[2014] KEHC 4497 (KLR)
The court found that although the applicant's affidavit did not strictly meet the requirements of section 30(3) of the Limitation of Actions Act, the principles of substantive justice under Article 159 of the Constitution and the authority of Divecon Ltd v Shirinkhan Sadrgdin Sannani justified granting leave. The...
Source-derived case information.
- Citation
- [2014] KEHC 4497 (KLR)
- Parties
- Applicant: Naomi Wanjiku Mwangi; Respondent: Mahenia David & 2 Others
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 340 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- leave granted to file suit out of time
- Legal Topics
- Extension of Time, Limitation Periods, Leave to File Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Naomi Wanjiku Mwangi
Applicant
Mahenia David & 2 Others
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 under the Limitation of Actions Act.
- 2 Whether the facts presented justify extension of limitation period.
Ratio Decidendi
The court found that although the applicant's affidavit did not strictly meet the requirements of section 30(3) of the Limitation of Actions Act, the principles of substantive justice under Article 159 of the Constitution and the authority of Divecon Ltd v Shirinkhan Sadrgdin Sannani justified granting leave. The balance of convenience favored the applicant, and the respondents would have an opportunity to challenge the grant at the hearing. Therefore, leave to file suit out of time was granted, subject to filing and service within 14 days.
Court Disposition
leave granted to file suit out of time
Orders
- Leave is granted to the applicant to file suit out of time.
- The suit must be filed and served within 14 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
MISC. CIVIL APPL. NO. 340 OF 2013
NAOMI WANJIKU MWANGI ..........................................…APPLICANT
versus
MAHENIA DAVID & 2 OHERS …................................RESPONDENTS
RULING
1. By a notice of motion under section 95 of the Civil Procedure Act and orders 50 rule 6 and 51 the applicant moved the court for order that the proposed plaintiffs be granted leave to file suit out of time.
2. It was supported by the affidavit of one NAOMI WANJIKU MWANGI in which it was deponed that the deceased died on 14th February 2009 as a result of a road traffic accident along Nyeri, Nyahururu road leaving them financially handicapped and therefore the applicant had no source to enable them apply for letters of administration.
3. That she only managed to file for letters of administration ad litem earlier 2013 through the firm of Mugambi & Co. advocates who agreed to do the petition on pro-bono.
4. It should be pointed out that this application should have been brought under the provisions of section 27 and 28 of Limitation of Actions Act which gives this court jurisdiction to extend the limitation period in cases of this nature.
5. I have looked at the affidavit in support of the application and is of the view that the facts deponed therein does not constitute facts required under section 30(3) of the Limitation of Actions Act. However in view of the provisions of Article 159 of the constitution which demands that the court looks at substantive justice on the authority of DIVECON LTD SHIRNKHAN SADRGDIN SANNANI CIVIL APPEAL NO. 142 OF 1992which give the intended defendant an opportunity to challenge the grant of the order at the hearing I am of the considered opinion that the balance of convenience is in favour of granting orders sought.
6. Leave is therefore granted to the applicant to file suit out of time which should must be filed and served within the next 14 days from the date herein with no order as to cost.
Dated, signed and delivered at Nyeri this 13th day of June 2014.
J. WAKIAGA
JUDGE
Court: The ruling is read in open court in the absence of the parties.
J.WAKIAGA
JUDGE
13/6/2014