[2002] KEHC 730 (KLR)
The court held that the requirement for written authority by a next friend is mandatory under Order 31 rule (11) of the Civil Procedure Rules. However, the absence of such authority at the time of filing does not automatically render the suit incompetent unless the issue is properly raised by the defendant through a...
Source-derived case information.
- Citation
- [2002] KEHC 730 (KLR)
- Parties
- Plaintiff: Pamela Jesca Kiura; Defendant: Jacob Njiru Rware; Applicant: Morris Kiura Ndwiga
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 2131 of 2001
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection Regarding Authority of Next Friend
- Outcome
- The court allowed the defendant to address the issue of lack of authority by the next friend, despite the absence of a formal application, and deferred further proceedings to allow this.
- Legal Topics
- Running Down Actions, Authority of Next Friend, Preliminary Objection, Filing Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Pamela Jesca Kiura
Plaintiff
Jacob Njiru Rware
Defendant
Morris Kiura Ndwiga
Applicant
Procedural Posture
Civil Case / Ruling on Preliminary Objection Regarding Authority of Next Friend
Legal Issues
- 1 Whether the suit is competent in the absence of written authority by the next friend as required by Order 31 rule (11) of the Civil Procedure Rules.
- 2 Whether the defendant can raise the issue of lack of authority as a preliminary objection in the absence of a formal application.
Ratio Decidendi
The court held that the requirement for written authority by a next friend is mandatory under Order 31 rule (11) of the Civil Procedure Rules. However, the absence of such authority at the time of filing does not automatically render the suit incompetent unless the issue is properly raised by the defendant through a formal application or preliminary objection. Since the defendant was absent and had not filed a formal application, the court allowed the defendant the opportunity to address the issue, emphasizing procedural fairness and adherence to the rules of civil procedure.
Court Disposition
The court allowed the defendant to address the issue of lack of authority by the next friend, despite the absence of a formal application, and deferred further proceedings to allow this.
Orders
- The defendant is permitted to address the court on the issue of authority by the next friend.
- Further proceedings are deferred pending the defendant's submissions on this preliminary point.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICIVIL CASE 2131 OF 2001PAMELA JESCA KIURA …………………………………….. PLAINTIFF
VERSUS
JACOB NJIRU RWARE ……………………………………… DEFENDANT
RULING
Before me is a RUNNING DOWN action whereby the plaintiff, one Pamela Jesca Kiura was run down by a motor vehicle belonging to and driven by the defendant Jacob Njiru Rware. The plaintiff sued the defendant through her next of friend Morris Kiura Ndwiga who is also her further on 1. 12. 2001. The accident is alleged to have occurred on 11. 12. 98.
On the day the hearing was fixed to be heard the defendant did not appear and the suit was to proceed on under order 9b and 3(a) CPR. The court brought it to the advocate for the plaintiffs attention that the authority by the next of friend had not been filed on 1. 12. 2001. Order 31 rule (11) CPR is specific that this authority be filed and that it must be in writing.
If the defendant was in court the issue would have been raised as to whether the suit be dismissed for lack of there being authority by the next of friend to sue. The plaintiff on the other hand stated that the authority was given to the advocate but filed recently.
Such application must be raised in an application by the defendant and in writing. The defendant had raised this point in its defense and stated it will raise it as a preliminary objection.
I though would allow the defendant to address me on this point regardless that I stated that this matter proceed under Order 9b Rule 3(a) CPR.
Dated this 4th day of November, 2002 at Nairobi. M. A. ANG’AWA JUDGE