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ELCDismissedNot stated in the judgment· [2021] KEELC 3378 (KLR)

Margaret Mwikali Ngungu v China Road & Bridge Corporation (K) & another [2021] KEELC 3378 (KLR)

Environment and Land Court
11 May 2021
CMC.G. Mbogo
2,275 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 ruled that a defendant claiming mental incapacity must ask for a guardian to be appointed, not try to have the lawsuit thrown out.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Makueni on the 2nd Defendant's Notice of Motion dated 29th November 2019, brought under Order 51 Rule 1, Order 32 Rule 15 and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking dismissal or striking out of the suit against him on the ground that he lacks capacity to be sued by reason of mental illness (dementia). The application was supported by the affidavit of Naomi M. Mutinda, an associate advocate in the firm on record, annexing medical reports from three doctors consistently diagnosing senile dementia. The Plaintiff/Respondent opposed, contending that the advocate could not depose to facts on the client's behalf, that the medical reports were untested, and that the correct remedy lay under the Mental Health Act (Cap 248) and Order 32 of the Civil Procedure Rules by petitioning for appointment of a guardian, not dismissal of the suit. Counsel for the Plaintiff relied on D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaua Muchira & Another on the reluctance of courts to dismiss suits summarily. The court adopted the single issue framed by counsel, found the medical reports consistent in diagnosing senile dementia but noted two were addressed to criminal courts, and held that the applicant ought to have sought appointment of a guardian instead of dismissal of the suit. The application was dismissed with costs to the Plaintiff/Respondent.

Key legal issues

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Whether the suit against the 2nd Defendant should be dismissed or struck out on grounds of his mental incapacity

Holding

The application was dismissed as misplaced and lacking merit because the correct remedy was an application for appointment of a guardian under Order 32 of the Civil Procedure Rules and Section 28(1) of the Mental Health Act

Reasoning

The court noted three consistent medical reports indicating senile dementia, but held that even accepting incapacity, the procedure prescribed by Order 32 of the Civil Procedure Rules and Section 28(1) of the Mental Health Act is to petition the court for appointment of a guardian to represent the person of unsound mind. The 2nd Defendant instead sought dismissal of the plaintiff's suit, which is not a remedy contemplated by those provisions. The court agreed with counsel for the plaintiff that the application was misplaced, unjust, unfair, frivolous and unmeritorious, and dismissed it with costs.

p. 3

Legal principles established

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  • A party relying on mental incapacity when sued should seek appointment of a guardian ad litem under Order 32 of the Civil Procedure Rules read with Section 28(1) of the Mental Health Act, rather than seeking dismissal of the suit

Court orders

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  1. 1.The 2nd Defendant/Applicant's Notice of Motion dated 29th November 2019 is dismissed
  2. 2.Costs of the application to the Plaintiff/Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure RulesOrder 51 Rule 1; Order 32 Rule 15; Order 32
  • Mental Health Act (Cap 248)Section 28; Section 28(1)

Cases cited (1)

  • D.T. Dobie & Company (Kenya) Ltd – Vs- Joseph Mbaua Muchira & Another
    [1980] eKLR
Jurisdiction invoked
Order 51 Rule 1, Order 32 Rule 15, Sections 1A, 1B and 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, "Margaret Mwikali Ngungu v China Road & Bridge Corporation (K) & another [2021] KEELC 3378 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3378/eng@2021-05-11

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