[2016] KEHC 13 (KLR)
The court found that the medical report provided uncontroverted expert evidence that N M suffers from senile dementia and is incapable of managing his personal, financial, or legal affairs. The respondent failed to provide any contrary expert evidence. Although Order 32 of the Civil Procedure Rules is not expressly...
Source-derived case information.
- Citation
- [2016] KEHC 13 (KLR)
- Parties
- Applicant: N M; Respondent: Margarit Wanjiru Wanjohi; Applicant: Fredrick Nyaga M'Thura
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Succession Cause 362 of 2010
- Procedural Posture
- Succession Cause / Ruling on Application for Appointment of Guardian Ad Litem
- Outcome
- application allowed
- Legal Topics
- Guardianship of Incapacitated Persons, Revocation of Grant, Probate and Administration, Medical Incapacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
N M
Applicant
Margarit Wanjiru Wanjohi
Respondent
Fredrick Nyaga M'Thura
Applicant
Procedural Posture
Succession Cause / Ruling on Application for Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether the applicant N M is incapable of managing his personal, financial, or legal affairs due to mental infirmity.
- 2 Whether Fredrick Nyaga M'Thura should be appointed as guardian ad litem for N M in the succession proceedings.
Ratio Decidendi
The court found that the medical report provided uncontroverted expert evidence that N M suffers from senile dementia and is incapable of managing his personal, financial, or legal affairs. The respondent failed to provide any contrary expert evidence. Although Order 32 of the Civil Procedure Rules is not expressly imported into succession proceedings by Rule 63 of the Probate and Administration Rules, the court retains inherent jurisdiction under Section 73 to make orders necessary for the ends of justice. The court exercised this power to appoint Fredrick Nyaga M'Thura as guardian ad litem for N M, finding the application merited and necessary to protect the interests of the...
Court Disposition
application allowed
Orders
- Fredrick Nyaga M'Thura is appointed guardian ad litem for N M in the succession proceedings.
- No order as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
SUCCESSION CAUSE NO. 362 OF 2010
In the matter of the Estate of HEZEKIAH WANJOHI WANGO (Deceased)
N M........................................................................................................................APPLICANT
VERSUS
MARGARIT WANJIRU WANJOHI...................................PETITIONER/RESPONDENT
FREDRICK NYAGA M'THURA....APPLICANT/PROPOSEDGUARDIAN AD LITEM
R U L I N G
1. This is the application dated 19/10/2015 seeking that the applicant be appointed guardian ad litem of N M the applicant in the summons for revocation dated 26/11/2013. The application is supported by the affidavit of Fredrick Nyaga M'Thura stating that the said Muchiri has become physically and mentally infirm due to his advanced age and is no longer able to protect his interest in the suit. The applicant is also sickly. The deponent states that he is the person fit to be appointed as he is his nephew and has his best interest and is conversation with matters pertaining the suit.
2. In the replying affidavit the respondent states that the medical report indicates that the applicant is capable of handling the proceedings even if he is slow in thinking. There are matters in this case to which only the applicant has personal knowledge thereof and therefore and it is best that he testifies. It is therefore right that he should be allowed to testify so that the court can gauge his mental status.
3. The application was argued by way of written submissions.
4. The applicant submitted that he relies on the grounds in the affidavit and added that the application that the guardian ad litem is supposed to proceed with is the one for revocation of grant which was filed by the applicant on 27/11/2013. The petitioner in her submissions restated the contents of the replying affidavit.
5. In the further submissions by the guardian ad litem, it was stated that the applicant is not in a position to manage his personal and legal affairs.
6. The law applicable herein is Order 32 of the Civil Procedure Rules under which the application is based among other provisions in the Law of Succession Act.
7. Rule 63 of the Probate and Administration Rules provides that;
(1) Save as is in the Act or in these Rules otherwise provided, and subject to any order of the court or a registrar in any particular case for reasons to be recorded, the following provisions of the Civil Procedure Rules, namely Orders V, X, XI, XV, XVIII, XXV, XLIV and XLIX (Cap. 21, Sub. Leg.), together with the High Court (Practice and Procedure) Rules, shall apply so far as relevant to proceedings under these Rules.
(2) Subject to the provisions of the Act and of these Rules and of any amendments thereto the practice and procedure in all matters arising thereunder in relation to intestate and testamentary succession and the administration of estates of deceased persons shall be those existing and in force immediately prior to the coming into operation of these Rules.
8. The application is brought under Order 32 Rules 3 and 15 of the Civil Procedure Rules which is not one of the provisions exported by section 63 of the Probate and Rules.
9. However the court under section 49 of the probate and administration rules provides that;
A person desiring to make an application to the court relating to the estate of a deceased person for which no provision is made elsewhere in these Rules shall file a summons supported if necessary by affidavit.
10. Section 73 of the Probate and Administration Rules provides that;
Nothing in these Rules shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.
11. The medical report dated 8/10/2015 is an expert opinion confirming that the applicant suffers from senile dementia and is incapable of managing his personal, financial or legal affairs.
12. The opinion of an expert can only be rebutted by a report of another expert. The respondent failed to present a report to the contrary. He has failed to satisfy the court that the applicant should not be granted the orders sought.
13. I find the application merited and allow it as prayed with no order as to costs.
DELIVERED, DATED AND SIGNED AT EMBU THIS 1ST DAY OF NOVEMBER, 2016.
F. MUCHEMI
J U D G E
In the presence of:-
Mr. Kathungu for Applicants
Mr. Okwaro for Respondents