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ELCDismissednull — case number not stated in the judgment· [2017] KEELC 2624 (KLR)

Joseph Alef Kimani Wanjama (Suing through Next Friend and Son) Daniel Wanjama Kimani v Tech Pro Systems Limited & another [2017] KEELC 2624 (KLR)

Environment and Land Court

28 June 2017

KBK. BOR

1,047 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

A Kenyan court dismissed a land suit filed by a son for his ailing father because no court inquiry had first confirmed the father could not manage his own affairs.

What this practically means

Executive summary

The Plaintiff, Dr. Joseph Alef Kimani Wanjama, sued through his next friend and adult son Daniel Wanjama Kimani, seeking a declaration that he remained the lawful owner of land reference no. Nairobi Block 122/96 in Kasarani, Nairobi, and a permanent injunction against the Defendant, its registered owner following a sale agreement dated 19th December 2016. By an application dated 16th March 2017 he sought a temporary injunction to restrain the Defendant from encroaching on or dealing with the property, where a perimeter wall was under construction and an inhibition had been registered in March 2011. The Defendant raised a preliminary point that Daniel Kimani lacked capacity to institute the suit because no inquiry had been conducted under the Mental Health Act and he had not been appointed by the court to manage the Plaintiff's affairs; the Interested Party, the Plaintiff's wife, aligned herself with these submissions. The Plaintiff relied on M M M v A M K and Article 159 of the Constitution, urging that the Mental Health Act applies only to persons adjudged of unsound mind and that the court could itself conduct the inquiry. Agreeing with Mativo J., the court held that since the Plaintiff had not been adjudged of unsound mind under the Mental Health Act, Order 32 Rule 15 of the Civil Procedure Rules applied, requiring an inquiry by the court with examination of the Plaintiff and medical evidence. As no inquiry had been conducted, the suit could not stand and was dismissed with costs to the Defendant and the Interested Party.

Key legal issues

Capacity to sue through a next friend where the plaintiff has not been adjudged of unsound mind

Holding

The Mental Health Act applies only to persons adjudged to be of unsound mind; since the Plaintiff was not so adjudged, Order 32 Rule 15 of the Civil Procedure Rules applies, requiring a court inquiry examining the plaintiff and medical evidence before a next friend may maintain the suit

Reasoning

The court adopted Mativo J.'s analysis that the Mental Health Act defines a person suffering from mental disorder as one found to be so suffering under that Act. Not having been adjudged under the Act, the Plaintiff's case fell to Order 32 Rule 15, which extends to persons not so adjudged but found on inquiry to be incapable of protecting their interests. Since no inquiry was held and no medical evidence was adduced, the Defendant's rebuttable presumption of capacity stood, and the suit as filed was defective.

p. 2

Whether the court could itself conduct the inquiry mid-stream rather than strike out the suit

Holding

The court declined to cure the defect by conducting the inquiry itself; absent an inquiry the suit could not stand and was dismissed

Reasoning

The Plaintiff had urged that the court could undertake the inquiry and have a medical board examine the Plaintiff, relying on Article 159 of the Constitution against procedural technicalities. The court agreed with the requirement of an inquiry but held that since none had been conducted, the suit could not stand as filed, and dismissed it with costs to the Defendant and the Interested Party.

p. 2

Legal principles established

A person who has not been adjudged to be of unsound mind under the Mental Health Act can only sue through a next friend after the court holds an inquiry under Order 32 Rule 15 of the Civil Procedure Rules, examining the plaintiff and considering medical evidence on mental capacity
Where no such inquiry has been conducted, a suit filed on behalf of such a person cannot stand

Court orders

1.The suit is dismissed with costs to the Defendant and the Interested Party

Authorities

Legislation

Mental Health Actdefinition of person suffering from mental disorder
Civil Procedure RulesOrder 32 Rule 15
Constitution of Kenya, 2010Article 159

Cases cited (2)

Peninah Sanganyi v Ram Hospital & 2 Others
[2010] eKLR
M M M v A M K
[2016] eKLR

Jurisdiction invoked: Original jurisdiction under Article 162(2) of the Constitution (Environment and Land Court) over land reference no. Nairobi Block 122/96; procedure governed by the Civil Procedure Rules, Order 32 Rule 15

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Joseph Alef Kimani Wanjama (Suing through Next Friend and Son) Daniel Wanjama Kimani v Tech Pro Systems Limited & another [2017] KEELC 2624 (KLR)", Case Analysis (2017). null — case number not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2624/eng@2017-06-28

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