[2016] KEHC 3384 (KLR)
The court found that the plaintiff, being 87 years old and sickly, was at risk of being unable to testify if the matter was delayed. To prevent injustice and ensure that the plaintiff's evidence is preserved, the court exercised its discretion to allow the application for a priority hearing of the plaintiff's...
Source-derived case information.
- Citation
- [2016] KEHC 3384 (KLR)
- Parties
- Plaintiff: M'Mucheke M'Murianki; Defendant: Phinehas Micheni Mucheke; Defendant: Gerald Guantai Mucheke
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 80 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Priority Hearing of Plaintiff's Evidence
- Outcome
- application allowed
- Judges
- FM Njoroge
- Legal Topics
- Priority Hearing, De Bene Esse Evidence, Elderly Litigant, Interlocutory Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M'Mucheke M'Murianki
Plaintiff
Phinehas Micheni Mucheke
Defendant
Gerald Guantai Mucheke
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Priority Hearing of Plaintiff's Evidence
Legal Issues
- 1 Whether the plaintiff's advanced age and ill health justify a priority hearing of his evidence de bene esse.
- 2 Whether the court should exercise its discretion to allow the plaintiff's evidence to be taken out of turn.
Ratio Decidendi
The court found that the plaintiff, being 87 years old and sickly, was at risk of being unable to testify if the matter was delayed. To prevent injustice and ensure that the plaintiff's evidence is preserved, the court exercised its discretion to allow the application for a priority hearing of the plaintiff's evidence de bene esse. The court held that the application was meritorious and granted the orders sought, directing that the plaintiff's evidence be taken at the earliest opportunity, with costs in the cause.
Court Disposition
application allowed
Orders
- The application is allowed.
- The applicant to obtain a priority hearing date for de bene esse hearing of the evidence of M'Mucheke M'Murianki in the next term and should a convenient date not be given, the applicant to come back to court for directions.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
ENVIRONMENT AND LAND COURT CASE NO 80 OF 2016
M'MUCHEKE M'MURIANKI..........................................................PLAINTIFF
VERSUS
1. PHINEHAS MICHENI MUCHEKE................................1ST DEFENDANT
2. GERALD GUANTAI MUCHEKE...................................2ND DEFENDANT
R U L I N G
1. This application is dated 20th June, 2016. It is predicated upon Sections 1A, 1B,3A of the Civil Procedure Act, Order 18 rule 9 of the Civil Procedure Rules and all other enabling provisions of the law.
2. The application seeks orders:
(1) THAT this Application be certified urgent and be heard on priority basis.
(2) THAT this Honourable Court be pleased to order that theplaintiff's evidence be taken immediately or as the Court shall direct.
(3) THAT the costs of this application be provided for;
3. The application is supported by the affidavit of M'MUCHEKE M'MURIANKI and has the following grounds:-
a) The Plaintiff is about 87 years old and sickly.
b) That the evidence of the Plaintiff needs to be taken at the earliest.
c) That the defendants are waiting for the Plaintiff's death so that they could throw away their sisters.
4. The Court notes that the aim of the application is to hear de bene esse the evidence of the Plaintiff who is 87 years old and sickly. The Court finds that the application is meritorious.
5. The following orders are issued :-
(1) The application is allowed.
(2) The applicant to obtain a priority hearing date for de bene esse hearing of the evidence of M'MUCHEKE M'MURIANKI in the next term and should a convenient date not be given, the applicant to come back to Court for directions.
(3) Costs shall be in the cause.
6. It is so ordered.
DELIVERED IN OPEN COURT AT MERU THIS 19TH DAY OF JULY, 2016 IN THE PRESENCE OF :-
CC:
Daniel/Lilian
Baikiata present for Plaintiff
P. M. NJOROGE
JUDGE