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ELCDismissedMiscellaneous Application - Notice of Motion dated 1/7/2020· [2021] KEELC 2526 (KLR)

Catherine Muthoni Kinyua Jane (suing as Attorney of Jane Watiri Mweri and Stella Ngonyo Ruoro) v Kimuri Housing Co Ltd & another [2021] KEELC 2526 (KLR)

Environment and Land Court
14 July 2021
BEB M Eboso
669 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The ex-parte applicant moved the court by notice of motion dated 1/7/2020 seeking leave to file a suit out of time. She explained that she had instructed her advocate to file the intended suit - seeking specific performance or compensation of Kshs16,000,000 plus special damages of Kshs120,000 - but Covid-19 movement restrictions prevented filing. Her advocate, Mr. Michael Kamau Kinga, swore a supporting affidavit deposing that, living at Donyo Sabuk in Machakos County, he could not travel to Nairobi, and that being the sole bank signatory he could not draw court fees; he only managed to travel after obtaining a Law Society travelling card, reporting to his office on 22/6/2020. The application was canvassed through written submissions dated 18/2/2021, in which counsel relied on Alphose Yankulije vs One Twiga Road Limited & 2 Others [2019] eKLR. Eboso J framed a single issue: whether the applicant had satisfied the criteria for exercising the discretionary jurisdiction to extend the limitation period. Adopting the Supreme Court's guidelines in Nicholas Kiptoo Arap Korir Salat v IEBC & 7 others [2014] eKLR, the court held that extension of time is an equitable, discretionary remedy requiring the applicant to lay a proper basis. The applicant failed: she did not exhibit a draft plaint disclosing the cause of action, nor disclose the applicable limitation statute or the sections conferring jurisdiction to extend time. Without these, the court had no basis to grant the indulgence. The notice of motion was dismissed for lack of merit on 14 July 2021 in Nairobi.

Key legal issues

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Whether the criteria for extension of the limitation period were satisfied

Holding

The application failed because the applicant did not exhibit a draft plaint disclosing the cause of action nor identify the limitation statute and sections conferring jurisdiction on the court to extend time

Reasoning

The court adopted the Salat criteria for extension of time: extension is equitable, discretionary and case-specific; the applicant must explain the delay, show absence of prejudice, and act without undue delay. Here the applicant gave no draft plaint to reveal the nature of the claim, and did not cite the limitation statute or the enabling sections. Without those disclosures, the court had no proper basis to exercise its discretion, and the motion was dismissed for lack of merit.

p. 2

Legal principles established

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  • Extension of time is an equitable remedy available only to a deserving party at the court's discretion, and the applicant bears the burden of laying a basis for it to the satisfaction of the court
  • An applicant for extension of the limitation period must disclose the intended cause of action (e.g. exhibit a draft plaint) and the applicable limitation statute granting the court jurisdiction to extend time

Court orders

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  1. 1.The notice of motion dated 1/7/2020 is dismissed for lack of merit

Authorities

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Cases cited (2)

  • Alphose Yankulije vs One Twiga Road Limited & 2 Others
    [2019] eKLR
  • Nicholas Kiptoo Arap Korir Salat v The Independent Electral and Boundaries Commission & 7 others
    [2014] eKLR
Jurisdiction invoked
Discretionary jurisdiction to extend limitation period

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, "Catherine Muthoni Kinyua Jane (suing as Attorney of Jane Watiri Mweri and Stella Ngonyo Ruoro) v Kimuri Housing Co Ltd & another [2021] KEELC 2526 (KLR)", Case Analysis (2021). Miscellaneous Application - Notice of Motion dated 1/7/2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2526/eng@2021-07-14

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