[2020] KEELC 3918 (KLR)
The Environment and Land Court lacks jurisdiction to appoint a guardian ad litem for a person of unsound mind for the purposes of managing their estate, as such orders must be made by the High Court under section 26 of the Mental Health Act. The application for appointment of a guardian ad litem for the 1st...
Source-derived case information.
- Citation
- [2020] KEELC 3918 (KLR)
- Parties
- Plaintiff: Monica Karegi Mugambi; Plaintiff: Andrew Murunga Mugambi; Defendant: AMM; Defendant: Diocese of Meru Trustees (Registered); Applicant: GKK
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 103 of 2012
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Appointment of Guardian Ad Litem
- Outcome
- application dismissed
- Legal Topics
- Guardian Ad Litem Appointment, Mental Capacity, Civil Procedure Rules, Unsound Mind, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Monica Karegi Mugambi
Plaintiff
Andrew Murunga Mugambi
Plaintiff
AMM
Defendant
Diocese of Meru Trustees (Registered)
Defendant
GKK
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Application for Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether this court has jurisdiction to appoint a guardian ad litem for a person of unsound mind in a land dispute.
- 2 Whether the application for appointment of a guardian ad litem for the 1st defendant is merited.
Ratio Decidendi
The Environment and Land Court lacks jurisdiction to appoint a guardian ad litem for a person of unsound mind for the purposes of managing their estate, as such orders must be made by the High Court under section 26 of the Mental Health Act. The application for appointment of a guardian ad litem for the 1st defendant was therefore not merited and was dismissed. The applicant must first obtain the relevant order from the High Court before seeking substitution or further orders in this court.
Court Disposition
application dismissed
Orders
- The application dated 22.5.2018 for appointment of a guardian ad litem for the 1st defendant is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 103 OF 2012
MONICA KAREGI MUGAMBI ....................................................1ST PLAINTIFF
ANDREW MURUNGA MUGAMBI..............................................2ND PLAINTIFF
VERSUS
AMM................................................................................................1ST DEFENDANT
DIOCESE OF MERU TRUSTEES (REGISTERED) ...............2ND DEFENDANT
GKK ...........................................................APPLICANT/GUARDIAN AD-LITEM
RULING
1. The application dated 22. 5.2018 is brought pursuant to provisions of order 32 rule 3 and 15 of the civil procedure rules for appointment of a guardian ad-litem for the 1st defendant (AM) who is a person of unsound mind. The application is supported by the grounds on the face of the application and the affidavit of GKK. It is averred that AM is senile and is not able to manage his affairs. The application is unopposed.
2. In the case of Isaac Kipkemboi Chesire & 4 others vs Joseph Kimitei Kwamboi & 7 others (2016) eKLR, the court while dealing with a case of someone who had suffered a stroke and was unable to protect his interest held that:
“The law on management of an estate of a mentally ill person is enshrined in the mental health Act. Orders for the appointment of a person to manage the estate of any person suffering from mental disorder are provided for under section 26 of the mental health act. The import of this section is that the order for guardianship ad litem is to be made by the court which is defined at section 2 as the High Court. It follows that orders for the management of any property of a mentally disabled person can only be made by the High Court. This court finds that it has not been established that Matilda Rose Sawe is the guardian ad-litem of the estate of John Malan Sawe hence the application for substitution is not well founded………..”.
3. It follows that the order for guardian ad litem ought to be obtained from the High Court and thereafter, an application for substitution can be made before this court.
4. The upshot of my finding is that the application dated 22. 5.2018 is not merited. The same is dismissed with no orders as to costs.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS 22ND JANUARY, 2020 IN THE PRESENCE OF:-
C/A: Kananu
Ojiambo holding brief for Kaumbi for plaintiffs
Gikonyo holding brief for Rimita for defendants
Both plaintiffs
2nd defendant
HON. LUCY. N. MBUGUA
ELC JUDGE