[2021] KEELC 146 (KLR)
The court found that the applicant failed to comply with the mandatory procedural requirements for appointment of a guardian ad litem for a person alleged to suffer from mental incapacity. Specifically, the applicant did not file a petition or originating summons as required, did not obtain consents from relatives,...
Source-derived case information.
- Citation
- [2021] KEELC 146 (KLR)
- Parties
- Applicant: Francis Koome; Respondent: M’Iringo M’Kirichiu; Respondent: Land Adjudication Officer Imenti North; Respondent: The Land Registrar Meru; Respondent: The Hon. Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Miscellaneous Application E039 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Appoint Guardian Ad Litem
- Outcome
- application struck out
- Legal Topics
- Appointment of Guardian Ad Litem, Mental Capacity, Judicial Inquiry, Procedure for Guardianship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Koome
Applicant
M’Iringo M’Kirichiu
Respondent
Land Adjudication Officer Imenti North
Respondent
The Land Registrar Meru
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Appoint Guardian Ad Litem
Legal Issues
- 1 Whether the application meets the procedural requirements for appointment of a guardian ad litem for a person alleged to suffer from mental incapacity.
- 2 Whether a miscellaneous application is the proper procedure for seeking appointment of a guardian ad litem under the Civil Procedure Rules and Mental Health Act.
Ratio Decidendi
The court found that the applicant failed to comply with the mandatory procedural requirements for appointment of a guardian ad litem for a person alleged to suffer from mental incapacity. Specifically, the applicant did not file a petition or originating summons as required, did not obtain consents from relatives, did not specify the subject's properties, and did not present the subject before the court for a judicial inquiry. The court held that a miscellaneous application is not the proper procedure for such relief under the Civil Procedure Rules and the Mental Health Act. Consequently, the application was struck out for procedural impropriety.
Court Disposition
application struck out
Orders
- The notice of motion dated 12.10.2021 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
MISC. APPLICATION NO. E039 OF 2021
FRANCIS KOOME ............................................................................APPLICANT
VERSUS
M’IRINGO M’KIRICHIU .......................................................1ST RESPONDENT
LAND ADJUDICATION OFFICER IMENTI NORTH .......2ND RESPONDENT
THE LAND REGISTRAR MERU ..........................................3RD RESPONDENT
THE HON. ATTORNEY GENERAL .................................... 4TH RESPONDENT
RULING
1. Through an application dated 12. 10. 2021, the court is asked to find M’Nchebere M’Mugwika suffers from mental disease, is unable to protect his interests and hence proceed to appoint one Francis Koome Mburugu a next friend and guardian ad litem.
2. The application is supported by an affidavit sworn on 2. 10. 2021 attaching a medical report by Dr. Timothy K. Riungu.
3. Order 32 Rules 4 & 15 of Civil Procedure Rules as read together with Sections 26 and 27 of the Mental Health Act requires the court to make a judicial inquiry before a person is declared unfit to protect his interests so as to appoint a guardian ad litem.
4. Further Order 32 Rule 15 requires an originating summons be filed. The applicant has not filed either a petition or an originating summons accompanied by consents from the relatives.
5. Similarly the properties of the subject have not been specified. Further the subject has not been presented before the court for a judicial inquiry to be undertaken. Clearly the Miscellaneous application cannot by all intents and purposes amount to a petition or an originating summons.
6. In the premises the notice of motion herein is struck out with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 15TH DAY OF DECEMBER, 2021
In presence of:
Miss Thuo for applicant
Court Assistant – Kananu
HON. C.K. NZILI
ELC JUDGE