[2021] KEELC 2481 (KLR)
The court dismissed the application for appointment of Solomon Kitur as Guardian Ad Litem for three reasons: (1) the supporting affidavit, which addressed factual matters, was improperly sworn by counsel for the plaintiff, contrary to procedural rules; (2) the medical evidence presented was insufficient to prove...
Source-derived case information.
- Citation
- [2021] KEELC 2481 (KLR)
- Parties
- Plaintiff: Isaac Kibiego Kitur; Defendant: Flora Yego; Defendant: Leah Yego; Defendant: Jane Yego
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 9 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Appointment of Guardian Ad Litem
- Outcome
- application dismissed with costs to the defendants
- Legal Topics
- Guardian Ad Litem Appointment, Affidavit Evidence, Medical Incapacity, Procedural Objections
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Isaac Kibiego Kitur
Plaintiff
Flora Yego
Defendant
Leah Yego
Defendant
Jane Yego
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application for Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether Solomon Kitur should be appointed as Guardian Ad Litem for the plaintiff.
- 2 Whether the supporting affidavit sworn by counsel is admissible in factual matters.
- 3 Whether sufficient medical evidence was provided to prove the plaintiff's incapacity.
Ratio Decidendi
The court dismissed the application for appointment of Solomon Kitur as Guardian Ad Litem for three reasons: (1) the supporting affidavit, which addressed factual matters, was improperly sworn by counsel for the plaintiff, contrary to procedural rules; (2) the medical evidence presented was insufficient to prove that the plaintiff was incapable of speaking or hearing; and (3) the defendants and the plaintiff's granddaughter provided sworn evidence that the plaintiff could communicate effectively. The cumulative effect of these factors led the court to find no basis for appointing a Guardian Ad Litem, and the application was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The application dated 25/5/2021 is dismissed with costs to the defendants.
- The suit shall be mentioned on 20/7/2021 for fixing of a hearing date.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
ELC CASE NO. 9 OF 2021
ISAAC KIBIEGO KITUR........................................................................................PLAINTIFF
VERSUS
FLORA YEGO................................................................................................1ST DEFENDANT
LEAH YEGO...................................................................................................2ND DEFENDANT
JANE YEGO.................................................................................................. 3RD DEFENDANT
RULING
The Application
1. The application dated 25/5/2021and filed in court on 26/5/2021,has been bought under Sections 1A, 1B, 3 3A & 63(e)of theCivil Procedure Act, Order 32 Rules 4 and 15,of theCivil Procedure Rules, Article 159(2)(d) of the Constitution of Kenya. The plaintiff seeks the following orders:-
(a)…spent
(b)That this honourable court may be pleased to appoint SOLOMON KITUR as Guardian Ad Litem for the plaintiff herein.
(c)That costs of this application be in the cause.
2. The application is supported by the affidavit sworn on 25/5/2021by the Counsel of the plaintiff. The grounds upon which the application is made are that the plaintiff is very old, sickly and has become partially deaf and it is difficult for him to hear, comprehend what is going on and to speak on his own hence he is incapable of protecting his interests in this suit; that the said Solomon Kitur is the son to the plaintiff and he is the one who has been taking care of the plaintiff and understands the plaintiff well; that the proposed guardian has no interest in the matters in controversy in suit adverse to that of the plaintiff and that he is a fit person to be so appointed; that the said Solomon Kitur has consented to being appointed as Guardian Ad Litem for the plaintiff; that the defendants will not be prejudiced in any way and that it is in the interest of justice that this application be allowed.
The Response
3. The defendants filed a replying affidavit sworn on 3/6/2021 by Jane Yegoon her own behalf and on behalf of co- defendants. She deponed that the application is meant to scuttle the expeditious hearing of the suit herein; that the proposed guardian is misleading the plaintiff and is the source of perennial disputes regarding the suit land; that there is no medical evidence presented to show that the plaintiff can not speak or hear and that on the contrary the plaintiff can hear and speak. A further replying affidavit sworn on 3/6/2021 by Winnie Cheptoo a granddaughter to the plaintiff details how as recently as May 2021 she had a lengthy verbal engagement with the plaintiff whom she states could speak without any difficulty.
Submissions
4. The defendants filed their submissions on 30/6/2021. The plaintiff relied on the application and affidavit.
Determination
5. I have considered the application, the responses and the submissions filed. The issue for determination is whether Solomon Kitur should be appointed as the Guardian Ad Litemfor the plaintiff herein.
6. I must reject the application for three reasons. One is that the supporting affidavit that delves into factual matters in dispute is sworn by counsel to the plaintiff which is impermissible.
7. Secondly, even if this court were to deem the supporting affidavit and the annextures thereto as admissible, a perusal of the purported medical evidence presented in the affidavit falls short of proof that the plaintiff can not speak or hear.
8. Thirdly, the respondents who appear to know the plaintiff well have given sworn evidence that the plaintiff can speak and hear. His granddaughter too has sworn an affidavit stating the same thing.
9. Consequently the application dated 25/5/2021is hereby dismissed with costs to the defendants. This suit shall be mentioned on 20/7/2021for the fixing of a hearing date.
It is so ordered.
Dated, signedanddeliveredatKitale via electronic mail on this 15thday of July, 2021.
MWANGI NJOROGE
JUDGE, ELC, KITALE.