Maria Bendera Kalama v Mwanahamisi Ali [2021] KEHC 2523 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

COMMERCIAL AND ADMIRALTY DIVISION

MISC CIVIL APPLICATION NO. 430 OF 2019(OS)

IN THE MATTER OF

SULEMANI KAHINDI NGOMBO (INJURED PERSON)

AND

IN THE MATTER OF

THE CIVIL PROCEDURE ACT AND THE CIVIL PROCEDURE RULES, 2010

BETWEEN

MARIA BENDERA KALAMA...........................APPLICANT

AND

MWANAHAMISI ALI......................................RESPONDENT

RULING

[1]The Originating Summons dated1 November 2019was filed on behalf of the applicant herein on 11 November 2019by the firm ofAmeli Inyangu & Partnerspursuant to Articles 48 and 159of theConstitution of Kenya, 2010, Sections 1A, 1B and 3Aof theCivil Procedure Act, Chapter 21of theLaws of Kenya; Order 32 Rule 15andOrder 50 Rule 1of theCivil Procedure Rules.It seeks the determination of the following questions:

[a]WhetherSulemani Kahindi Ngombois incapable of protecting his interests with regard to his affairs by reason of his paraplegic state;

[b]Whether the applicant herein,Maria Bendera Kalama,should be appointed as the next friend or guardian ad litem of Sulemani Kahindi Ngombo,the injured person herein, in order to pursue compensation arising out of a road traffic accident which occurred on 1 February 2019; and,

[c]  Who should bear the costs of the application?

[2]  The application was premised on the grounds that Sulemani Kahindi Ngombo was involved in a road traffic accident on 1 February 2019 in which he suffered life-threatening injuries. He was treated at Coast General Hospital and elsewhere; and, although he recovered from the injuries suffered in the accident, he was left with permanent disability; which includes loss of memory, cognitive function and speech. It is the averment of the applicant that Sulemani Kahindi Ngombo, who is her husband, is therefore unable to manage his affairs; hence the need to have her appointed as his guardian ad litem.

[3]  In the Supporting Affidavit annexed to the application, the applicant averred that she is mentally fit and agreeable to being appointed as her husband’s guardian ad litem. She annexed a copy of the Medical Report prepared by Dr. Darius Kiema as well as the treatment notes from Coast General Hospital, among other documents, to support and verify her assertions.

[4]  The application proceeded ex parte, granted the nature of the orders sought; and having perused and considered the averments set out in the Supporting Affidavit as well as the documents annexed thereto, it is manifest that, indeed Sulemani Kahindi Ngombo was involved in a road traffic accident on 1 February 2019 in which he sustained severe head injuries. The Police Abstract and the documents issued by Coast General Hospital and Jocham Hospital confirm these injuries for which he was admitted in ICU and surgical wards between 2 February 2019 to 12 April 2019.

[5]  Dr. Kiema’s report shows that, as at 25 September 2019, when he examined Sulemani, he could not walk unaided and was not able to talk or control his bowel movements or bladder. He accordingly formed the opinion that he had sustained the following permanent disabilities:

[a]  Loss of memory and cognitive/speech functions;

[b]  Loss of bowel and bladder control;

[c]  Gait disturbances and inability to walk unaided;

[d]  Inability to work, undertake activities of daily living;

[e]   Risk of developing post-traumatic fits/convulsions.

[6]On the basis of the evidence placed before me, it is my finding that: [a] Sulemani Kahindi Ngomo is incapable of protecting his interests with regard to his affairs, given the nature of the injuries he suffered and the residual impact thereof.

[b]  The applicant herein, Maria Bendera Kalama, who is the wife of Sulemani, is a suitable person for appointment as his guardian ad litem, in the circumstances; and that she meets the criteria set out in Order 32 Rule 4 as read with Rule 15 of the Civil Procedure Rules.

[7]  Accordingly, in respect of the Originating Summons dated 1 November 2021, it is ordered that the applicant, Maria Bendera Kalama be and is hereby appointed as the guardian ad litem for Sulemani Kahindi Ngombo for the purpose of filing a suit as proposed. It is further ordered that the costs of this application be costs in the intended suit.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY THIS 4THDAY OF NOVEMBER, 2021.

OLGA SEWE

JUDGE