[2008] KEHC 2874 (KLR)
The court held that the applicant failed to demonstrate that there were material facts of a decisive character relating to his cause of action that were outside his knowledge, as required by section 27(2) of the Limitation of Actions Act. The applicant knew he had been acquitted and believed he had been wrongfully...
Source-derived case information.
- Citation
- [2008] KEHC 2874 (KLR)
- Parties
- Applicant: Peter Kamau Josephat; Respondent: The Attorney General; Respondent: David George Katiba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 941 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application dismissed
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Unlawful Arrest, Malicious Prosecution, Defamation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Kamau Josephat
Applicant
The Attorney General
Respondent
David George Katiba
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant has demonstrated material facts of a decisive character outside his knowledge to warrant extension of time under section 27 of the Limitation of Actions Act.
- 2 Whether the reasons advanced by the applicant justify granting leave to file suit out of time.
Ratio Decidendi
The court held that the applicant failed to demonstrate that there were material facts of a decisive character relating to his cause of action that were outside his knowledge, as required by section 27(2) of the Limitation of Actions Act. The applicant knew he had been acquitted and believed he had been wrongfully arrested and maliciously prosecuted. The need to obtain proceedings and judgment, or for his lawyers to confirm the validity of his claim, did not constitute sufficient grounds to extend time. Therefore, the application for leave to file suit out of time was dismissed.
Court Disposition
application dismissed
Orders
- The application for leave to file suit out of time is dismissed.
- There is no order as to costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Misc. Appli. 941 of 2007 (O.S)
PETER KAMAU JOSEPHAT …………………………APPLICANT
V E R S U S
1. THE ATTORNEY GENERAL
2. DAVID GEORGE KATIBA …………………….RESPONDENTS
R U L I N G
This is an application (by originating summons dated 10th December, 2007) for leave to file suit out of time under section 27 of the Limitation of Actions Act, Cap. 22. The intended suit is for damages for unlawful arrest and imprisonment, malicious prosecution and defamation. The cause of action appears to have arisen on or about 26th April, 2007 when the Applicant was acquitted.
The Applicant must prove, as required by section 27(2) of Cap. 22, that material facts relating to his cause of action were, or included, facts of a decisive character which were at all times outside his knowledge (actual or constructive). The only reason given in the Applicant’s supporting affidavit for failure to file suit within time is that after his acquittal he applied for proceedings and judgment in the criminal case and that the same “were furnished to me this month”. He further says that it was necessary to have the proceedings and judgment for his lawyers “to ensure that there (are) valid grounds” for his claim.
In my judgment, the need to have copies of the proceedings and judgment and the need for the Applicant’s lawyers to ensure that he had valid grounds for his claim did not constitute material facts of a decisive character outside his knowledge. The Applicant knew he had been acquitted. He had concluded that he had been wrongfully arrested and maliciously prosecuted. There was nothing to stop him from filing suit.
I must therefore refuse this application. It is hereby dismissed with no order as to costs. It is so ordered.
DATED AT NAIROBI THIS 22ND DAY OF MAY, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 23RD DAY OF MAY, 2008