Nyerere & another (Suing as Legal Representative of Bismark Nyerere Mutie - Deceased) v Njoka & another (Civil Case E343 of 2024) [2025] KEMC 111 (KLR)
The bottom line
#A Kenyan court refused to let a family sue for negligence out of time because they gave no good reason for the delay and filed no draft pleadings.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants have shown sufficient cause to warrant extension of time
- 2.Whether the Applicants are entitled to the relief sought
- 3.What other orders should the court make?
Key legal issues
#Sufficient cause for extension of time under section 27 of the Limitation of Actions Act
Applicants failed to demonstrate sufficient cause; waiting for an inquest and settlement talks are not plausible reasons
The court applied Rawal v Rawal and the Salat principles: extension of time is an equitable, discretionary remedy requiring a full, honest and acceptable explanation for delay. The applicants' stated reasons - awaiting the outcome of a criminal inquest and failed settlement talks - did not meet the statutory threshold under sections 27, 28 and 30 of the Limitation of Actions Act, and no grant of representation or draft plaint was exhibited.
Evidentiary requirements under section 28(2) for an ex parte application before commencement of the action
Not enough to file the application; the applicant must exhibit a draft plaint and evidence establishing the cause of action and decisive facts outside their knowledge
Section 28(2) requires evidence that, if the action were brought forthwith, it would establish the cause of action apart from the section 4(2) defence and fulfil section 27(2). The court held that a draft plaint and supporting documents are necessary to enable the court to assess this, and that the applicants annexed neither, nor a grant of representation confirming their locus.
Scope of Article 159(2)(d) and section 3A inherent powers in limitation applications
Procedural rules must be complied with; default must be explained; ex parte applications are not allowed as a matter of course
Relying on Hamisi, Salat, Obado and Law Society of Kenya, the court held that Article 159(2)(d) means courts should not pay unwarranted attention to technicalities but cannot aid indolent or defaulting parties. An ex parte extension application must still be merited, and even where granted, a defendant may challenge the leave at trial.
Legal principles established
#- An applicant for leave to file suit out of time under section 27/28 of the Limitation of Actions Act must file a draft plaint and supporting documents and prove facts of a decisive character outside their knowledge
- Article 159(2)(d) of the Constitution is not a panacea for procedural default and cannot rescue indolent litigants
Court orders
#- 1.The replying affidavit is expunged from the record
- 2.The application dated 3/3/2025 is dismissed
- 3.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 27 and 28 of the Limitation of Actions Act, section 3A of the Civil Procedure Act and Order 37 rule 6 of the Civil Procedure Rules
Relief refused
#Leave to file suit out of time against the defendants
Applicants failed to show sufficient cause for the delay; no grant of representation, no draft plaint, and reasons for delay were not plausible
Costs
Dismissed with no orders as to costs since the same was to be heard ex parte
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I find that the applicants have failed to show suficient cause to warrant the granting of the orders sought. The applicants have not satisfied the requirements of the relevant legal provisions.
Consequently, the application dated 3/3/2025 is hereby dismissed with no orders as to costs since the same was to be heard ex parte.
The Constitution is not a panacea for every legal ailment.
An extension of time is an indulgence requested from the court by a party in default. He is not entitled to an extension.
The applicants ought to have filed a fresh afidavit to support the Originating Summons.
Issues in the judgment
#Respondents' joint replying affidavit was on the physical file but absent from the Case Tracking System and unstamped; the court expunged it
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyerere & another (Suing as Legal Representative of Bismark Nyerere Mutie - Deceased) v Njoka & another (Civil Case E343 of 2024) [2025] KEMC 111 (KLR)", Case Analysis (2025). Originating Summons dated 23/12/2024 (amended 3/3/2025), Makindu. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/111/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.