[2014] KEHC 7286 (KLR)
The court held that the provisions of Order 32 rule 2(1) of the Civil Procedure Rules are mandatory and require that suits involving minors be brought as representative actions by adults. Since the suit in the children's court was not brought in compliance with this requirement, it was incompetent. The paramountcy...
Source-derived case information.
- Citation
- [2014] KEHC 7286 (KLR)
- Parties
- Appellant: D M; Respondent: G G
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 77 of 2011
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DN Musyoka
- Legal Topics
- Children Suits, Representative Actions, Capacity to Sue
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
D M
Appellant
G G
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the suit in the children's court was incompetent for failure to comply with Order 32 rule 2(1) of the Civil Procedure Rules regarding representative suits for minors.
- 2 Whether non-compliance with mandatory procedural requirements can be cured by the paramountcy of the child's welfare.
Ratio Decidendi
The court held that the provisions of Order 32 rule 2(1) of the Civil Procedure Rules are mandatory and require that suits involving minors be brought as representative actions by adults. Since the suit in the children's court was not brought in compliance with this requirement, it was incompetent. The paramountcy of the child's welfare cannot cure the fundamental defect of lack of capacity to sue. Accordingly, the appeal lacked merit and was dismissed.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- Costs shall go to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 77 OF 2011
D M……………………………APPLICANT
VERSUS
G G …………………….......RESPODNENT
JUDGEMENT
1. The appeal herein arises from the decision of Ms. Ocharo Principal Magistrate, made on 25th November 2011 in Nairobi Children’s Court Children’s Case No. 747 of 2011.
2. The said decision dismissed the entire suit, that is to say Nairobi Children’s Court Children’s Case No. 747 of 2011 on the grounds that it was not brought as a representative sent on behalf of the minor the subject of the proceedings. It was found that Order 32 rule 2(1) of the Civil Procedure Rules was not complied with. This rule is minored in Legal Notice No. 77.
3. I have carefully gone through the said provisions and I agree with the primary court, the provisions are mandatory. The suit in the children’s court is about the children. It is a representative suit. The children have no capacity to sue. They sue through adults. It is fundamental that that fact comes out very clearly in the pleadings. Where the pleading do not bring out that fact then the suit would be incompetent, and the paramountary rule cannot cure the incompetence.
4. There is no merit in the appeal before me. I hereby dismiss it. Costs shall go to the respondent.
DATED, SIGNED and DELIVERED at NAIROBI this 31st DAY OF January, 2014.
W. M. MUSYOKA
JUDGE