https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/435

 **REPUBLIC OF KENYA** **IN THE PRINCIPAL MAGISTRATE’S COURT** **AT WAMUNYU** **MISC. APPLN. NO. E001 OF 2026** IN THE MATTER OF: AN INTENDED SUIT FOR DAMAGES FOR ASSAULT **=BETWEEN=** ONESMUS KIOKO MWEU ……………………..…………………. APPLICANT **-VERSUS-** 1. ALICE MUSUU NZIOKА 2. CHARLES CHEMA MUTHIANI ……………………………. RESPONDENTS **RULING** 1. By way of a certificate of urgency and an ex-parte application dated **May 14, 2026**, backed by the supporting affidavit of **Onesmus Mweu Kioko** sworn on even date, the Applicant moved the court for an exceptional grant of leave to institute a time-barred suit seeking damages for assault. 2. The Applicant in his grounds supporting the application states that he was assaulted by the Respondents on **15th December, 2020**, sustaining serious bodily injuries which gave rise to a criminal case at Wamunyu Law Courts where he participated as complainant until its conclusion. Owing to prolonged medical treatment, continued follow‑ups, and financial constraints, he was unable to instruct counsel or file a civil claim within the limitation period. 3. Further, that the delay was neither deliberate nor negligent but occasioned by circumstances beyond his control. He maintains that the intended suit raises weighty triable issues with high prospects of success. That no prejudice will be visited upon the Respondents if leave is granted, and that in the wider interests of justice this Court should permit the filing of the claim out of time. 4. He expressed moving his application under **Sections 27 and 28** of the **Limitation of Actions Act**, Cap 22 of the Laws of Kenya as well as Order 51 rule 1 of the Civil Procedure Rules, 2010 together with all other enabling provisions of the law. From the outset, it is important to state that the Applicant moved the court with the wrong application or format. He filed a Notice of Motion in accordance with **Order 51** when the rules expressly provide for a special manner of moving the court. **Order 37, rule 6** (1) states that: ***“An application under section 27 of the Limitation of Actions Act (Cap. 22) made before filing a suit shall be made ex parte by originating summons supported by affidavit.”*** 5. However, in view of the constitutional obligation that courts pay homage to substantive justice as opposed to procedural technicalities, this court will proceed to determine the Application on its merits as opposed to the defective form in which the application has been drawn. 6. To start us off, **Section 4 (2)** of the Limitation of Actions Act provides that an action founded on tort **may not be brought after the end of three years** from the date on which the cause of action accrued. From paragraph 2 of the Affidavit in Support of the Application, the cause of action accrued on December 15, 2020 when the alleged assault allegedly took place. Over 4 years have lapsed since the cause of action accrued and therefore this Application is proper before the court. 7. **Sections 27,** and **28** of the Limitation of Actions Act require an Applicant to satisfy two key ingredients before such an application to file a suit out of time is allowed. First, he must prove that the material facts of decisive character constituting the claim of damages he intends to institute were outside the knowledge (actual or constructive) of the Applicant. Secondly, that he took all reasonable steps to bring the action in good time. 8. Learned counsel for the Applicant in his submissions stated that the Applicant exercised due diligence and has adequately explained the delay in filing suit. The grounds of his application were that the Applicant endured prolonged medical treatment, continuous follow-ups that greatly hampered his economic ability to instruct counsel to file suit in good time. Counsel for the Applicant maintained that the delay was not deliberate but were due to circumstances beyond the applicant’s control. He aptly cited the authorities of **Rawal v Rawal [1990] KLR 275**; **Gathoni v Kenya Co-operative Creameries Ltd [1982] KLR 104**; and **Divecon Ltd v Samani [1995-1998] 1 EA 48** in support of the main premise that courts had jurisdiction to allow applications to file suits out of time subject to their merits. 9. This court has carefully and exhaustively evaluated the application as well as its material in support thereof and finds that the Applicant’s application lacks merit for reasons outline hereunder. 10. First, this court notes that material facts of decisive character were within the Applicants knowledge. **Section 30** of the Limitations of Actions Act describes material facts to mean personal injuries resulting from the negligence, nuisance or breach of duty constituting that cause of action. The Applicant attached one medical document to prove that he was undergoing continuous treatment since the year 2020, the medical report by Dr. Kimuyu Judith dated September 16, 2025. With tremendous respect to the Applicant, that was not a document showing continuous medical attention and treatment of the Applicant. It was merely an assessment of injuries allegedly suffered on December 15, 2020. 11. Consequently, contrary to the grounds on the application, the Applicant did not suffer any injuries that were continuous and therefore led to a delay. This ground fails. 12. Secondly, whether the material facts of decisive character were within the knowledge and reach of the Applicant. This medical knowledge was not new to the Applicant. He knew that he had suffered injuries due to the acts of the intended Defendant who harmed him physically. The Applicant attached a criminal case judgement in criminal case no. E001 of 2021 at Wamunyu where a copy of the P3 form filled by a clinical officer Mr. Jackson Mutia was produced. This means that this piece material fact of decisive character was within the Applicant’s knowledge and therefore he is now estopped from denying that he knew of it. 13. Thirdly, the Applicant also insisted that he had no money to instruct an advocate to institute a civil suit for him. In the case of **KanTravellers V Musee (Suing as the Personal Representative of the Estate of Emmanuel Wafula Makokha) & Anor [2023] KEHC 2100 (KLR)** where the superior court rendered itself thus: “On the issue of lack of funds, the Respondents had the option of approaching the courts vide suits by paupers pursuant to order 33 rule 1 (2) of the Civil Procedure Rules where people perceived as paupers can file suits when they are not possessed of sufficient funds to pay the requisite court fees.” 1. In view thereof, this court finds the Applicant’s application dated May 14, 2026 to be without merit. The delay of more than 5 years is truly inordinate. Consequently, and in view of the holdings above, the same is dismissed herewith. The Applicant shall bear his own costs. Dated this 10th day of JUNE, 2026 at Wamunyu Law Courts.  **HON. P. E. NABWANA** **SENIOR RESIDENT MAGISTRATE** **For Applicant: Elizabeth K. Nzioka - Isika** **Court Assistant: Geoffrey/Faith**