[2007] KEHC 2795 (KLR)
The court held that the applicant's intended action was founded on contract, and Section 27 of the Limitation of Actions Act does not provide for extension of time in such cases. The only possible basis for extension would be Section 26, which applies where the right of action is concealed by fraud and the plaintiff...
Source-derived case information.
- Citation
- [2007] KEHC 2795 (KLR)
- Parties
- Applicant: Gabriel Njuguna Mwangi; Respondent: Mt. Kenya Wholesalers
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- ? 81 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- GG Okwengu
- Legal Topics
- Limitation Periods, Extension of Time, Leave to File Out of Time, Contract Claims, Fraud Discovery
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Njuguna Mwangi
Applicant
Mt. Kenya Wholesalers
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to file a suit out of time for a contract claim under Section 27 of the Limitation of Actions Act.
- 2 Whether the applicant has demonstrated that the right of action was concealed by fraud and that the application falls under Section 26 of the Limitation of Actions Act.
- 3 Whether the applicant exercised reasonable diligence in discovering the alleged fraud.
Ratio Decidendi
The court held that the applicant's intended action was founded on contract, and Section 27 of the Limitation of Actions Act does not provide for extension of time in such cases. The only possible basis for extension would be Section 26, which applies where the right of action is concealed by fraud and the plaintiff could not have discovered it with reasonable diligence. The court found that the applicant could, with reasonable diligence, have discovered the relevant facts earlier, specifically the recommended prices and VAT rates. Furthermore, more than three years had elapsed since the applicant discovered the alleged fraud, and his explanation for the delay in bringing the application...
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is rejected.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Case Misc 81 of 2006
GABRIEL NJUGUNA MWANGI………………………..APPLICANT
VERSUS
MT. KENYA WHOLESALERS……….………….....RESPONDENT
R U L I N G
Gabriel Njuguna Mwangi, the applicant herein has come to this court under Section 27 of the limitation of Actions Act seeking orders for leave to file his suit against the Respondent out of time. According to the grounds stated on the body of the application, it is contended that the applicant has a claim against the respondent for breach of contract and that 6 years have elapsed since the cause of action accrued and that material facts giving rise to the cause of action were not within the knowledge of the applicant at the time of the effluxion of time.
The grounds stated on the body of the application are buttressed by an affidavit sworn by the applicant in which He explains how his cause of action arose.
It is evident that the applicant’s intended action is founded on contract. However, Section 27 of the Limitation of Actions only provides for extension of time in the case of actions founded on tort. The application for extention of time in the case of contract cannot therefore lie under Section 27of the Limitation of Actions Act. Such an application can only properly be brought under Section 26 of the Limitation of Actions Act where the action is based upon the fraud of the Defendant or his agent and the right of action is concealed by the fraud of any such person. In such a situation “the period of Limitation does not begin to run until the Plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.”
It would appear from the affidavit that the applicant claims that the Respondent inflated the prices in the invoices whilst supplying him with cigarettes between the years 1995 and 1998. The applicant claims He only discovered this in November 2003 and that since then He has been pursuing the matter with the police. I have considered this explanation but do find that the applicant could with reasonable diligence have discovered the B.A.T. recommended prices and the V.A.T. rate.
Moreover it is more than 3 years since the applicant discovered the alleged fraud and his explanation for the delay in bringing this application is not satisfactory.
I therefore find that this application is defective and also lacks merit. It is accordingly rejected.
Dated, signed and delivered this 13th day of February 2007.
H. M. OKWENGU
JUDGE