REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL MISC. APPLICATION NO. 215 OF 2012 (O. S.) MULEI MWENDWA.....................................................................APPLICANT VERSUS 1. TACKAN ARUSI MWANDINDA 2. NATIONAL INTELLIGENCE .................................RESPONDENTS SECURITY SERVICES 3. THE HON. ATTORNEY GENERAL RULING 1. By an application dated 27th September, 2012, the Applicant seeks leave to file the suit against the Respondent out of time, the limitation period, since the cause of action arose having lapsed. The application is premised on grounds that the delay in filing the suit was not intentional; the Applicant has a plausible explanation for the delay and unless leave is granted the Applicant may not be compensated for the loss incurred. 2. The Applicant deposed an affidavit in support of the application where he stated that he retained the firm of Janet Mulwa and Company Advocates who filed a suit that was later withdrawn after they disagreed. A notice was not issued due to the existence of CMCC No. 212 of 2008 which was subsequently withdrawn. 3. It is averred that the firm of Janet Mulwa & Co. which the Applicant had instructed at the outset filed CMCC 212 of 2008, a suit aimed at recovery of damages arising out of an accident that occurred on 3rd February, 2007. Consequently the firm of E. K. Mutua that was retained by the Applicant also filed Civil Suit No. 7 of 2010 in that regard oblivious of the existence of the other suit. The fact was brought to their attention by the 3rd Respondent. 4. It is alleged that a notice to withdraw CMCC 212 of 2008 was filed on the 10th September, 2010. No such notice was adduced by way of affidavit evidence. Without proof of the alluded notice, CMCC 212 of 2008 may still be in existence. It will therefore be unprocedural for this court to grant leave sought. 5. In the premises, I dismiss the application with no orders as to costs. 6. It is so ordered. Dated at Kitui this 16TH day of NOVEMBER, 2015. L. N. MUTENDE JUDGE Dated, Signed and Delivered at Machakos this 2nd day of December, 2015. P. NYAMWEYA JUDGE
Original judgment
Mulei Mwendwa & 1 other v 1. Tackan Arusi Mwandinda 2. National Intelligence & 2 others
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