RAEL KANARIO M’RWANDA v SALESIO M’RUTERE M’RITHARWA [2008] KEHC 3580 (KLR)

Facts

The plaintiff, Rael Kanario M’Rwand, has filed a suit against the defendant, Salesio M’Rutere M’Ritharwa, for a declaration that the defendant holds parcels of land Nos. L.R. Nyaki/Nkabune/158 and 617 in trust for the plaintiff and an order directing the defendant to transfer both parcels of land to the plaintiff. The plaintiff's son, William Mwenda Rwanda, has brought an application to be appointed as a guardian to tender evidence in court on behalf of the plaintiff due to her advanced age and mental weakness.

Issues

1. Whether the plaintiff is capable of prosecuting her case due to her advanced age and mental weakness.
2. Whether the plaintiff's son, William Mwenda Rwanda, is a suitable guardian to tender evidence on her behalf.

Reasoning

The court believes the correct provision is Order 31 Rule 15 of the Civil Procedure Rule, which deals with persons found by the court to be incapable of protecting their interests when suing or being sued due to mental infirmity. The plaintiff's age alone does not make her incapable of protecting her interests, and the applicant should have provided a medical report or examination of the plaintiff.

Outcome

Dismissed with costs

Authorities cited