Ethics & Anti Corruption Commission v Koech & another (Anti-Corruption and Economic Crimes Civil Suit 18 of 2016) [2024] KEHC 1146 (KLR) (Anti-Corruption and Economic Crimes) (8 February 2024) (Ruling)
Neutral citation:
[2024] KEHC 1146 (KLR)
Republic of Kenya
Anti-Corruption and Economic Crimes Civil Suit 18 of 2016
EN Maina, J
February 8, 2024
Between
Ethics & Anti Corruption Commission
Plaintiff
and
Davy Kiprotich Koech
1st Respondent
Dunstan Magu Ngumo
2nd Respondent
Ruling
1.This ruling pertains to the Plaintiff’s application dated 1st November 2023.
2.The application was made pursuant to Order 32 Rule 15 of the Civil Procedure Rules upon Counsel for the 1st Defendant Ms Midenga and Company Advocates writing a letter dated 1st November 2023 to the effect that they were unable to get further instructions from their client as would enable them to draft and file his witness statement due to the client’s infirmity. According to the letter, the 1st Defendant suffered a stroke on 17th August 2023 and when an MRI was done it established there was a big scar on his brain which affected his cognitive abilities leading to his inability to walk. It was intimated that he was constantly on diapers and was receiving home care from the Karen Hospital.
3.The specific prayers sought in the Notice of Motion were: - Firstly for this court to conduct an inquiry to determine whether the 1st Defendant was incapable of protecting his interests in these proceedings, whether by reason of unsoundness of mind or mental infirmity and secondly to make an order that he submit himself to a medical assessment by a doctor in a government hospital and a report be filed in court. This court was to do the above so as to inform itself of the necessity of the appointment of a guardian ad litem or next friend as provided in Order 32 of the Civil Procedure Rules.
4.This court duly allowed the application and granted both prayers. Its decision to hold the inquiry being informed of course by Order 32 Rule 15 of the Civil Procedure Rules as interpreted by the High Court in the case of MMM v AMK [2016] eKLR and the case of Hellen Mbinya Kingola v HNO & Another [2019] eKLR.
5.In the case of MMM v AMK (supra), Mativo J, as he then was, held:-
6.The inquiry by this court was held on 21st November 2023 whereupon the court made an order for an examination of the 1st Defendant by a doctor. However, on 24th January 2024 the court was regrettably informed by Counsel for the Plaintiff that the 1st Defendant had refused and/or neglected to submit himself to a medical examination as ordered despite an appointment having been secured for him.
7.The inquiry held by this court on 21st November 2023 was conducted virtually by way of question and answer. The language elected by the1st Defendant was English and the inquiry went as follows: -
8.The background of this case is that the Plaintiff sued the Defendants to recover public funds which they are alleged to have misappropriated and or embezzled while in the leadership of the Kenya Medical Research Institute (KEMRI). The 1st Defendant was the Director of the institute and the 2nd Defendant a board member. The Plaintiff’s prayers in the Plaint dated 2nd June 2010 are: -
9.From the record when Counsel for the parties appeared before Ombija J, on 18th January 2016 they recorded a partial consent for judgment, in favour of the plaintiff, for a sum of Kshs. 200 million with the balance of KShs.309,002,643 ordered to be subject of further negotiation or trial. It was also agreed that the 1st Defendant was to within 30 days of the consent pay the Plaintiff an initial sum of Kshs. 15 million in settlement of the said partial judgment in the sum of Kshs. 200 million and the balance within 120 days from the date of execution of the consent. Prohibition orders were confirmed against certain of the 1st Defendant’s properties pending hearing and determination of this suit while some were lifted.
10.The above position prevailed when I took over the conduct of the case and as the pretrial proceedings had been conducted I scheduled the case for hearing and we were done hearing the Plaintiff’s and 2nd Defendant’s case and it was the turn of the 2nd Defendant when his Counsel wrote the letter to the Plaintiff. It is instructive that on 20th June 2022 this court granted parties 30 days to comply with the Civil Procedure Rules but by 8th February 2022 the 1st Defendant had not fully complied this despite that he was required to file his defence, witness statements and documents within 14 days upon being served with the Plaint and summons to enter appearance (See Order 7 Rule 1 and 5 of the Civil Procedure Rules). For avoidance of doubt, the 1st Defendant filed a statement of defence dated 28th June 2010 on even date. He did not however file any witness statement or documents.
11.Having given a background of the case let me now turn to the inquiry. As I stated the inquiry was conducted virtually by way of question and answer. The purpose of the inquiry was to assess whether there is need to appoint a next friend or guardian ad litem for the 1st Defendant as the court would for minors and persons of unsound mind under Order 32 of the Civil Procedure Rules – See Order 32 Rule 15 which states: -
12.The questions put to the 1st Defendant were to assess whether he was aware of his surroundings, his past and his present and where he was and why there were proceedings against him in court. The 1st Defendant answered all the questions truthfully and in the positive. Only in one question did he seem not to be sure and that was whether he was fully aware of his surroundings. Only then did he falter but even then he quickly corrected himself and stated that he was at his own home.
13.The 1st Defendant was coherent and clear in his answers. He exhibited a very good memory of the events surrounding his life. He could remember where he worked, when he was appointed and when he was terminated. His body may have failed but his mind seems to me to be very intact. I was satisfied from the answers that the 1st Defendant is fully in charge of his cognitive abilities and is fully capable of giving evidence in this case should it please him to do so.
14.Unlike in criminal cases, there is no provision in the rules governing civil proceedings for termination of a civil suit. A civil suit can only “go away” if it is withdrawn or if it abates. In this case the Plaintiff has not expressed any intention to withdraw the suit. As for abatement of suits, Order 24 Rule 1 of the Civil Procedure Rules provides that a suit would not abate merely by the death of a party if the cause of action survives. Section 2 (1) of the Law Reform Act expressly prescribes the causes of action that do not survive as breach of promise to marry and defamation In other words, this is a cause of action that survives and it would not abate or disappear even had the court found that the 1st Defendant has lost his cognitive ability. It would therefore be in his best interest for him to continue protecting his interest in the suit. Order 24 Rule 1 of the Civil Procedure Rules states: -Section 2(1) of the Law Reform Act states: -
15.It is clear therefore that even had the court found the 1st Defendant to be incapable of protecting his interest this case would not terminate. What the court would be required to do would be to appoint a guardian ad litem to step into his position. It cannot terminate the case.
16.The upshot is that this court finds that the 1st Defendant is sufficiently capable to instruct his Advocate and to proceed with his case. However, in the interest of fairness and justice should he consider himself incapable of protecting his interest in the proceedings it would do well for his advocate to make an application for the appointment of a guardian ad litem and to identify a person for that purpose.
17.In view of the age of the case, the application, if any, shall be made within 14 days failing which the 1st Defendant shall be deemed to have elected to continue in person. The case is accordingly fixed for hearing on 13th March 2024. There shall be no order as to costs.Those are the orders of the court.
SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 8TH DAY OF FEBRUARY 2024.E N MAINAJUDGE