The High Court has dismissed a doctor’s appeal seeking to have a medical negligence suit struck out.
Justice Linus Kassan upheld a lower court ruling that refused to terminate the case, concluding that active steps taken by the claimants prevented the matter from standing dismissed by operation of law.
Dr Radia Rohit had challenged a March 2025 ruling by Hon Rawlings Liluma Musiega at the Milimani Chief Magistrate’s Court, which declined to dismiss the suit for want of prosecution.
The underlying case stems from a medical negligence suit filed on December 6, 2012, following the death of Catherine Mumbi Ngatia.
The administrators—Agnes Wakuraya Ngatia and Peter Ngatia—sued Dr Rohit and The Nairobi Hospital, alleging professional negligence caused the death of the patient.
The litigation faced years of delays before the magistrate court declined to strike out the matter in March 2025.
Dr Rohit contended the suit “had stood dismissed by operation of law after July 26, 2022” and that the magistrate had no discretion left to exercise.
"The appellant's motion contended that nothing meaningful had been done for about two years and two months, that the delay showed a loss of interest in the suit and that the defence was prejudiced," the court heard.
The doctor also contended he never received a letter by the respondents dated August 8, 2024.
The respondents defended the stagnant timeline by pointing to administrative hurdles and attempts to secure trial dates.
“They attributed the delay to difficulty in tracing and accessing the court file, said their advocates had written to the registry seeking a hearing date, and relied on the mention of December 9, 2024 to show that the suit had not been abandoned."
The court noted the delays, determining that while regrettable, the statutory threshold for automatic dismissal was not met.
“The suit is old. It was filed in 2012 and, more than 13 years later, has not been tried. The appellant is entitled to be concerned,” the judge observed.
However, the court held that the two-year period could not begin on July 26, 2022 because the application of April 13, 2022 remained pending and was listed again on September 19, 2022.
“A hearing date fixed by the court for a pending application is a step in the proceedings,” Justice Kassan ruled.
“No uninterrupted period of two years has been shown. The conditions of Rule 2(5) were not met and the suit did not stand dismissed.”
While the appellant's motion focused on post-2022 inactivity, the judge noted that the initial history could not be ignored—pointing out that the plaint was only amended in May 2018, six years after filing.
The judge also addressed the issue of the disputed letter.
The court had heard that the letter was written by the respondents' advocates to the court registry, intended as part of their efforts to secure a hearing date for their pending application after facing difficulties with the availability of the court file.
However, the appellant argued that this specific letter carried no weight because it was neither served upon him nor uploaded to the electronic filing (e-filing) system, challenging it as “unserved and unproven to have reached the court system.”
Justice agreed with the appellant's objection.
“The respondents have not shown, from anything I have been referred to, that it reached the registry. I therefore give it no weight as a step and decide this issue without relying on it.”
He dismissed the appeal, upheld the ruling and ordered the trial file to be returned within seven days. Both parties were directed to appear for case-management directions to fast-track the hearing.
