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ELCDismissedNotice of motion dated 5th December 2017 (suit filed 2015; ELCC Embu)· [2018] KEELC 4397 (KLR)

Margaret Rwamba Njagi v Joseph Mugo Ngai & 2 others [2018] KEELC 4397 (KLR)

Environment and Land Court
22 February 2018
994 words in judgment
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The bottom line

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The Environment and Land Court in Embu refused to let a 67-year-old defendant give evidence early, holding that stable asthma did not justify skipping the normal trial process.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu dismissed a notice of motion dated 5th December 2017 by which the 1st Defendant sought an order that his evidence be taken urgently (de bene esse) before the trial of a suit filed in 2015. The application was grounded on sections 62 and 63 of the Evidence Act and sections 1, 1B, 3 and 3A of the Civil Procedure Act, supported by the 1st Defendant's affidavit asserting that he was ailing and under medication and feared his evidence might be lost given the court backlog. The Plaintiff opposed through grounds of opposition, arguing that the handwritten medical note from Njoki Memorial Clinical Services showed a treated, stable condition, disclosed no life-threatening or faculty-impairing ailment, and was not prepared by a qualified doctor. The court held that sections 62 and 63 of the Evidence Act were inapplicable, the correct provision being Order 18 rule 9(1) of the Civil Procedure Rules, but exercised its discretion under Article 159(2) of the Constitution and section 19 of the Environment and Land Court Act to consider the motion on its merits since no prejudice was suffered. The court found that the report showed asthma treated with broncho-dilators and a stable condition, with no indication of significant impairment, imminent danger or imminent death. Doubts about the author's qualifications were unsupported and would not necessarily disqualify a clinical officer. Finding no sufficient cause, the court dismissed the motion with costs in the cause.

Key legal issues

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01

Whether sufficient cause was shown under Order 18 rule 9 for evidence to be taken immediately before trial

Holding

No sufficient cause was shown; a 67-year-old ailing deponent with asthma, treated and stable, did not demonstrate imminent impairment or danger warranting de bene esse evidence

Reasoning

The medical report indicated a diagnosis of asthma, treatment with broncho-dilators and a stable condition. There was no indication of significant impairment of mental or physical abilities, imminent danger to life, or likelihood the evidence would be lost before trial. The court also noted the Embu backlog and priority for older suits, but held these did not amount to sufficient cause. The application was accordingly dismissed with costs in the cause.

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02

Whether a medical report prepared by a possibly unqualified author (clinical officer) could be relied upon

Holding

There was no evidence the author was unqualified, and even a clinical officer would not necessarily be disqualified from preparing a medical report where the diagnosis was done at his clinic

Reasoning

The report was signed by Warui Munene as 'specialist lung/skin diseases'. The Plaintiff's counsel asserted he was a clinical officer, but produced no evidence to that effect. The court held that even if he were a clinical officer, that would not necessarily disqualify him from preparing a medical report if the diagnosis was made at his clinic. The report was therefore considered on its content.

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Legal principles established

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  • Sections 62 and 63 of the Evidence Act do not govern applications for evidence to be taken de bene esse; the applicable provision is Order 18 rule 9(1) of the Civil Procedure Rules
  • A court may consider a motion on the merits despite it not being grounded on the correct provisions of the law, in the interest of substantive justice
  • A treatable, stable medical condition without indication of imminent impairment does not constitute sufficient cause for taking evidence immediately before trial

Court orders

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  1. 1.The 1st Defendant's notice of motion dated 5th December 2017 is dismissed
  2. 2.Costs of the application shall be in the cause
Jurisdiction invoked
Article 159(2) of the Constitution and section 19 of the Environment and Land Court Act; Order 18 rule 9 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Margaret Rwamba Njagi v Joseph Mugo Ngai & 2 others [2018] KEELC 4397 (KLR)", Case Analysis (2018). Notice of motion dated 5th December 2017 (suit filed 2015; ELCC Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4397/eng@2018-02-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.