[2017] KEELC 16 (KLR)
The court found the application meritorious, noting that the suit was based on a contract dated 20/2/2007 and the statutory limitation period had expired. The delay was explained by the plaintiff as resulting from the defendant's unfulfilled promises to transfer the land. Since the defendant had not yet been served,...
Source-derived case information.
- Citation
- [2017] KEELC 16 (KLR)
- Parties
- Plaintiff: Millicent Mukwanyaga Kimonye; Defendant: Moses Kathurima Anderea
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 101 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Legal Topics
- Extension of Time, Limitation of Actions, Breach of Contract, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Millicent Mukwanyaga Kimonye
Plaintiff
Moses Kathurima Anderea
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the plaintiff should be granted leave to file the suit out of time based on breach of contract.
- 2 Whether the suit should be deemed properly filed despite being filed outside the limitation period.
Ratio Decidendi
The court found the application meritorious, noting that the suit was based on a contract dated 20/2/2007 and the statutory limitation period had expired. The delay was explained by the plaintiff as resulting from the defendant's unfulfilled promises to transfer the land. Since the defendant had not yet been served, no prejudice would be occasioned by granting leave. The court exercised its discretion to allow the application, granting the plaintiff leave to file the suit out of time and deeming the suit properly filed, subject to service of the suit documents within 14 days.
Court Disposition
application allowed
Orders
- Plaintiff granted leave to file the suit out of time.
- Suit deemed properly filed.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 101 OF 2017
MILLICENT MUKWANYAGA KIMONYE ........................... PLAINTIFF
VERSUS
MOSES KATHURIMA ANDEREA ....................................... DEFENDANT
R U L I N G
1. The Notice of Motion dated 23rd March, 2017 seek the following orders:-
a) That the Honourable Court be pleased to grant plaintiff leave to file this suit out of time.
b) That consequently to prayer one (1) above the suit herein be deemed to have been property filed.
c) That costs of this application be in cause.
2. The Application is based on the grounds that:-
a) This suit is based on breach of contract.
b) The agreement hereto was dated 20/2/2007 and six (6) years are long gone within which such suit should be filed.
c) It is now just to deem the suit herein as properly filed.
d) That due to oversight we filed this suit before leave but there is no harm if we get this leave now since the defendant is yet to be served and the same is procedural.
3. The application is supported by the Affidavit sworn on 23rd March,2017 and has the following grounds:-
1) That she is the plaintiff herein hence capable of swearing this affidavit.
2) That the agreement in issue is dated 20/02/2007 (annexed is copy marked EOK 1).
3) That six years stipulated for filing such suit based on contract is long gone due.
4) That this matter has been delayed because the defendant has been promising to transfer this parcel in vain.
5) That this application is exparte since the defendant has not been served.
4. The Application is found meritorious, the same is allowed.
5. Defendant to be served with all the suit documents within 14 days from date of delivery of this ruling, failure to which the application will stand as dismissed.
DELIVERED, DATED AND SIGNED AT MERU THIS 27TH DAY OF SEPTEMBER, 2017
IN THE PRESENCE OF:
C:A Janet
Ogoti for Plaintiff/ Applicant -present
HON. L. N. MBUGUA
ELC JUDGE