[2011] KEHC 1467 (KLR)
The court found that the applicant's explanation for the delay—namely, the inability to trace witnesses whose statements were required to be filed with the plaint under the new Civil Procedure Rules—was satisfactory and met the requirements of section 27(2) of the Limitation of Actions Act. The court held that the...
Source-derived case information.
- Citation
- [2011] KEHC 1467 (KLR)
- Parties
- Applicant: Joseph Ng’ang’a Mwaura; Respondent: Jelemano Mwangi Gichuhi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 179 of 2011
- 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
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ng’ang’a Mwaura
Applicant
Jelemano Mwangi Gichuhi
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 a suit for damages out of time under section 27 of the Limitation of Actions Act.
- 2 Whether the requirements of section 27(2) of the Limitation of Actions Act have been satisfied.
Ratio Decidendi
The court found that the applicant's explanation for the delay—namely, the inability to trace witnesses whose statements were required to be filed with the plaint under the new Civil Procedure Rules—was satisfactory and met the requirements of section 27(2) of the Limitation of Actions Act. The court held that the intended action was for damages for negligence, including damages in respect of personal injuries, and that the statutory conditions for granting leave to file out of time had been fulfilled. Consequently, the court exercised its discretion to grant the applicant leave to file the intended suit within 21 days of the ruling, with costs of the application to be in the cause.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the intended suit within 21 days of delivery of this ruling.
- If the suit is not filed within 21 days, the leave granted shall lapse.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
MISCELLANEOUS APPLICATION NO. 179 OF 2011
JOSEPH NG’ANG’A MWAURA............................................................................APPLICANT
V E R S U S
JELEMANO MWANGI GICHUHI.....................................................................RESPONDENT
R U L I N G
This is an application under section 27 of the Limitation of Actions Act, Cap 21 for leave of the court to file suit out of time. The intended suit is for damages on account of the death of one Reuben Gichimo Ng’anga, Deceased. The Deceased died from injuries sustained in a road accident that occurred on 11th February, 2008 along Nairobi–Naivasha Road at a place called Rironi. The present application was filed on 13th April, 2011.
Suits founded on tort must be brought within three years from the date on which the cause of action accrued. The cause of action having accrued to the Applicant on 11th February, 2008 his suit should have been brought on or before 10th of February, 2011. As already seen the present application was filed on 13th April, 2011. The delay here is thus about two months.
Section 27 (1) of Cap 22 provides as follows:-
“27. (1) Section 4(2) does not afford a defence to an action founded on tort where-
(a)the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law; and
(b)the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person; and
(c)the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and
(d) the requirements of subsection (2) are fulfilled in relation to the cause of action.”
The intended action here is for damages for negligence. Such damages included damages in respect of personal injuries of the Deceased.
Regarding the requirements of sub-section (2) of section 27 aforesaid, I am satisfied that the same have been fulfilled in relation to the cause of action by the explanation for delay given in paragraph 7 of the supporting affidavit. That explanation is that the Applicant was first unable to trace any witnesses to the accident whose statements were necessary to be filed together with the plaint as required by the new Civil Procedure Rules.
I will in the event allow the originating summons dated 12th April, 2011. The leave sought is granted. The Applicant shall file the intended suit within 21 daysof delivery of this ruling. In default the leave now granted shall lapse.
Costs of the application shall be in the suit to be filed. If no suit is ultimately filed, there will be no order as to costs of the application.
It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF JULY, 2011.
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 15TH DAY OF JULY, 2011.