[2013] KEHC 6099 (KLR)
The court found that the plaintiff, Josiah Okeyo Odungo, was critically ill, bed-ridden, and unable to attend court due to complications from terminal ailments and multiple strokes, as evidenced by a medical report. Despite his physical incapacity, he remained mentally stable and competent to testify. The defendants...
Source-derived case information.
- Citation
- [2013] KEHC 6099 (KLR)
- Parties
- Plaintiff: Josiah Okeyo Odungo (suing as the legal administrator of the estate of Rhoda Akinyi Okeyo, Deceased); Defendant: General Manager, Ukulima Co-operative Society Ltd; Defendant: Ukulima Co-operative Socieity Ltd; Defendant: Attorney-General; Defendant: Inspector Kariuki Ngugi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 288 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Commission to Take Evidence De Bene Esse
- Outcome
- application allowed
- Judges
- DW Mbuteti
- Legal Topics
- Commission for Examination, Evidence De Bene Esse, Incapacitated Witness, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Josiah Okeyo Odungo (suing as the legal administrator of the estate of Rhoda Akinyi Okeyo, Deceased)
Plaintiff
General Manager, Ukulima Co-operative Society Ltd
Defendant
Ukulima Co-operative Socieity Ltd
Defendant
Attorney-General
Defendant
Inspector Kariuki Ngugi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Commission to Take Evidence De Bene Esse
Legal Issues
- 1 Whether the court should issue a commission for the examination of the plaintiff at his home due to his critical illness.
- 2 Whether the interests of justice require the plaintiff's testimony to be preserved through special means.
Ratio Decidendi
The court found that the plaintiff, Josiah Okeyo Odungo, was critically ill, bed-ridden, and unable to attend court due to complications from terminal ailments and multiple strokes, as evidenced by a medical report. Despite his physical incapacity, he remained mentally stable and competent to testify. The defendants did not oppose the application. The court exercised its discretion under Order 28, Rules 1 and 2 of the Civil Procedure Rules, 2010, holding that the interests of justice required the preservation of the plaintiff's testimony. Accordingly, the court issued a commission to the Deputy Registrar to examine the plaintiff under oath at his home, in the presence of the defendants or...
Court Disposition
application allowed
Orders
- A commission is issued to the Deputy Registrar for the examination under oath of the plaintiff at his home as soon as possible in the presence of the defendants or their counsels, who shall be accorded an opportunity to cross-examine him.
- The Deputy Registrar shall act as provided in Order 28, Rule 6 of the Civil Procedure Rules, 2010 after execution of the commission.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL CASE NO. 288 OF 2007
JOSIAH OKEYO ODUNGO (suing as the legal administrator
of the estate of RHODA AKINYI OKEYO, Deceased) .……..... PLAINTIFF
VERSUS
1. GENERAL MANAGER, UKULIMA CO-OPERATIVE SOCIETY LTD
2. UKULIMA CO-OPERATIVE SOCIEITY LTD
3. ATTORNEY-GENERAL
4. INSPECTOR KARIUKI NGUGI .……...................…….......... DEFENDANTS
R U L I N G
1. This is essentially an application (notice of motion dated 10th April 2013) brought under Order 28, Rules 1 and 2 of the Civil Procedure Rules, 2010 (the Rules). Notwithstanding the way the main prayer of the application is worded, what is really sought is issuance of a commission to a suitable person for the examination of the Plaintiff in this suit, JOSIAH OKEYO ODUNDO, at his home at Nkoroi in Kiserian within Kajiado County, such examination to be done de bene esse and in the presence of the other parties.
2. The grounds for the application appearing on the face thereof are –
(i) That the Plaintiff is critically ill and has been bed-ridden at his home “from … complications of terminal ailments”.
(ii) That it is in the interests of justice that his testimony be taken as sought.
3. The application is supported by an affidavit sworn by his advocate, LUCAS LEPERES NAIKUNI, to which a medical report dated 28th January 2013 is annexed. It is stated in the medical report that in addition to some chronic ailments that he has been treated for since August 2009, the Plaintiff suffered a major stroke on 3rd November 2009 “with bleeding in posterior fossa of the brain”. He could not sit or stand and remained prostrate on account of the stroke but improved on medication.
4. The report further states –
“On 2. 5.2010 Josiah got a second CVA, more severe and involved the left hemisphere. He lost all the power in the right side of the body. He has been on treatment but to date he has right-sidedhemi paresis. He is not able to sit for long and is not able to walk without support but only for a very short distance. He basically spends most of his time in bed.
Mentally he remains stable; his intellect is normal and memory is intact as well as his other systems. He may not be able to engage in gainful employment nor attend to his usual duties.”
5. The application is not opposed by the Defendants.
6. Clearly, the Plaintiff will not be able to attend court to testify, and unless this application is allowed his testimony may be lost. In these circumstances I will allow the application. A commission is hereby issued to the Deputy Registrar of this court for the examination under oath of the Plaintiff at his stated home as soon as possible in the presence of the Defendants or their counsels who shall be accorded an opportunity to cross-examine him.
7. After due execution of the commission the Deputy Registrar shall act as provided in Order 28, Rule 6 of the Rules.
8. Costs of this application shall be in the cause. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 13TH DAY OF JUNE 2013
H.P.G. WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 14TH DAY OF JUNE 2013