Njeru Mutua v Michael K. Kamunyi & Ephantus Runji Njeru [2017] KEHC 243 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT EMBU

MISC. APPLICATION NO. 146 OF 2016 (O.S.)

NJERU MUTUA...............................................................APPLICANT

VERSUS

MICHAEL K. KAMUNYI..................................1ST RESPONDENT

EPHANTUS RUNJI NJERU..............................2ND RESPONDENT

R U L I N G

1. The applicant seeks for extension of time to file a suit for a claim of Shs.50,000/= from the respondents being his share of proceeds of sale of Plot No. 31, Ishiara Market. The suit is time barred and there is need for extension of time.

2. A suit for claim of money must be filed within three years under Section 4(2) of the Limitation of Actions Act (Cap. 22).   The applicant states that the cause of action arose on 4/02/2009 when the plot in issue was sold by the respondents.  Since then nine (9) years have passed.  This court is empowered by Section 28 of the Act to extend time whereas the time provided by statute for filing the suit has expired.

3. Section 28(2) empowers the court to grant leave for filing of a suit out of time where the prescribed period has expired but it calls for the applicant to fulfill certain conditions.

4. It provides:-

(1)    An application for the leave of the court for the      purposes of section 27 of this Act shall be made ex parte, except in so far as rules of court may  otherwise provide in relation to applications made  after the commencement of a relevant action.

(2) Where such an application is made before the  commencement of a relevant action, the court shall grant leave in respect of any cause of action to which the application relates if, but only if, on  evidence adduced by or on behalf of the plaintiff, it  appears to the court that, if such an action were brought forthwith and the like evidence were adduced in that action, that evidence would in the absence of any evidence to the contrary, be  sufficient—

(a) to establish that cause of action, apart from any    defence under section 4(2) of this Act; and

(b) to fulfill the requirements of section 27(2) of this   Act in relation to that cause of action.

5. The applicant is also required by the law to satisfy the court that the delay was inadvertent caused by circumstances beyond his control.  In his affidavit, the applicant explains that he only came to learn of the sale of the plot only last year, meaning in 2015 considering that this application was filed on 29/08/2016.  The applicant has not presented any other reason why he delayed to file his suit.

6. If the applicant discovered in 2015 that the plot had been sold, he has not explained why it took him another one year to file the suit.  It was mandatory to explain this delay knowing very well that the cause of action was time-barred at the time of discovery.  No reason has been given why this period of one year delay was not explained.

7.  Section 28(2) requires the applicant to present the evidence that he has an arguable cause of action by presenting evidence.

8. In this application, the applicant must show that he had a claim on Plot No. 31 Ishiara or show that the sale proceeds was received by the respondents or that transfer to a 3rd party was executed by the respondents.

9. To the contrary, the applicant has not annexed any certified copy of register or other form of ownership document, not even an agreement to show that he purchased or acquired the plot together with others.

10. It is my considered opinion that the delay of 8 years since the action arose has not been explained and that the delay in filing after discovering in the year 2015 that the plot had been sold also remains unexplained.  The documents of ownership or demonstration of his interest is lacking in this application.

11. If the court was to grant extension of time, it would do so without any basis rendering it an order that cannot help the applicant even if he was to file the intended suit.  It is trite law that courts shall not issue orders in vain.

12. I find no merit in this application and I dismiss it with costs.

13. It is hereby so ordered.

DATED, DELIVERED AND SIGNED THIS 1ST DAY OF NOVEMBER, 2017.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Njiru for the applicant