Josiah Okeyo Odungo v General Manager, Ukulima Co-operative Society Ltd & 3 others [2013] KEHC 6099 (KLR)

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