[2013] KEHC 3372 (KLR)
The court held that the application for appointment of a manager of the estate of a person alleged to be of unsound mind must be commenced by petition as required by the Mental Health Act and established case law. The applicant's use of a Notice of Motion, rather than a petition, rendered the proceedings incompetent...
Source-derived case information.
- Citation
- [2013] KEHC 3372 (KLR)
- Parties
- Applicant: Judy Wanjiru Wamae; Respondent: Eliud Maina Wanjohi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 18 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Competence of Application
- Outcome
- Application struck out as a nullity for being incompetently commenced by motion instead of petition.
- Judges
- DN Musyoka
- Legal Topics
- Mental Health Act Procedure, Originating Process, Appointment of Manager, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Judy Wanjiru Wamae
Applicant
Eliud Maina Wanjohi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Competence of Application
Legal Issues
- 1 Whether proceedings for appointment of a manager under the Mental Health Act can be initiated by Notice of Motion instead of petition.
- 2 Whether the current application is competent given the mode of commencement.
Ratio Decidendi
The court held that the application for appointment of a manager of the estate of a person alleged to be of unsound mind must be commenced by petition as required by the Mental Health Act and established case law. The applicant's use of a Notice of Motion, rather than a petition, rendered the proceedings incompetent and a nullity. The court relied on the precedent set in Re NS (1972) EA 292, which established that such matters must be initiated by petition, and on the general principle that interlocutory motions cannot originate substantive proceedings. As a result, the court struck out the application for being procedurally defective.
Court Disposition
Application struck out as a nullity for being incompetently commenced by motion instead of petition.
Orders
- The proceedings are struck out as a nullity.
- There shall be no order as to costs as the application is ex parte.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Miscellaneous 18 of 2013 [if gte mso 9]><xml>
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IN THE MATTER OF ELIUD MAINA WANJOHI – (DECEASED)
JUDY WANJIRU WAMAE ---------------------------------PETITIONER
RULING
Judy Wanjiru Wamae has approached the court by way of Notice of Motion, brought under the provisions of the Mental Health Act and Sections 1Aand3Aof the Civil Procedure Act and Order 32 rule 15 of the Civil Procedure Rules.
The applicant is the daughter- in -law of the subject of the applicant, Eliud Maina Wanjohi. Her husband is dead, and she is the only person living with the subject. She seeks to be appointed manager of the estate of Eliud Maina Wanjohi, whose mental stability has suffered depression.
The application is by way of a Notice of Motion, yet the applicant is described in the application as a petitioner. There is no petition on record. I doubt whether these proceedings are competent. Motions are interlocutory. They are brought within a suit. They do not originate actions. Actions are originated either by plaint, petition, originating summons or originating motion. It would appear that the Motion dated 19th March 2013 has no foundation.
It was held way back in 1972 by Harris J in Re NS (1972) EA 292, that an inquiry into whether a person is suffering from mental disorder can only be initiated by petition. The proceedings in that matter were initiated by means of an originating summons, when they should have been commenced by petition and it was held that the proceedings were a nullity.
Applications under Section 26of the Mental Health Act are for appointment of a person to manage the estate of a mental patient. Administrators of estates of deceased persons are appointed by the court in proceedings commenced by way of a petition. Similarly, appointment of persons to administer estates for persons who are alive but of unstable mind should be in actions brought by way of a petition.
I need not say more. The applicant in this matter ought to have initiated the present proceedings by petition, not by Motion. It follows that the proceedings are a nullity. I will strike them out. There shall be no order as to costs as the application is exparte.
DATED, SIGNED and DELIVERED at NAIROBI this 16th DAY OF May, 2013.
W. Musyoka
Judge
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