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ELCAllowedOriginating Summons dated 13th August 2019· [2019] KEELC 598 (KLR)

Watamu Men Fridays Ltd v Attorney General & another [2019] KEELC 598 (KLR)

Environment and Land Court
21 November 2019
JOJ.O. Olola
907 words in judgment
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The bottom line

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Kenya's Environment and Land Court allowed a company to file its land dispute late, because delays outside its control had kept earlier proceedings frozen.

What this practically means

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Executive summary

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Watamu Men Fridays Ltd filed an Originating Summons dated 13th August 2019 seeking leave to file a suit out of time and to have a draft Plaint deemed duly filed upon payment of filing fees. The dispute concerns Plot No. 696 Watamu, which the Plaintiff acquired from Elijah Kimalel Koskei in 1994. In 2002 the Plaintiff learnt of a title, Kilifi/Jimba/1125, allegedly fraudulently obtained, which encroached on and subsumed its plot, and on which the 2nd and 3rd Defendants had built a hotel. The Plaintiff had earlier filed Mombasa High Court Misc. Application No. 108 of 2004 seeking leave for mandamus; leave was granted in February 2004, but the substantive motion was held in abeyance by a ruling of 8th July 2011 pending determination of related civil suits. Applying the Court of Appeal's decision in Aviation Cargo Support Ltd v St. Mark Freight Services Ltd on the discretionary nature of extension of time, J.O. Olola J held that the delay was largely beyond the Applicant's control. The court found merit in the Originating Summons and granted leave to file the intended suit within 14 days, with costs of the application in the cause. The ruling is a first-instance interlocutory decision on extension of time and does not determine any substantive claim or review any decision below.

Key legal issues

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01

Whether the Plaintiff's delay in filing suit was excusable

Holding

The delay was largely beyond the Plaintiff's control because the related judicial review proceedings were held in abeyance pending determination of civil suits over the same land

Reasoning

The court found that upon learning of the impugned title in 2002, the Plaintiff promptly filed Mombasa High Court Misc. Application No. 108 of 2004 and obtained leave for mandamus in 2004. The substantive motion remained pending because of a 2011 ruling directing that all judicial review applications touching the parcel remain in abeyance pending civil suits. The court accepted this as a plausible explanation, exercised its discretion in the Plaintiff's favour and granted leave to file suit within 14 days.

p. 2

Legal principles established

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  • Extension of time is a discretionary remedy exercised judicially, requiring the applicant to explain any inordinate delay and the steps taken to come to court promptly.

Court orders

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  1. 1.Leave granted to the Plaintiff to file the intended suit within 14 days from the date of the ruling
  2. 2.Costs of the application to be in the cause

Authorities

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Cases cited (1)

  • Aviation Cargo Support Ltd –vs- St. Mark Freight Services Ltd
    Civil Application No. 98 of 2013
Jurisdiction invoked
Inherent discretion to extend time / grant leave to file suit out of time under the Originating Summons procedure; discretionary extension of time jurisprudence

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Watamu Men Fridays Ltd v Attorney General & another [2019] KEELC 598 (KLR)", Case Analysis (2019). Originating Summons dated 13th August 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/598/eng@2019-11-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.