[2017] KEHC 2334 (KLR)
The court found that, in the absence of a judicial inquiry and with no evidence produced by the respondent to the contrary, it must presume G M M has capacity unless established otherwise. However, given the potential for mischief and the need to protect property rights, the court exercised its discretion under...
Source-derived case information.
- Citation
- [2017] KEHC 2334 (KLR)
- Parties
- Applicant: B G M; Applicant: G M M; Respondent: F M M
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 83 of 2003
- Procedural Posture
- Succession Cause / Ruling on Application for Appointment to Act on Behalf of Protestor
- Outcome
- Application allowed in part; applicant appointed to act on behalf of G M M for purposes of prosecuting the protest only.
- Judges
- F Gikonyo
- Legal Topics
- Appointment of Guardian, Mental Incapacity, Representation of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
B G M
Applicant
G M M
Applicant
F M M
Respondent
Procedural Posture
Succession Cause / Ruling on Application for Appointment to Act on Behalf of Protestor
Legal Issues
- 1 Whether the applicant should be appointed to act on behalf of G M M, alleged to be suffering from mental infirmity.
- 2 Whether the court should presume G M M has capacity in the absence of a judicial inquiry.
Ratio Decidendi
The court found that, in the absence of a judicial inquiry and with no evidence produced by the respondent to the contrary, it must presume G M M has capacity unless established otherwise. However, given the potential for mischief and the need to protect property rights, the court exercised its discretion under constitutional provisions to appoint the applicant to act on behalf of G M M for the limited purpose of prosecuting the protest. The appointment is provisional and subject to further orders as may be appropriate, pending any future inquiry into G M M's mental capacity.
Court Disposition
Application allowed in part; applicant appointed to act on behalf of G M M for purposes of prosecuting the protest only.
Orders
- The applicant is appointed to act on behalf of the protestor G M M for purposes of prosecuting the protest only.
- Additional orders may be made as and when appropriate.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
SUCCESSION CAUSE NO. 83 OF 2003
In the Matter of the Estate of MK Alias M’M K – (Deceased)
B G M (applying for and on behalf of)
G M M………………………............. APPLICANT
-Versus-
F M M………………….………..… PETITIONER
RULING
[1] This ruling relates to an application dated 12th August 2016 which has been made by way of chamber summons under Rule 49 and 73 of the Probate and Administration Rules and in which the Applicant seeks the following orders:
1. That this Honourable Court be pleased to appoint the Applicant to act on behalf of the protestor G M a person suffering from mental sickness or infirmity.
2. That the costs of this application be provided for.
[2] This application is based on the grounds that since 2014 G M the protestor herein has been suffering from some mental infirmity or sickness and he is unable to protect his interest in regard to the pending application and protest. The Applicant was appointed as the guardian in lunacy for G M and she is best placed to protect his interest as she is his wife.
DETERMINATION
[3] On 2nd May 2017 this court delivered a ruling on this application and remarked that:
“As a matter of law, where one party alleges that a party in the suit is of unsound mind, and the other party denies it, the court must hold a judicial inquiry to establish or otherwise deny the state of mind of the party alleged to be of unsound mind. See the case of DUVVURI RAMI RADDI vs. DUVVUDU PAPI REDDI AND OTHERS. For those reasons, I will carry out own inquiry to determine whether the Protestor is of unsound or weak mind or suffers from mental infirmity as to be incapable of protecting his interest. As part of the inquiry, I hereby call upon the record of court in MERU CMC MISC APPL NO 10 OF 2016 to be produced before this court.”
[4] The Respondent did not produce or cause attendance of the said G as had been ordered by the court. This court has also not conducted an inquiry on the ability of G to take care of his affairs. For now, I presume that G has capacity unless it is established otherwise.But I am aware a lot is at stake here and there is a possibility of mischief by the Respondents. I will therefore, make appropriate orders based on the provisions of the Constitution which have enlarged capacity of persons to represent others in a suit for protection of rights- in this case property rights are involved. And accordingly, appoint the Applicant to act on behalf of the protestor G M for purposes of prosecuting the protest only. Additional orders shall be made as and when appropriate. It is so ordered.
Dated, signed and delivered in open court at Meru this 2rd day of November 2017
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F. GIKONYO
JUDGE
In the presence of:
Kitheka advocate for Mrs. Ntarangwi for Objector
M/s. Thibaru advocate for Rimita for Petitioner
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F. GIKONYO
JUDGE