[2016] KEHC 5035 (KLR)
The court found that the application was unopposed and that the reasons advanced by the defendant—namely, the advanced age and poor health of the witness—were sufficient to warrant the taking of evidence de bene esse. The court exercised its discretion to allow the application in the interest of justice, ensuring...
Source-derived case information.
- Citation
- [2016] KEHC 5035 (KLR)
- Parties
- Plaintiff: M'Kea Mugwaika; Defendant: Mirungu Marigi (Sued as the Legal Representative of the Estate of the late M'Marigi Mungania alias Marigi Mungania)
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 66 of 2015
- Procedural Posture
- Environment and Land Case / Interlocutory Application Ruling
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- De Bene Esse Evidence, Elderly Witnesses, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'Kea Mugwaika
Plaintiff
Mirungu Marigi (Sued as the Legal Representative of the Estate of the late M'Marigi Mungania alias Marigi Mungania)
Defendant
Procedural Posture
Environment and Land Case / Interlocutory Application Ruling
Legal Issues
- 1 Whether the court should allow the evidence of an elderly and ailing witness to be taken de bene esse.
- 2 Whether the application for urgent hearing of the witness's evidence is justified.
Ratio Decidendi
The court found that the application was unopposed and that the reasons advanced by the defendant—namely, the advanced age and poor health of the witness—were sufficient to warrant the taking of evidence de bene esse. The court exercised its discretion to allow the application in the interest of justice, ensuring that important evidence is not lost due to the witness's frailty or possible unavailability at a later date.
Court Disposition
application allowed
Orders
- The evidence of Junius Ndubi Magiri, a witness for the defendant, shall be heard on 5/5/2016.
- Costs shall be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT AND LAND CASE NO 66 OF 2015
M'KEA MUGWAIKA …....................................................................................PLAINTIFF
VERSUS
MIRUNGU MARIGI (Sued as the Legal Representative of the Estate of the late
M'MARIGI MUNGANIA alias MARIGI MUNGANIA …...........................DEFENDANT
R U L I N G
This application is dated 14/03/2016 and seeks orders:
THAT this Application be certified urgent and be heard on priority basis.
THAT this Honourable Court be pleased to take evidence of JUNIUS NDUBI MAGIRI de bene esse.
THAT costs be provided for.
The application is supported by the affidavit of Mirungu Magiri, the defendant and has, inter alia, the following grounds:-
THAT the witness is advanced in age, he is 88 years old.
THATthe witness has been having health problems and has been visiting the hospital on several occasions and his evidence is important to this case.
THATit is only fair , just and equitable that this application be allowed to meet the ends of justice.
When the matter came up for consideration in Court on 13/4/2016, it transpired that the application was not opposed. It is , therefore, allowed. I order as follows:-
The evidence of JUNIS NDUBI MAGIRI, a witness for the defendant be heard on 5/5/2016.
Costs shall be in the cause.
It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 13TH DAY OF APRIL, 2016 IN THE PRESENC OF:-
CC: Daniel /Lilian
Kiogora for the Plaintiff
Mwanzia for the Defendant
P.M. NJOROGE
JUDGE