[2022] KEHC 2788 (KLR)
The court found that the applicant had established, through the supporting affidavit and annexed documents, that the material facts relevant to the intended claim for damages were of a decisive character and were not within the applicant's knowledge, either actual or constructive, until after the statutory...
Source-derived case information.
- Citation
- [2022] KEHC 2788 (KLR)
- Parties
- Applicant: Joseph Nderitu Ngatia (suing as next friend of ‘RWN’, a minor); Respondent: Dr Abid Mahmood Butt; Respondent: Board of Trustees, Nanyuki Cottage Hospital
- Court
- High Court
- Court Station
- High Court at Nanyuki
- Jurisdiction
- Kenya
- Case Number
- Civil Case E007 of 2021
- 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, Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Nderitu Ngatia (suing as next friend of ‘RWN’, a minor)
Applicant
Dr Abid Mahmood Butt
Respondent
Board of Trustees, Nanyuki Cottage Hospital
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant has satisfied the requirements for extension of time to file suit out of time under the Limitation of Actions Act.
- 2 Whether the material facts were outside the applicant's knowledge until after the limitation period.
Ratio Decidendi
The court found that the applicant had established, through the supporting affidavit and annexed documents, that the material facts relevant to the intended claim for damages were of a decisive character and were not within the applicant's knowledge, either actual or constructive, until after the statutory limitation period had expired. The court was satisfied that the requirements of sections 28(2) and 30 of the Limitation of Actions Act were met, justifying the exercise of judicial discretion to grant leave to file the intended suit out of time. Accordingly, the application was allowed and the applicant was granted fourteen days to file the suit.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the intended suit out of time.
- The intended suit shall be filed within fourteen (14) days of delivery of this ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NANYUKI
CIVIL CASE NO E007 OF 2021 (O.S.)
JOSEPH NDERITU NGATIA (SUING AS NEXT FRIEND OF ‘RWN’, A MINOR)........APPLICANT
VERSUS
1. DR ABID MAHMOOD BUTT
2. BOARD OF TRUSTEES, NANYUKI COTTAGE HOSPITAL..................................RESPONDENTS
R U L I N G
1. This is an application brought under sections 27, 28and 30(3) & (5)of the Limitation of Actions Act, Cap 22 seeking leave of the court to file suit out of time. Suit has not yet been filed; therefore this is an application under Rule 6(1) of Order 37 of the Civil Procedure Rules, 2010.
2. I have read the supporting affidavit and perused the documents annexed thereto. The intended suit is for damages in respect of personal injuries arising out of negligence and breach of duty.
3. I am satisfied that the material facts set out in the supporting affidavit were or included facts of a decisive character which were at all times outside the knowledge (actual or constructive) of the Applicant until after the period of limitation prescribed by law. I am also satisfied upon the material now before the court that the requirements of section 28(2) and section 30 of the Limitation of Actions Act have been met.
4. I will therefore allow the application and grant the leave sought. Let the intended suit be filed within fourteen (14) days of delivery of this ruling. It is so ordered.
DATED AND SIGNED AT NANYUKI THIS 26TH DAY OF JANUARY 2022
H P G WAWERU
JUDGE
DELIVERED AT NANYUKI THIS 27TH DAY OF JANUARY 2022