[2011] KEHC 249 (KLR)
The court found that the suit had already been concluded by a consent order, and a previous application for similar orders had been dismissed on the same basis. No new evidence or sufficient grounds were presented to justify a departure from the earlier ruling. The delay in bringing the application was inordinate,...
Source-derived case information.
- Citation
- [2011] KEHC 249 (KLR)
- Parties
- Plaintiff: Margaret Nyokabi Kahihu; Plaintiff: John Kamuyu Kahihu; Defendant: Samuel Mukuha Njuki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1476 of 2005
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Review and Appointment of Guardian Ad Litem
- Outcome
- application dismissed with costs to the plaintiff
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Review of Orders, Appointment of Guardian Ad Litem, Consent Judgment, Delay in Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Nyokabi Kahihu
Plaintiff
John Kamuyu Kahihu
Plaintiff
Samuel Mukuha Njuki
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Review and Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether the court should review the order issued by Justice Osiemo and appoint a guardian ad litem for the defendant at this stage.
- 2 Whether the application for review is tenable given the suit was already concluded by consent order.
- 3 Whether the delay in bringing the application renders it incompetent.
Ratio Decidendi
The court found that the suit had already been concluded by a consent order, and a previous application for similar orders had been dismissed on the same basis. No new evidence or sufficient grounds were presented to justify a departure from the earlier ruling. The delay in bringing the application was inordinate, and the applicant failed to meet the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. The appointment of a guardian ad litem at this stage would serve no purpose, as the matter was already finalized. Accordingly, the application was dismissed with costs to the plaintiff.
Court Disposition
application dismissed with costs to the plaintiff
Orders
- The application is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 1476 OF 2005
MARGARET NYOKABI KAHIHU
JOHN KAMUYU KAHIHU...................................................................................PLAINTIFFS
VERSUS
SAMUEL MUKUHA NJUKI..................................................................................DEFENDANT
RULING
This is a Notice of Motion under Orders 32 Rules 3 and 5 and Order 21 Rule 22 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeking orders that,
1. This court do review the order issued by Justice Osiemo in this matter and the applicant Samwel Njenga Mukuha be appointed guarding ad litem for the defendant herein for the purpose of this suit.
2. That there be a temporary stay of further proceedings pending the hearing of this application inter partes.
3. The costs be in the cause.
The grounds advanced for this application are,
a)That the defendant herein suffers from serious mental problems rendering him incapable of properly representing himself or conducting his case and is thus of unsound mind for the purposes of this suit.
b)That beside the mental illness the defendant also suffers from physical ailments and is most of the time bed ridden and may find it impossible to attend court or his advocates for instructions.
c)That the defendant herein is not capable of conducting this case personally or furnish the advocate with appropriate instructions.
There is an affidavit in support of the application sworn by Samuel Njenga Mukuha.
The plaintiff through counsel has filed Notice of Preliminary Objection to the effect that this application has been brought after two years of the said ruling and that the delay is inordinate. It is further stated in the objection that the order sought to be reviewed is not attached but above all, the suit is concluded and therefore the application is not tangible.
The affidavit in support of the application is also said to have been sworn by a stranger. Additionally, there are no grounds demonstrated by the applicant in line with the provisions of order 45 Rule 1 of the Civil Procedure Rules, 2010, for review. Finally that the application is an abuse of the civil procedure.
Counsel appearing for the parties made brief oral submissions which I have noted. The record before me shows that the suit herein was compromised by a consent order and, that judgment remains in place this court having refused to set it aside in its ruling of 22nd September, 2010. The ruling by Osiemo J, sought to be reviewed by the applicant herein was delivered on 23rd June, 2009. The orders sought therein are identical to the present application, only that the name of the intended guarding ad litem was George Njuki Mukuha. The learned Judge in dismissing the application said as follows,
“The suit having been concluded through a consent order which was recorded by an advocate who had full instructions to act for the defendant I agree with the plaintiff that the order sought is not tenable. One cannot apply to be joined in a suit which is already concluded”
The applicant herein has not presented any evidence to justify my departure from the ruling of Osiemo J aforesaid. I accordingly agree with the learned judge that, this suit having been concluded, the appointment of a guardian ad litem at this stage is an exercise in futility. Accordingly the application is dismissed with costs to the plaintiff.
Orders accordingly.
Dated, signed and delivered at Nairobi this 12th Day of July, 2011
A.MBOGHOLI MSAGHA
JUDGE