[2017] KEHC 6659 (KLR)
The court found that the applicant had provided plausible reasons for failing to file the suit within the statutory period, specifically citing the applicant's incapacitation due to injuries sustained in a terrorist attack and his lack of legal knowledge. The court emphasized that the discretion to grant leave to...
Source-derived case information.
- Citation
- [2017] KEHC 6659 (KLR)
- Parties
- Applicant: Michael Macharia Waitherero; Respondent: The Inspector General of the National Police Service; Respondent: Hon. The Attorney General; Respondent: Naomi Njoroge; Respondent: P.C.E.A Jitegemea Credit Sacco
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Miscellaneous Application 401 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Judges
- JK Sergon
- Legal Topics
- Extension of Time, Limitation of Actions, Personal Injury, Negligence, Compensation Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Macharia Waitherero
Applicant
The Inspector General of the National Police Service
Respondent
Hon. The Attorney General
Respondent
Naomi Njoroge
Respondent
P.C.E.A Jitegemea Credit Sacco
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient reasons to warrant extension of time to file a compensatory suit out of time.
- 2 Whether the applicant's ailment and lack of legal knowledge constitute justifiable grounds for delay.
Ratio Decidendi
The court found that the applicant had provided plausible reasons for failing to file the suit within the statutory period, specifically citing the applicant's incapacitation due to injuries sustained in a terrorist attack and his lack of legal knowledge. The court emphasized that the discretion to grant leave to file out of time is available where the applicant demonstrates sufficient cause, and that any party may challenge the leave granted before the hearing of the suit. The court was satisfied that the applicant's ailment directly prevented timely action and that justice required granting the extension. Accordingly, the court allowed the application and granted the applicant 30 days...
Court Disposition
application allowed
Orders
- The plaintiff/applicant is granted leave of 30 days to file an action for compensation out of time.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL MISC APPL. NO. 401 OF 2016
MICHAEL MACHARIA WAITHERERO .................................................................PLAINTIFF
-V E R S U S –
THE INSPECTOR GENERAL OF THE NATIONAL POLICE SERVICE....1ST DEFENDANT
HON. THE ATTORNEY GENERAL..............................................................2ND DEFENDANT
NAOMI NJOROGE ..................................................................................... 3RD DEFENDANT
P.C.E.A JITEGEMEA CREDIT SACCO .......................................................4TH DEFENDANT
RULING
1. Michael Macharia Waitherero, the plaintiff/applicant herein, took out the amended Originating Summons dated 14th November 2016 in which he sought for leave to file a compensatory suit out of time against the Inspector General of the National Police Service, Hon. The Attorney General, Naomi Njoroge and P.C.E.A Jitegemea Credit Sacco. The applicant swore an affidavit in support of the application.
2. I have considered the grounds stated on the face of the amended Originating Summons plus the facts deponed in the supporting affidavit. The application is exparte in nature and any leave granted may be subject to challenge even after the suit is filed. It is the submission of the plaintiff/applicant that on 18. 11. 2012, he was a fare paying passenger on board motor vehicle registration no. KAY 713F. He said he suffered serious injuries when the aforesaid motor vehicle was hit by a terrorist grenade attack along 2nd Avenue Eastleigh, Nairobi. It is the applicant’s averment that due to the extensive injuries he suffered, he was not able to follow up the question of compensation with his advocates and as a consequence the time fixed to file an action for compensation lapsed. The applicant submitted that if given leave he intends to sue the Honourable Attorney General on behalf of the Inspector General of the National Police Service for failing to provide protection and security as a citizen thus exposing him to a terrorist attack. He also stated that he would be suing the owner of the motor vehicle for compensation based on the tort of negligence. The applicant also argued that being a layman, he had no knowledge of the law of limitation of actions.
3. After a careful consideration of the material placed before this court and bearing in mind that any party is at liberty to challenge the order of leave before the hearing of the suit, I am convinced that the plaintiff has given plausible reasons to justify his failure to file a suit within the statutory period. I am particularly convinced that the plaintiff/applicant was prevented by his ailment due to the attack from filing the suit on time. Consequently, I allow the summons. The plaintiff/applicant is granted leave of 30 days to file an action for compensation out of time. Costs shall be in the cause.
Dated, Signed and Delivered in open court this 2nd day of March, 2017.
J. K. SERGON
JUDGE
In the presence of:
............................... for the Plaintiff
........................... for the Defendant