REPUBLIC OF KENYA

IN THE SENIOR PRINCIPAL MAGISTRATE’S COURT AT KIGUMO

MISCELLANEOUS CIVIL APPLIATION NO. 01 OF 2021

PAUL KARANJA
KIBUNA..................................................PLAINTIFF/APPLICANT
-VERSUS-
DAVID NGURE
KIBUNA.............................................DEFENDANT/RESPONDENT

REPLYING AFFIDAVIT
I, DAVID NGURE KIBUNA of Post Office Box Number .................residing and
working for gain at........ in the Republic of Kenya do make oath and state as
follows:-

1. THAT I am the Defendant/Respondent herein and therefore competent to

swear this Affidavit.

2. THAT I have read and understood the Plaintiff’s/Applicant’s Originating

summons and the Affidavit of PAUL KARANJA KIBUNA in support
thereof both dated 15th February, 2021.

3. THAT I have been advised by my advocate on record, which advise I verily

believe to be true that the enabling provision Section 17 of the Limitations
of Actions Act CAP 22 under which the Application has been brought
before the Court which provides;

“17. Title extinguished at end of limitation period

...Subject to section 18 of this Act, at the expiration of the period
prescribed by this Act for a person to bring an action to recover land
(including a redemption action), the title of that person to the land is
extinguished...”

is defective in that it applies to land matters and surely this is not a land
matter.

4. THAT I understand that the Plaintiff/Applicant seeks extension of time

within which he ought to have filed a civil suit against me.
5. THAT the action the cause of action arose on 1 st February, 2012 and a
period of 9years has since passed and the statutory limitation of 3 years has
lapsed.

6. THAT I have been advised by my advocate on record that extension of time

is not a right of a party. It is an equitable remedy that is only available to a
deserving party at the discretion of the Court. An extension of time is an
indulgence requested from the court by a party in default

7. THAT I was the accused person in CRIMINAL CASE NO. 470 OF 2012
REPUBLIC -VS- DAVID NGURE KIBUNA at Kigumo Law Courts
where the same set of facts which are giving rise to the current cause of
action were litigated and considered by a Court of Competent Jurisdiction
and I was found guilty and proceeded to serve a Prison Sentence of three
years. A Copy of the Judgement is attached hereto and marked as DNK I

8. THAT I was released from ...................prison on the 12th day of September,

2019 that being about 2 years from the date of filing of this application.
Therefore the reasons given by the Plaintiff/Applicant on his failure to
institute suit on time; that he felt it to be fair to wait until my prison sentence
was over to file the suit; are not those of a deserving party. If that were the
case, then he ought to have filed it immediately after I was released from
prison.

9. THAT other reasons given in the Supporting Affidavit were that it would
have been hard for the Plaintiff/Applicant to Serve Court Process on my
person and that my being incarcerated would be a hindrance to my court
attendance. This is not entirely true as I was accessible while in Prison and
Court process could have reached my person vide the In-charge officer
at ................prison. More so, the correctional facility I was held at, had
logistics to avail inmates to Court whenever required/summoned by the
Court.

10.THAT the plaintiff/Applicant did not institute suit then and therefore his
weak reasons as to why the delay is not undue cannot hold any water. He
simply did not follow up on the same to see to an expeditious prosecution of
the Matter.
 11.THAT I have been advised by my advocates on record which advice I verily
believe to be true that for leave to be granted, the Plaintiff/Applicant ought
to have sufficient grounds proving that the delay was undue. He has the
burden of laying a basis to the satisfaction of the court.

12.THAT the reasons given by the Plaintiff/Applicant, do not amount to

sufficient reasons for the delay in filing the civil suit. The delay should be
explained to the satisfaction of the Court and the reasons given by the
Plaintiff/Applicant are not sufficient. He is not entitled to an extension. He
has no reasonable or legitimate expectation of receiving one.

13.THAT I now urge Your Honour to not reward indolence by allowing the
Application for extension of time and thereby strike out this Application
with costs to the Defendant/Respondent.

14.THAT what is stated herein is true to the best of my knowledge,

information and belief.

SWORN by DAVID NGURE KIBUNA at NAIROBI this…....…….day of…............……

2021
BEFORE ME )
) __________________________
) (Deponent)
A COMMISSIONER FOR OATHS )

DRAWN & FILED BY:-

...............................
......................
........................

TO BE SERVED UPON:-
KARANJA KANG’IRI & COMPANY
ADVOCATES
THIKA ARCADE 4TH FLOOR
P.O BOX 6080-01000
THIKA