[2011] KEHC 2093 (KLR)
The court found that the applicants failed to annex a proposed plaint or provide particulars of the alleged fraud, making it impossible to determine when the cause of action accrued and how late the application was. The applicants did not claim ignorance of any material facts of a decisive nature, as required by...
Source-derived case information.
- Citation
- [2011] KEHC 2093 (KLR)
- Parties
- Applicant: Polly Wanjiru Kathura; Applicant: Rose Mabuti Wachira; Applicant: Mary Wambui Wanjohi; Applicant: Nancy Wanjiku Kariuki; Applicant: Martha Michere Mwathi; Respondent: Bernard Muriithi Gathura
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Case 31 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Extension of Time to File Suit
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Limitation of Actions, Extension of Time, Fraud Claims, Land Disputes, Tort of Fraud
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Polly Wanjiru Kathura
Applicant
Rose Mabuti Wachira
Applicant
Mary Wambui Wanjohi
Applicant
Nancy Wanjiku Kariuki
Applicant
Martha Michere Mwathi
Applicant
Bernard Muriithi Gathura
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Extension of Time to File Suit
Legal Issues
- 1 Whether the applicants have satisfied the requirements for extension of time to file a suit based on fraud outside the limitation period.
- 2 Whether the applicants have demonstrated ignorance of material facts of a decisive nature as required under Section 27 of the Limitation of Actions Act.
Ratio Decidendi
The court found that the applicants failed to annex a proposed plaint or provide particulars of the alleged fraud, making it impossible to determine when the cause of action accrued and how late the application was. The applicants did not claim ignorance of any material facts of a decisive nature, as required by Section 27 of the Limitation of Actions Act, to justify extension of time. The mere pendency of proceedings before the Land Disputes Tribunal and subsequent appeal did not constitute sufficient grounds for extension. Consequently, the statutory requirements for granting an extension of time to file a suit based on fraud were not met, and the application was dismissed.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time to file a fraud case out of time is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. CASE NO. 31 OF 2011
POLLY WANJIRU KATHURA…………….....….. 1ST APPELLANT/APPLICANT
ROSE MABUTI WACHIRA ……………......…….. 2ND APPELLANT/APPLICANT
MARY WAMBUI WANJOHI …………….......……. 3RD APPELLANT/APPLICANT
NANCY WANJIKU KARIUKI …………….....…..4TH APPELLANT/APPLICANT
MARTHA MICHERE MWATHI ……….......….…5TH APPELLANT/APPLICANT
VERSUS
BERNARD MURIITHI GATHURA …………………………..……RESPONDENT
R U L I N G
This is an application for extension of time to the Applicants to file a fraud case out of time. A fraud is a tort and under Section 4(2) of the Limitation of Actions Act (Cap. 22), any action founded on tort may not be brought after the end of three years from the date on which the cause of action accrued.
The proposed plaint was not annexed to the supporting affidavit, and neither did the affidavit give the particulars of the alleged fraud to show when the cause of action accrued and therefore when time began to run for the purposes of limitation. The court does not therefore know how late the Applicants have been.
It is indicated in the supporting affidavit of the first Applicant that they were delayed by the Land Disputes Tribunal case No.103 of 2006 and the appeal that came therefrom when the Respondent was dissatisfied with the decision of the Tribunal. Under Section 27, the Applicants have to show, to the satisfaction of the court, that failure to file the suit within time was due to lack of knowledge of certain material facts of a decisive nature. (GATHONI –V- KENYA CO-OPERATIVE CREAMERIES LTD [1982] KLR 105). The Applicants are not saying that they were ignorant of any material facts of a decisive nature and that is the reason that prevented them from bringing the suit within time.
Consequently, the application is dismissed with costs.
Dated and delivered at Embu this 25th day of July 2011.
A.O. MUCHELULE
JUDGE