[2008] KEHC 3552 (KLR)
The court held that the application was incurably defective because it failed to cite section 28(1) of the Limitation of Actions Act, which is the mandatory statutory provision for applications seeking extension of the limitation period. The omission of this section rendered the application fatally flawed. Even if...
Source-derived case information.
- Citation
- [2008] KEHC 3552 (KLR)
- Parties
- Applicant: Francisca Osyanju; Respondent: John Sikuku
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 63 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Extension of Limitation Period
- Outcome
- application dismissed
- Legal Topics
- Limitation of Actions, Extension of Time, Originating Summons, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francisca Osyanju
Applicant
John Sikuku
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Extension of Limitation Period
Legal Issues
- 1 Whether the application for extension of the limitation period was properly brought under the correct statutory provisions.
- 2 Whether failure to cite section 28(1) of the Limitation of Actions Act rendered the application incurably defective.
- 3 Whether the application complied with the requirements of section 28(2) of the Limitation of Actions Act.
Ratio Decidendi
The court held that the application was incurably defective because it failed to cite section 28(1) of the Limitation of Actions Act, which is the mandatory statutory provision for applications seeking extension of the limitation period. The omission of this section rendered the application fatally flawed. Even if the application had been properly before the court, it did not comply with the requirements of section 28(2) of the Act. As a result, the application could not be entertained and was dismissed. The court emphasized the necessity of strict compliance with statutory provisions when seeking to extend limitation periods.
Court Disposition
application dismissed
Orders
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Appeal 63 of 2005
IN THE MATTER OF AN APPLICATION FOR EXTENTION OF THE LIMITATION PERIOD SECTION 27 OF CAP 22 LAWS OF KENYA
BETWEEN
FRANCISCA OSYANJU………….………………APPLICANT
VERSUS
JOHN SIKUKU………………………………...RESPONDENT
RULING
The applicant through Roselyne Aburili & Co. Advocates filed this motion way back in March 2005 (almost 3 years ago).
The motion is by way of Originating Summons pursuant to OXXXVI Rule 3 (c) of the Civil Procedure Rules and section 27 of the Limitation of Actions Act Cap 22 of the Laws of Kenya. The applicant is seeking to file a suit for damages out of time.
A cursory look of the application however will clearly show that the same is incurably defective. I say so because an application for leave is supposed to be premised on section 28 (1) of the Limitation of Actions Act. That section has been omitted totally in the application as one of the provisions the applicant is seeking to rely upon. That makes the application incurably defective and it calls for striking out.
For the sake of argument, even assuming that the application was properly before the court, the same does not comply with the requirements of section 28(2) of the Limitation of Actions Act. This application inevitably calls for dismissal. The same is consequently dismissed with no order as to costs.
W. KARANJA
JUDGE
DELIVERED, Signed and Dated this 13th day of February, 2008 in presence of Mr. Kakoi for Aburili for the applicant.