[2011] KEHC 1784 (KLR)
The court found that the applicant failed to satisfy the requirements of section 27(2) of the Limitation of Actions Act. The applicant had obtained a police abstract on 5th September 2008, which identified the respondent as the owner of the vehicle, and the statutory period for filing suit had not yet lapsed at that...
Source-derived case information.
- Citation
- [2011] KEHC 1784 (KLR)
- Parties
- Applicant: Kenneth Mugaya Njuki; Respondent: John Muriranja Kariuki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 211 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Legal Topics
- Limitation of Actions, Extension of Time, Personal Injury Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Mugaya Njuki
Applicant
John Muriranja Kariuki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant satisfied the requirements under section 27 of the Limitation of Actions Act to warrant extension of time to file a compensatory suit out of time.
- 2 Whether the delay in filing the suit was justified based on the applicant's knowledge of material facts.
Ratio Decidendi
The court found that the applicant failed to satisfy the requirements of section 27(2) of the Limitation of Actions Act. The applicant had obtained a police abstract on 5th September 2008, which identified the respondent as the owner of the vehicle, and the statutory period for filing suit had not yet lapsed at that time. The court held that there was no justification for the applicant's delay in filing the application for leave until 2010. The applicant did not demonstrate that the material facts were outside his knowledge or that he acted diligently upon discovering them. Consequently, the court dismissed the application for leave to file suit out of time.
Court Disposition
application dismissed
Orders
- The originating summons dated 19th August 2010 is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
MISC. CIVIL APPLICATION NO. 211 OF 2010
KENNETH MUGAYA NJUKI ………………...……. APPLICANT
Versus
JOHN MURIRANJA KARIUKI …………………..RESPONDENT
RULING
Pursuant to the provisions of section 27 of the Limitation of Actions Act, Kenneth Mugaya Njuki, the applicant herein, took out the originating summons dated 19th August 2010 in which he applied for leave to file a compensatory suit out of time. The applicant swore an affidavit he filed in support of the summons.
The applicant deponed in his affidavit that on 24th December 2006, he boarded motor vehicle registration no. KZQ 055 as a fare paying passenger. The aforesaid motor vehicle is said to be owned by John Muriranja Kariuki, the Respondent herein. It is alleged that the aforesaid motor vehicle was involved in a road traffic accident on the same date along Murang’a - Mugoiri road. The applicant was injured and was taken for treatment at Murang’a District Hospital where he was admitted. After he was discharged the applicant claimed that he continued attending hospital for regular check ups and treatment. The applicant avers that he went to instruct his advocate to file a suit to recover damages for the injuries he sustained. The applicant claimed that he failed to file the compensatory suit within time because it took time for him to heal and to get the particulars of the owner of the motor vehicle which was involved in the accident. For the above reasons he sought for leave to file a suit out of time.
There is no doubt that the applicant was required to file an action within three years from the date of the accident. The accident took place on 24th December 2006. Under s. 27 of the Limitation of Actions Act, the court is given a limited discretion to extent time to file suit out of time. In order for one to gain the court’s favour an applicant must prove that the material facts relating to the intended action were of a decisive character which were at all time outside the knowledge of the applicant. It cannot be said that the applicant herein had no knowledge that it was necessary to carry out a search at the registrar of motor vehicles to establish the owner of the motor vehicle which was involved in the accident. The applicant in fact had obtained a police abstract form on 5th September 2008 which indicated that the owner of the motor vehicle was the Respondent herein. By that time the period of three years from the date of the accident had not lapsed. There is no justification why the applicant waited until the year 2010 to file the current summons. In a nutshell, the application does not satisfy the requirements of the provisions of section 27(2) of the Limitation of Actions Act. Consequently the originating summons dated 19th August 2010 lacks merit, it is dismissed with no order as to costs.
Dated and delivered this 15th day of July 2011.
J.K. SERGON
JUDGE
In open court in the presence of Mr. Gacheru for the Applicant.
J.K. SERGON
JUDGE