[2007] KEHC 3158 (KLR)
The court found that, despite the long delay, the applicant should be given an opportunity to present its claim, taking into account the hardships faced and the interests of justice. However, to balance fairness, the leave was granted on terms that protect the respondent, including the right to challenge the leave...
Source-derived case information.
- Citation
- [2007] KEHC 3158 (KLR)
- Parties
- Applicant: Yuya Farmers Co-operative Limited; Respondent: Mercia Muliro (Sued as a Personal Representative of Masinde Muliro – deceased)
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- ? 705 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
- Outcome
- leave granted to file suit out of time, subject to conditions
- Legal Topics
- Leave to File Out of Time, Limitation of Actions, Discretion of Court, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Yuya Farmers Co-operative Limited
Applicant
Mercia Muliro (Sued as a Personal Representative of Masinde Muliro – deceased)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Suit Out of Time
Legal Issues
- 1 Whether the applicant should be granted leave to file suit out of time under the Limitation of Actions Act.
- 2 Whether the delay in bringing the action can be excused in the circumstances.
Ratio Decidendi
The court found that, despite the long delay, the applicant should be given an opportunity to present its claim, taking into account the hardships faced and the interests of justice. However, to balance fairness, the leave was granted on terms that protect the respondent, including the right to challenge the leave in the subsequent suit. The court exercised its discretion under the relevant provisions, emphasizing that procedural rules should not unduly bar substantive justice, especially where the applicant demonstrates genuine hardship and the respondent's rights are safeguarded by allowing future challenges to the leave granted.
Court Disposition
leave granted to file suit out of time, subject to conditions
Orders
- Leave is granted to the applicant to file suit within 21 days.
- The defendant may challenge the leave in the new suit by formal application, preliminary objection, or at trial.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET Misc Civ Appli 705 of 2006
YUYA FARMERS CO-OPERATIVE LIMITED …...........……....…. APPLICANT
VERSUS
MERCIA MULIRO (Sued as a Personal
Representative of Masinde Muliro – deceased) …..........….. RESPONDENT
R U L I N G
This is an application under the provisions of Order 36, Rule 3 (c) (4) of the Civil Procedure Rules, Section 3A of the Civil Procedure Rules and 26-30 of the Limitation of Actions Act, Chapter 22 of the Laws of Kenya.
I have carefully considered the application herein and the submissions by Counsel. The affidavit sworn by Mr. Joseph Muchoe Wanyama contains a narration of what appears to be quite a sad and unfortunate history of the claim by the Applicant relating to the proposed suit property. If true, this case would perhaps demonstrate the trials and tribulations that befall many litigants in Kenya. The main problems in this regard would be the poverty, high cost of litigation, lack of effective legal representation, the complexities of laws and procedures to the ordinary Kenyan, lack of equality and bargaining power before the law.
It is my view that the Applicants ought to be given an opportunity to try and present their claim in this matter. Due to the long delay in this matter and in fairness to the proposed Defendant any leave granted must be upon terms.
In exercise of the Court’s powers and discretion I do hereby grant leave in terms of Prayer 1. The action shall be filed within the next 21 days. The leave is granted on condition that the Defendants shall have the right to revisit the questions of leave in the new suit either by way of a formal application to strike out, by way of a preliminary objection, or as one of the issues for determination ats the trial.
Orders accordingly.
DATED AND DELIVERED AT ELDORET ON THIS 19TH FEBRUARY, 2007.
M. K. IBRAHIM
JUDGE