[2014] KEHC 1342 (KLR)
The court found that the applicant's delay in filing the suit was due to financial constraints and the need to obtain letters of administration, which constituted sufficient cause. There was no evidence of bad faith or intentional delay. The court exercised its discretion under the Limitation of Actions Act to grant...
Source-derived case information.
- Citation
- [2014] KEHC 1342 (KLR)
- Parties
- Applicant: Judy Kemunto Ketere (suing as Administratix of the estate of Stephen Ketere Mosiany, Deceased); Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous 99 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application granted
- Judges
- LN Mutende
- Legal Topics
- Extension of Limitation Period, Negligence Actions, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judy Kemunto Ketere (suing as Administratix of the estate of Stephen Ketere Mosiany, Deceased)
Applicant
Republic
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 out of time for a tort action based on negligence resulting in death.
- 2 Whether the delay in filing was excusable due to financial constraints and the need to obtain letters of administration.
Ratio Decidendi
The court found that the applicant's delay in filing the suit was due to financial constraints and the need to obtain letters of administration, which constituted sufficient cause. There was no evidence of bad faith or intentional delay. The court exercised its discretion under the Limitation of Actions Act to grant leave, holding that the interests of justice would be served by allowing the applicant to file the suit out of time. The court emphasized that the statutory limitation period for tort actions is three years, but this can be extended where the applicant demonstrates good reason for the delay, as was the case here.
Court Disposition
application granted
Orders
- Leave is granted to the applicant to file the suit out of time within 14 days.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISCELLANEOUS NO. 99 OF 2014
JUDY KEMUNTO KETERE
(suing as an Administratix of the estate of
STEPHEN KETERE MOSIANY (DECEASED) …....................…….PLAINTIFF
VERSUS
REPUBLIC ………………………………………………………..RESPONDENT
RULING
1. By way of exparteChamber Summons the Applicant seeks leave of this court to extend the period to file a suit.
2. The application is premised on grounds that failure to file the suit out of time was not intentional; the delay was caused by financial constraints on the part of the applicant who had to obtain Letters of Administration in respect of the estate of the deceased.
3. In a supporting affidavit, it is deponed that the deceased a husband to the applicant was involved in a Road Traffic Accident on the 7thday of December, 2010 at Maginaalong NaivashaRoad whereby he sustained severe injuries that caused his death. She was not able to cater for her family needs due to financial constraints. Having raised sufficient funds to file the suit she now seeks leave to do so.
4. Evidence by way of affidavit adduced indicate that the deceased, Stephen Katere Mosiany was involved in a road traffic accident on the 7th December, 2010 whereby the driver of the accident motor-vehicle registration number KAE 961D was charged with the offence of causing death by dangerous driving in Traffic Case No. 47 of 2010. At the time of issuance of the abstract from police on the accident on 19/1/2011 the matter was pending trial.
5. This is an action of negligence hence founded on tort which should have been brought within three (3) years from the date the cause of action accrued.
6. However, time within which such an action can be brought can be extended by leave of court.
7. There being nothing to suggest any good reason why the order sought should not be granted, I do exercise my discretion
8. Leave is therefore granted to the Applicant to file the suit out of time within 14 days.
DATED, SIGNED and DELIVEREDat MACHAKOS this 4THday of NOVEMBER, 2014.
L.N. MUTENDE
JUDGE