (if leave were granted) only in the action itself and these matters are:- (a) Whether the Plaintiff has a good cause of action; (b) Whether the plaintiff has fulfilled the requirements of Section 27(2) of the Act.
Their Lordships also observed that from a close reading of the Act, it was not the intention of the legislature to allow a claim based on personal injuries on account of negligence and nuisance or breach of duty to be met with a defence of limitation. While I appreciate that the applicants filed the application about one year outside the limitation period, that is on 5/9/2001, their present advocates took almost three years to prosecute an ex parte application. That subsequent delay was not explained at all. It is, however, undesirable to deny the applicants a chance to pursue their claims simply because of their advocates indolence.
I therefore grant the application and order the intended suit be filed with next 14 days from the date hereof failing which these orders will lapse and will be of no effect thereafter. The applicants shall bear their own costs for this application.
DATED, SIGNED & DELIVERED at Nakuru this 13th day of October, 2004.
DANIEL MUSINGA
AG. JUDGE
13/10/2004