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ELCAllowedApplication dated 16th October 2014 (suit number not stated in judgment)· [2015] KEELC 308 (KLR)

Benard Nyamu Mburia (Suing Through the Next of Friend) Humphrey Gituku Mburia v Samuel Kagoiyo Njeru [2015] KEELC 308 (KLR)

High Court of Kenya
16 July 2015
BOB.N. Olao
460 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that when a next friend dies, a family member can take over the lawsuit at any time, because the plaintiff is still alive.

What this practically means

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Executive summary

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This is an unopposed ruling by B.N. Olao J of the High Court at Nyeri delivered on 16th July 2015 on an application dated 16th October 2014 by Lucy Wambui Gituku seeking appointment and substitution as next friend of the plaintiff, Bernard Nyamu Mburu alias Kiara Mburia, a person suffering from chronic mental illness. The original next friend, Humphrey Gituku Mburia, had died on 3rd August 2009, as confirmed by a death certificate annexed to the application, and the applicant annexed a written consent authorizing counsel to use her name as next friend. The court noted the medical evidence of Dr. A.S.M Gatangi of Nyeri Provincial General Hospital dated 31st May 2005 confirming the plaintiff's chronic mental illness. The court held that Order 32 of the Civil Procedure Rules permits a next friend to sue on behalf of a minor or person of unsound mind; that since the plaintiff himself remained alive, the suit had not abated under Order 24 despite the next friend's death; and that although the applicant took some five years to move the court without explaining the delay, Order 32 prescribes no time limit and no prejudice to the defendant was demonstrated, particularly given the subsisting injunctive orders issued by the late Khaminwa J on 5th December 2006 restraining the defendant from dealing with the suit properties. The court found the application merited, granted the orders sought with costs in the cause, and delivered the ruling in open court on 16th July 2015.

Key legal issues

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01

Substitution of next friend under Order 32

Holding

The application was merited and the applicant was appointed as next friend despite the unexplained five-year delay.

Reasoning

Order 32 allows a next friend to sue for a person of unsound mind. The previous next friend died on 3rd August 2009, evidenced by a death certificate, and the applicant annexed her written consent. Although the delay was long, no time limit applies and no prejudice to the defendant was shown, especially since injunctive orders of 5th December 2006 remained in place.

p. 1
02

Abatement of suit under Order 24

Holding

The suit had not abated because the original plaintiff himself was still alive; only the next friend had died.

Reasoning

The court distinguished the death of the next friend from the death of a party. Order 24 governs abatement where a plaintiff or appellant dies, but here the plaintiff, a person of unsound mind, remained alive, so the suit survived and only required substitution of the next friend to proceed to finalization.

p. 1

Legal principles established

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  • Order 32 of the Civil Procedure Rules permits a next friend to file and continue a suit on behalf of a minor or person of unsound mind, and no time limit is prescribed for an application to substitute a next friend.
  • A suit does not abate under Order 24 where the person sui juris on whose behalf it is brought is still alive, even though the next friend has died.

Court orders

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  1. 1.The applicant Lucy Wambui Gituku is appointed and substituted as next friend of the plaintiff Bernard Nyamu Mburu alias Kiara Mburia
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 32
  • Civil Procedure RulesOrder 24
Jurisdiction invoked
Order 32 of the Civil Procedure Rules (appointment of next friend)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Benard Nyamu Mburia (Suing Through the Next of Friend) Humphrey Gituku Mburia v Samuel Kagoiyo Njeru [2015] KEELC 308 (KLR)", Case Analysis (2015). Application dated 16th October 2014 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/308/eng@2015-07-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.