[2010] KEHC 1151 (KLR)
The court found that the applicant had a reasonable cause of action for damages arising from alleged negligence resulting in death. The delay in filing the suit was justified by the applicant's emotional distress and the procedural requirement to obtain letters of administration, which was not completed until 14th...
Source-derived case information.
- Citation
- [2010] KEHC 1151 (KLR)
- Parties
- Applicant: Isaya Wafula Masika (Suing as the Legal Administrator of the estate of Lilian Namono Mwima); Respondent: Japeth Kiprop Boruett
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 278 of 2010
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Limitation Period, Leave to File Out of Time, Negligence Claims, Fatal Accidents, Administration of Estates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaya Wafula Masika (Suing as the Legal Administrator of the estate of Lilian Namono Mwima)
Applicant
Japeth Kiprop Boruett
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 damages arising from alleged negligence causing death.
- 2 Whether the delay in filing the suit was justified by the applicant's circumstances, including obtaining letters of administration.
Ratio Decidendi
The court found that the applicant had a reasonable cause of action for damages arising from alleged negligence resulting in death. The delay in filing the suit was justified by the applicant's emotional distress and the procedural requirement to obtain letters of administration, which was not completed until 14th October, 2009. The court exercised its discretion under sections 27 and 28 of the Limitation of Actions Act to grant leave, holding that the applicant should not be shut out of litigation due to circumstances beyond his control. The application was allowed, and leave was granted to file the suit out of time.
Court Disposition
application allowed
Orders
- Leave is granted for the applicant to file suit out of time.
- The suit must be filed within thirty (30) days.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
Miscellaneous Civil Application 278 of 2010
ISAYA WAFULA MASIKA (Suing as the Legal Administrator of the estate of
LILIAN NAMONO MWIMA…………………………. PLAINTIFF/APPLICANT
V E R S U S
JAPETH KIPROP BORUETT………………. DEFENDANT/RESPONDENT
R U L I N G
Before me is an Originating Summons dated 26th May, 2010 filed by M/s rumba Kinuthia & Company advocates for the applicant. The application was filed under section 27 and 28 of the Limitation of Actions Act (Cap.22 of the Laws ofKenya), as well as section 3A of the Civil Procedure Act (Cap. 21 Laws ofKenya),as well as section 3A of the Civil Procedure Act (Cap. 21 Laws ofKenya).
The prayers in the application are as follows-
1. THAT this Honourable Court be pleased to grantthe applicant leaves to file suit out of time againstthe respondent.
2. THAT upon such leave being granted the draftplaint annexed be deemed as duly filed upon payment of requisite fees.
3. THAT the costs of this application be in thecause.
The application has grounds on the face of the Originating Summons. The grounds are as follows-
(a)The claim herein against Japhet Kiprop Boruett isfor damages for negligence of the respondent causing the death of Lilia Mamono Mwima.
(b)That the claim against the respondent expired on 3rdAugust, 2007.
(c)That the plaintiff/applicant and the wife weredeeply depressed after the death of their daughter that they did not file the suit within the stipulated time.
(d)That the plaintiff/applicant had to apply for grantof Letters of Administration ad Litem to be able to administer the estate of the deceased which grant was received on14th October, 2009, hence the delay.
(e)That the applicant has a good claim against therespondent herein and the doors of justice should not be shut out on him due to the mishap that occasioned him.
(f)That the application herein has been made withoutInordinate delay.
The application was filed with a supporting affidavit sworn on 26th May, 2010 by the applicant ISAYA WAFULA MASIKA. The annextures to the said affidavit include a copy of a certificate of death of the minor child of the applicant (the subject), copy of limited grant of letters of administration, as well as a draft plaint.
On the hearing date, Mr. Asiyo for the applicant addressed the court in support of the application.
I have considered the application and circumstances of the matter. I have also considered the law. Indeed, sections 27 and 28 of the Limitation of Actions Act (Cap. 22) provided for the powers of this court to allow parties to file suits out of time after the three year limitation period, where there appears to be a reasonable cause of action. In the circumstances of this case, I am convinced that there is a reasonable cause of action, and since the subject herein is a deceased person and the applicant (proposed plaintiff) had to obtain letters of administration first, I will not shout him out of litigation. I will therefore allow the application.
Consequently, and for the above reasons, I allow the application and order as follows-
1. Leave be and is hereby granted for the applicant to
file suit out of time.
2. The suit will be filed within the next thirty (30 days).
3. Costs in the cause.
Dated and delivered at Nairobi this 5th day of October, 2010.
George Dulu
Judge.