[2019] KEELC 4078 (KLR)
The court found that the Plaintiff's witnesses are of advanced age and some have failing health, as supported by medical evidence. Given the significant backlog at the Environment and Land Court at Embu and the unlikelihood of the suit being heard soon, there is a real risk that the witnesses' evidence may be lost...
Source-derived case information.
- Citation
- [2019] KEELC 4078 (KLR)
- Parties
- Plaintiff: Eston Njeru Munyi; Defendant: Joseph Gachoki Karani & 14 Others
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 40 of 2014
- Procedural Posture
- Notice of Motion / Interlocutory Application Ruling
- Outcome
- Plaintiff's application allowed.
- Legal Topics
- De Bene Esse Evidence, Witness Examination, Case Backlog, Advanced Age Witnesses
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eston Njeru Munyi
Plaintiff
Joseph Gachoki Karani & 14 Others
Defendant
Procedural Posture
Notice of Motion / Interlocutory Application Ruling
Legal Issues
- 1 Whether the court should allow the evidence of the Plaintiff's witnesses to be taken de bene esse due to their advanced age and health concerns.
- 2 Whether the backlog in the Environment and Land Court justifies the immediate examination of the Plaintiff's witnesses.
Ratio Decidendi
The court found that the Plaintiff's witnesses are of advanced age and some have failing health, as supported by medical evidence. Given the significant backlog at the Environment and Land Court at Embu and the unlikelihood of the suit being heard soon, there is a real risk that the witnesses' evidence may be lost if not taken immediately. The court exercised its discretion under the Civil Procedure Act and Rules to allow the evidence of the Plaintiff's witnesses to be taken de bene esse, holding that this was necessary in the interests of justice to prevent the loss of crucial testimony.
Court Disposition
Plaintiff's application allowed.
Orders
- The Plaintiff's notice of motion dated 27th February 2018 is allowed in terms of prayer No. 2: the evidence of all the Plaintiff’s witnesses (Mwathi Mucembi, Nehemiah Machaki, Ngunguru Cue, and Jacob Ngari Nyaga) shall be taken de bene esse.
- The court shall fix a date for the examination of the concerned witnesses upon delivery of the ruling.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT EMBU
E.L.C. CASE NO. 40 OF 2014
ESTON NJERU MUNYI...............................................................PLAINTIFF
VERSUS
JOSEPH GACHOKI KARANI & 14 OTHERS....................DEFENDANTS
RULING
1. By a notice of motion dated 27th February 2018 brought pursuant to the provisions of sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21) and Order 18 Rule 9 of the Civil Procedure Rules the Plaintiff sought the following orders;
a. That this application be certified as extremely urgent.
b. That this honourable court do allow the evidence of all the Plaintiff’s witnesses viz. Mwathi Mucembi, Nehemiah Machaki, Ngunguru Cue and Jacob Ngari Nyaga to be taken De Bene Esse.
c. That this honourable court do make any further orders in the interest of justice.
d. That the costs of this application be provided for.
2. The said application was based upon the grounds set out on the face of the notice of motion and supported by the Plaintiff’s supporting affidavit sworn on 27th February 2018. It was contended that four (4) of the Plaintiff’s witnesses were of advanced age and their evidence may be lost unless they were examined de bene esse. It was the Plaintiff’s case that since the suit was filed in 2014, it is unlikely to be heard in the future because the court is currently dealing with older suits only.
3. When the said application was listed for hearing on 14th November 2018, the Plaintiff sought and obtained leave to file a further affidavit to tender medical evidence in support of the said application. The record shows that the Plaintiff filed a further affidavit sworn on 14th November 2018 which exhibited letters from Embu Level 5 Hospital indicating the respective ages of two of the witnesses.
4. The court has noted that the Defendants did not file any response to the Plaintiff’s said application.
5. The court has considered the Plaintiff’s said application, the further affidavit in support thereof and the material on record. It would appear that the Plaintiff’s witnesses are persons of advanced age and some have failing health. The court is satisfied that it would be just to have them examined immediately so that their evidence is not lost in the event of their demise before the suit is set down for hearing.
6. The court is aware that there is significant backlog at the Environment and Land Court at Embu and that currently the court is dealing with suits which are much older than the Plaintiff’s suit. In those circumstances, it is unlikely that the Plaintiff’s suit will be reached in the ordinary course of business in the near future.
7. For the foregoing reasons, the court finds merit in the Plaintiff’s said application. Accordingly, the Plaintiff’s notice of motion dated 27th February 2018 is hereby allowed in terms of prayer No. 2 thereof. The court shall fix a date for the examination of the concerned witnesses upon delivery of the ruling.
8. It is so decided.
RULING DATED, SIGNED and DELIVERED in open court at EMBU this 28TH day of MARCH, 2019
In the absence of the parties.
Court clerk Muinde.
Y.M. ANGIMA
JUDGE
28. 03. 19