[2023] KEHC 25209 (KLR)

In re Miriam Chepchirchir (Exparte Applicant) (Miscellaneous Application 204 of 2023) [2023] KEHC 25209 (KLR) (8 November 2023) (Ruling)

Neutral citation: [2023] KEHC 25209 (KLR)

Republic of Kenya

In the High Court at Eldoret

Miscellaneous Application 204 of 2023

RN Nyakundi, J

November 8, 2023

MIRIAM CHEPCHIRCHIR.......................EX PARTE APPLICANT

Ruling

1. The Applicant approached this court vide an Exparte miscellaneous Notice of Motion dated 25th September 2023 seeking the following orders;1. Spent2. That the Honourable Court be pleased to grant the Applicant leave to file suit out of time in respect of a civil claim for recovery of a civil debt.3. That the costs of this Application be provided for.

2. The Application is premised on the grounds set out therein and the contents of the supporting affidavit sworn by the Applicant.

3. The Applicant contends that she entered into a loan agreement in 2014 with Alphonse Kiprotich Cheruiyot on 19th September 2014, the loan agreement was annexed as annexure MC1 to the supporting affidavit. She tried to follow up and request for refund through a demand letter which she annexed as annexure MC2. Further, that the borrower paid some amount in 2015 and promised to clear the balance but he has never paid any additional amount since then. She annexed the response of the borrower as annexure MC3, contending that he clearly does not intend to pay. It was her averment that she fell ill, underwent depression and was under medication since then. Consequently, she was unable to institute any suit against the borrower. She maintained that the delay in filing the suit was occasioned by her illness and the refusal of the borrower to pay.

4. The Applicant submitted that the Application is filed ex-parte as per order 37 of Civil Procedure Rules and further, that she has explained her delay in filling the suit. It is the Applicants’ prayer that she be allowed to pursue her matter as she will be prejudiced if she is locked out. She relied on the case of Royal Media Services Ltd Vs. Valentine Mugure Maina &Another (2019) eKLR in support of the Application.

Analysis & Determination 5. The Application is expressed to have been brought under order 37 of the Civil Procedure Rules. I note that the Applicant has not specified which particular rule the Application is premised upon. However, the relevant provision to an Application for extension of limitation of time is order 37 rule 6 which provides as follows;(1)An Application under section 27 of the Limitation of Actions Act made before filing a suit shall be made ex parte by originating summons supported by affidavit.(2)Any such Application made after the filing of a suit shall be made ex parte in that suit.

6. The cause of action arising from the loan agreement is premised on breach of contract, specifically the contract made on 19th September 2014. Section 4(1) of the Limitation of Actions Act states as follows;(1)The following actions may not be brought after the end of six years from the date on which the cause of action accrued -(a)actions founded on contract;Section 27 of the Limitation of Actions Act provides as follows;Extension of limitation period in case of ignorance of material facts in actions for negligence, etc.(1)Section 4(2) does not afford a defence to an action founded on tort where;(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and(d)the requirements of subsection (2) are fulfilled in relation to the cause of action.(2)The requirements of this subsection are fulfilled in relation to a cause of action if it is proved that material facts relating to that cause of action were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the plaintiff until a date which(a)either was after the three-year period of limitation prescribed for that cause of action or was not earlier than one year before the end of that period; and(b)in either case, was a date not earlier than one year before the date on which the action was brought.

7. This clearly lays down the circumstances under which the court would have jurisdiction to extend time, that the action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plaintiff as a result of the tort. In the Court of Appeal case of Willis Onditi Odhiambo v Gateway Insurance Co Limited (2014) eKLR, the Court of Appeal held…time to file suit can only be extended where the action is found on tort and must relate to the torts or negligence, nuisance or breach of duty and the damages claimed should be in respect of personal injuries to the plaintiff as a result of the tort.

8. In Mary Osundwa v Nzoia Sugar Co. Ltd[2002] eKLR the court in regard to section 27 of the Limitation of Actions Act held as follows;"This section clearly lays down the circumstances in which the court would have jurisdiction to extend time. That action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and claimed are in respect of personal injuries to the plaintiff as a result of the tort. The section does not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other causes of action other than those in tort.”

9. In Oadi Odhiambo v Gateway Insurance Co. Ltd (2013) eKLR, the Court of Appeal, faced with the same set of circumstances as in this case observed:"Under Section 27 (1) of the Limitations Act, time to file a suit can only be extended where the action is founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages accorded should be in respect of personal injury to the plaintiff as a result of the tort.”

10. The Applicant relied on the case of Royal Media Services vs Valentine Mugure Maina & Anor (2019) eKLR which I must distinguish was a matter where the cause of action was a defamation claim which is a tort. In contrast, the present suit relates to a contract and as such the cited authority is not applicable in the circumstances.

11. In the premises, the Application is unmerited as the court has no jurisdiction to extend time where the cause of action is based on breach of contract. The Application is dismissed in its entirety.

12. It is so ordered.

DELIVERED, DATED AND SIGNED AT ELDORET ON THIS 8TH NOVEMBER,2023………………………………………NYAKUNDIJUDGE