[2015] KEHC 5848 (KLR)
The court found that the applicants had provided sufficient justification for the delay in filing their suit, including difficulties in obtaining necessary documents and attempts at diplomatic settlement. The court held that the delay was neither intentional nor inordinate. The preliminary objection raised by the...
Source-derived case information.
- Citation
- [2015] KEHC 5848 (KLR)
- Parties
- Applicant: Swift Commercial Establishment Ltd; Applicant: Equator Holdings Haulers Ltd; Respondent: The Commissioner of Police; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Suit 1198 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
- Outcome
- leave granted to file suit out of time
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Originating Summons, Preliminary Objection, Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Swift Commercial Establishment Ltd
Applicant
Equator Holdings Haulers Ltd
Applicant
The Commissioner of Police
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicants should be granted leave to file suit out of time under the Limitation of Actions Act.
- 2 Whether the delay in filing the suit was excusable and justified.
- 3 Whether the preliminary objection regarding the place of filing suit is valid.
Ratio Decidendi
The court found that the applicants had provided sufficient justification for the delay in filing their suit, including difficulties in obtaining necessary documents and attempts at diplomatic settlement. The court held that the delay was neither intentional nor inordinate. The preliminary objection raised by the respondents, which was based on the place of filing suit, was dismissed as both respondents are based in Nairobi, making the High Court at Nairobi the proper forum. The interests of justice favored granting leave to file the suit out of time, and no prejudice would be suffered by the respondents. Accordingly, leave was granted to the applicants to file their suit within 14 days.
Court Disposition
leave granted to file suit out of time
Orders
- Leave is granted to the applicants to file suit out of time.
- The suit shall be filed within 14 days of the ruling date.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. CIVIL SUIT NO. 1198 OF 2013
SWIFT COMMERICAL ESTABLISHMENT LTD…1ST APPLICANT
EQUATOR HOLDNGS HAULERS LTD ….….....…2ND APPLICANT
VERSUS
THE COMMISSIONER OF POLICE …………….1ST RESPONDENT
THE HON. ATTORENY GENERAL………....……2ND RESPODNENT
RULING
This is an ex-parte application by way of Originating Summons under Sections 3, 27 and 28 of the Limitation of Actions Act Cap, 22 Laws of Kenya and Order 37 Rule 6 (1) of the Civil Procedure Rules for orders that the applicants be granted leave to file suit out of time.
The applicants who are based in Uganda were operating long distance transport business through the Kenyan territory. From the draft plaint annexed to the application the plaintiffs cause of action arises from the destruction of their transport vehicles said to have been burnt/stolen and extensively damaged following the post election violence in Kenya.
The application if premised on the grounds set out on the face of the application and a supporting affidavit sworn by one Peter Ssajjabbi. The grounds are that delay in filing the suit in time was neither intentional nor inordinate as it was caused by delay in obtaining appropriate police abstracts from various Police Stations and Witness Statements from witnesses who resided out of the country. The applicants also tried to negotiate with the Kenya Government through diplomatic channels for the settlement of their claim which has borne no fruit and that further necessary documentation touching on the claim took time to obtain.
It would appear that although this is an ex-parte application the respondents were served because there is a memorandum of appearance and Notice of Preliminary Objection on record. Going by the provisions of Sections 3, 27 and 28 of the Limitation of Actions Act aforesaid, the plaintiffs have persuaded the court to grant the orders sought.
The preliminary objection raised by the respondents cannot withstand the interests of justice and no prejudice can be said shall befall the respondents because it is based on Section 15 of the Civil Procedure Act which relates to the place of filing suit. It is common knowledge that the seat of both respondents is in the capital city, Nairobi. Therefore the applicants cannot be said to be wrong in lodging their claim in the High Court based in Nairobi.
Accordingly leave is hereby granted to the applicants to file suit out of time, the suit shall be filled within 14 days of today and there shall be no order as to costs.
Orders accordingly.
Dated and delivered at Nairobi this 19th Day of March, 2015.
A.MBOGHOLI MSAGHA
JUDGE