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ELCAllowedNot stated in the judgment· [2017] KEELC 3779 (KLR)

Ben Kulova Katambani v Ngeresa Wekhanya [2017] KEELC 3779 (KLR)

High Court of Kenya
12 July 2017
NMN.A. MATHEKA
388 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This was an ex parte application dated 26th April 2016, brought under Order 32 Rules 4, 12 and 15 of the Civil Procedure Rules and sections 1A, 1B, 3 and 3A of the Civil Procedure Act, seeking the appointment of Paul Ngeresa Wekhanya as guardian ad litem to the defendant, with costs in the cause. The application was supported by the affidavit of Beatrice Nelima Munialo, the advocate on record for the defendant through M/s B.N. Munialo & Co. Advocates. She deponed that the firm had acted for the defendant since 2013 and filed all pleadings on his behalf, but the defendant thereafter fell sick and it became very difficult to obtain further instructions from him, as he came in and out and at times his whereabouts were unknown to his family. A letter from the doctor, marked 'BNM1', attested to his condition. It was further deponed that the defendant could not comprehend anything or proceed with the case, that the proposed guardian, being the defendant's son, had no adverse interest to that of the defendant, and that the plaintiff would not be prejudiced. The court considered the submissions, noted the medical evidence and the advocate's statement on the difficulty of obtaining instructions, and found the application merited. It granted the application as prayed, appointing Paul Ngeresa Wekhanya as guardian ad litem to the defendant, with costs in the cause. Judgment was delivered at Kakamega on 12th July 2017.

Key legal issues

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01

Whether the defendant's illness justified the appointment of a guardian ad litem

Holding

The court found that the defendant was sick, unable to comprehend anything or proceed with the case, and that the application had merit and should be granted as prayed.

Reasoning

The applicant's advocate swore that the firm had conduct of the defendant's case since 2013 and that instructions could no longer be obtained because the defendant had fallen sick, at times absenting himself without the family knowing his whereabouts. A doctor's letter marked 'BNM1' attested to the defendant's condition. The proposed guardian was the defendant's son with no adverse interest, and the plaintiff would suffer no prejudice. The court found the application merited and granted it as prayed.

p. 2

Legal principles established

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  • Where a party to a suit is sick and unable to comprehend proceedings or give instructions, the court may appoint a guardian ad litem to conduct the case on his behalf, particularly where the proposed guardian has no adverse interest and no prejudice is caused to the opposing party.

Court orders

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  1. 1.Paul Ngeresa Wekhanya appointed as guardian ad litem to the defendant
  2. 2.Costs to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Civil Procedure RulesOrder 32 Rules 4, 12 & 15
Jurisdiction invoked
Order 32 Rules 4, 12 & 15 of the Civil Procedure Rules and sections 1A, 1B, 3 & 3A of the Civil Procedure Act

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, "Ben Kulova Katambani v Ngeresa Wekhanya [2017] KEELC 3779 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3779/eng@2017-07-12

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