Moses Waititu Gatu & Patrick Njuguna Wachira v Kitengela Water Limited,John Maina Mburu,Emily Wairimu Kanina,Peter Kahara Munga & Edward Janson Mwangi Wanjihia [2017] KEHC 9187 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYAAT NAIROBI

MILIMANI CIVIL DIVISION

MISC CAUSE NO. 125 OF 2017

MOSES WAITITU GATU..................................................1ST APPLICANT

PATRICK NJUGUNA WACHIRA.....................................2ND APPLICANT

VERSUS

KITENGELA WATER LIMITED....................................1ST RESPONDENT

JOHN MAINA MBURU................................................2ND RESPONDENT

EMILY WAIRIMU KANINA...........................................3RD RESPONDENT

PETER KAHARA MUNGA ...........................................4TH RESPONDENT

EDWARD JANSON MWANGI WANJIHIA..................5TH RESPONDENT

RULING

1. The Application before this court is an exparte Originating Summons dated 27th March, 2017 seeking leave to file suit out of limitation time and costs of the application.

2. The application is based on the grounds on the face of the application and the supporting affidavit of both applicants in which they state that the dispute is of a contractual nature and the limitation period of 6 years has already expired.

3. I have read through the application, the Supporting Affidavit and the annexures to the same.  The annexed memorandum of understanding is not signed by any of the Parties and therefore the same cannot be construed to be reliable evidence before this Court.  From the record before this court, there is no prove of a substantive contract between the parties from which a cause of action can be said to have arisen.

4. The Applicants state that they have been negotiating with the Respondents and it is clear from the Supporting Affidavit that they were privy to every step of the transaction.  I find and hold that the Applicants had knowledge of all material facts which would have enabled them file suit within six years.

5. The instant application is premised on Section 27 (1) of the Limitation of Actions Act which provides that,

“(1) Section 4(2) does not afford a defence to an action founded on tort where—

(a) the action is for damages for negligence, nuisance or breach of duty (whether the duty exists by virtue of a contract or of a written law or independently of a contract or written law); and

(b) the damages claimed by the plaintiff for the negligence, nuisance or breach of duty consist of or include damages in respect of personal injuries of any person;and

(c) the court has, whether before or after the commencement of the action, granted leave for the purposes of this section; and

(d) the requirements of subsection (2) are fulfilled in relation to the cause of action.

6. In Mary Osundwa  - V - Nzoia Sugar Company Limited[2002) eKLR, the Court said of Section 27 (1) of the Limitation of Actions Act:

“This Section clearly lays down the circumstances in which the court would have jurisdiction to extend time.  That action must be founded on tort and must relate to the torts of negligence, nuisance or breach of duty and the damages claimed are in respect of personal injuries to the plaintiff as a result of the tort.  The Section does not give jurisdiction to the court to extend time for filing suit in cases involving contract or any other causes of action other than those in tort.  Accordingly Osiemo, J. had no jurisdiction to extend time as he purported to do on 28th May, 1991.  That, the order was by consent can be neither here nor there; the parties could not confer jurisdiction on the judge by their consent.”

7. I find that the Applicants filed the instant application without appreciating the principles of law governing leave to file suits out of time and therefore, I dismiss the application dated 27th March, 2017 but with no orders as to costs.

Dated, signed and delivered at Nairobi this 14TH day of July, 2017.

………………………

L. NJUGUNA

JUDGE

In the presence of

…….....…for the 1st Applicant.

…......….for the 2nd Applicant

….....For the 1st Respondent

...…For the 2nd Respondent

……For the 3rd Respondent

……For the 4th Respondent

……For the 5th Respondent