[2018] KEHC 5492 (KLR)
The court found that the plaintiff's application to file suit out of time and substitute the 1st defendant was unsustainable. The cause of action, based on contract, arose in 1992 and the application was made over twenty years later, well beyond the six-year limitation period prescribed by the Limitation of Actions...
Source-derived case information.
- Citation
- [2018] KEHC 5492 (KLR)
- Parties
- Plaintiff: Mustafa Lord; Defendant: Caltex Oil Kenya Limited; Defendant: Saleh Mohamed
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 963 of 1996
- Procedural Posture
- Civil Case / Ruling on Application for Leave to File Suit Out of Time and Substitution of Party
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Limitation of Actions, Joinder and Substitution of Parties, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mustafa Lord
Plaintiff
Caltex Oil Kenya Limited
Defendant
Saleh Mohamed
Defendant
Procedural Posture
Civil Case / Ruling on Application for Leave to File Suit Out of Time and Substitution of Party
Legal Issues
- 1 Whether the plaintiff should be granted leave to file suit out of time against a substituted defendant.
- 2 Whether the application to substitute the 1st defendant is proper where the proposed parties were not given notice.
- 3 Whether the plaintiff's claim is statute-barred under the Limitation of Actions Act, Cap 22.
Ratio Decidendi
The court found that the plaintiff's application to file suit out of time and substitute the 1st defendant was unsustainable. The cause of action, based on contract, arose in 1992 and the application was made over twenty years later, well beyond the six-year limitation period prescribed by the Limitation of Actions Act. The court noted that no convincing reason was advanced for the delay, and that neither Chevron Kenya Limited nor Total Kenya Limited were properly before the court or given notice. Furthermore, the existence of the original suit without any proposal to withdraw or amend it rendered the application an abuse of the court process. Consequently, the application was dismissed...
Court Disposition
application dismissed
Orders
- The application dated 1st August, 2017 is dismissed.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 963 OF 1996
MUSTAFA LORD ......................................................................PLAINTIFF
VERSUS
CALTEX OIL KENYA LIMITED..................................1ST DEFENDANT
SALEH MOHAMED.......................................................2ND DEFENDANT
RULING
This case was filed on 18th April, 1996. The defendants entered appearance and filed their respective defences. Under the old civil procedure rules, summons for directions were filed and issues for determination settled on 21st June, 1997 and filed on 26th June, 1997.
Subsequently, it transpired that the 1st defendant herein had been wound up and its operations taken over by Total Kenya. That being the case, the plaintiff filed an application by way of Chamber Summons dated 1st August, 2017 for leave to file suit out of time. In that application, he seeks to replace the 1st defendant with Chevron Kenya Limited. In that application he confirms that the 1st defendant did not exist when he filed his suit.
The application is opposed and a replying affidavit was filed on behalf of Total Kenya Limited. Both parties have filed submissions which I have considered. In the application neither Chevron Kenya Limited nor Total Kenya Limited are parties. Any party sought to be joined or sued out of the statutory period provided in law ought to have notice of the intended proceedings. The plaintiffs claim was founded on contract. This is clear from the draft plaint annexed to the application.
That contract was said to have been entered into on 16th November, 1992 between the plaintiff and the proposed 1st defendant Chevron Kenya Limited. The draft plaint is lacking in detail as to how the proposed 1st defendant was succeeded by Total Marketing Limited. That notwithstanding, an action founded on contract is supposed to be instituted within six years otherwise it will be out of time by virtue of Limitation of Actions Act, Cap 22 Laws of Kenya.
It is now over twenty years since the alleged cause of action. There has not been a convincing reason advanced as to why the plaintiff slept on his rights even
when he had legal advice from counsel. Equity aids the vigilant not the indolent. – see Ibrahim Mungara Kamau vs. Francis Ndegwa Mwangi (2014) e KLR.
The existing suit HCCC No. 963 of 1996 is still in existence. The suit sought to be filed is founded on the same facts yet there is no proposal to withdraw or discontinue the existing suit. It is not even an application to amend that suit. In my view I agree with the position taken by the defendant that it is an abuse of the court process.
The plaintiff must leave with the position he has found himself in, which his claim is totally out of time and therefore unsustainable by way of an application before the court. The application is therefore dismissed. I have considered the age of this matter and the positions of the respective parties. In the circumstances each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 28th Day of June, 2018.
A. MBOGHOLI MSAGHA
JUDGE