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ELCAllowedNot stated in the judgment· [2025] KEELC 7855 (KLR)

Nkoyie v Kimemia & 2 others (Environment and Land Case E026 of 2024) [2025] KEELC 7855 (KLR)

Environment and Land Court
13 November 2025
2,123 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that medical records cannot be used in civil cases without the patient's consent and threw out an illegally obtained report.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kilgoris on an application dated 04/06/2025 by the Plaintiff, Sukel Ole Nkoiyel, in a land dispute over Transmara/Kimintet 'D'/1680. The 1st Defendant/Respondent, Francis T. Kimemia, had by application dated 06.02.2025 sought an enquiry into the Plaintiff's mental capacity to institute the suit, relying on a medical/mental health assessment report dated 17/09/2024 from Transmara West Sub-County Hospital. The court had on 25/02/2025 allowed cross-examination of the Plaintiff on his mental status. The Plaintiff's later application challenged the authenticity and legality of the report; following cross-examination of the hospital's health records officer and mental health officer, the court found the report authentic but obtained unlawfully, unprocedurally and without the Plaintiff's consent. The court framed two issues: whether the medical report could be used without the owner's consent, and whether an enquiry into the Plaintiff's capacity should proceed on it. Relying on Article 31(c) of the Constitution, section 5(2) of the Health Act, and the Court of Appeal's decision in Okiya Omtatah Okoiti v AG interpreting Article 50(4) as extending to civil trials, the court held the report inadmissible as illegally obtained evidence. The application dated 04/06/2025 was allowed: the report was expunged from the record, the order of 25/02/2025 for cross-examination of the Plaintiff was set aside in its entirety, and costs were awarded to the Applicant.

Key legal issues

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01

Whether medical records can be used in court without the consent of the owner

Holding

They cannot; medical records are protected private information under Article 31(c) and their use requires consent. The impugned report was obtained unlawfully, unprocedurally and without consent, contrary to section 5(2) of the Health Act.

Reasoning

The court accepted the Applicant's authorities holding that medical records are private information protected under Article 31(c). It found upon cross-examination that the report was meant for referral only and was not officially requested or issued by the health records custodian, so its procurement contravened section 5(2) of the Health Act and the owner's consent was absent.

p. 4
02

Admissibility of illegally obtained evidence in civil proceedings

Holding

Under Article 50(4), evidence obtained in violation of the Bill of Rights may be rejected in civil as well as criminal trials; the report was therefore inadmissible and was expunged.

Reasoning

Relying on Okiya Omtatah Okoiti v AG and Njonjo Mue, the court held Article 50(4) applies generally to fair hearings. Since the report was obtained illegally and without consent, its admission would offend Article 50(4), and it could not be used in court and had to be expunged from the record.

p. 4
03

Whether the order of 25.02.2025 for cross-examination of the plaintiff on mental status should stand

Holding

It was set aside in its entirety because it was founded on illegally obtained evidence, with no prejudice to the defendants who may cross-examine at trial.

Reasoning

The earlier order allowing an enquiry into the plaintiff's mental capacity was based on the impugned report. Having found the report illegally obtained, the court set aside the order, noting the 1st Respondent would suffer no prejudice since the defendants retain the ability to cross-examine the plaintiff during trial.

p. 5

Legal principles established

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  • Medical records are private information protected under Article 31(c) of the Constitution and their use requires the owner's consent
  • Evidence obtained in violation of the Bill of Rights may be excluded in civil, not only criminal, trials under Article 50(4)

Court orders

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  1. 1.The medical/mental health assessment report dated 17.09.2024 is expunged from the record
  2. 2.The order issued on 25.02.2025 allowing the cross-examination of the plaintiff so as to assess his mental status and/or capacity to sue is set aside in its entirety
  3. 3.Costs of the application are awarded to the Applicant

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 31(c)
  • Constitution of Kenya, 2010Article 24
  • Constitution of Kenya, 2010Article 50(4)
  • Constitution of Kenya, 2010Article 50(1)
  • Constitution of Kenya, 2010Article 50(2)
  • Health ActSection 5(2)
  • Data Protection Act2019
  • Access to Information ActSection 6(1)
  • Civil Procedure RulesOrder 32 Rule 15
  • Civil Procedure RulesOrder 35

Cases cited (6)

  • Kenya Plantation and Agricultural Workers Union Vs. James Finlay (K) Limited
    2013 (KEELRC) 422 KCR
  • Roshaantra Ebrahim Vs. Ashleys Kenya Limited and 3 Others
    2016 eKLR
  • SNW Vs. Asha Gilan Ghulan
    HAT No. 003 of 2018
  • Njonjo Mue and Another Vs. Chairperson of Independent Electoral and Boundaries Commission and 3 Others
  • MMM Vs. AMK
    Miscellaneous application 51/2015
  • Okiya Omtatah Okoiti and 2 Others Vs. A.G and 4 Others
Jurisdiction invoked
Original jurisdiction under the civil procedure framework; application under the Civil Procedure Rules (Order 32/Order 35 enquiry provisions invoked by parties)

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, "Nkoyie v Kimemia & 2 others (Environment and Land Case E026 of 2024) [2025] KEELC 7855 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7855/eng@2025-11-13

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