[2021] KEELC 365 (KLR)
The court found that the applicants had not demonstrated that they were duly appointed as guardians ad litem for PW, who was alleged to be of unsound mind. The medical evidence of PW's incapacity required that any suit on her behalf be brought by a guardian ad litem appointed by the court. Furthermore, the...
Source-derived case information.
- Citation
- [2021] KEELC 365 (KLR)
- Parties
- Plaintiff: MNG; Plaintiff: JWM; Plaintiff: KWM; Defendant: Christine Martha Mwangi; Defendant: Jane Waithera Gathungu; Defendant: The Land Registrar, Nairobi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E084 of 2021
- Procedural Posture
- Notice of Motion / Ruling on Interlocutory Application
- Outcome
- application and suit struck out as incompetent
- Legal Topics
- Appointment of Guardian Ad Litem, Capacity of Parties, Land Ownership Disputes, Subdivision of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MNG
Plaintiff
JWM
Plaintiff
KWM
Plaintiff
Christine Martha Mwangi
Defendant
Jane Waithera Gathungu
Defendant
The Land Registrar, Nairobi
Defendant
Procedural Posture
Notice of Motion / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the applicants have legal capacity to bring the suit and application as next friends of PW.
- 2 Whether the applicants are properly appointed as guardian ad litem for PW, who is alleged to be of unsound mind.
- 3 Whether the application and suit are competent in the absence of such appointment.
Ratio Decidendi
The court found that the applicants had not demonstrated that they were duly appointed as guardians ad litem for PW, who was alleged to be of unsound mind. The medical evidence of PW's incapacity required that any suit on her behalf be brought by a guardian ad litem appointed by the court. Furthermore, the applicants had an interest in the subject land, making their position adverse to that of PW and disqualifying them from acting as next friends or guardians ad litem. In the absence of such appointment and given the applicants' adverse interest, both the application and the suit were incompetent and were accordingly struck out.
Court Disposition
application and suit struck out as incompetent
Orders
- The suit and the application are struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MILIMANI
ELC CASE NO.E084 OF 2021
MNG ...............................................................1ST PLAINTIFF
JWM................................................................2ND PLAINTIFF
KWM...............................................................3RD PLAINTIFF
(Suing as next friend of PW )
- VERSUS -
CHRISTINE MARTHA MWANGI............1ST DEFENDANT
JANE WAITHERA GATHUNGU...............2ND DEFENDANT
THE LAND REGISTRAR, NAIROBI........3RD DEFENDANT
RULING
1. This is a ruling in respect of a notice of motion dated 25th February 2021 in which the Applicants seek the following orders: -
1. This Application be certified us urgent and heard ex-parte in the first instance.
2. That the 1 2 and 3rd Defendants/respondents by themselves, their agents and/or Servants or anyone who may be acting under their instructions be and are hereby restrained by an order of this Honourable court from doing any further transfer, sales, leasing, construction, cultivating or any other activities on the land parcel originally Dagoretti/Waithaka/ ( particulars withheld) and now subdivided to nos. ( particulars withheld) pending the hearing and determination of this Application.
3. That the 1, 2 and 3rd Defendants/respondents by themselves, their agents and/or Servants or anyone who may be acting under their instructions be and are hereby restrained by an order of this Honourable court from doing any further transfer, sales, leasing, construction, cultivating or any other activities on the land parcel originally Dagoretti/Waithaka (particulars withheld) and now subdivided to nos.(particulars withheld) pending the hearing and determination of this suit.
4. The Land Registrar Nairobi be directed to register a caution on the said parcels of land pending the hearing and determination of this Application.
5. The costs of this application be provided for.
6. Any orders that the court may deem fit and just to grant
2. The Applicants and the 1st and 2nd Defendants are daughters of PW who is said to be of unsound mind. The Applicants are bringing this application as next of friends of PW. PW is the registered owner of Dagoretti/Waithaka/ (particulars withheld). The Applicants contend that Dagoretti/Waithaka/ (particulars withheld) has since been illegally subdivided into Nos. Dagoretti/Waithaka/ (particulars withheld). One of the subdivisions has been registered in the name of the 1st Respondent and the other in the name of the 2nd Respondent.
3. The Applicants further contend that the 1st and 2nd Respondents are in the process of having a third subdivision registered in the name of the 2nd Respondent who resides in Canada. The Applicants contend that PW is suffering from senile dementia and did not consent to the subdivisions which were carried out by the 1st Respondent who was by then residing with PW.
4. It is on this basis that the Applicants want the orders as specified in paragraph 1 granted. They contend that some of the subdivisions have been registered in the name of PW.
5. The Respondents who were duly served with the application did not file any grounds of opposition or replying affidavit. The Applicants filed written submissions.
6. I have carefully considered the Applicants’ application as well as the submissions. In the supporting affidavit, the Applicants have annexed a copy of a medical report by Dr R P Lubanga which shows that PW is suffering from senile dementia. If this be the case, then this suit should have been brought by guardian ad litem duly appointed by the court to do so. In the instant case, there is no evidence that the Applicants have been appointed as guardian ad litem of PW.
7. From the suit filed herein, it is clear that the Applicants have interest in the land held by PW. This being the case, they cannot purport to act as next friends of PW or guardian ad litem of PW as their interest will be adverse to that of PW.
8. In the absence of any evidence, that the Applicants have been appointed as guardian ad litem of PW , I find that the suit herein as well as the application are incompetent . The suit as well as the application are hereby struck out with no order as to costs.
It is so ordered.
DATED, SIGNED AND DELIVERED AT ELDORET ON THIS 11TH DAY OF NOVEMBER, 2021
E.O.OBAGA
JUDGE
In the Virtual Presence of :-
M/s Ogati for Applicant
Court Assistant: Mercy
E.O.OBAGA
JUDGE