LILIAN NAMONO MWIMA v JAPETH KIPROP BORUETT [2010] KEHC 1151 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

(MILIMANI LAW COURTS)

Miscellaneous Civil Application 278 of 2010

ISAYA WAFULA MASIKA (Suing as the Legal Administrator of the estate of

LILIAN NAMONO MWIMA…………………………. PLAINTIFF/APPLICANT

V E R S U S

JAPETH KIPROP BORUETT………………. DEFENDANT/RESPONDENT

R U L I N G

Before me is an Originating Summons dated 26th May, 2010 filed by M/s rumba Kinuthia & Company advocates for the applicant. The application was filed under section 27 and 28 of the Limitation of Actions Act (Cap.22 of the Laws ofKenya), as well as section 3A of the Civil Procedure Act (Cap. 21 Laws ofKenya),as well as section 3A of the Civil Procedure Act (Cap. 21 Laws ofKenya).

The prayers in the application are as follows-

1. THAT this Honourable Court be pleased to grantthe applicant leaves to file suit out of time againstthe respondent.

2. THAT upon such leave being granted the draftplaint annexed be deemed as duly filed upon payment of requisite fees.

3. THAT the costs of this application be in thecause.

The application has grounds on the face of the Originating Summons. The grounds are as follows-

(a)The claim herein against Japhet Kiprop Boruett isfor damages for negligence of the respondent causing the death of Lilia Mamono Mwima.

(b)That the claim against the respondent expired on 3rdAugust, 2007.

(c)That the plaintiff/applicant and the wife weredeeply depressed after the death of their daughter that they did not file the suit within the stipulated time.

(d)That the plaintiff/applicant had to apply for grantof Letters of Administration ad Litem to be able to administer the estate of the deceased which grant was received on14th October, 2009, hence the delay.

(e)That the applicant has a good claim against therespondent herein and the doors of justice should not be shut out on him due to the mishap that occasioned him.

(f)That the application herein has been made withoutInordinate delay.

The application was filed with a supporting affidavit sworn on 26th May, 2010 by the applicant ISAYA WAFULA MASIKA. The annextures to the said affidavit include a copy of a certificate of death of the minor child of the applicant (the subject), copy of limited grant of letters of administration, as well as a draft plaint.

On the hearing date, Mr. Asiyo for the applicant addressed the court in support of the application.

I have considered the application and circumstances of the matter. I have also considered the law. Indeed, sections 27 and 28 of the Limitation of Actions Act (Cap. 22) provided for the powers of this court to allow parties to file suits out of time after the three year limitation period, where there appears to be a reasonable cause of action. In the circumstances of this case, I am convinced that there is a reasonable cause of action, and since the subject herein is a deceased person and the applicant (proposed plaintiff) had to obtain letters of administration first, I will not shout him out of litigation. I will therefore allow the application.

Consequently, and for the above reasons, I allow the application and order as follows-

1. Leave be and is hereby granted for the applicant to

file suit out of time.

2. The suit will be filed within the next thirty (30 days).

3. Costs in the cause.

Dated and delivered at Nairobi this 5th day of October, 2010.

George Dulu

Judge.