[2015] KEHC 110 (KLR)
The court found that the applicant failed to provide sufficient evidence that CMCC 212 of 2008 had been withdrawn, as no notice of withdrawal was adduced by way of affidavit evidence. In the absence of proof that the earlier suit was no longer in existence, it would be unprocedural to grant leave to file a new suit...
Source-derived case information.
- Citation
- [2015] KEHC 110 (KLR)
- Parties
- Applicant: Mulei Mwendwa; Respondent: Tackan Arusi Mwandinda; Respondent: National Intelligence Security Services; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 215 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Judges
- LN Mutende, P Nyamweya
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Withdrawal of Suit
- 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
Mulei Mwendwa
Applicant
Tackan Arusi Mwandinda
Respondent
National Intelligence Security Services
Respondent
The Hon. Attorney General
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 suit out of time after the limitation period has lapsed.
- 2 Whether the applicant has provided sufficient explanation for the delay in filing the suit.
- 3 Whether the existence or withdrawal of CMCC 212 of 2008 affects the grant of leave.
Ratio Decidendi
The court found that the applicant failed to provide sufficient evidence that CMCC 212 of 2008 had been withdrawn, as no notice of withdrawal was adduced by way of affidavit evidence. In the absence of proof that the earlier suit was no longer in existence, it would be unprocedural to grant leave to file a new suit out of time on the same cause of action. The court therefore dismissed the application for leave, holding that the applicant had not met the legal requirements for such relief.
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL MISC. APPLICATION NO. 215 OF 2012 (O. S.)
MULEI MWENDWA.....................................................................APPLICANT
VERSUS
TACKAN ARUSI MWANDINDA
NATIONAL INTELLIGENCE .................................RESPONDENTS
SECURITY SERVICES
THE HON. ATTORNEY GENERAL
R U L I N G
By an application dated 27th September, 2012,the Applicant seeks leave to file the suit against the Respondent out of time, the limitation period, since the cause of action arose having lapsed. The application is premised on grounds that the delay in filing the suit was not intentional; the Applicant has a plausible explanation for the delay and unless leave is granted the Applicant may not be compensated for the loss incurred.
The Applicant deposed an affidavit in support of the application where he stated that he retained the firm of Janet Mulwa and Company Advocateswho filed a suit that was later withdrawn after they disagreed. A notice was not issued due to the existence of CMCC No. 212 of 2008which was subsequently withdrawn.
It is averred that the firm of Janet Mulwa & Co.which the Applicant had instructed at the outset filed CMCC 212 of 2008,a suit aimed at recovery of damages arising out of an accident that occurred on 3rd February, 2007. Consequently the firm of E. K. Mutuathat was retained by the Applicant also filed Civil Suit No. 7 of 2010in that regard oblivious of the existence of the other suit. The fact was brought to their attention by the 3rd Respondent.
It is alleged that a notice to withdraw CMCC 212 of 2008was filed on the 10th September, 2010. No such notice was adduced by way of affidavit evidence. Without proof of the alluded notice, CMCC 212 of 2008may still be in existence. It will therefore be unprocedural for this court to grant leave sought.
In the premises, I dismiss the application with no orders as to costs.
It is so ordered.
Datedat Kituithis 16THday of NOVEMBER,2015.
L. N. MUTENDE
JUDGE
Dated, Signedand Deliveredat Machakosthis 2ndday of December,2015.
P. NYAMWEYA
JUDGE