[2017] KEHC 9589 (KLR)
The court found that the delay in filing the suit was only two days, which was not inordinate and had been satisfactorily explained by the applicant. The absence of opposition from the respondents and the explanation that the delay was due to the former advocate and the plaintiff's absence from the country were...
Source-derived case information.
- Citation
- [2017] KEHC 9589 (KLR)
- Parties
- Applicant: Muthoni Mugo; Respondent: James Osiebe; Respondent: Irene Bosire
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 29 of 2011
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time and Leave to Amend Plaint
- Outcome
- Application allowed as prayed with costs in the cause.
- Judges
- BT Jaden
- Legal Topics
- Extension of Time, Amendment of Pleadings, Non Compliance With Order 11, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muthoni Mugo
Applicant
James Osiebe
Respondent
Irene Bosire
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time and Leave to Amend Plaint
Legal Issues
- 1 Whether the court should extend time for the plaintiff to comply with Order 11 of the Civil Procedure Rules, 2010.
- 2 Whether leave should be granted to proceed with the suit despite the original suit being filed out of time.
- 3 Whether leave should be granted to amend the plaint.
Ratio Decidendi
The court found that the delay in filing the suit was only two days, which was not inordinate and had been satisfactorily explained by the applicant. The absence of opposition from the respondents and the explanation that the delay was due to the former advocate and the plaintiff's absence from the country were persuasive. The court exercised its discretion to extend the time for compliance with Order 11, granted leave to proceed with the suit despite the initial suit being filed out of time, and allowed the amendment of the plaint. The orders sought were granted as prayed, with costs in the cause.
Court Disposition
Application allowed as prayed with costs in the cause.
Orders
- Time for compliance with Order 11 of the Civil Procedure Rules, 2010 is extended.
- Leave granted to the plaintiff to proceed with the suit despite the initial suit being filed out of time.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 29 OF 2011
MUTHONI MUGO....................................................PLAINTIFF/APPLICANT
VERSUS
JAMES OSIEBE..........................................1ST DEFENDANT/RESPONDENT
IRENE BOSIRE...........................................2ND DEFENDANT/RESPONDENT
RULING
1. By application dated 12th June, 2017 the Applicant seeks orders that:
1. Spent
2. That this Honourable Court be pleased to extend the time within which the Plaintiff/Applicant should comply with Order 11 of the Civil Procedure Rules, 2010
3. That this Honourable Court be pleased to grant leave to the Plaintiff/Applicant to proceed with this suit inspite of the fact that the initial suit, CMCC No.3013 of 2007 filed in the lower court was filed out of time.
4. That the Plaintiff be granted leave to amend the Plaint filed on the 10th day of April 2007 as per the draft Amended Plaint annexed hereto
5. That the costs of this application be provided for.
2. On the 15th May, 2017 when this suit came up for the hearing of a Notice to show cause why the suit should not be dismissed, directions were given that the Plaintiff do comply with Order 11Civil Procedure Rules within 30 days and that in default the suit to stand dismissed. However, it turned out that the suit had been filed out of time by two days, hence the instant application.
3. The application proceeded exparte. The Respondents were not present though served. I have considered the application. The same is unopposed. The suit was filed two days outside the period provided for by the law. The delay of two days was not inordinate and has satisfactory been explained. The delay in filing suit and applying for the amendment of the plaint is blamed on the former advocate. It is stated in the affidavit in support that the Plaintiff had in the meantime travelled out of the country for studies, then thereafter started working in Kisumu and was regularly in and out of the country. The application being unopposed, I allow the same and prayed with costs in cause.
Date, signed and delivered at Nairobi this 8th day of Nov., 2017
B. THURANIRA JADEN
JUDGE