[2012] KEHC 370 (KLR)
The court held that section 27(1) of the Limitation of Actions Act does not apply to actions for damages for injury to property where no personal injury is involved. Since the applicant's intended suit was for property damage only, the statutory requirements for extension of time were not met. Consequently, the...
Source-derived case information.
- Citation
- [2012] KEHC 370 (KLR)
- Parties
- Applicant: Josephine Wanjiku Mwangi; Respondent: Salome Wambui Kiiru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 276 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
- Outcome
- Application refused.
- Judges
- DW Mbuteti
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Malicious Damage to Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josephine Wanjiku Mwangi
Applicant
Salome Wambui Kiiru
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to file a suit for damages for property destruction outside the limitation period under section 27(1) of the Limitation of Actions Act.
- 2 Whether section 27(1) of the Limitation of Actions Act applies to claims for property damage as opposed to personal injury.
Ratio Decidendi
The court held that section 27(1) of the Limitation of Actions Act does not apply to actions for damages for injury to property where no personal injury is involved. Since the applicant's intended suit was for property damage only, the statutory requirements for extension of time were not met. Consequently, the court refused to grant leave to file the suit out of time.
Court Disposition
Application refused.
Orders
- Originating summons refused.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
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JOSEPHINE WANJIKU MWANGI….…...……….. APPLICANT
VERSUS
SALOME WAMBUI KIIRU..….……..………….. RESPONDENT
R U L I N G
1. Section 27(1) of the Limitation of Actions Act, Cap 22 (the Act) 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.”
2. In this originating summons dated 14th May 2012 (which is ex parte by law) the Applicant has sought leave of the court as set out above to bring an action against the Respondent outside the limitation period prescribed by section 4(2) of the Act.
3. The intended action is for compensation in the form of damages for property destroyed by the Respondent. The property in question was a house in a plot of land. The Respondent was said to have been arrested and criminally charged with (and convicted of) malicious damage to property.
4. Though the Applicant’s intended action will be founded on tort, and will be for damages for breach of duty, such damages will not consist of or include damages in respect of personal injuries of any person. The damages will be in respect of injury to property.
5. That being the case, leave to file suit out of the limitation period cannot be granted, and I therefore refuse the originating summons with no order as to costs. It is so ordered.
DATED AT NAIROBI THIS 13TH DAY OF DECEMBER 2012
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 14THDAY OF DECEMBER 2012