EUNICE KIRUNDA KINYUA vs DANIEL KIBIRI MUTURI (? 376 of 1999) [2003] KEHC 653 (KLR) (28 May 2003)
- Court
- High Court of Kenya
- Case number
- 653
- Citation
- [2003] KEHC 653 (KLR)
- Decided
- 28 May 2003
The application of Mr. Kibiri must fail as the Defendant has legal incapacity and Order XXX1 Rule 3 of the Rules provides for the appointment of a Guardian ad litem.
Facts
The Plaintiff is the administratrix of the estate of Joseph Kinyua Karani, deceased. The Defendant is Daniel Kibiru Muturi. Josephat Mwathi Kibiri was designated as the 'Intended Next Friend' and sought to be made a next friend of the Defendant.
Issues
- Whether Mr. Kibiri is entitled to be made a next friend of the Defendant in this case.
- Whether the application of Mr. Kibiri has locus standi to agitate any other matter in the suit.
Reasoning
Order XXX1 Rule 15 of the Rules extends to persons adjudged to be of unsound mind or found by the court to be incapable of protecting their interests. The Plaintiff is the one with legal incapacity, not the Defendant. Where the Defendant has legal incapacity, Order XXX1 Rule 3 provides for the appointment of a Guardian ad litem.
Outcome
The application of Mr. Kibiri is struck out with costs to the Plaintiff.
Orders
- The application of Mr. Kibiri is struck out.
- Costs to the Plaintiff.
Authorities cited
Legislation (5)
- Civil Procedure Rules
- Order IXA Rules 9 and 10
- Order 1 Rule 10
- Order XXX1 Rule 15
- Order XXX1 Rule 3
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