[2016] KEHC 3955 (KLR)
The court found that the applicant had provided a credible medical report indicating that Ali Juma Abdullahi suffers from neurocognitive disorder (dementia) and is incapable of managing his affairs. The respondent failed to provide any contrary medical evidence or request for an independent examination. The court...
Source-derived case information.
- Citation
- [2016] KEHC 3955 (KLR)
- Parties
- Applicant: Aziza Kipsang Mohamed; Respondent: Royam Mohammed Juma; Respondent: Ali Juma Abdullahi
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- ? 58 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution Application
- Outcome
- application allowed
- Legal Topics
- Substitution of Parties, Mental Incapacity, Medical Evidence, Environment and Land Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aziza Kipsang Mohamed
Applicant
Royam Mohammed Juma
Respondent
Ali Juma Abdullahi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Substitution Application
Legal Issues
- 1 Whether Ali Juma Abdullahi should be substituted by Arafa Hawa Juma due to mental incapacity.
- 2 Whether the medical evidence provided is sufficient to warrant substitution under Order 32 Rule 15 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant had provided a credible medical report indicating that Ali Juma Abdullahi suffers from neurocognitive disorder (dementia) and is incapable of managing his affairs. The respondent failed to provide any contrary medical evidence or request for an independent examination. The court held that attacking the medical report without substantive evidence is insufficient. Therefore, the requirements for substitution under Order 32 Rule 15 of the Civil Procedure Rules were met, and the application for substitution was allowed.
Court Disposition
application allowed
Orders
- Ali Juma Abdullahi is substituted by Arafa Hawa Juma as a party to the suit.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
MISC. LAND AND ENVIRONMENT CASE NO. 58 OF 2015
AZIZA KIPSANG MOHAMED……….…..…….APPLICANT/RESPONDENT
VERSUS
ROYAM MOHAMMED JUMA……………1ST RESPONDENT/APPLICANT
ALI JUMA ABDULLAHI………………….2ND RESPONDENT/APPLICANT
RULING
[1] The applicant brings this application under Section 1A, 1B and 3A of the Civil Procedure Act and section 3 of the Environment and Land Court Act Cap 12A and Order 1 Rule 10(2) Order 32 Rule 5 Order 51 Rule 1 and Order 50 Rule 6 of the Civil Procedure Act.
[2] The applicant prays that one Ali Juma Abdullahi the 2nd respondent be substituted in this suit by Arafa Hawa Juma. The Applicant has relied on a Medical Report of Dr. Wamukhoma dated 12/11/2015. The report says he is suffering from neurocognitive disorder – dementia and that his memory is poor and that he cannot remember the name of his wife and names of his children and that he is completely not oriented in time and place.
[3] The application is vehemently opposed by the respondent. It was argued that the person to be substituted has not demonstrated sufficient reasons for substitution. The names of the applicant are said to differ.
It is argued that his mental faculties are okay. The report itself is challenged. It is argued that Order 32 Rule 15 of the CPR is not met.
[4] Unfortunately the respondents have no medical report. They did not ask that the said Mr. Ali Juma Abdullahi of I/D No. 0971086 be examined by a doctor of their choice or even a Government doctor and/or Psychiatrist. Attacking the medical record from the bar is not good enough.
[5] The respondents can always test the issues herein through cross examination. I have nothing in which I can rely on to make me sustain the objections of the respondent.
[6] I allow the applicant to substitute Ali Juma Abdullahi with Arafa Hawa Juma. Each party shall bear its own costs.
Dated, signed and delivered at Bungoma this 27th day of July 2016
S.MUKUNYA - JUDGE
In presence of
Gladys/Joy - Court Assistants
Mr. Murunga for Mr. Onyando for the Respondent
Obok for the Applicant absent