[2021] KEELC 3405 (KLR)
The court held that it lacked jurisdiction to extend time for filing a suit arising from a contract. Section 27 of the Limitation of Actions Act only permits extension of time for actions founded on torts involving personal injuries, not for contractual claims. The authorities cited, including decisions of the Court...
Source-derived case information.
- Citation
- [2021] KEELC 3405 (KLR)
- Parties
- Applicant: Paul Wangombe Kanyi; Applicant: Peterson Wambugu Kanyi; Applicant: Mary Nyambura Wambugu; Respondent: Elizabeth Wanjiru Ngigi; Respondent: Robert Matathia Ngigi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 226 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Extension of Time, Limitation of Actions, Specific Performance, Refund of Deposit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Wangombe Kanyi
Applicant
Peterson Wambugu Kanyi
Applicant
Mary Nyambura Wambugu
Applicant
Elizabeth Wanjiru Ngigi
Respondent
Robert Matathia Ngigi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court has jurisdiction to extend time for filing a suit arising from a contract.
- 2 Whether the applicants are entitled to leave to file suit out of time for specific performance or refund of deposit.
Ratio Decidendi
The court held that it lacked jurisdiction to extend time for filing a suit arising from a contract. Section 27 of the Limitation of Actions Act only permits extension of time for actions founded on torts involving personal injuries, not for contractual claims. The authorities cited, including decisions of the Court of Appeal, make it clear that the court cannot grant leave to file a suit out of time where the underlying cause of action is contractual. The applicants' claim for specific performance or refund of deposit, being contractual in nature, does not fall within the exceptions provided by law. Therefore, the application was dismissed for want of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for leave to file suit out of time is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
MILIMANI LAW COURTS
ELC MISC. APPLICATION NO. 226 OF 2018
PAUL WANGOMBE KANYI...............................................1ST APPLICANT
PETERSON WAMBUGU KANYI......................................2ND APPLICANT
MARY NYAMBURA WAMBUGU......................................3RD APPLICANT
VERSUS
ELIZABETH WANJIRU NGIGI.......................................1ST RESPONDENT
ROBERT MATATHIA NGIGI...........................................2ND RESPONDENT
RULING
1. The Applicants are seeking leave to file a suit out of time. The Applicants had entered into a sale agreement with Francis Ngigi Matathia in 1987. The Applicants made deposits of Kshs. 20,000/= for each of the plots which they were purchasing at Garden Estate Nairobi. The said Francis Ngigi Matathia died before he could transfer the properties to the Applicants.
2. The Applicants have now filed the present application in which they seek leave to file suit against the administrators of the Estate of Francis Ngigi Matathia claiming specific performance or in the alternative refund of the deposits made with interest.
3. The Respondents have opposed the application arguing that the suit which the Applicants intend to file is stale having not filed any for over three decades.
4. I have gone through the submissions by the parties herein. The only issue for determination is whether this court has jurisdiction to extend time for filing of a suit arising out of matters relating to contract. It has been held time and again that one cannot seek extension of time to file a suit touching on contractual matters. In the case of Willis Onditi Odhiambo Vs Gateway Insurance Company Limited (2014)the Court of Appeal stated as follows:-
“Under Section 27 as can be gleaned from the provisions cited above, time to file suit can only be extended where the action is founded on tort and must relate to torts of negligence, nuisance or breach of duty and the damages claimed should be in respect of personal injuries to the Plaintiff as a result of the tort”.
5. In the case ofMary Osundwa - V - Nzoia Sugar Company Limited [2002) eKLRthe Court of Appeal stated as follows:
“This Section clearly lays down the circumstances in which the court would have jurisdiction to extend time. That action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plaintiff as a result of the tort. The Section does not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other causes of action other than those in tort. Accordingly, Osiemo, J. had no jurisdiction to extend time as he purported to do on 28th May, 1991. That the order was by consent can be neither here nor there; the parties could not confer jurisdiction on the judge by their consent”.
[Emphasis ours]
6. The Applicants’ application is therefore without merit. The same is dismissed with costs to the Respondent.
It is so ordered.
Dated, Signed and Delivered at Nairobi on this 6th day of May 2021.
E.O. OBAGA
JUDGE
In the Virtual presence of:-
Mr Tum for Applicants
Mr Mwaniki for Respondent
Court Assistant: John
E. O.OBAGA
JUDGE