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ELCPartially AllowedNot stated in judgment (Ex parte ruling arising from a defence application; suit number not printed)· [2021] KEELC 3138 (KLR)

Marjory Njeri Njoroge v Joseph Muchiri Njuguna [2021] KEELC 3138 (KLR)

Environment and Land Court
26 May 2021
JKJ. G. Kemei
2,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court can't declare a witness mentally unfit based only on a medical report—there must be a proper court inquiry first.

What this practically means

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Executive summary

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This ruling by J. G. Kemei, J, delivered online on 26 May 2021, determines the Defendant/Applicant's notice of motion dated 16 October 2020 in a pending land dispute. The Defendant sought a declaration that its intended defence witness, Mburu Mwaura, aged over 80, was suffering from senile dementia and unable to testify, and an order substituting him with his son, Julius Mwaura Mburu. Counsel for the Applicant deponed that interviews revealed failing memory, supported by a doctor's report describing slurred speech, memory loss and management for senile dementia. The Plaintiff/Respondent opposed, doubting the dementia claim, alleging the defence was shielding the witness from cross-examination, faulting the unsigned draft witness statement for non-compliance with Order 2 Rule 2(1), and questioning counsel's affidavit; she sought a second medical opinion and a judicial inquiry under Order 32 Rule 15. The court framed three issues: incapacity of the witness, substitution, and costs. Relying on Section 125 of the Evidence Act and Order 32 Rule 15, and applying M M M –VS- A M K [2016] eKLR on capacity principles, the court held the application premature because no inquiry had been conducted, and declined to find the witness incompetent. It also declined formal substitution, holding it is a party's right to elect its witnesses, but granted liberty to present Julius Mwaura Mburu as a witness upon filing and serving his statement within 15 days, with corresponding leave for the Respondent to recall the Plaintiff or file a rebuttal. Costs were awarded to the Respondent.

Key legal issues

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01

Whether the Court can declare a witness incompetent by reason of senile dementia on the basis of a medical report alone

Holding

No. Where the person has not been adjudged of unsound mind, Order 32 Rule 15 requires a court-conducted inquiry; the medical report and counsel's observations are insufficient, making the application premature.

Reasoning

The court examined section 125 of the Evidence Act on competency and Order 32 Rule 15 on inquiries into mental infirmity. It noted that Rule 15 speaks to parties to a suit, whereas this application concerned a mere witness. In any event, no judicial inquiry had been held, so the court could not make a finding of senile dementia; the application was premature.

p. 2
02

Whether the witness should be substituted with his son Julius Mwaura Mburu

Holding

Formal substitution was declined, but the Applicant was granted liberty to present Julius Mwaura Mburu as a defence witness, subject to filing and serving his witness statement within 15 days, with corresponding leave for the Respondent to recall the Plaintiff or file a rebuttal statement.

Reasoning

The court held that a party has the right to call witnesses it believes will best advance its case; the Defendant had effectively withdrawn Mburu Mwaura. Since the Respondent would have the new witness's statement in advance and the chance to cross-examine, no prejudice was demonstrated.

p. 3
03

Who should bear the costs of the application

Holding

Costs awarded to the Respondent against the Applicant, the application having only partially succeeded and the Applicant having initiated a premature incompetency claim.

Reasoning

The court made the costs order in its disposition. The reasoning is implicit in the partial success: the incompetency prayer was refused as premature, so the Applicant bore the costs notwithstanding the liberty granted to call the son as a witness.

p. 3

Legal principles established

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  • All persons are competent to testify unless prevented from understanding questions or giving rational answers by tender years, extreme old age, disease or similar cause (Section 125, Evidence Act)
  • Where a person has not been adjudged to be of unsound mind, the Court must carry out an inquiry under Order 32 Rule 15 before finding incapacity; without such an inquiry a finding of senile dementia cannot be made
  • A party has the right to call the witnesses who, in its opinion, will best bring forward its case, and may elect not to call a witness
  • Where a substitute witness's statement is disclosed in advance, no prejudice arises since the opposing party retains the opportunity to cross-examine

Court orders

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  1. 1.The Respondent shall have the liberty to call Julius Mwaura Mburu as a witness
  2. 2.If he elects to do so, he should file and serve the witness statement within 15 days from the date of the ruling
  3. 3.The Respondent shall have corresponding leave to recall the Plaintiff/file a witness statement in rebuttal if need be
  4. 4.The costs shall be borne by the Appellant in favour of the Respondent
Jurisdiction invoked
Inherent jurisdiction of the Court in an interlocutory application within a pending suit; application brought under the Civil Procedure Rules (Order 32 Rule 15 considered) and the Evidence Act (Section 125 considered)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Marjory Njeri Njoroge v Joseph Muchiri Njuguna [2021] KEELC 3138 (KLR)", Case Analysis (2021). Not stated in judgment (Ex parte ruling arising from a defence application; suit number not printed). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3138/eng@2021-05-26

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