[2005] KEHC 1305 (KLR)
The court found that the applicant's explanation for the delay—pursuing the matter through an application within a suit that was struck out and subsequently dismissed—was genuine and sufficient to warrant the exercise of judicial discretion. The court noted that under section 27 of the Limitation of Actions Act, it...
Source-derived case information.
- Citation
- [2005] KEHC 1305 (KLR)
- Parties
- Applicant: John Francis Muyodi; Respondent: Kennedy Odhiambo Owiti & Co Advocates; Respondent: Peter Lunani Ongoma; Respondent: Mariko Ayieko Ongoma
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- ? 102 of 2004
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Legal Topics
- Limitation Periods, Extension of Time, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Francis Muyodi
Applicant
Kennedy Odhiambo Owiti & Co Advocates
Respondent
Peter Lunani Ongoma
Respondent
Mariko Ayieko Ongoma
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file an action out of time under the Limitation of Actions Act.
- 2 Whether the reasons advanced by the applicant justify the exercise of the court's discretion to extend time.
Ratio Decidendi
The court found that the applicant's explanation for the delay—pursuing the matter through an application within a suit that was struck out and subsequently dismissed—was genuine and sufficient to warrant the exercise of judicial discretion. The court noted that under section 27 of the Limitation of Actions Act, it has wide discretion to extend the time for filing an action out of time, depending on the circumstances of each case. Since the applicant's cause of action arose on 5th June 2002 and the limitation period expired on 5th June 2004, but the delay was occasioned by procedural missteps rather than inaction, the court granted leave to file the intended action within 10 days from the...
Court Disposition
application allowed
Orders
- The applicant is granted leave to institute his intended action within 10 days from the date of this order.
Full Case Text
Judgment text and source record
7 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIAMisc Appli 102 of 2004JOHN FRANCIS MUYODI……………………..……... APPLICANTVERSUS
1 KENNEDY ODHIAMBO OWITI & CO ADVOCATES)
2 PETER LUNANI ONGOMA)3 MARIKO AYIEKO ONGOMA) …………………... DEFENDANTSRULING
The applicant, John Francis Muyodi prayed for leave to file an action out of time against Peter Lunani Ongoma, Kennedy Odhaimbo Owiti & Co. advocates and Mariko Ayieko Ongoma in a chamber summons brought under sections 27 and 28 of the limitation of Actions Act. He has filed an affidavit he swore in support of the summons
The main reason advanced by the applicant for failing to file his action in time is that he was busy pursuing the matter through an application within a suit which had been struck out and when the same was dismissed, time to institute an action had lapsed. The applicant states that his intended action is based on the provisions of section 4 (2) of the Limitation of Actions Act.
I have examined the provisions of section 4(2) of the Limitation of Actions Act. It limits the time allowed to a party to bring an action to 3 years. The applicant says his cause of action arose on the 5th day of June, 2002. It is imperative to note that time to sue lapsed on the 5th day of June, 2004. This Court has a wide discretion to extend time to file an action out of time depending on the circumstances of each case as prescribed under section 27 of the Limitation of Actions Act. I am convinced that the reason advanced by the applicant is genuine to enable me exercise my discretion in his favour. Consequently, the applicant is granted leave to institute his intended action within 10 days from the date of this order.DATED AND DELIVERED THIS 8th DAY OF April 2005. J. K. SERGON JUDGE