PETER KAMAU JOSEPHAT v ATTORNEY GENERAL & DAVID GEORGE KATIBA [2008] KEHC 2874 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)

Misc. Appli. 941 of 2007 (O.S)

PETER KAMAU JOSEPHAT …………………………APPLICANT

V E R S U S

1.  THE ATTORNEY GENERAL

2.  DAVID GEORGE KATIBA …………………….RESPONDENTS

R U L I N G

This is an application (by originating summons dated 10th December, 2007) for leave to file suit out of time under section 27 of the Limitation of Actions Act, Cap. 22.  The intended suit is for damages for unlawful arrest and imprisonment, malicious prosecution and defamation.  The cause of action appears to have arisen on or about 26th April, 2007 when the Applicant was acquitted.

The Applicant must prove, as required by section 27(2) of Cap. 22, that material facts relating to his cause of action were, or included, facts of a decisive character which were at all times outside his knowledge (actual or constructive).  The only reason given in the Applicant’s supporting affidavit for failure to file suit within time is that after his acquittal he applied for proceedings and judgment in the criminal case and that the same “were furnished to me this month”.  He further says that it was necessary to have the proceedings and judgment for his lawyers “to ensure that there (are) valid grounds” for his claim.

In my judgment, the need to have copies of the proceedings and judgment and the need for the Applicant’s lawyers to ensure that he had valid grounds for his claim did not constitute material facts of a decisive character outside his knowledge.  The Applicant knew he had been acquitted.  He had concluded that he had been wrongfully arrested and maliciously prosecuted.  There was nothing to stop him from filing suit.

I must therefore refuse this application.  It is hereby dismissed with no order as to costs.  It is so ordered.

DATED AT NAIROBI THIS 22ND DAY OF MAY, 2008

H. P. G. WAWERU

J U D G E

DELIVERED THIS 23RD DAY OF MAY, 2008