[2009] KEHC 2421 (KLR)
The court held that the requirements for extension of time under sections 27 and 28 of the Limitation of Actions Act are stringent and must be strictly met. The applicant failed to demonstrate that there was a material fact of a decisive character outside his knowledge that prevented him from filing the suit within...
Source-derived case information.
- Citation
- [2009] KEHC 2421 (KLR)
- Parties
- Applicant: Julius Momanyi Ndege; Respondent: Town Council Keroka; Respondent: The Attorney General
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Case 119B of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- AO Muchelule
- Legal Topics
- Extension of Time, Limitation Periods, Malicious Prosecution, Defamation, Negligence of Advocate
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Momanyi Ndege
Applicant
Town Council Keroka
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant is entitled to extension of time to file a suit out of time under section 27 of the Limitation of Actions Act.
- 2 Whether negligence or inadvertence by the applicant's advocate constitutes a material fact of a decisive character justifying extension of time.
- 3 Whether failure to commission a verifying affidavit is a technicality that can be cured by extension of time.
Ratio Decidendi
The court held that the requirements for extension of time under sections 27 and 28 of the Limitation of Actions Act are stringent and must be strictly met. The applicant failed to demonstrate that there was a material fact of a decisive character outside his knowledge that prevented him from filing the suit within the limitation period. The court found that the failure to commission the verifying affidavit was due to the negligence of the applicant's advocates, which does not constitute a material fact under the law. The authorities cited establish that neither ignorance of the law nor advocate's negligence is a ground for extension of time. Consequently, the court found no basis to...
Court Disposition
application dismissed
Orders
- The application for extension of time is dismissed.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Case 119B of 2009
JULIUS MOMANYI NDEGE ……………………………… APPLICANT
VERSUS
1. TOWN COUNCIL KEROKA
2. THE ATTORNEY GENERAL…………. RESPONDENTS
RULING
The Applicant Julius Momanyi Ndege has come to court under section 27 of the Limitation of Actions Act Cap.22 of the Laws of Kenya and Order XXXVI rule 3c of the Civil Procedure Rules for leave to bring a suit out of time. He has stated in the Supporting Affidavit that he was in July 2007 charged by Keroka Police Station with incitement to violence contrary to section 96(a) of the Penal Code in Keroka SRM Criminal Case No.458 of 2007. Following trial, he was acquitted under section 210 of the Criminal Procedure Code. On 7/8/08 he filed a civil suit against the Town Council of Keroka (the complainants) and the Honourable the Attorney General in Keroka SRM CC.NO.166 of 2008 for malicious prosecution and defamation. Each Defendant filed Statement of Defence. 1st Defendant pleaded, among other things, that the plaint filed was bad in law, inept, ambiguous and did not disclose proper particulars and should be dismissed.
The civil case was heard. During submissions, the 1st Defendant (through his advocates) raised the issue that the Verifying Affidavit had not been commissioned in accordance with section 88 of the Civil Procedure Act and section 5 of the Oaths and Statutory Declarations Act, Cap 15of the Laws of Kenya. It meant there was no Affidavit and, by dint of Order VII rule 1(2) of the Civil Procedure Act, the plaint was incompetent. The court agreed with the 1st Defendant and struck out the plaint with costs.
The argument by the Applicant is that when a suit is struck out it can be refiled. However, the time for such filing has since elapsed. By the time the suit was struck out the limitation period had caught up with it. Hence the present request for extension of time.
The Applicant concedes the Verifying Affidavit was indeed not commissioned. He calls it a technical inadvertence.
Minda & Co. Advocates represented the Applicant in the civil suit above and are the ones who drew the Plaint and Affidavit. They act for him in the present Application. The Applicant is simply saying he was failed by his advocates and that has caused him the present predicament. The commissioning of an affidavit is a basic requirement for any lawyer.
In Ngari & another v. Odero, Civil Appeal No.233 of 1998 at Kisumu ([1998] LLR 823 (CAK)) and Mbithi v. Municipal Council of Mombasa & another, Civil Appeal No.3 of 1992 at Nairobi ([1992] LLR 2235 (CAK)) the Court of Appeal was dealing with the provisions of sections 27 and 28of the Limitation of Actions Act. It held that the requirements of the sections are stringent and if they are not met the application for extension of time has to be rejected. The Applicant must prove that a material fact of a decisive character was outside his knowledge. In the latter case, it was noted as follows:
“It is not sufficient that the facts unknown to the plaintiff
should be material within he above definition; they must
also be of decisive character, that is to say, they must be
such that a reasonable person, knowing them and having
obtained appropriate advice with respect to them, would
have regarded them as determining that an action would
have been reasonable prospect of succeeding and
resulting in the award of damages sufficient to justify
the bringing of action.”
In Divecon Ltd v. Savani, Civil Appeal No.142 of 1997 at Nairobi it was held that ignorance on the part of the applicant (of the statutory period of limitation) is not a material fact. In the High Court decisions in Zachariah B. Shimechero v. The Attorney General & another, HC Misc. Civil Application No.60 of 2005 at Kakamega and Andrew Kiptek Tendet v. Simon Plukol Esokon, HC Misc. Civil Appl. No.153 of 2006 at Kitaleit was held that the negligence by an advocate was not a material fact.
In short, on the material available I am unable to extent time. The application is consequently dismissed.
Dated, signed and delivered at KISII this 15th day of July, 2009
A.O. MUCHELULE
JUDGE
15/7/09
A. O. Muchelule J
cc. Mongare
Mr. Minda for applicant
Court: Ruling in open court.
A.O. MUCHELULE
JUDGE