[2015] KEHC 6811 (KLR)
The court found that the application dated 31st July 2014 was misconceived for several reasons. Firstly, the application and the petition were not signed, which is a fundamental defect as execution authenticates and gives effect to pleadings. Secondly, the main prayer sought by the petitioners was vague, as it...
Source-derived case information.
- Citation
- [2015] KEHC 6811 (KLR)
- Parties
- Applicant: S W; Applicant: J H; Respondent: C H
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 142 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application for Interim Guardianship
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Mental Capacity, Guardianship, Interim Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S W
Applicant
J H
Applicant
C H
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application for Interim Guardianship
Legal Issues
- 1 Whether the petitioners should be appointed interim guardians of the patient pending determination of the application.
- 2 Whether the application is properly before the court given the lack of signatures on the pleadings.
- 3 Whether the main prayer in the application is vague and capable of being granted.
Ratio Decidendi
The court found that the application dated 31st July 2014 was misconceived for several reasons. Firstly, the application and the petition were not signed, which is a fundamental defect as execution authenticates and gives effect to pleadings. Secondly, the main prayer sought by the petitioners was vague, as it requested interim guardianship pending determination of the application itself, which would be spent upon delivery of the ruling. As such, even if granted, the order would be useless. The court therefore dismissed the application with costs.
Court Disposition
application dismissed with costs
Orders
- The Motion dated 31st July 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MISC. APPLICATION NO: 142 OF 2014
S W …………..…............………1ST PETITIONER
J H…………………..……..……2ND PETITIONER
VERSUS
C H…………..............……………..RESPONDENT
RULING
The application I am called upon to determine is dated 31st July 2014. It seeks that the petitioners be appointed interim guardians of the patient pending the hearing and determination of the application.
I note that the application is interlocutory; for it filed within a cause commenced by way of petition. The petition is dated 31st July 2014. It seeks substantial orders that the patient be declared to be a person suffering from mental disorder, and that the petitioners be appointed as guardians jointly and personally of the patient. They also seek that the respondent be barred from interfering with anybody that the petitioner’s decide to use in taking care of the patient.
I note that both the Motion and the petition are not signed. All there is an endorsement, not at the body application, but in the column indicating the person who drew and filed the motion and the petition. The executed of pleading is of crucial importance. It authenticates the pleading and gives effect to it for want it purports to be.
The main prayer in the Motion, that is to say Prayer 2, seeks the appointment of the petitioners as interim guardians “pending the determination of this application.” “This application” refers to the interlocutory Motion dated 31st July 2014. The said Motion was argued inter parties on 14th August 2014. This ruling will finally determine the said application. The main prayer is vague. Even if I were to grant the ensuing order would be useless for the application will be spent once the final orders are made at the end of this ruling.
From what I have stated so far it is clear that the Motion dated 31st July 2014 is misconceived. It is available for dismissal and I do hereby dismiss it with costs.
DATED, SIGNED and DELIVERED at NAIROBI this 30th DAY OF January 2015.
W. MUSYOKA
JUDGE