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ELCDismissedApplication dated 22.5.2018· [2020] KEELC 3918 (KLR)

Monica Karegi Mugambi & another v AMM & 2 others [2020] KEELC 3918 (KLR)

Environment and Land Court
22 January 2020
LMLucy N. Mbugua
351 words in judgment
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The bottom line

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A Kenyan Environment and Land Court cannot appoint a guardian ad litem for a mentally incapacitated defendant; only the High Court can, under the Mental Health Act.

What this practically means

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Executive summary

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The application dated 22.5.2018, brought under Order 32 rules 3 and 15 of the Civil Procedure Rules and supported by the affidavit of GKK, sought the appointment of a guardian ad litem for the 1st defendant (AM), who was averred to be senile and of unsound mind and unable to manage his affairs. The application was unopposed. In determining it, the court considered Isaac Kipkemboi Chesire & 4 others v Joseph Kimitei Kwamboi & 7 others (2016) eKLR, where the court held that the management of the estate of a mentally ill person is governed by the Mental Health Act, that orders for guardianship ad litem are provided for under section 26 of that Act, and that the court empowered to make such orders, as defined in section 2, is the High Court. The court adopted that reasoning, holding that the order for guardian ad litem must first be obtained from the High Court, after which an application for substitution may be made before the Environment and Land Court. Finding the application not merited, the court dismissed it with no orders as to costs. The judgment was delivered in open court at Meru on 22nd January 2020 by Hon. Lucy N. Mbugua, ELC Judge.

Key legal issues

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01

Whether the Environment and Land Court has jurisdiction to appoint a guardian ad litem for a defendant of unsound mind

Holding

It does not; the order must first be obtained from the High Court, after which substitution may be sought before the ELC

Reasoning

Relying on Isaac Kipkemboi Chesire, the court held that the law on management of estates of mentally ill persons is in the Mental Health Act, and section 26 vests guardianship orders in the court defined in section 2, namely the High Court. The ELC is not that court, so the application under Order 32 rules 3 and 15 cannot succeed until a High Court order is obtained.

p. 2

Legal principles established

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  • Orders for appointment of a guardian ad litem / management of the estate of a person of unsound mind can only be made by the High Court under section 26 of the Mental Health Act

Court orders

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  1. 1.The application dated 22.5.2018 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 32 rules 3 and 15
  • Mental Health Actsections 2 and 26

Cases cited (1)

  • Isaac Kipkemboi Chesire & 4 others vs Joseph Kimitei Kwamboi & 7 others
    (2016) eKLR
Jurisdiction invoked
Order 32 rules 3 and 15 of the Civil Procedure Rules

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, "Monica Karegi Mugambi & another v AMM & 2 others [2020] KEELC 3918 (KLR)", Case Analysis (2020). Application dated 22.5.2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3918/eng@2020-01-22

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