[2008] KEHC 2926 (KLR)
The court found that the applicant did not know the respondent was within the jurisdiction until after the limitation period had expired, despite having taken all reasonable steps to ascertain his whereabouts. The court held that the presence of the defendant within the jurisdiction was a material fact of a decisive...
Source-derived case information.
- Citation
- [2008] KEHC 2926 (KLR)
- Parties
- Applicant: Wilfred Chumakemer; Respondent: Oddvar Jacobsen
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 719 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- application allowed
- Legal Topics
- Limitation of Actions, Leave to File Out of Time, Material Facts, Reasonable Steps
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Chumakemer
Applicant
Oddvar Jacobsen
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant is entitled to leave to file suit out of time under section 27 of the Limitation of Actions Act.
- 2 Whether lack of knowledge of the defendant's presence within jurisdiction constitutes a material fact justifying extension of time.
Ratio Decidendi
The court found that the applicant did not know the respondent was within the jurisdiction until after the limitation period had expired, despite having taken all reasonable steps to ascertain his whereabouts. The court held that the presence of the defendant within the jurisdiction was a material fact of a decisive character, and the applicant's lack of knowledge thereof justified the grant of leave to file suit out of time under section 27 of the Limitation of Actions Act. The application was therefore allowed, and the applicant was granted fourteen days to file the intended suit.
Court Disposition
application allowed
Orders
- Leave is granted to the applicant to file the intended suit within fourteen (14) days of delivery of this ruling.
- Costs of the application shall be in the intended suit.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Misc. Appli. 719 of 2007 (O.S)
WILFRED CHUMAKEMER ..........................................APPLICANT
V E R S U S
ODDVAR JACOBSEN ...........................................RESPONDENT
R U L I N G
It was held by the Court of Appeal in the case of Gathoni –vs- Kenya Co-operative Creameries Ltd, [1982] eKLR at page 1, that for an application for leave to bring suit out of time to be allowed under section 27 of the Limitation of Actions Act, Cap. 22, it must be shown, to the satisfaction of the court, that failure to sue within time was due to lack of knowledge of certain material facts. The Applicant must also show to the satisfaction of the court that he had taken all reasonable steps and sought appropriate advice in respect of the facts.
In the application before me the Applicant has deponed in paragraph 5 of the supporting affidavit that the defendant in the intended suit is a foreigner, and that during the limitation period he, the Applicant, had reasonably believed that the intended defendant had returned to his country of origin (Norway) because his contract of employment with his employer had expired. That is why he did not file suit. It was only after “reasonable, diligent and thorough investigations” that he managed to locate him in Nairobi at the beginning of May, 2007.
Whether a defendant in an intended suit is within the jurisdiction of the court is a material fact of a decisive character. The fact will inform the applicant whether or not to file the suit. In the present case, the Applicant did not have knowledge of the fact that the defendant in the intended suit was still within the jurisdiction of the court until after expiry (by about 4 months) of the period of limitation. I am satisfied that he had taken all reasonable steps to find out if the defendant in the intended suit was still within jurisdiction.
I will in the circumstances allow the application by originating summons dated 19th September, 2007 and grant the leave sought. The Applicant may file the intended suit within fourteen (14) days of delivery of this ruling. Costs of the application shall be in the intended suit. It is so ordered.
DATED AT NAIROBI THIS 14TH DAY OF MAY, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 16TH DAY OF MAY, 2008