[2021] KEELC 214 (KLR)
The court held that the application was procedurally defective as it was neither an originating summons nor a petition as required by Section 26 of the Mental Health Act and Order 32 Rule 4 of the Civil Procedure Rules. The court emphasized that a judicial inquiry and consents from family members are mandatory...
Source-derived case information.
- Citation
- [2021] KEELC 214 (KLR)
- Parties
- Applicant: NM; Respondent: M’Marete Ibutu; Respondent: Joseph Muthuri; Respondent: M’Itonga M’Mburugu; Respondent: M’Nkanata M’Ikiungu; Respondent: Matiri Rubara; Respondent: Gerald Mwirigi Marete; Respondent: The District Land Adjudication & Settlement Officer Meru; Respondent: The District Land Registrar; Respondent: The Attorney General
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application E038 of 2021
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Appointment of Guardian Ad Litem
- Outcome
- application struck out
- Legal Topics
- Mental Capacity, Appointment of Guardian, Procedure for Guardianship, Judicial Inquiry
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
NM
Applicant
M’Marete Ibutu
Respondent
Joseph Muthuri
Respondent
M’Itonga M’Mburugu
Respondent
M’Nkanata M’Ikiungu
Respondent
Matiri Rubara
Respondent
Gerald Mwirigi Marete
Respondent
The District Land Adjudication & Settlement Officer Meru
Respondent
The District Land Registrar
Respondent
The Attorney General
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Appointment of Guardian Ad Litem
Legal Issues
- 1 Whether the application for appointment of a guardian ad litem for SM complies with the procedural requirements under the Mental Health Act and Civil Procedure Rules.
- 2 Whether the court can appoint a guardian ad litem based on the current application and supporting documents.
Ratio Decidendi
The court held that the application was procedurally defective as it was neither an originating summons nor a petition as required by Section 26 of the Mental Health Act and Order 32 Rule 4 of the Civil Procedure Rules. The court emphasized that a judicial inquiry and consents from family members are mandatory prerequisites for the appointment of a guardian ad litem for a person alleged to suffer from mental illness. Since these requirements were not met, the application lacked merit and was struck out.
Court Disposition
application struck out
Orders
- The application dated 12.10.2021 is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
MISC. APPLICATION NO. E038 OF 2021
NM...................................................................................................................APPLICANT
VERSUS
M’MARETE IBUTU.........................................................................1ST RESPONDENT
JOSEPH MUTHURI..........................................................................2ND RESPONDENT
M’ITONGA M’MBURUGU..............................................................3RD RESPONDENT
M’NKANATA M’IKIUNGU..............................................................4TH RESPONDENT
MATIRI RUBARA.............................................................................5TH RESPONDENT
GERALD MWIRIGI MARETE.......................................................6TH RESPONDENT
THE DISTRICT LAND
ADJUDICATION & SETTLEMENT OFFICER MERU..............7TH RESPONDENT
THE DISTRICT LAND REGISTRAR...........................................8TH RESPONDENT
THE ATTORNEY GENERAL.........................................................9TH RESPONDENT
RULING
1. By an application dated 12. 10. 2021 the court is urged to appoint NM as a friend and guardian ad litem for SM alleged to be suffering some mental illness.
2. The application is based on the grounds on its face and a supporting affidavit sworn on 13. 10. 2021 in which he attaches a medical report by Dr. Riungu which indicates the subject suffers from senile dementia.
3. Section 26 of the Mental Health Act as read together with Order 32 Rule 4 envisages a situation whereby the court is moved by way of a petition or an originating summons. The court is expected to undertake a judicial inquiry before making an order to appoint a guardian.
4. Similarly there must be consents from the family members and the subject must be submitted to court for the inquiry. The instant application neither an originating summons nor a petition.
5. In the premises I find the application lacking merits.
The same is struck out with no order as to costs.
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS AT MERU THIS 15TH DAY OF DECEMBER, 2021
In presence of:
Thuo for applicant
Court Assistant - Kananu
HON. C.K. NZILI
ELC JUDGE