[2019] KEHC 12079 (KLR)
The court found that the application by the intended interested party for joinder was premature, as the main issue before the court was the determination of whether the subject was of unsound mind and the appointment of guardians ad litem. Joinder at this stage would not add value and could be addressed after the...
Source-derived case information.
- Citation
- [2019] KEHC 12079 (KLR)
- Parties
- Applicant: SR; Applicant: LN; Applicant: IW; Applicant: BN; Applicant: JG; Applicant: LW; Respondent: HNK; Respondent: JGK; Interested Party: AID
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 108 of 2017
- Procedural Posture
- Miscellaneous Application / Ruling on Joinder and Representation Applications Prior to Determination of Originating Summons
- Outcome
- 1st application declined; 2nd application allowed; each party to bear own costs.
- Judges
- A Ali-Aroni
- Legal Topics
- Guardianship of Person of Unsound Mind, Appointment of Guardian Ad Litem, Joinder of Parties, Conflict of Interest in Legal Representation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
SR
Applicant
LN
Applicant
IW
Applicant
BN
Applicant
JG
Applicant
LW
Applicant
HNK
Respondent
JGK
Respondent
AID
Interested Party
Procedural Posture
Miscellaneous Application / Ruling on Joinder and Representation Applications Prior to Determination of Originating Summons
Legal Issues
- 1 Whether the intended interested party should be enjoined prior to determination of the originating summons.
- 2 Whether the respondents should be enjoined as parties and allowed legal representation despite alleged conflict of interest.
Ratio Decidendi
The court found that the application by the intended interested party for joinder was premature, as the main issue before the court was the determination of whether the subject was of unsound mind and the appointment of guardians ad litem. Joinder at this stage would not add value and could be addressed after the substantive determination. Regarding the respondents' application for joinder and legal representation, the court held that there was no substantiated conflict of interest preventing Kinuthia Wandaka & Co. Advocates from acting for the respondents, as the current proceedings did not concern the validity of transactions or require accounting for funds. The respondents, being sons...
Court Disposition
1st application declined; 2nd application allowed; each party to bear own costs.
Orders
- The application dated 24th October 2017 by the intended interested party for joinder is declined.
- The application dated 10th December 2017 for joinder of respondents and leave for Kinuthia Wandaka & Co. Advocates to act is allowed in its entirety.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
MISC. CIVIL APPLICATION NO. 108 OF 2017
ORIGINATING SUMMONS ON AN APPLICATION FOR APPOINTMENT OF GUARDIAN AD LITEM FOR SKR
SR
LN
IW
BN
JG
LW..................................EX PARTE/APPLICANTS
VERSUS
HNK...............INTERESTED 1ST RESPONDENT
JGK...............INTERESTED 2ND RESPONDENT
AND
AID................INTENDED INTERESTED PARTY
R U L I N G
1. Six applicants, SRK, LNK, IWK, BNK, JGKandLW (“Applicants”) filed an Originating Summons on 14th of August, 2017 wherein they sought to have the court examine, make inquiry and establish whether SKR, their father, (“The Subject”) is of unsound mind, therefore incapable of protecting his interest and once such a declaration has been made, the court do appoint the 6 Applicants jointly to be the subjects guardians ad litem and to allow the appointed guardians to manage the affairs of the subject.
2. The said Originating Summons attracted two applications which are now the subject of this ruling. The applications were argued together mainly due to the lapse of time since the matters were brought to court and in the interest of justice.
3. The 1st application is dated 24th October, 2017 filed by AID (“The Interested Party”) seeking to be enjoined as an interested Party on ground that he had entered into a lease agreement with the Subject in respect of Dagoretti/Waithaka/xxx and upon which the Interested Party had expended large amounts of money and the proposed appointment of guardians ad litem would affect his interest directly.
4. The 2nd application is dated 10th December 2017, the same seeks for two prayers. Firstly that 1st and 2nd Intended Respondents; HNKandJGK(“Respondents”) be enjoined to the suit and secondly, that the firm of Kinuthia Wandaka & Co. Advocates be granted leave to represent them.
5. If the court finds merit in the Originating Summons it will appointment persons who will from the date of such order take charge of all the interests of the subject including running his estate, and taking care of his health by virtue of Sections 26 and 27 of The Mental Health Act Chapter 248 of the laws of Kenya.
6. It is therefore my view that the application dated 24th of October 2017 is misplaced and premature. The same ought to await the outcome of the pending Originating Summons so that the Intended Interested Party may either pursue the Subject if the application fails or the guardian(s) if one or more person are appointed should he have any issue touching on the properties of the subject. Being enjoined will not add any value to the matter.
7. The 2nd application dated 10th December 2017 is not objected to the extent of the Respondents being enjoined as parties to the suit.
8. The objection relates to the Respondents being represented by Kinuthia Wandaka & Co. Advocates for the sole reason that counsel Mr. Wandaka had received Kshs.1,151,000/- from another law firm pursuant to a lease entered into between the Subject and the Intended Interested Party and counsel is yet to account which places the said advocate is a position of conflict.
9. For now this court is not dealing with validity or otherwise of any transaction between the parties, and/or with the Subject.
The only issue before this court is whether or not to appoint guardian(s) to take care of and run and manage the affairs of the Subject. I therefore find no conflict of interest whatsoever if Kinuthia Wandaka & Co. Advocates act for the Respondents whose main interest is to be enjoined as they too have an interest in the matter being sons of the subject.
10. The outcome of the two applications is that the 1st application, dated 24th October 2017 is declined.
The second application dated 10th December 2017 is allowed in its entirety.
11. Each party to bear their own costs.
DATED, SIGNEDandDELIVEREDat NAIROBI this 28TH DAY OF NOVEMBER, 2019.
.........................
ALI-ARONI
JUDGE