[2009] KEHC 1622 (KLR)
The court found that section 2(3) of the Law Reform Act presupposes the issuance and confirmation of a full grant, whereas the Plaintiff had only been issued with an interim grant for the purposes of filing the suit. Therefore, the strict limitation period under section 2(3)(b) did not apply in this instance....
Source-derived case information.
- Citation
- [2009] KEHC 1622 (KLR)
- Parties
- Plaintiff: Michael Andrew Suiter (Administrator of the estate of Bernard Thomas Francis Suiter, Deceased); Defendant: Abdulhakim Abdalla
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Case 24 of 2009
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- JV Juma
- Legal Topics
- Limitation of Actions, Survival of Actions, Preliminary Objection, Estate Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Andrew Suiter (Administrator of the estate of Bernard Thomas Francis Suiter, Deceased)
Plaintiff
Abdulhakim Abdalla
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the suit is incompetent for being filed outside the statutory limitation period under section 2(3)(b) of the Law Reform Act.
- 2 Whether the issuance of an interim grant, as opposed to a full grant, affects the applicability of the limitation period.
- 3 Whether the preliminary objection raises pure points of law or issues requiring evidence.
Ratio Decidendi
The court found that section 2(3) of the Law Reform Act presupposes the issuance and confirmation of a full grant, whereas the Plaintiff had only been issued with an interim grant for the purposes of filing the suit. Therefore, the strict limitation period under section 2(3)(b) did not apply in this instance. Furthermore, the preliminary objection raised by the Defendant did not consist strictly of points of law, as several issues would require evidence to determine, such as the date the cause of action arose and the Defendant's awareness of the same. Consequently, the preliminary objection lacked merit and was dismissed in its entirety.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed in its entirety.
- Costs in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Case 24 of 2009
MICHAEL ANDREW SUITER (Suing as the AdministratorOf estate of the late
BERNARD THOMAS FRANCISSUITER (DECEASED) ........ PLAINTIFF
VERSUS
ABDULHAKIM ABDALLA..........................................................DEFENDANT
*********************
RULING
Before court is a preliminary objection raised by Mr. Abeid for the Defendant/Respondent. He argues that by virtue of S.2(3)(b) of the Law Reform Act Cap 26 Laws of Kenya this suit is incompetent and a non-starter as it was lodged out of time. S.2(3)(b) Cap 26 provides that:-
“(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person unless either …….
(a) ……………
(b) Proceedings are taken in respect thereof not later than six months after his executor or administrator took out representation”.
Counsel for the Defendant/Respondent argues that in this case the grant was issued to the Plaintiff in October 2007. The present suit was filed much later on 6th February 2009.
However Mr. Oddiaga for the Plaintiff/Applicant opposes the preliminary objection and contends that the suit is properly before the court. I am inclined to agree with Mr. Oddiaga that S2(3) pre-supposes issuance and confirmation of a full grant. The Plaintiff was only issued with an interim grant for the purposes of filing this suit. As such S.2(3) cannot be said to strictly apply. In the case of Mukhisa Biscuit Manufacturing Company Ltd –vs- West End Distributors Ltd Civil Appeal No. 9 of 1969 a preliminary objection was defined thus:-
“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit”.
The preliminary objection being raised here by Mr. Abeid does not consist strictly on points of law. Several issues raised will require evidence to determine such as when did this cause of action arise and was the Defendant aware of the same. On the whole I find that this preliminary objection has no merit and it is hereby dismissed in its entirety. Costs in the cause.
Dated and delivered at Mombasa this 7th day of August 2009.
M. ODERO
JUDGE
No appearance by either party
M. ODERO
JUDGE
7/8/2009