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ELCDismissedEmbu HCC No. 58 of 2011· [2018] KEELC 4060 (KLR)

N K (Suing as next friend of J K K) v K N R & 2 others [2018] KEELC 4060 (KLR)

High Court of Kenya
19 March 2018
PNP. M. NJOROGE
1,918 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to order a psychiatric examination of a litigant, ruling courts cannot help one side gather evidence against another.

What this practically means

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Executive summary

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The plaintiff, suing as next friend to his brother J K K (alleged to be of unsound mind and suffering from epilepsy), brought a notice of motion dated 12th February 2014 under Order 32 rule 15 of the Civil Procedure Rules seeking an order that J K K undergo psychiatric examination at Embu Provincial General Hospital and that the report be filed in court. The applicant relied on J K K's affidavit sworn on 29th October 2012 and a statement of 1st October 2013 in which J K K asserted he was of sound mind, contending that a court inquiry was needed to determine his capacity. The 2nd defendant opposed the application, arguing it was brought too late, was supported by a defective affidavit allegedly not signed by the illiterate applicant, should have been brought under the Mental Health Act (Cap 248), and would infringe the constitutional rights of J K K, who was not a party to the application. J K K himself swore an affidavit affirming his soundness of mind and his voluntary sale of the suit land parcels. The court held that Order 32 rule 15 applies only where a person has been adjudged of unsound mind, or where the court finds on inquiry that the person is incapable of protecting their interests. No such adjudication existed, the applicant bore the burden of providing apposite evidence, and the inquiry issue remained undetermined at the interlocutory stage. Emphasising the adversarial nature of the Kenyan system, the court declined to assist a litigant to gather evidence and dismissed the application. It deprecated the parties' four-year delay in canvassing the application, ordered compliance with Order 11 within 21 days, set directions for 15th May 2018, and directed that costs be in the cause.

Key legal issues

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01

Whether the court can order a psychiatric examination to inquire into a person's unsoundness of mind under Order 32 rule 15 at the interlocutory stage

Holding

The application was dismissed. The court cannot adjudge a person of unsound mind; that is a matter for evidence by the litigant alleging it. The inquiry under limb (b) remains undetermined and must be escalated to the hearing of the suit.

Reasoning

Order 32 rule 15 extends procedural protections to persons adjudged of unsound mind or found on inquiry incapable of protecting their interests. No adjudication existed, and the applicant provided no apposite evidence. The adversarial system deprecates courts assisting litigants to gather evidence, so ordering the examination would place the court in an invidious position. The inquiry question was better determined at the hearing of the suit.

p. 3

Legal principles established

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  • Order 32 rule 15 of the Civil Procedure Rules applies only where a person has been adjudged to be of unsound mind, or where, on inquiry, the court finds that by reason of unsoundness of mind or mental infirmity the person is incapable of protecting their interests when suing or being sued.
  • In an adversarial system, courts cannot be used by litigants to assist them in ferreting out evidence to prove or disprove their assertions.

Court orders

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  1. 1.The application dated 12.2.2014 is dismissed
  2. 2.The plaintiff to fully comply with Order 11 of the Civil Procedure Rules within 21 days
  3. 3.The defendants to fully comply with Order 11 of the Civil Procedure Rules within 21 days after receipt of the plaintiff's compliance documents, and in any event within 21 days after expiry of the period granted to the plaintiff
  4. 4.Parties to take directions from the court on 15th May, 2018
  5. 5.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 32 rule 15
  • Civil Procedure RulesOrder 11
  • Mental Health ActCap 248
  • Civil Procedure Actnull
Jurisdiction invoked
Order 32 Rule 15 of the Civil Procedure Rules

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, "N K (Suing as next friend of J K K) v K N R & 2 others [2018] KEELC 4060 (KLR)", Case Analysis (2018). Embu HCC No. 58 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4060/eng@2018-03-19

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