Rael Adhiambo Wenwe & Janifa Achieng Okelo v Diani Private School Sacco [2017] KEHC 366 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

MISC. CIVIL APPLICATION NO. 20 OF 2015

1. RAEL ADHIAMBO WENWE

2. JANIFA ACHIENG OKELO..................APPLICANT

VERSUS

DIANI PRIVATE SCHOOL SACCO......RESPONDENT

R U L I N G

1. For the court’s determination is the originating summons dated 30/1/2015 brought pursuant to sections 27(1) (2) and 28(1) of Limitation of Actions Act as read with section 3A and Order 36 Rule 3c of the Civil Procedure Act.  It seeks orders that:

i. THAT the Applicants herein be allowed to file suit out of time.

ii. THAT the suit be deemed duly filed on time upon payment of the requisite court fees.

iii. THAT the costs of this application be provided for.

2. The application is premised on the fact that there was delay to file the suit arising out of a delay to obtain grant of letters of administration, and therefore Orders of extension of time ought to be granted to the administrators since the defendant and his insurers are not bound to suffer any undue hardship nor is the plaintiff posed to gain any undue advantage.

3. Those facts are reiterated in the affidavit sworn and filed in support with only addition being that the Applicant has exhibited and shown to court death certificate showing the deceased died on 19/8/2011, petition for grant and grant of letters of administration and a police abstract showing that accident occurred on 11/8/2011, hence the suit ought to have been filed not later than the 10/8/2014.

4. The application was not opposed because by law it is to be handledexparte. This court in Mombasa Misc. Application No. 562 of 2016, EMMANUEL KIDAHO RUHENGERI VS SADRY DHALA [2017] eKLR summarized the thresholds of grant of extension of time to file a suit as follows:-

“It is clear to me that for one to be entitle to seek andget the remedy of extension of time the important considerations are that the intended suit must be seeking damages for personal injuries and there is availed proof that the material facts relating to the cause of action were or included facts of a decisive character which were at all material times outside the knowledge (actual or constructive) of the plaintiff”.

5. In this matter it is not in doubt that the applicant seeks extension of time so that he can pursue damages for fail injuries occasioned to the deceased out of a road traffic accident shown to have occurred on the 11/8/2011.  To that extent, the case is one permitted to be considered for extension of time.  What is however due for consideration is what led to the failure to file suit in time.

6. The only disclosed reason from delay is that the applicants needed to get the standing as personal representatives of the deceased by grant of letters of administration intestate.  That to this court is not a reason to extend time.  In any event, not all causes of action available to the applicants under that alleged tortious acts of the Respondent only devolved upon the personal representatives.  Additionally, although the cause of action is disclosed to have arisen on 11/8/2011, when the accident occurred the applicant took their time till August 2013, more than 2 years later to seek to be personal representatives of the deceased.  It is not that any fact of decisive character was not known to them or that they suffered any disability to be unable to bring the action.

7. Furthermore, having obtained grant of letters of administration on 24/11/201, they took no steps to bring this application till the 3/2/2015, more than some 70 days later.  All that show that the applicants were not bothered to further the diligent pursuit of their rights so as to be in line with the constitutional dictate that legal disputes be handled with expeditious dispatch and proportionately.

8. In effect, the applicants have failed to bring themselves within the requirements of section 27(1) Limitation of Actions Act to warrant this court to exercise discretion in their favour.

9. The upshot is that the application on the facts disclosed is mis-conceived and the same is hereby ordered dismissed.  I make no orders as to costs because the matter proceeded exparte.

Dated and delivered at Mombasa this 1st day of December 2017.

P.J.O. OTIENO

JUDGE