[2024] KEELC 5585 (KLR)
The court found that the applicant is over 90 years old and falls within the category of nonagenarians, whose advanced age justifies the expeditious taking of their evidence. The court took judicial notice of the vulnerabilities and potential health risks associated with such advanced age, and determined that it is...
Source-derived case information.
- Citation
- [2024] KEELC 5585 (KLR)
- Parties
- Plaintiff: Sarah Njoki Ngugi (Suing in Her Own Capacity and as The Administrator of the Estate of Leonard Ernest Ngugi - Deceased); Defendant: Estate of Peter Mburu Kibinda - Deceased Sued Through Administrator & Legal Representative of Ann Njeri Mburu Kibinda; Defendant: Perm Enterprises Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E226 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Application to Give Evidence De Bene Esse
- Outcome
- Application allowed; applicant permitted to give evidence de bene esse.
- Judges
- LN Mbugua
- Legal Topics
- De Bene Esse Evidence, Elderly Witnesses, Expedited Testimony
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sarah Njoki Ngugi (Suing in Her Own Capacity and as The Administrator of the Estate of Leonard Ernest Ngugi - Deceased)
Plaintiff
Estate of Peter Mburu Kibinda - Deceased Sued Through Administrator & Legal Representative of Ann Njeri Mburu Kibinda
Defendant
Perm Enterprises Limited
Defendant
Procedural Posture
Environment and Land Case / Ruling on Application to Give Evidence De Bene Esse
Legal Issues
- 1 Whether the applicant, due to advanced age, should be permitted to give evidence de bene esse.
- 2 Whether the absence of a medical report precludes the granting of such an application.
Ratio Decidendi
The court found that the applicant is over 90 years old and falls within the category of nonagenarians, whose advanced age justifies the expeditious taking of their evidence. The court took judicial notice of the vulnerabilities and potential health risks associated with such advanced age, and determined that it is imperative to preserve the applicant's testimony without unnecessary delay. The absence of a medical report was not deemed fatal to the application, as the court relied on the undisputed fact of the applicant's age and the general principle of protecting the rights of elderly litigants to be heard. Accordingly, the application to give evidence de bene esse was allowed.
Court Disposition
Application allowed; applicant permitted to give evidence de bene esse.
Orders
- The application dated 1.7.2024 is allowed; the applicant is permitted to give evidence de bene esse.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Ngugi (Suing in Her Own Capacity and as The Administrator of the Estate of Leonard Ernest Ngugi - Deceased) v Kibinda & another (Environment & Land Case E226 of 2023) [2024] KEELC 5585 (KLR) (16 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5585 (KLR)
Republic of Kenya
In the Environment and Land Court at Nairobi
Environment & Land Case E226 of 2023
LN Mbugua, J
July 16, 2024
Between
Sarah Njoki Ngugi (Suing in Her Own Capacity and as The Administrator of the Estate of Leonard Ernest Ngugi - Deceased)
Plaintiff
and
Estate of Peter Mburu Kibinda - Deceased Sued Through Administrator & Legal Representative of Ann Njeri Mburu Kibinda
1st Defendant
Perm Enterprises Limited
2nd Defendant
Ruling
1. This ruling relates to the application dated 1. 7.2024 where applicant prays to be allowed to give the evidence de bene esse an account of her age. She is alleged to be 91 years.
2. In opposing the application, the respondents vide the Replying Affidavit dated 12. 7.2024 of the 2nd defendant, argue that there is no medical report to indicate that the applicant deserves the orders sought.
3. Having considered all the arguments raised herein, I find that there is no dispute that the applicant is over 90 years. It is the finding of this court that she is in the bracket of persons knowns as nonagenarians (the 90-99 years old). I take judicial notice that such persons are in their sunset years, hence it is imperative that their evidence be taken expeditiously. In that regard, I allow the application with no orders as to costs.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 16THDAY OF JULY, 2024 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Kinyua for RespondentMrs. Wambugu for ApplicantCourt assistant: Joan