[2023] KEHC 26673 (KLR)

In re Francis Kiprotich Langat (Suing Through Next Friend) (Miscellaneous Application E008 of 2023) [2023] KEHC 26673 (KLR) (13 December 2023) (Ruling)

Neutral citation: [2023] KEHC 26673 (KLR)

Republic of Kenya

In the High Court at Kericho

Miscellaneous Application E008 of 2023

JK Sergon, J

December 13, 2023

IN THE MATTER OF FRANCIS KIPROTICH LANGAT (SUING THROUGH NEXT FRIEND)

In the matter of

Margaret Cherotich Langat

Applicant

Ruling

1. The application coming up for this court's determination is a notice of motion dated 12 October, 2023 seeking the following orders;(i)Spent(ii)That Margaret Cherotich Langat be made a next friend to Francis Kiprotich Langat who is incapable of protecting his interest in this case.(iii)Any other order that this Honourable Court may deem just and expedient to grant.(iv)Costs of the application be in the cause.

2. The application is supported by grounds on the face of it and the supporting affidavit sworn by Margaret Cherotich Langat the Applicant herein.

3. The Applicant avers that she is the legal wife of Francis Kiprotich Langat and annexed a copy of the certificate of marriage.

4. The Applicant avers that Francis Kiprotich Langat is aging and has suffered lower and upper limb paralysis since 2007 and is currently undergoing bi-monthly physiotherapy sessions and annexed a copy of the medical report.

5. The Applicant avers that there is an ongoing land dispute touching on family land and her husband is incapable of presenting his case and she therefore was seeking to file a suit as the next friend.

6. The Applicant avers that the gist of the instant application is to be allowed to be made next friend to Francis Kiprotich Langat who was incapable of protecting his interests.

7. The Applicant herein filed a further supporting affidavit in support of her application, she avers that her husband Francis Kiprotich Langat, aged 70 was diagnosed with quadriplegia paralysis of both arms and legs in 2007 from an unknown cause and further that imaging of his head showed that he has brain atrophy resulting in the loss of function and annexed a doctor’s report dated 31st October, 2023.

8. The Application is not opposed.

9. I have considered the instant application and the sole issue for this court’s determination is whether Francis Kiprotich Langat is incapable of protecting his interests on account of old age and infirmity.

10. The application is brought under Order 32 Rule 15 of the Civil Procedure Rules, 2010 which provides as follows; “The provisions contained in rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued. ”

11. The instant application is properly before this court, the instant case properly falls under the circumstances envisaged in the provisions of Order 32 Rule 15 of the Civil Procedure Rules, 2010.

12. In MMM v AMK (Miscellaneous Civil Application 51 of 2015) [2016] KEHC 4741 (KLR) (13 June 2016) (Ruling) under similar circumstances, Mativo J. as he then was while referring to several authorities interpreting similar provisions contained in the Indian Civil Procedure Rules observed as follows; “Thus, guided by the above authorities and the express provisions of order 32 rule 15, I find that it is necessary for this court to conduct a judicial inquiry and form an opinion that the person in question is incapable of protecting his/her own interests.”

13. In MMM v AMK (supra) Mativo J. set out the following principles which I find applicable in this case; “ a. Order 32, rule 15 places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rules 1 to 14. b.Order 32 rule 15 applies not only to a person adjudged to be of unsound mind, but also to a person of weak mind.c.Where it is alleged that a party to a suit is of unsound mind, and the other party denies it, the court must hold a judicial inquiry, and come to a definite conclusion, as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interests in the suit.d.Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others.e.Whether a person is of unsound mind or mentally infirm for the purpose of the rule and the extent of the infirmity has to be found by the court on inquiry.f.Where the question of unsoundness of mind arises not only under order XXXII, rule 15 of the Civil Procedure Code but is also one of the issues in the suit, the court has ample jurisdiction to inquire into that question, and for that purpose seek medical opinion.g.The enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers, and as courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken.h.Of course, the opinion of a doctor, as is the opinion of any other expert, under the Evidence Act, is only a relevant piece of evidence.i.The court may also compel the attendance of the alleged person before it, and to submit himself for medical examination. If the alleged person is in custody, the court may direct the next friend or any other person having custody to produce him before the medical expert for examination.j.Where the precaution of judicial enquiry is not observed, the person cannot be declared lunatic, and a guardian cannot be appointed for him.k.When a person is adjudged as being of a lunatic or unsound mind irregularity and improperly, and notice was not served on him, and a guardian alone was allowed to appear and defend the suit and decree was passed owing to the guardian not putting up a proper defence, the alleged lunatic can treat the decree against him as an ex parte decree, and have it set aside under the provisions of the Civil Procedure Rules.”

14. In the case of Eric Nagwagameja v Solomon Meja Irangi & another [2019] eKLR in a similar case whereby the court was called upon to establish whether the 1st respondent therein by reason of old age and ill health was incapable of protecting his interests. Githinj J. held as follows; “ In the premises the evidence of a medical expert is required as a basis for having a judicial inquiry. I direct that the 1st respondent be subjected to a proper medical assessment by a medical doctor and the report be filed in court before subjecting him to a judicial inquiry. To ensure the same is complied with, the judicial inquiry should be conditional to a medical examination being conducted and the report filed in court. ”

15. Applying the above precedents to the facts of the present case, I find that for this court to ascertain and make a determination that prima facie, the said Francis Kiprotich Langat is incapable of protecting his interests, this court is required to hold an inquiry as provided under Order 32 Rule 15 of the Civil Procedure Rules, 2010.

16. In MMM v AMK (supra) the court set out a two fold procedure for the judicial inquiry to wit examination of the said person in court and medical evidence. It is therefore necessary to have a full-fledged enquiry, and after the inquiry the court will then decide whether the said Francis Kiprotich Langat suffers from infirmity of mind, and whether it is of such a character that prevents him from safeguarding his interests.

17. Accordingly, I find that since no inquiry has been conducted, the orders sought at this stage are premature and if granted at this stage, the same will offend the clear provisions of Order 32 Rule 15 of the Civil Procedure Rules 2010. I hereby make the following orders;a.That the said Francis Kiprotich Langat be produced in court for the purposes of an inquiry by the court for the court to establish whether by reason of unsoundness of mind or mental infirmity, he is incapable of protecting his interests.b.That pursuant to the above order, the parties herein are directed to appear before Court on 19/1/2024 for judicial examination/inquiry.c.Costs be in the cause.

DATED, SIGNED AND DELIVERED AT KERICHO THIS 13TH DAY OF DECEMBER, 2023. ………….…………….J.K. SERGONJUDGEIn the presence of:C/Assistant – RutohBii for the Applicant