[2013] KEHC 6117 (KLR)
The court found that while the applicant attempted to explain the deceased's failure to file suit, there was no explanation for the delay between the deceased's death and the filing of the application for extension of time. Rather than dismiss the application outright, the court exercised discretion to allow the...
Source-derived case information.
- Citation
- [2013] KEHC 6117 (KLR)
- Parties
- Applicant: Penina Joan Gati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 455 of 2012
- Procedural Posture
- Miscellaneous Application / Preliminary Ruling on Application for Extension of Time
- Outcome
- adjourned for further affidavit; no final determination on extension of time
- Judges
- DW Mbuteti
- Legal Topics
- Extension of Time, Limitation Periods, Personal Injury Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Penina Joan Gati
Applicant
Procedural Posture
Miscellaneous Application / Preliminary Ruling on Application for Extension of Time
Legal Issues
- 1 Whether the applicant has provided sufficient explanation for the delay in filing suit after the deceased's death.
- 2 Whether the requirements of sections 27 and 28 of the Limitation of Actions Act have been met for extension of time.
Ratio Decidendi
The court found that while the applicant attempted to explain the deceased's failure to file suit, there was no explanation for the delay between the deceased's death and the filing of the application for extension of time. Rather than dismiss the application outright, the court exercised discretion to allow the applicant an opportunity to provide a supplementary affidavit addressing the delay and the statutory requirements. The court's decision is guided by the need for procedural fairness and the statutory framework governing extension of limitation periods.
Court Disposition
adjourned for further affidavit; no final determination on extension of time
Orders
- The applicant shall file a supplementary affidavit within sixty (60) days explaining the delay after the deceased's death and addressing the requirements of sections 27(2) and 28(2) of Cap 22.
- A date for mention shall be taken at the time of delivery of this preliminary ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
MISC. APPLICATION NO. 455 OF 2012
IN THE MATTERof an application by PENINA JOAN GATI
(suing as the legal representative of JOHN GATI TATIYO (deceased) for extension of time to file suit out of time
AND
In the matter of section 27 and 28 of Limitation of Actions Act (Chapter 22 of the Laws of
Kenya)
PENINA JOHN GATI……..……………….…...………………...... APPLICANT
PRELIMINARY RULING
1. This is an application (originating summons dated 13th August 2012) for leave to file suit out of time. The application is brought under sections 27 and 28 of the Limitation of Actions Act, Cap 22.
2. The intended suit is for damages on account of personal injuries received by one JOHN GATI TATIYO (now deceased) in a road accident on 6th November 2004 along Nairobi-Mombasa highway. The Deceased subsequently died on 6th June 2008, allegedly from the effects of the injuries received in the accident.
3. Whereas the supporting affidavit endeavors to explain why the Deceased did not file suit, the Applicant has not explained at all the delay between when the Deceased died and when she filed this application on 15th August 2012, more than four (4) years.
4. Rather than refuse the application now, I will give the Applicant a chance to offer such explanation by way of a supplementary affidavit. Such supplementary affidavit must be filed within sixty (60) days of delivery of this preliminary ruling. That period is informed by the fact that the Applicant has given her physical and postal address in the supporting affidavit as being in the Republic of Tanzania.
5. The supplementary affidavit must adequately address the requirements of sections 27(2) and 28(2) of Cap 22 aforesaid.
6. A date for mention shall be taken at the time of delivery of this preliminary ruling. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF JUNE 2013
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 14TH DAY OF JUNE 2013