[2017] KEHC 1440 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL SUIT NO. 517 OF 2011

PRISCAH NJERI KAMAU .................................................. PLAINTIFF

(Suing as Administrator and personal representative of the

Estate of Nicholas Gideon Kamau)

-V E R S U S –

DR. RAYMOND O. OIGARA .......................................1ST DEFENDANT

DR. BILLY FREIDA .................................................... 2ND DEFENDANT

ST. MARYS RIFT VALLEY, MISSION HOSPITAL.......3RD DEFENDANT

RULING

1) The subject matter of this ruling is the motion dated 2. 10. 2017 taken out by the plaintiff herein in which she sought for the following orders inter alia:

1. THAT this honourable court be pleased to enlarge time of filing this suit.

2. THAT this honourable court be pleased to find that the plaint filed on 29th November 2011 to be properly on record.

3. THAT this honourable court be pleased to issue any other orders, writs and directions the honourable court considers appropriate and just to grant in the interests of justice.

4. THAT the costs of this application be provided for.

2) The motion is supported by the affidavit of Prisca Njeri Kamau. When served, the defendants filed grounds of opposition to resist the motion. Learned counsels appearing in this matter agreed to have the motion disposed of by written submissions.

3) I have considered the grounds stated on the face of the motion plus the facts deponed in the supporting affidavit. I have also considered the defendant’s grounds of opposition. I have further considered the rival written submissions. It is the submission of the plaintiff that it took time to obtain limited letters of administration in respect of the estate of Nicholas Gideon, deceased to ad litem to enable the plaintiff file this action in time. It is the submission of the plaintiff that the delay was not inordinate. The plaintiff further pointed out that the defendants in any event did not raise the issue until she filed this motion out of abundant caution.

4) The defendants stated that the motion lacked merit. It is said that the motion was filed way after the suit had been heard and concluded and only awaiting judgment. It was pointed out that the application does not disclose the material and decisive facts that were outside the applicant’s or the deceased’s knowledge therefore the motion is non-starter under Section 29(5) as read with Section 27(2) of the Limitation of Actions Act.

5) It is not in dispute that the question as to whether or not this suit was filed out of time was not raised by defendants. The plaintiff’s motion drew the defendant’s attention over the issue. Under Section 28(3) of the Limitations of Actions Act, the court is given the discretion to grant leave to file an action out of time if sufficient cause is shown. In the motion before this court, it is argued that it took time for the plaintiff to obtain letters of administration ad litem. It is also argued that the delay was not inordinate. The aforesaid averments made in an affidavit have not been controverted by way of an affidavit by any of the defendants. The defendants merely filed grounds of opposition thus leaving the factual matters uncontroverted. I am convinced that the evidence advanced through the plaintiff’s affidavit is sufficient to enable this court exercise its discretion in favour of the plaintiff.

6) Consequently, I allow the motion in terms of prayers 2 and 3. In the circumstances of this case a fair order on costs is to direct, which I hereby do that each party meets its own costs.

Dated, Signed and Delivered in open court this 6th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

.................................................... for the Plaintiff

................................................. for the Defendant