[2012] KEHC 4705 (KLR)
The court found that the applicants satisfied the requirements of sections 27(1) and 28 of the Limitation of Actions Act, as the intended suit is for damages arising from personal injuries resulting in death. The procedural irregularity of bringing the application by notice of motion instead of originating summons...
Source-derived case information.
- Citation
- [2012] KEHC 4705 (KLR)
- Parties
- Applicant: Irene Wambui Mathenge; Applicant: Timothy Wachira Mathenge; Respondent: David Ogutu Michira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 114 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Personal Injury Claims, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Irene Wambui Mathenge
Applicant
Timothy Wachira Mathenge
Applicant
David Ogutu Michira
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 out of time under section 27 of the Limitation of Actions Act.
- 2 Whether the application, though brought by notice of motion instead of originating summons, is fatally defective.
Ratio Decidendi
The court found that the applicants satisfied the requirements of sections 27(1) and 28 of the Limitation of Actions Act, as the intended suit is for damages arising from personal injuries resulting in death. The procedural irregularity of bringing the application by notice of motion instead of originating summons was deemed a technicality that did not prejudice the substance of the application. Accordingly, the court exercised its discretion to allow the application and granted leave to file the intended suit out of time, directing that it be filed within 21 days.
Court Disposition
application allowed
Orders
- Leave is granted to the applicants to file suit out of time.
- The intended suit must be filed within 21 days of the date of delivery of this ruling.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL CASE NO. 114 OF 2012
1. IRENE WAMBUI MATHENGE
2. TIMOTHY WACHIRA MATHENGE
(Representatives of the
estate of Erick Mathenge Wambui)………………………………APPLICANTS
VERSUS
DAVID OGUTU MICHIRA….…..…..………………..……..................RESPONDENT
R U L I N G
1. This is an application for leave to file suit out of time undersection 27of the Limitation of Actions Act, Cap 22 (the Act). The application ought to have been brought by way of originating summons and not by notice of motion (see Order 37, rule 6 of the Civil Procedure Rules (the Rules). But this is only a procedural technicality. The main thing is that the Applicant is before the court, and he has clearly stated in his application what he is seeking. So, I entertained the application.
2. The intended suit is for damages on account of personal injuries suffered in a road accident. Those injuries resulted in the death of the person on whose estate’s behalf the intended suit is to be filed. The provisions of section 27(1) of the Act have thus been met. I am also satisfied from the supporting affidavit that the requirements of section 28 of the Act have also been met.
3. In the circumstances I will allow the application and grant the leave sought. The intended suit must be filed within 21 days of the date of delivery of this ruling. Costs of this application shall be in that suit. It is so ordered.
DATED AT NAIROBI THIS 10TH DAY OF MAY 2012.
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 11TH DAY OF MAY 2012.