MGG v Gateway Insurance Co. Ltd & 2 others [2020] KECA 880 (KLR)
The bottom line
#A wife suing on behalf of her Alzheimer's-stricken husband lost because she never obtained a Mental Health Act appointment before filing suit.
What this practically means
#Executive summary
#Key legal issues
#Capacity to sue on behalf of a mentally incapacitated person
The appellant could not sustain a suit on behalf of her incapacitated husband without first obtaining an order under the Mental Health Act appointing her manager or guardian ad litem of his estate
The court noted it was trite under the Mental Health Act that a person wishing to manage the estate of one suffering mental disorder must apply under Section 26, and the court may appoint a manager under Section 27. Since the appellant had not obtained such an appointment before filing suit on her husband's behalf, the Judge simply gave effect to the law in finding she lacked capacity to sue for him.
Spousal interest in shares acquired and transferred before marriage
Shares held by a spouse and transferred before the marriage do not form part of matrimonial property and confer no independent claim on the later-married spouse
Section 6(1) of the Matrimonial Properties Act defines matrimonial property as property jointly owned and acquired during the subsistence of the marriage. The shares were transferred to the 3rd respondent on 9th March 2007, about five months before the marriage on 31st August 2007. The appellant conceded she had no direct ownership claim; her claim was derivative of her husband's, so she had no independent cause of action.
Principles governing striking out pleadings
The power to strike out pleadings under Order 2 rule 15 is discretionary and drastic, to be exercised sparingly and only where pleadings disclose no semblance of a cause of action and are incurable by amendment
The court reiterated that striking out is a draconian measure reserved for plain cases, balancing the need not to drive a party from the seat of justice without a hearing against the unfairness of dragging a party to defend a non-starter. The trial Judge's exercise of discretion was not shown to be an error on principle or plainly wrong.
Legal principles established
#- A person suing on behalf of a person of unsound mind must first be appointed manager or guardian under the Mental Health Act before instituting suit on that person's behalf
- The power to strike out pleadings is a drastic remedy to be exercised sparingly and as a last resort, only where a pleading cannot be salvaged by amendment
Court orders
#- 1.The appeal is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- HCCC No 86 of 2019 (formerly HCCC No 387 of 2014)
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal over appeals from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (4)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Said & 2 others v Schering[2022] KECA 552 (KLR)6 May 2022
- Francis Bundi John v Josephine Nyakeru Gikunju [2022] KEELC 313 (KLR)[2022] KEELC 313 (KLR)30 Mar 2022followed
- Faith Kananu Akwalu v David Mwenda Maingi [2022] KEELC 1671 (KLR)[2022] KEELC 1671 (KLR)9 Feb 2022followed
- Kigotho v Chege (Civil Application 11 of 2020) [2021] KECA 4 (KLR)[2021] KECA 4 (KLR)23 Sept 2021
Cite this brief
#Cite this brief
Caselaw, "MGG v Gateway Insurance Co. Ltd & 2 others [2020] KECA 880 (KLR)", Case Analysis (2020). Civil Appeal No. 327 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/880/eng@2020-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.