[2011] KEHC 4371 (KLR)
The court found that the plaintiff's original suit was struck out by the subordinate court due to lack of jurisdiction over matters under the Companies Act. The court noted that neither counsel nor the court detected the jurisdictional error during the proceedings, and that the plaintiff was not indolent or delayed...
Source-derived case information.
- Citation
- [2011] KEHC 4371 (KLR)
- Parties
- Plaintiff: Rioki Estate Company (1970) Limited; Defendant: Michael Kinyuru Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 776 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Originating Summons for Extension of Limitation Period
- Outcome
- application allowed
- Legal Topics
- Extension of Limitation Period, Jurisdiction of Courts, Striking Out Suit, Companies Act Matters
- 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
Rioki Estate Company (1970) Limited
Plaintiff
Michael Kinyuru Kamau
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Originating Summons for Extension of Limitation Period
Legal Issues
- 1 Whether the High Court should grant an extension of the limitation period to allow the plaintiff to file a fresh suit after the subordinate court struck out the original suit for lack of jurisdiction.
- 2 Whether the plaintiff was indolent or delayed in bringing the present application for extension of time.
- 3 Whether granting the extension would prejudice the defendant.
Ratio Decidendi
The court found that the plaintiff's original suit was struck out by the subordinate court due to lack of jurisdiction over matters under the Companies Act. The court noted that neither counsel nor the court detected the jurisdictional error during the proceedings, and that the plaintiff was not indolent or delayed in bringing the present application for extension of time. The application was filed promptly after the subordinate court's ruling. The court held that the interests of justice would be served by granting the extension, as it would allow the matter to be heard on its merits in the proper forum. The court also found that no prejudice would be caused to the defendant by granting...
Court Disposition
application allowed
Orders
- The application for extension of the limitation period is allowed without costs.
- The orders made in this file are applicable in H.C. Misc. Nos. 775, 777, 778, and 780 all of 2011.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
MISCELLANEOUS CIVIL APPL. NO. 776 OF 2011(O.S)
IN THE MATTER OF: AN APPLICATION FOR THE EXTENSION OF LIMITATION PERIOD
RIOKI ESTATE COMPANY (1970) LIMITED...............................................................PLAINTIFF
- VERSUS –
MICHAEL KINYURU KAMAU...................................................................................DEFENDANT
R U L I N G
This is an ex-parte Originating Summons brought under Order 37 Rule 6 of the Civil Procedure Rules; Section 27 of the Limitation of Actions Act and all other enabling provisions of the law.
The Applicant seeks an extension of the limitation period to file a fresh suit at the High Court Commercial Division as per prayers numbers 1 and 2 on the face of the application.
It is supported by grounds also stated on the face of the application. The main thrust of the application is that the Plaintiff had instituted a suit against the Defendant in the subordinate court which suit proceeded to full hearing and submissions but was subsequently struck out as the subordinate court had no jurisdiction to entertain matters falling under the Companies Act, Cap 486 Laws of Kenya
The Plaintiff now wishes to properly institute a suit in the High Court but is time barred and hence the request for extension since the cause of action arose in2003.
I have heard counsel for the Applicant Miss Wambugu on the application and I have considered the averments contained in the supporting affidavit of Mr. David N. Chuchu dated 19th September 2011 and annextures thereto.
I have looked at the annexed original Plaint and Defence and Submissions of Counsel and Ruling of the inferior court. It appears that none of the counsel raised or detected the error or lack of jurisdiction. The court struck out the matter with no orders as to costs, in my view a tacit understating that it apportioned no blame. I also note that at no point had the Plaintiff been indolent and there has been no delay in presenting the present application since August 5th 2011 when the Ruling was made.
Further, interest of justice would be done if extension of time is allowed and the matter is filed in the court with the jurisdiction so that the matter may be tried on merit.
There is no prejudice to be caused to the Defendant.
In the upshot, I allow the application but without costs. Further I direct and order that the orders made in this file be applicable in all the other files viz; H.C. Misc. No.s 775, 777, 778 and 780 all of 2011 as the issues raised in all these matters are the same.
It is so ordered
DATED, READ AND DELIVERED AT NAIROBITHIS 28TH DAY OF OCTOBER 2011.
E. K. O. OGOLA
JUDGE
PRESENT:
…………………………………………… For the Plaintiff
…………………………………………… For the Defendant
……………………………Court Clerk