[2017] KEHC 1838 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CIVIL APPEAL NO 224 OF 2013

FKN, Minor(Suing through his mother and Next Friend

FNK)........................................................................APPELLANT

VERSUS

SIMON NG’ANG’A NJOROGE.........................RESPONDENT

(Appeal from Decree in Kigumo SPM Civil Case No 108 of 2011 – S Mbungi, Ag CM)

J U D G M E N T

1. The Appellant herein was the plaintiff in the lower court. The Respondent was the defendant.

2. The Appellant was a minor. He sued through his mother as Next Friend for damages on account of injuries sustained in a road accident involving a motor vehicle in which he and his mother were passengers.

3. Despite finding that the Respondent was entirely to blame for the accident, and finding that the Appellant suffered serious injuries, the lower court nevertheless dismissed the case upon the technicality that the Appellant’s next friend never signed a written authority to the advocate who filed the suit on behalf of the Appellant, before the name of the next friend was used in the action, and no such authority was filed. The lower court relied on the decision of my learned sister judge (Sitati, J) in the case of Stephen Gachethure Ranjau (Suing as Next of Kin to Irene Wanjira Stephen) -vs- Robert Muchai [2005] eKLR where the judge held –

“… the provisions of Order 31(now Order 32), Rule 1 (2) is couched in mandatory language, so that where there is no signed and filed authority by the next friend the suit is liable to be dismissed.”

4. Indeed as the learned judge held, the suit is liable to be dismissed, not that it must always be dismissed. The rule reads as follows –

“(2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, such person shall sign a written authority to the advocate for that purpose, and the authority shall be filed.”

5. So, who is this rule meant to protect? Rule 2 of the same Order provides the answer. It reads –

“2. (1) Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the suit dismissed with costs to be paid by whom it was presented.

(2) Notice of such application shall be given to such person, and the court, after hearing his objections (if any) may make such order in the matter as it thinks fit.”

The court, even in the event of such application, will have the discretion to save the suit if it is so minded, say by directing that such written authority be filed.

6. Rule 1(2) of Order 32, it is manifest, is meant to ensure that there is a person with capacity to shoulder the burden of costs of the defendant should that become necessary as the minor litigant could not be compelled to bear that burden. In other words, other than the advocate, there must be some other person with the necessary capacity, to take responsibility for the suit on behalf of the minor litigant.

7. The rule is also meant to protect the advocate acting for the minor against a claim for costs from the defendant.

8. In the present case, there was never any formal application by the defendant for dismissal of the case for want of a written authority by the next friend. The issue appears to have been raised only in the final submissions after the suit had been heard. Further, what prejudice did the Respondent suffer? The next friend (who was the Appellant’s mother) could still have executed and filed her written authority at that late stage without prejudice to the Respondent.

9. It must always be remembered, as it has often been stated, that rules of procedure are hand-maidens of Lady Justice, not her mistress! Rules of procedure, even when couched in mandatory terms, can never absolutely oust the inherent power of the court to make such order as may be necessary for the ends of justice to be met. Section 3A of the Civil Procedure Act, Cap 21 (the Act) saves that power of the court!

10. The overriding objective of the Act and the Rules made thereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act. See section 1A of the Act. Justice cannot be achieved by too much reliance upon technicalities.

11. Our own Constitution of Kenya, 2010 at Article 159(2) (d) frowns upon undue regard to procedural technicalities. The requirement for a next friend of an infant to sign a written authority and the same be filed where a suit is instituted by an advocate is no doubt a technicality that can be rectified at any time without prejudice to a defendant. It appears that the decision of Sitati, J was rendered before promulgation of the new Constitution.

12. Having considered the written submissions filed on behalf of the parties, I find merit in this appeal. There was no cause at all for the lower court to take the drastic action it did of dismissing the Appellant’s suit upon a technicality.

13. In the event I will allow the appeal and set aside the order of the lower court dismissing the Appellant’s suit with costs. In its place I will substitute an order entering judgment for the plaintiff against the defendant in the sum of KShs 350,000/00 (general damages), special damages of KShs 1,200/00 and costs of the suit. The general damages shall carry interest at court rates from the date of judgment of the lower court. The special damages shall carry similar interest but from the date of filing suit. The Appellant shall have costs of this appeal.

14. Those shall be the orders of this court.

DATED, SIGNED AT MURANG’A THIS 30TH DAY OF NOVEMBER 2017

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 1ST DAY OF DECEMBER 2017