Muthoni Mugo v James Osiebe & Irene Bosire [2017] KEHC 9589 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

HIGH COURT CIVIL  CASE NO. 29 OF 2011

MUTHONI MUGO....................................................PLAINTIFF/APPLICANT

VERSUS

JAMES OSIEBE..........................................1ST DEFENDANT/RESPONDENT

IRENE BOSIRE...........................................2ND DEFENDANT/RESPONDENT

RULING

1. By application dated 12th June, 2017 the Applicant seeks orders that:

1. Spent

2. That this Honourable Court be pleased to extend the time within which the Plaintiff/Applicant should comply with Order 11 of the Civil Procedure Rules, 2010

3. That this Honourable Court be pleased to grant leave to the Plaintiff/Applicant to proceed with this suit inspite of the fact that the initial suit, CMCC No.3013 of 2007 filed in the lower court was filed out of time.

4. That the Plaintiff be granted leave to amend the Plaint filed on the 10th day of April 2007 as per the draft Amended Plaint annexed hereto

5. That the costs of this application be provided for.

2. On the 15th May, 2017 when this suit came up for the hearing of a Notice to show cause why the suit should not be dismissed,  directions were given that the Plaintiff do comply with Order 11Civil Procedure Rules within 30 days and that in default the suit to stand dismissed.  However, it turned out that the suit had been filed out of time by two days, hence the instant application.

3. The application proceeded exparte. The Respondents were not present though served.  I have considered the application.  The same is unopposed. The suit was filed two days outside the period provided for by the law.  The delay of two days was not inordinate and has satisfactory been explained.  The delay in filing suit and applying for the amendment of the plaint is blamed on the former advocate. It is stated in the affidavit in support that the Plaintiff had in the meantime travelled out of the country for studies, then thereafter started working in Kisumu and was regularly in and out of the country.  The application being unopposed, I allow the same and prayed with costs in cause.

Date, signed and delivered at Nairobi this 8th day of Nov., 2017

B. THURANIRA JADEN

JUDGE