[2015] KEELC 308 (KLR)
The court found that the applicant, Lucy Wambui Gituku, had established sufficient grounds to be appointed as the next friend of the plaintiff, Benard Nyamu Mburia, who suffers from chronic mental illness. The death of the previous next friend did not cause the suit to abate, as the plaintiff is still alive....
Source-derived case information.
- Citation
- [2015] KEELC 308 (KLR)
- Parties
- Plaintiff: Benard Nyamu Mburia Alias Kiara Mburia; Applicant: Humphrey Gituku Mburia; Defendant: Samuel Kagoiyo Njeru; Applicant: Lucy Wambui Gituku
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 52 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Substitution of Next Friend
- Outcome
- Application granted; applicant appointed as next friend; costs in the cause.
- Judges
- BN Olao
- Legal Topics
- Substitution of Next Friend, Mental Capacity, Abatement of Suit, Injunctive Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Nyamu Mburia Alias Kiara Mburia
Plaintiff
Humphrey Gituku Mburia
Applicant
Samuel Kagoiyo Njeru
Defendant
Lucy Wambui Gituku
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Substitution of Next Friend
Legal Issues
- 1 Whether the applicant should be appointed and substituted as the next friend of the plaintiff who suffers from chronic mental illness.
- 2 Whether the delay in filing the application for substitution is fatal to the application.
- 3 Whether the suit abates due to the death of the previous next friend.
Ratio Decidendi
The court found that the applicant, Lucy Wambui Gituku, had established sufficient grounds to be appointed as the next friend of the plaintiff, Benard Nyamu Mburia, who suffers from chronic mental illness. The death of the previous next friend did not cause the suit to abate, as the plaintiff is still alive. Although there was a five-year delay in bringing the application, there is no prescribed time limit under Order 32 of the Civil Procedure Rules for such substitution, and no prejudice was shown to the defendant. The court also noted the existence of injunctive orders protecting the subject property. Accordingly, the application was granted as prayed, with costs in the cause.
Court Disposition
Application granted; applicant appointed as next friend; costs in the cause.
Orders
- Lucy Wambui Gituku is appointed and substituted as the next friend of Benard Nyamu Mburia Alias Kiara Mburia.
- Costs of the application shall be in the cause.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KERUGOYA
ELC CASE NO. 52 OF 2014
BENARD NYAMU MBURIA Alias KIARA MBURIA (Suing through the next of friend)
HUMPHREY GITUKU MBURIA ……………………………………………… PLAINTIFF
VERSUS
SAMUEL KAGOIYO NJERU ………..…………………..………..………….. DEFENDANT
LUCY WAMBUI GITUKU …………............ APPLICANT/INTENDED NEXT OF FRIEND
RULING
The applicant herein LUCY WAMBUI GITUKU has filed this application dated 16th October 2014 seeking to be appointed and substituted as a next of friend of BERNARD NYAMU MBURU Alias KIARA MBURIA. The application is supported by her affidavit in which she depones, inter alia, that the original plaintiff in this suit had filed the same through a next friend HUMPHREY GITUKU MBURIA who passed away on 3rd August 2009 and she would therefore wish to be appointed as the next of friend to have this suit finalized. Attached to her application is the death certificate of the late HUMPHREY GITUKU MBURIA confirming that indeed he died on 3rd August 2009. There is also a written consent dated 16th October 2014 signed by the applicant authorizing counsel for the applicant to use her names as next of friend.
The application is un-opposed.
I have considered the application un-opposed as it is.
Order 32 of the Civil Procedure Rules allows a person who is a next of friend of a minor or a person adjudged to be of un-sound mind to file a suit on behalf of such a person.
The application is un-opposed but from the pleadings herein, I can see that Dr. A.S.M Gatangi of Nyeri Provincial General Hospital did confirm vide a letter dated 31st May 2005 that indeed the plaintiff suffers from chronic mental illness. And although the previous next friend HUMPHREY GITUKU MBURIA died on 3rd August 2009, the original plaintiff BERNARD NYAMU MBURIA is himself still alive and therefore this suit is not caught up by the provision of Order 24 Civil Procedure Rules which deal with abatement of suits. The applicant has taken some five (5) years following the death of the said HUMPHREY GITUKU MBURIA to file this application and offered no application for that delay. However, there is no time limit provided under Order 32 of the Civil Procedure Rules within which to bring such an application. Besides, there is nothing to show that any prejudice will be caused to the defendant and there are infact injunctive orders issued by the late Khaminwa J. on 5th December 2006 injuncting the defendant from dealing with the properties subject of this suit until the same is heard and determined.
In the circumstances, I find merit in the application dated 16th October 2014 and I grant the orders sought therein with costs in the cause.
B.N. OLAO
JUDGE
16TH JULY, 2015
16/7/2015
Before
B.N. Olao – Judge
Gichia – CC
Mr. Magee for Wanjiru for Plaintiff – present
Mr. Kamuga for Defendant – absent
COURT: Ruling delivered this 16th day of July, 2015 in open Court.
Mr. Magee for Wanjiru for Plaintiff present
No appearance for Defendant.
B.N. OLAO
JUDGE
16TH JULY, 2015