Lukorito v Siror

4. The Application was opposed through a Replying Adavit sworn by the Plainti, Veronica Terigi Lukorito sworn on 25/09/2024. She deposed that she understood that under Order 32 Rule 15 the court could appoint a Guardian Ad Litem if it could, upon inquiry, nd that the person to be replaced has by reason of mental inrmity or unsoundness of mind incapable of protecting his interests when suing or being sued. That she believed the medical report annexed to the Adavit had not provided sucient proof that the defendant was mentally inrm or and suering from dementia hence the maker of the medical report, Dr. Georey Kibii, ought to be cross-examined on its contents. Further, it was necessary for the Court to conduct an inquiry to satisfy itself that the defendant was mentally inrm to have a Guardian Ad Litem appointed. 5. The Plainti moved for the Court to issue summons to Dr. Georey Kibii and Dr. Chelagat Saina who also led a second medical examination report to attend court and be cross-examined on their reports. On 05/11/2024 both doctors attended court. Dr. Georey Kibii testied that he examined the Defendant on 06/06/2024 and prepared the report dated the same date. His examination found that the Defendant had psychotic symptoms and dementia, delusions and paranoia. He produced the medical report in evidence. 6. On cross-examination he stated that he had a masters degree in medical education and was then studying for a Doctor of Philosophy (PhD) in the same subject. He conducted tests on the patient and found that he had manic symptoms which were long-term, could not remember everything all the time, had a mental ability degradation, and was not able to coherently manage his acts. He could not remember continuously current and past events. He had memory lapses. He added that dementia aects short-term memory and when such a patient has depressive conditions he would lose memory completely at that moment. He concluded that such a patient could not be able to defend his interests in his property whether in the current suit or at all. He stated in re-examination that the Defendant could not therefore give evidence coherently since the condition he suered from compromised his ability to do so or testify. 7. On her part, Dr. Chelagat Saina testied that she was a consultant psychologist. She examined the Defendant on 12/06/2024 and found that he suered from dementia. Further, he had loss or memory and depression which often leads to low moods, hopeless and inability to express his emotions and anxiety symptoms. By the time she examined him he was 93 years old. She explained further that dementia aects memory. In the condition, one becomes forgetful, very poor in decision-making, reasoning or judgment-making, including decisions about his family or himself. The doctor testied that for that reason the Defendant would have a challenge in protecting his interests. She concluded that the patient would need the assistance of his family in decision-making. She too produced the Report in evidence. 8. On cross-examination the doctor stated that she was not a medical doctor but she is qualied to examine such patients. It was not the rst case of the nature that she dealt with. She stated that she conducted an examination on the patient and put the results in the report, although she did not attach the actual results, which to her was unnecessary. She testied that such tests could be done in a government hospital facility such as the Moi Teaching and Referral Hospital, Eldoret where she worked. Issue, Analysis And Determination 9. I have considered the Application, the law and the evidence of the doctors in relation to it. The Applicant prayed that he be appointed as Guardian Ad Litem in this matter for his father whom he https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13605/eng@2024-11-28 2

page 2 of 4

contended was old and unable to manage his aairs for reason of mental inrmity due to that old age. He stated that his father was 92 years old. He annexed the Defendant’s identity Card as DKS 2. This Court has perused a copy of the identity card, whose No. is 5724519 bearing the name Michael Bett Siror. It indicates that the bearer was born on 01/01/1934 in Baringo Central. A simple calculation of the age of the bearer is 92 years. This corresponds with the age given by the Applicant as that of his father, the Defendant. The question that remains is whether the defendant is of such a state of mind that a Guardian ad Litem ought to be appointed on his behalf. 10. Order 32 Rules 3 and 4 of the Civil Procedure Rules which the applicant cited would be irrelevant if read in isolation since the Defendant herein is an adult, not a minor. They relate to the procedure to be followed in suits instituted by next friends or Guardians ad Litem on behalf of minors as either plaintis or defendants. However, Order 32 Rule 15 qualies them to apply to situations which where persons are adjudged to be of unsound mind. It provides that; “ 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 inrmity, to be incapable of protecting their interest when suing or being sued.” 11. Thus, they apply to persons whom the Court adjudges to be of unsound mind or even when they are not found to be of sound mind, they are of such disposition that they will be incapable of protecting their interests. 12. The provision does not state clearly how the Court should go about making the nding. But a proper interpretation renders it that there have to be two stages of this process, one being a judicial inquiry and the next one, a medical examination to conrm that indeed the person is incapable of protecting his interests or is of unsound mind. 13. I am alive to the fact that before the instant application was made, the Defendant was not presented before me to make the inquiry as to the soundness or otherwise of his mind. But one fact is clear to me, that the age of the Defendant is so advanced that this Court is prepared, under Section 60 (1) (m) of the Evidence Act to take the ordinary course of nature regarding the deterioration of the mental abilities of old people of the age such as that of the Defendant to nd that there is no need for a judicial inquiry as to his mental state. In any event, the Plainti only raised the issue that the doctors who examined the Defendant had not placed sucient material before the court regarding the mental capacity of the individual and only wanted to cross-examine them to test the veracity of the reports. She was given the opportunity and the cross-examination brought about the evidence summarized above. With such nding, this Court proceeds to determine whether indeed the evidence by the doctors support a nding that the defendant is incapable of protecting his interests. 14. Both doctors who testied in support of the Application gave evidence that the Defendant is of old age and has reached a stage where he has dementia. They both agreed that such a condition diminishes one’s ability to use his memory and therefore often does not remember things consistently or at all at times. Further, Dr. Kibii said the patient suered depression. Dr. Saina added that the Defendant suered low moods, hopelessness and poor judgment. They stated that in the circumstances the Defendant cannot protect his interests in the suit and requires assistance of a member of the family as Guardian ad litem. 15. This Court had occasion to listen to the arguments by learned counsel for the Plainti who insisted that the Defendant was capable of giving evidence and had no need of a guardian ad litem. It is a sad position taken by the Plainti. I wonder whether she would love to be treated the same way when, if God permits, she reaches the same age. It reminds me of this party who, last year but one in July or https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13605/eng@2024-11-28 3

page 3 of 4

thereabouts, upon the adverse party applied for an order to give evidence de bene esse in their matter because he was old and sickly and wished to testify before anything would happen, insisted that the Court does not grant the orders. He contended that the sickly old man was not sick but pretending so that he testies. This Court analyzed the condition of the old sickly witness and the medical evidence and granted the orders. It set a hearing date two weeks away. Sadly, before the two weeks would lapse, the party who insisted that the other does not give evidence de bene esse died, leaving the ‘pretender’. The Plainti wants to act like some police who are often trigger-happy but when their time to leave this world and be ready for judgment day comes they wail like children in travail but it is too little too late. She wants to keep an old man of 92 years in the dock and shoot questions to his in his ‘helpless’ mental state and be happy to have won the suit, if she proves it to the required standard. This Court being one of justice shall balance the interest of all, including ensuring that if the Defendant is unable to protect his interests, one who is able to do so is brought in: no party to take advantage of the other. In life, tables can turn. Parties and all and sundry are reminded not to be in haste to be happy about one’s misfortune. 16. That said, the upshot is that the Application dated, 09/08/2024 is allowed, with costs to the Applicant. The Defendant is given 10 days to amend the Defence to reect the orders granted herein and serve. The suit shall be mentioned on 09/12/2024 to conrm compliance. 17. Orders accordingly. RULING DATED, SIGNED AND DELIVERED AT KITALE VIA THE TEAMS PLATFORM THIS 28TH DAY OF NOVEMBER, 2024. HON. DR.IUR F. NYAGAKA, JUDGE, ELC KITALE In the presence of: Brian Kipruto Advocate for the Plainti Momanyi Advocate for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/13605/eng@2024-11-28 4

page 4 of 4