[2021] KEELC 3003 (KLR)
The court found that the appellant's failure and delay in prosecuting her claim was satisfactorily explained by her ill health, as evidenced by the medical report from Dr. Eliud Njuguna. The lower court erred in dismissing the application for reinstatement solely on the basis that there were no medical documents,...
Source-derived case information.
- Citation
- [2021] KEELC 3003 (KLR)
- Parties
- Appellant: Rahab Wanjiru Kiarie; Respondent: Embakasi Ranching Company Limited; Respondent: Duncan Kinyanjui Ngige
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 3 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Reinstatement of Suit, Delay in Prosecution, Medical Evidence, Excusable Neglect
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rahab Wanjiru Kiarie
Appellant
Embakasi Ranching Company Limited
Respondent
Duncan Kinyanjui Ngige
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant provided sufficient reason for non-attendance and delay in prosecuting her suit.
- 2 Whether the lower court erred in dismissing the application for reinstatement of the suit for lack of medical evidence.
Ratio Decidendi
The court found that the appellant's failure and delay in prosecuting her claim was satisfactorily explained by her ill health, as evidenced by the medical report from Dr. Eliud Njuguna. The lower court erred in dismissing the application for reinstatement solely on the basis that there were no medical documents, despite such evidence being annexed. The court held that the appellant had provided sufficient reasons for her absence and delay, and that justice required the reinstatement of her suit. Consequently, the appeal was allowed, the orders of 4/4/2014 were set aside, and the appellant's suit was reinstated before the Chief Magistrates Court.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- The orders made on 4/4/2014 are set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT NAIROBI
ELC APPEAL NO. 3 OF 2018
RAHAB WANJIRU KIARIE..................................................APPELLANT
VERSUS
EMBAKASI RANCHING COMPANY LIMITED.......1ST RESPONDENT
DUNCAN KINYANJUI NGIGE.....................................2ND RESPONDENT
JUDGEMENT
1. The Appellant lodged this appeal against the decision of the Honourable Ms. S. Atambo, Principal Magistrate in Milimani CMCCC No. 107278 of 2006 delivered on 4/4/2014 vide which the Learned Magistrate dismissed the Appellant’s application dated 22/10/2013 which sought the reinstatement of the suit.
2. The Respondents did not participate in the appeal proceedings despite being served with hearing notices whenever the matter came up in court. The Appellant filed submissions. The grounds of appeal are set out in the Memorandum of Appeal dated 2/5/2014. The gist of her appeal is that the Learned Magistrate erred in not finding that her failure to attend court was occasioned by the fact that she had been bedridden from 2005 following her being diagnosed with colon cancer in 2000 which she battled until 2011. She added that at that same time she was battling severe depression and could not instruct an advocate to prosecute her claim in court.
3. She relied on various decisions and urged the court to set aside the orders of the Learned Magistrate made on 4/4/2014 or in the alternative that this court makes its own findings. She urged that she had given sufficient reasons and had satisfactorily explained the delay in prosecuting her case.
4. The Learned Magistrate based her decision on there being no medical documents to support the Appellant’s contention that she had been ill. The court went further to state in the ruling that the Appellant’s counsel could have attended court to explain her ill health to the court.
5. The Appellant annexed a medical report prepared by Dr. Eliud Njuguna, Oncologist on 21/2/2013 to her application for reinstatement of her suit. The report explained that she had been diagnosed with colon cancer and underwent treatment including radiotherapy until July 2011. The report also mentioned that the Appellant had significant psycho emotional distress during the period of treatment.
6. The court is satisfied that the failure and delay by the Appellant to prosecute her claim in court was occasioned by her ill health.
7. The court allows the appeal, sets aside the orders made on 4/4/2014 and reinstates the Appellant’s suit before the Chief Magistrates Court. There shall be no orders as to costs.
DELIVERED VIRTUALLY AT NAIROBI THIS 27TH DAY OF APRIL 2021.
K.BOR
JUDGE
In the presence of:-
Ms. Rahab Wanjiru- the Appellant
Mr. V. Owuor- Court Assistant
No appearance for the Respondent