[2017] KEHC 349 (KLR)
The court found that although the plaintiff did not annex the court order granting leave to file the suit out of time, the submissions and record indicated that the court had indeed enlarged the time for filing. The suit was filed within the period extended by the court. Therefore, the preliminary objection based on...
Source-derived case information.
- Citation
- [2017] KEHC 349 (KLR)
- Parties
- Plaintiff: James Kahindi Simba; Defendant: Director of Public Prosecution; Defendant: Inspector General of Police; Defendant: The Attorney General
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Case 26 of 2015
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- CC Kipkorir
- Legal Topics
- Malicious Prosecution, Limitation Periods, Public Authorities Limitation Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Kahindi Simba
Plaintiff
Director of Public Prosecution
Defendant
Inspector General of Police
Defendant
The Attorney General
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is time-barred under the Public Authorities Limitation Act, Cap 39.
- 2 Whether the court had jurisdiction to enlarge time for filing the suit beyond the statutory limitation period.
Ratio Decidendi
The court found that although the plaintiff did not annex the court order granting leave to file the suit out of time, the submissions and record indicated that the court had indeed enlarged the time for filing. The suit was filed within the period extended by the court. Therefore, the preliminary objection based on limitation was not merited, as the court had jurisdiction to extend time and the plaintiff had complied with the court's directions. The objection did not resolve the substantive dispute and was dismissed, with costs to follow the outcome of the main suit.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed.
- Costs shall follow the outcome of the main suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
CIVIL CASE NO. 26 OF 2015
JAMES KAHINDI SIMBA.......................................................PLAINTIFF
VERSUS
DIRECTOR OF PUBLIC PROSECUTION
INSPECTOR GENERAL OF POLICE
THE ATTORNEY GENERAL.............................................DEFENDANTS
J U D G M E N T
The respondent in his amended plaint dated 19th February 2016 is seeking damages for malicious prosecution. The respondents raised a preliminary objection dated 17th August 2016. The objection is grounded on the contention that the suit is bad in law as it offends the provisions of the Public Authorities Limitation Act, Cap 39. It is submitted that the plaintiff's suit ought to have been filed within a period of one year as provided by section 3(1) of the Public Authorities Limitation Act.
Mr. Gicharu appeared for the plaintiff/respondent. Counsel maintains that the plaintiff obtained leave of the court to file the suit. The court granted the plaintiff leave on 23/6/2015 and directed the plaintiff to file the suit within 30 days. The plaintiff was late by only one month. The suit was filed on 16/7/2017 within the 30 days extended period.
From the above submissions, it is clear that the suit was properly filed. The court extended the time for filing the suit. Although no court orders were annexed by the plaintiff to confirm that contention, I am satisfied that time to file the suit was enlarged. The plaintiff will be able to prove that contention during the hearing. The preliminary objection does not resolve the dispute.
In the end, I do find that the preliminary objection is not merited and is hereby dismissed. Costs shall follow the outcome of the main suit.
Dated and signed at Meru this...........day of August 2017.
SAID CHITEMBWE
JUDGE
Dated, signed and delivered at Malindi this 20th day of September, 2017
WILDON KORIR
JUDGE