[2016] KEELC 92 (KLR)
The court found that the applicants failed to demonstrate any statutory ground under the Limitation of Actions Act that would entitle them to extension of time to file suit out of time. Specifically, the court held that sections 22 (disability), 23 (acknowledgment and part payment), and 26 (fraud, mistake, or...
Source-derived case information.
- Citation
- [2016] KEELC 92 (KLR)
- Parties
- Applicant: John Kennedy Ofunya; Applicant: Eunice Kibiro; Respondent: Francisca Moraa Omete
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 28 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- A Ombwayo
- Legal Topics
- Limitation of Actions, Extension of Time, Sale of Land, Contractual Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Kennedy Ofunya
Applicant
Eunice Kibiro
Applicant
Francisca Moraa Omete
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicants are entitled to leave to file a suit against the respondent out of time under the Limitation of Actions Act.
- 2 Whether any statutory exception to limitation applies to the applicants' claim based on the facts presented.
Ratio Decidendi
The court found that the applicants failed to demonstrate any statutory ground under the Limitation of Actions Act that would entitle them to extension of time to file suit out of time. Specifically, the court held that sections 22 (disability), 23 (acknowledgment and part payment), and 26 (fraud, mistake, or ignorance of material facts) were not applicable to the facts as presented. There was no evidence of disability, acknowledgment, part payment, fraud, mistake, or ignorance of material facts. The applicants merely cited the lapse of time and their desire to file suit, which is insufficient under the law. Consequently, the application for leave was dismissed as lacking legal foundation.
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is dismissed.
- There shall be no order as to costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA AT ELDORET
MISC. CIVIL APPLICATION NO. 28 OF 2016
JOHN KENNEDY OFUNYA...................................................1ST APPLICANT
EUNICE KIBIRO....................................................................2ND APPLICANT
VERSUS
FRANCISCA MORAA OMETE.................................................RESPONDENT
RULING
The application has come to court by way of Notice of Motion dated 3. 11. 2016 and seeks for leave to file a suit against the respondent out of time on grounds that the applicants and the respondent entered into a sale agreement on 18th September, 2005 for sale of ¼ of an acre of land at a consideration of Kshs.300,000/=. The applicants paid the full consideration. The respondent has sold the parcel of land to a 3rd party who is almost commencing construction as the construction materials are already at site. The 3rd party is a stranger to the applicants. The applicants wish to commence a suit before this Honourable Court as against the respondent. However, it is more than six (6) years since the sale agreement was entered into. Leave of this Honourable Court is thus necessary in the circumstances.
The application is supported by the affidavit of John Kennedy Ofunya who states: that his co-applicant and himself entered into an agreement with the respondent for sale of ¼ of an acre of land to be hived out of that parcel of land known as UASIN GISHU/KIMUMU/315 at a consideration of Kshs.300,000/=. That they have paid the full consideration, however, the respondent has sold the parcel of land to a 3rd party who is soon commencing construction as the materials are already at the site. They desire to bring a suit against the respondent. The sale agreement is dated 18th September, 2005. That he is advised by his Advocates on record which advice he verily believe to be true and sound that actions founded on contract may not be brought after the end of six years from the date on which the cause of action accrued. That the agreement herein has been in existence for over 10 years. That it is therefore necessary that leave be granted to enable them present the intended suit.
I have considered the application and the relevant provision of law for extension of time in such matter. Section 22 of the Limitation of Actions Act provides for extension of time in case of disability. I do find that the same is not relevant. Section 23 provides for extension of time due to acknowledgment and part payment. Again this section is not relevant as there is no evidence of acknowledgment and part-payment.
Section 26 of the Act provides for fraud, mistake and ignorance of material facts, again the section is not relevant as it has not been established that the claim is based on fraud, mistake or ignorance of material facts.
The upshot of the above is that the applicant has not cited any section under which he is entitled to the order sought. Application is dismissed with no order as to costs.
DATED AND DELIVERED AT ELDORET ON 2ND DAY OF DECEMBER, 2016.
ANTONY OMBWAYO
JUDGE