[2021] KEELC 766 (KLR)
The application to appoint a guardian ad litem was struck out as premature because there was no evidence that the proposed guardian had petitioned for appointment under the Mental Health Act, which is a prerequisite for invoking Order 31 Rule 1 of the Civil Procedure Rules. The court held that without such...
Source-derived case information.
- Citation
- [2021] KEELC 766 (KLR)
- Parties
- Petitioner: M’Thirari M’Mwereria; Respondent: Land Adjudication & Settlement Officer – Igembe/South/Central/North Sub Counties; Respondent: Director of Land Adjudication; Respondent: The Hon. The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Petition E001 of 2021
- Procedural Posture
- Constitutional Petition / Ruling on Application for Appointment of Guardian Ad Litem
- Outcome
- Application struck out as premature.
- Legal Topics
- Appointment of Guardian Ad Litem, Mental Incapacity, Land Adjudication, Constitutional Right to Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M’Thirari M’Mwereria
Petitioner
Land Adjudication & Settlement Officer – Igembe/South/Central/North Sub Counties
Respondent
Director of Land Adjudication
Respondent
The Hon. The Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Application for Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether the court can appoint a guardian ad litem for the petitioner without compliance with the Mental Health Act.
- 2 Whether the application for appointment of a guardian ad litem is premature in the absence of supporting proceedings under the Mental Health Act.
Ratio Decidendi
The application to appoint a guardian ad litem was struck out as premature because there was no evidence that the proposed guardian had petitioned for appointment under the Mental Health Act, which is a prerequisite for invoking Order 31 Rule 1 of the Civil Procedure Rules. The court held that without such proceedings, it lacked the basis to grant the application.
Court Disposition
Application struck out as premature.
Orders
- The application dated 3.5.2021 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
PETITION NO. E001 OF 2021
IN THE MATTER OF ALLEGED CONTRAVENTION OF FUNDAMENTALRIGHTS
AND FREEDOMS UNDER ARTICLE 40 OF THE CONSTITUTION OF KENYA 2010
AND
IN THE MATTER OF ARTICLES 22 AND 23 AND 165 OF THE CONSTITUTION OF KENYA 2010
AND IN THE MATTER OF LAND ADJUDICATION ACT CAP 284 LAWS OF KENYA
AND
IN THE MATTER OF LAND CONSOLIDATION ACT CAP 283 LAWS OF KENYA
AND
IN THE MATTER OF ENVIRONMENT AND LAND ACT – 2011
BETWEEN
M’THIRARI M’MWERERIA....................................................................PETITIONER
AND
LAND ADJUDICATION & SETTLEMENT OFFICER –IGEMBE/
SOUTH/CENTRAL/NORTHSUB COUNTIES.............................1ST RESPONDENT
DIRECTOR OF LAND ADJUDICATION.......................................2ND RESPONDENT
THE HON. THE ATTORNEY GENERAL......................................3RD RESPONDENT
RULING
1. By an application dated 3. 5.2021 brought under Section 1A, 1B & 3 A of the Civil Procedure Act and Order 32 Rule 1 of the Civil Procedure Rules the court is being called upon to appoint one Fr. Abel Kubai as guardian ad litem of the petitioner so as to proceed with the petition on account of his advanced age and mental infirmity. The application is supported by an affidavit of the proposed guardian sworn on 3. 5.2021.
2. There are no proceedings attached to the affidavit in support showing the proposed guardian has petitioned for the appointment as a guardian under the Mental Health Act No. 15 of 2020 for this to invoke Order 31 Rule 1 of the Civil Procedure Rules.
3. In absence of the same, it is my considered view that this application is premature. The same is struck out with no orders as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 24TH DAY OF NOVEMBER, 2021
In presence of:
No appearance for parties
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE