REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
MISC. APPLICATION NO. 11 OF 2007
SIMON C. KIPTOO .............................................................................................................APPLICANT
VERSUS
1. ATTORNEY GENERAL....................................................................................1ST RESPONDENT
2. THE COMMISSIONER OF POLICE...............................................................2NDRESPONDENT
R U L I N G
By an exparte Originating Summons taken out under the provisions of order XXXVI Rule 3 (c) (1) and (2) and section 4(1) 27(1) and 28 of the Limitation of Actions Act Chapter 22 and Sections 3(2) and 6 of the Public Authorities Limitation Act Chapter 39 and all other enabling provisions of the law, the applicant prays for the leave of the court for extension of time to file suit to claim damages for unfair/unlawful dismissal from employment. He also prays for the costs of the application to be in cause.
The application is supported on he grounds that the earlier suit was heard exparte and was dismissed on a technicality on a point of law yet the case has overwhelming chances of success and should be heard on its merits.
The Respondents opposed the application on the grounds that this court lacks jurisdiction to grant the orders sought and also that the application does not meet the criteria set out under sections 27 and 28 of the Limitations of Actions Act.
The defendant’s counsel did not appear at the hearing of the application. On his part and on behalf of the applicant learned counsel Mr. Cheptarus submitted that this court has original jurisdiction which is unlimited and therefore can extend time as sought.
I have given due consideration to the application. First the applicant easily concedes having filed an earlier suit being Eldoret HCCC. No. 158 of 1998 which was later transferred to the lower court and registered as CMCC No. 544 of 2003 which case was dismissed on 15/6/2005 on the ground of law that it was filed out of time. I note that there was no appeal filed against that judgment and hence the acceptance that the earlier suit had indeed been filed out of time and hence this application which seeks extension of time within which to file suit. The provisions of section 27 of the Limitation of Actions Act relied on by the applicant does not aid him as his claim is one based on contract whereas the said section concerns itself with tort. The earlier suit was fraught with errors of limitation and for filing suit without first giving the requisite mandatory notice to the Attorney General. As already stated above there was no appeal from the finding of the court below. The present application appears to be brought in part to cure these lapses and errors and further to attempt a further revival chance. I do find the application to be without merit and I dismiss the same with costs.
DATED SIGNED AND DELIVERED AT ELDORET THIS 15TH DAY OF DECEMBER 2010.
In the presence of;
Advocate for Applicant
Advocate for Respondent
Court Clerk
